COURT FILE NO.: 12-30003-06
DATE: 2014/04/29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
GHASSAN ZAHRAN
Applicant
David McKercher, Counsel for the Director of Public Prosecutions
Michael A. Johnston, Counsel for the Applicant
HEARD: April 17, 2014 (Ottawa)
REASONS FOR JUDGMENT
RUTHERFORD J.
I The Application and its Background
[1] Ghassan Zahran is one of a number of persons accused of a variety of drug and related offenses in a multi-count indictment. He is accused alone or jointly with one or more of the others in some twenty of a total of fifty-six counts.
[2] The charges are a result of Project “Sleepwalker,” a joint forces investigation initiated by the Ottawa Police Service. The investigation later included members of the Ontario Provincial Police Drug Enforcement Section, the Toronto Police Service, Le Service du police de la Ville de Montréal and the Royal Canadian Mounted Police Integrated Proceeds of Crime Unit. The project spanned the period of May 2010 until December 2011 and targeted suspects who were trafficking in controlled substances at the ounce, kilogram and multiple kilogram level. The investigation demonstrated that accused persons were trafficking in significant quantities of heroin and cocaine. Altogether some twenty-two people were charged with various offences and large quantities of illegal drugs as well as sums of money, firearms, jewellery, gold, coins and other property were seized.[^1]
[3] Mr. Zahran and others have been before the courts since early 2012. The cases against a number of those charged have been disposed of by guilty pleas. Mr. Zahran and his co-accused were committed for trial by Justice Nadelle on August 28, 2013 following a preliminary inquiry. Mr. Zahran now applies for relief:
…in the nature of Certiorari, quashing the Applicant’s committal to stand trial, in light of the Ontario Court of Justice’s failure to comply with s. 536(2) of the Criminal Code, thereby rendering the Preliminary Inquiry a nullity for want of jurisdiction.
II The Timeliness Issue
[4] Before addressing the substantial compliance issue, Mr. McKercher, counsel for the Director of Public Prosecutions (DPP), noted that the application to quash the committal had been filed on March 21, 2014, well after the applicable thirty day time limit in the Criminal Proceedings Rules For The Superior Court of Justice (Ontario) (C.P.R.), made pursuant to s. 482(1) of the Criminal Code. Rule 43.04(1), applicable in criminal matters by way of certiorari and other matters, provides:
An applicant shall give notice of application in Form 1 and in accordance with rule 43.03 within 30 days after the day on which the order which is the subject of the application was made or given.
[5] The order impugned in this application is Justice Nadelle’s August 28, 2013 order committing Mr. Zahran to stand trial in accordance with his election. The application is almost six months past the time limit. Counsel for the applicant, Mr. Johnston, asks me to dispense with compliance with rule 43.04(1) in the interests of justice, citing rule 2.01 which provides:
A judge of the court may only dispense with compliance with any rule where and to the extent it is necessary in the interests of justice to do so.
[6] Whether dispensing with compliance with rule 43.04(1) is necessary in the interests of justice largely depends, it would seem, on whether the interests of justice require Mr. Zahran’s committal for trial to be quashed. I intend, therefore, to return to the issue of compliance with the rules after examining the merits of the application.
III Central Issue – Substantial Compliance with s. 536(2)
[7] The applicant’s position is that for lack of substantial compliance with the terms of s. 536(2), which provide a precise recipe for the election by an accused as to the mode of trial in proceedings by indictment, the Ontario Court judge had no jurisdiction to proceed with a preliminary inquiry or to commit Mr. Zahran for trial.
[8] The DPP’s position on the s. 536(2) issue is that the record shows that, effectively, there was substantial compliance with the statutory provision, and that the application should be dismissed.
IV Statutory Provision and Controlling Authorities
[9] Section 536(2) of the Criminal Code provides:
If an accused is before a justice of the peace or a judge charged with an indictable offence…the justice of the peace or judge shall, after the information has been read to the accused, put the accused to an election in the following words:
You have the option to elect to be tried by a judge without a jury or to be tried by a court composed of a judge and jury. If you do not elect now, you are deemed to have elected to be tried by a court composed of a judge and jury. If you elect to be tried by a judge without a jury or by a court composed of a judge and jury or if you are deemed to have elected to be tried by a court composed of a judge and jury, you will have a preliminary inquiry only if you or the prosecutor requests one. How do you elect to be tried?
[10] In R. v. Mitchell (1997), 1997 6321 (ON CA), 36 O.R. (3d) 643 (C.A.), the election by the accused, who was represented by counsel, proceeded as follows:
The Court Put to 205 court today to set a date.
Crown Can we place the election before we do that?
Defense counsel Trial.
Crown By provincial court judge?
Defense counsel By provincial court judge.
[11] At paragraph 28, Doherty J.A. wrote:
If an accused has an election as to the mode of trial, that election should be put to the accused in in the language of s. 536(2). Absent waiver of the procedural requirements of that section, a failure to put the accused to his or her election, in terms which at least substantially comply with the section is a procedural error resulting in a loss of jurisdiction to conduct either a trial or a preliminary inquiry: R. v. Wiseberg (1973), 1973 1339 (ON CA), 15 C.C.C. (2d) 26 (Ont. C.A.); R. v. Lewis (1978), 1978 2469 (ON CA), 43 C.C.C. (2d) 479 (Ont. C.A.); R. v. Kalkhorany (1994), 1994 687 (ON CA), 71 O.A.C. 39 at 41 (C.A.). The purported election on February 28th bore little resemblance to the procedure set out in the Criminal Code. This is a case of non-compliance with the procedural requirements of s. 536(2). [underlining added]
[12] In R. v. Varcoe, 2007 ONCA 194, the election was as follows:
CLERK OF THE COURT: Joey Varcoe, you are charged that on or about the 12th day of September, 2004 at the Town of Cobalt in the said region, did commit a sexual assault on [K.F.], contrary to s. 271 of the Criminal Code. How does the Crown elect to proceed?
MS. REGIMBAL: As indicated on the screening form, the Crown is proceeding by way of indictment on the charge. Your Honour, I did take a few moments and explain to Mr. Varcoe that the nature of the charge and election means that he has the option to choose whether or not he wishes to proceed to Superior Court or to have his trial here today. Verbally, he indicated his wish was to have his trial here today and get it over with, but perhaps the court can take a moment to explain that option to him. He did indicate this was for trial today. And the Crown has made up its witness list accordingly.
THE COURT: Okay. Thank you. That is the case, sir. You know that you could elect to proceed by way of judge and jury, or a judge of Superior Court alone or this court, and you prefer to proceed in this court here today.
JOEY VARCOE: Yes.
THE COURT: Okay. So that will be your election as noted. And I gather you are entering a plea of not guilty.
JOEY VARCOE: Yes.
THE COURT: Okay. Can I see the information briefly? You may proceed, Crown.
[13] As the Court of Appeal explained:
20 We have no information, and certainly nothing on the record, to suggest whether the appellant even knew what a preliminary inquiry was, let alone his entitlement to one. We can make no assumptions about his knowledge of the criminal process. His criminal record tells us nothing about his knowledge of the criminal process such that we can assume he was aware of his right to a preliminary inquiry. It may be that he entered guilty pleas on those other occasions. We simply do not know, and the record is insufficient to enable this court to make any such assumption.
21 While in recent times there has been discussion about the possibility of eliminating preliminary inquiries from the criminal justice process, today they remain an integral part thereof.
22 In these circumstances, I am of the view that there was no jurisdiction for the trial judge to proceed with the appellant's trial, and on this ground alone there must be a new trial.
V The Record of the Proceedings
[14] Mr. Zahran was one of a group of eight persons charged together in a sixty-count information. He was co-accused on some counts and alone on others. The proceedings in the Ontario Court of Justice involved numerous appearances in 2012 and in 2013 leading up to a preliminary inquiry and the committal for trial of Mr. Zahran and others on August 28, 2013. The formal arraignment and elections as to mode of trial of Mr. Zahran and others occurred on March 18, 2013 before Justice Nadelle. Although he had been represented by counsel in earlier months, by the time of the arraignment and election, Mr. Zahran was unrepresented. While represented at the earlier stage, it was clearly contemplated by all parties that there was going to be a preliminary inquiry and considerable time was spent finding suitable dates to which all parties could agree. On March 18, 2013, there was an exchange between the court and Mr. Zahran about his unrepresented status.
THE COURT: And Mr. Zahran, Zahran, you have no lawyer?
THE ACCUSED: Not for the prelim.
THE COURT: Not for the prelim; are you going to have one should you be committed to trial?
THE ACCUSED: Yes, I will, for trial.
THE COURT: Okay. I guess while you’re on your feet do you know how the procedure is going to work on the prelim, preliminary hearing?
THE ACCUSED: The Crown presents evidence and after it’s rebuttal and they, “rebuttal,’’ is that…?
THE COURT: Well, the Crown will be calling witnesses. You will have the right to cross-examine witnesses. They will do so until they wish to stop, when they feel they have, I take it sufficient evidence to warrant a committal. You will have the opportunity of calling evidence if you wish, although it’s highly unlikely you will, but you will have the right to make representations at the end as to whether I should commit you or not commit you. There are, what, one, two – how many left.
THE CLERK: Thornton, Jabara and Mr. Zahran.
THE COURT: Okay, so that’s three, three accused left.
THE CLERK: Yes.
THE COURT: All right, uh, Mr. Brass and Mr. Smith, can you assist him at times when it appears he’s need-, it’s needed?
MR. BRASS: Absolutely; I’ll have discussions during the first break.
THE COURT: All right, start (sic) but you, you’re, you are permitted to sit at counsel table if you wish.
THE ACCUSED: Okay.
THE COURT: Mr. Zahran, have you been given what’s called “disclosure,” by the Crown?
THE ACCUSED: Yes. I have everything.
THE COURT: Okay, satisfied you have everything?
THE ACCUSED: Yes.
THE COURT: I guess it’s arraignment time then.
[15] The charges were then read to the three accused, following which the accused elected their modes of trial as follows.
THE CLERK: Mr. Thornton, do you wish to waive reading of the accused’s election?
THE ACCUSED, THORNTON: Yes.
THE CLERK: What do you elect?
THE ACCUSED, THORNTON: Judge alone, Superior Court.
THE CLERK: Mr. Jabara, do you waive formal reading of the accused’s election?
THE ACCUSED, JABARA: Yes.
THE CLERK: What is your election?
THE ACCUSED, JABARA: Judge alone, Superior Court.
THE COURT: Now, just before you ask Mr. Zahran, you have the choice of electing Superior Court/judge and jury, Superior Court/judge alone, or trial before me in this court.
THE ACCUSED, ZAHRAN: Um, judge alone.
THE COURT: Okay; and, all right, judge alone of which court?
THE ACCUSED, ZAHRAN: Superior Court.
THE COURT: Okay.
THE CLERK: Thank you. Do you waive second reading?
THE COURT: Well —
MR. SMITH: I do on behalf of Mr. Thornton. Thank you.
THE COURT: They don’t have to.
MR. BRASS: Similarly, on behalf of Mr. Jabara.
THE COURT: They don’t have to second-read.
THE CLERK: Okay, thank you, you can be seated.
THE ACCUSED, ZAHRAN: Yes.
THE COURT: Mr. Zahran, I should indicate to you as well, I should have indicated to you at the beginning, I guess, at a trial the Crown must prove guilt beyond a reasonable doubt but at a preliminary hearing there’s a much lesser burden.
THE ACCUSED, ZAHRAN: I understand that.
THE COURT: You understand; okay. I, I take it you’ve had some legal advice —
THE ACCUSED, ZAHRAN: Yes, I’ve —
THE COURT: — before you came in here today?
THE ACCUSED, ZAHRAN: I’ve done some research.
THE COURT: I’m sorry?
THE ACCUSED, ZAHRAN: I’ve done my research.
THE COURT: You’re, okay, Crown only needs to produce some evidence upon which a properly instructed jury or judge alone could find you guilty.
MR. SMITH: That’s right.
THE ACCUSED, ZAHRAN: Yes.
THE COURT: Okay, I’m satisfied you understand —
THE ACCUSED, ZAHRAN: Yes.
THE COURT: -- what’s going on
THE ACCUSED, ZAHRAN: Thanks.
[16] What was not read to Mr. Zahran as part of the above proceedings, an omission the applicant now contends vitiates his subsequent preliminary inquiry and committal for trial, were these words from s. 536(2):
If you do not elect now, you are deemed to have elected to be tried by a court composed of a judge and jury. If you elect to be tried by a judge without a jury or by a court composed of a judge and jury or if you are deemed to have elected to be tried by a court composed of a judge and jury, you will have a preliminary inquiry only if you or the prosecutor requests one.
[17] In order to evaluate whether, notwithstanding the failure to put those words to Mr. Zahran, it can be said that there was substantial compliance with the mandatory provision, Mr. McKercher argued that the Court should review the record of other portions of the proceedings. It was his contention that in light of all the proceedings, including those on March 18, 2013, there was substantial compliance with the requirement. He urged the court to view the incomplete reading of the words of s. 536(2) as a minor defect of form, but not a defect of any substance.
[18] Mr. Zahran and his co-accused appeared before Justice Alder on July 27, 2012, in order to determine dates for a preliminary inquiry. A number of court days beginning with March 18, 2013 were selected. Mr. Zahran was represented at that stage by Mr. Weinstein. Justice Alder dealt with each co-accused one after another. In addressing Mr. Zahran specifically, the following exchange occurred:
THE COURT: And, then, Mr. Zahran…
MR. WEINSTEIN: Yes, good morning, Your Honour.
THE COURT: …Mr. Weinstein, and it says “unknown” for designation. Do we have a designation?
MR. WEINSTEIN: There is, but he’s actually present
THE COURT: All right.
MR. WEINSTEIN: There was – as I indicated at the Judicial Pre-Trial, there was a possibility that I might be asking to be removed from record today. I’ve spoken to Mr. Zahran and at this point, I’m prepared to confirm my availability for a Preliminary Inquiry and undertake to keep those dates free. I’m prepared to stay on the record for the purpose of a follow-up Judicial Pre-Trial that was discussed as being set in mid-August, and I’m we’ll stay on the record at that point, or until that point and then be able to confirm the Preliminary Inquiry if other issues have been sorted out concerning retainer.
[19] The accused or their designated counsel appeared again before Justice Alder on September 6, 2012, and the following exchange concerning Mr. Zahran occurred:
THE COURT: And then we have Ghassan Zahran, Mr. Weinstein?
UNIDENTIFIED SPEAKER: May I be excused, your honour?
THE COURT: Oh, yes, thank you.
MS. HAYTON (Counsel for DPP): My understanding was Mr. Zahran was acting for himself, then?
MR. WEINSTEIN: Well, that’s – I – I had indicated that if the dates that we were setting for prelim - good morning Your Honour.
THE COURT: Good morning
MR. WEINSTEIN: Weinstein for the record, we’re going to be off record at this point, but – and he appeared when we dealt with that issue on the record. I wasn’t sure I actually had this in the calendar, but I wasn’t sure whether he was remanded to today or whether he had gone directly to the prelim as a self rep at this point, like they’re dates that I’m available for and I’m hoping to that we’re going to sort out the retainer issues.
THE COURT: I thought he was not one of the ones that had confirmed and gone directly, but…
MS. HAYTON: I know he certainly made certain representations at a bail review a couple of weeks ago that would suggest that he had not confirmed the dates.
THE COURT: All right.
MR. WEINSTEIN: Well, that may very well be the case, like I…
HE COURT: So, we’ll adjourn it to next Tuesday and tell him he has to be here.
MR. WEINSTEIN: That’s what I was going to ask.
THE COURT: All right.
MR. WEINSTEIN: I mean – there is a designation and I will appear on it for the limited purpose of – of appearing as his designate for this...
THE COURT: For today, all right.
MR. WEINSTEIN: …appearance to adjourn to a date next week, I think there is one already in the works…
THE COURT: Next Tuesday.
MR. WEINSTEIN: …if I’m not mistaken.
THE COURT: At 9 o’clock in number two Court.
MR. WEINSTEIN: But at – at that time I won’t be going on the record and he’ll be here in person.
THE COURT: All right.
MR. WEINSTEIN: To confirm that preliminary inquiry.
THE COURT: Can you just help him, if he wants to participate in the prelim to explain to him what he has to do?
MR. WEINSTEIN: I have done that…
THE COURT: All right, then.
MR. WEINSTEIN: …already, we – we had those discussions prior to and then subsequent to the last Court appearance.
THE COURT: And, did you help him fill out a form?
MR. WEINSTEIN: I can, one of things I had asked for of my friend was a self rep copy of the disclosure which is right now on a hard drive that I can’t provide to him and if he wanted to review the disclosure meaningfully at my office, he’d have to spend like 200 hours.
MS. HAYTON: But: I also said you’re going to have to give back your disclosures, so, we can get that.
MR. WEINSTEIN: I don’t have difficulty with that.
MS. HAYTON: I can have two…
HE COURT: Two, so no.
MS. HAYTON: …I don’t have two out.
MR. WEINSTEIN: Yeah, that’s – the only I was asking was whether I could give it to him directly and my friend indicated I think rightly that, you know, it would have material on it that it’s not relevant to him and that’s fine. So, I don’t know if the disk has been or I suppose hard drive has been prepared for him and we can just do a switch.
MS. HAYTON: No, literally I have to get yours back, so, that I can give him one, all right.
MR. WEINSTEIN: Oh, sorry, I thought we could like kind of just do a hand to hand sort of speak, but I can have it brought over, so that he can get disclosure because he11 have to review it himself and, you know, with regard to meaningfully filing out a statement of issues and witnesses, I think that might take him some time.
THE COURT: Well, I mean you’ve reviewed it Mr. Weinstein, you can talk to him.
MR. WEINSTEIN: I can – I can certainly give him some assistance.
THE COURT: And, since it’s off the record and it states that you may be available and you said you anticipate or hope that you’ll be retained then you’re the one who’s going to be doing the prelim and not Mr. Zahran.
MR. WEINSTEIN: No, assuming that I’m, ...
THE COURT: All right, so, I’m not…
MR. WEINSTEIN: …retained to do that.
THE COURT: …adjourning or confirming the dates next week and he brings his statement of issues and it’s going to fall within that timeframe.
MR. WEINSTEIN: Well, there’s no difficulty and I’ve kept those dates available even in – in…Court over the past couple month, so, it won’t be an issue.
THE COURT: All right, thank you.
MR. WEINSTEIN: All right, thanks very much. So, sorry, just to confirm the date it’s September 11th?
THE COURT: Next Tuesday, 9 o’clock in this – in number two.
MR. WEINSTEIN: In number two. Thanks, very much.
[20] When Mr. Zahran and his counsel, Mr. Weinstein, appeared before Justice Alder the following Tuesday, September 11, 2012, the discussion went as follows:
MR. WEINSTEIN: …I thought it might have been discussed in that last exchange but I wasn’t sure Your Honour. I’m not going to be able to continue on the record. Mr. Zahran is present and – stand up for the record.
THE COURT: Come forward, please, Sir. Have you had an opportunity to speak to Mr. Zahran about a preliminary and what his intentions are and a statement of issues and help him like I asked you to?
MR. WEINSTEIN: I have discussed that and I have indicated to him what the nature of the proceedings is. The filing of a statement of issues is not something that he is able to do on his own and although I did take Your Honour’s comments to heart the reality is that for me to assist him in preparing and filing the statement of issues requires the review of hundreds of thousands of pages of more disclosures that I haven’t received nor looked at and if I were to do that without being retained to do the full disclosure review it really would engendered like liability issues that I’m not ready to take on while I’m not retained. So he is prepared to I think – to make similar comments, adopt what’s been filed in so far as those issues affect him, go along with the preliminary inquiry, ask his own questions if necessary. He does feel hope that he may have me retained prior to that period of time but at this point that’s nowhere near complete for me to go on record for him.
THE COURT: All right.
MS. LAMONDIN (Counsel for DPP): I think Your Honour, that in terms of the two statements of issues of witnesses that have been filed they are very specific to the individuals. Mr. Brass for example listed as his issues the issues with respect to the search of the stash residence by his client is actually located on the Brass state (sic) and has nothing to do with Mr. Zahran and Mr. Zahran has no privacy interest with respect to that particular incident. Mr. Zahran’s involvement in the investigation is largely intercepting communications where he is communicating with Mr. Rezai. Mr. Zahran is also located in Mr. Rezai’s residence on video and when there’s a vehicle stopped with Mr. Zahran there. $49,000 cash is located following an incident where the police watched an exchange and the other individuals – kilograms of cocaine seized on the other individual. So in terms of following along with the issues that have been filed, quite frankly the issues are not relevant to Mr. Zahran.
THE COURT: Okay.
MR. WEINSTEIN: Mr. Zahran is co-accused and is necessarily going to be tagging along in this preliminary inquiry for physical actions by other individuals but without counsel at this point he’s not. . . .
THE COURT: Mr. Zahran does have – he doesn’t have to tag along, right, Mr. Zahran? Right now there’s a preliminary hearing set, preliminary hearings are set when people ask for a preliminary hearings. You do have an option of waiving the necessity of having a preliminary and consenting to committal that is one of your options. I’m not going to ask you to make decisions right now. It is your request for a preliminary and you have the responsibility to indicate what is in issue, right.
MR. ZAHRAN: Sure.
THE COURT: In other words it’s not like it used to be it’s not just two trials that are run it’s to be more focussed and if there are certain witnesses or issues that” you want to hear from or that the Crown will be calling some of them they are because of other people but if there’s something specific that you want you have a responsibility to ask for it Right now what I’m going to do is simply adjourn you to the dates that have been set. Counsel is apparently available if you work something out that’s fine there will definitely in this case I’m assuming anyway and there will be given that you’re unrepresented be a recording date that will be given to you where you’ll have to come back in advance and by then you’ll have had the opportunity to look at the disclosures and have a better idea of what it is you want at the preliminary. So what issues you’re concerned about, all right.
MR. ZAHRAN: Sure.
THE COURT: But understand it’s not a matter of saying well the Crown has to prove everything that won’t work. It has to be more specific…
MR. ZAHRAN: I understand
THE COURT: …and if necessary there’ll be a full preliminary. So the dates that are set are March dates.
CLERK OF THE COURT: March 18th, Your Honour, through to April 12th inclusive. [further discussion of scheduling]...
THE COURT: Just make sure, Sir that assuming you have a condition of your release that the police know where you lived so they’ll be able to find you tell you the date and serve you with the date. So at some point you’ll be given another date before March 18th to come back. Any questions?
MR. ZAHRAN: No.
THE COURT: All right thank you.
MR. ZAHRAN: Thank you
MR. WEINSTEIN: I’ll just indicate for the record Your Honour, that I returned the disclosure to my friend so that it can be repurposed for direct disclosure to whoever will handle the re-issue does not pass on the entire package and so that process has begun and he will have his disclosure apparently in a day or so.
THE COURT: All right, thank you.
MR. WEINSTEIN: Thanks very much.
[21] Between September 11, 2012, and the arraignment and elections on March 18, 2013, the charges against three of the co-accused were disposed of as a result of plea negotiations with Crown counsel. The preliminary inquiry proceeded in late March and early April against the remaining accused, including Mr. Zahran. On April 5, 2013, following the completion of the evidence, Justice Nadelle asked:
THE COURT: Counsel and Mr. Zahran, are you prepared to concede committal on anything at this stage, or do you wish to leave it until Monday?
Counsel indicated the charges on which there would be argument. Mr. Zahran’s reply was:
MR. ZAHRAN: Your Honour, I’ll only be contesting the crim. org. I’ll save the rest for trial.
Argument then ensued on April 8, 2013, and ultimately, the proposition of filing written submissions was discussed and agreed to. Mr. Zahran indicated his agreement.
THE COURT: Anything you wish to say, Mr. Zahran?
MR. ZAHRAN: Whatever it is you decide, I’ll do it.
[22] A schedule for filing written submissions was agreed upon and Mr. Zahran delivered a very comprehensive, eleven page, small font submission complete with charts, excerpts from intercepts, and detailed references to disclosure details.
[23] Following committal for trial of the five remaining accused, including Mr. Zahran, appearances on the indictment preferred in this court began. On September 6, 2013, Mr. Zahran appeared, unrepresented. A judicial pre-trial conference was fixed for November 12, 2013.
[24] On November 12, 2013, counsel for all parties and Justice Ratushny conferred off the record. Michael A. Johnston appeared on behalf of Mr. Zahran. He was not formally retained at that point but has subsequently been retained, both for this application and also for trial. Apparently, in the course of the off-the-record discussion, Mr. Johnston asked counsel for the DPP if the Crown would consent to Mr. Zahran re-electing and being tried by judge and jury. After the discussions between counsel and Justice Ratushny, the following was part of what was put on the record in Mr. Zahran’s presence:
THE COURT: Yes, good morning counsel. This is the matter of two file numbers, one involved Mr.’s Aissa El-Zein, Moustafa Jabara, Fang Lu, Nikki Thornton, and Ghassan Zahran. Mr. Zahran, you are present today. And we have had a pre-trial on that indictment as well as on another indictment; 12-G1006 involving Aissa El-Zein and Tarek El-Zein.
Sir, we’ve had the pre-trial with all counsel present and Mr. Michael Johnston present off the record, but on your behalf. He’s not retained by you, is that correct, Sir…
MR. ZAHRAN: That’s correct.
THE COURT: …at the present time. All right. The end – what we did was discuss possible resolution positions for each of the accused persons. Mr. Johnston will let you know what the Crown’s position is. I express no opinion whatsoever at this stage of the proceedings.
THE COURT: So we discussed possible resolution, positions, and agreed that we need another pre-trial where we will be looking to set trial time. We’re anticipating four months of trial time before a judge alone. If this does become a judge and jury trial – although the Crown needs to consent if you wish to elect to judge and jury mode of trial – it will be six months before a judge and jury, at least. That does not include pre-trial motions
So that is an outstanding issue; the mode of trial and the setting of trial dates for the next trial time
THE COURT: And we have another pre-trial set for Monday, December 30, 2013 at 12:30 in the afternoon. We expect to move towards setting of trial dates then.
MR. ZAHRAN: Okay
[25] On December 30, 2013, a further judicial pre-trial conference was held, with an off‑the‑record discussion between counsel and Justice Ratushny followed by an on-the-record session. Apparently, because of what was subsequently put on the record, counsel for the DPP advised, in the off-the-record discussion, that the Crown would not consent to a re-election by Mr. Zahran at that stage to have a trial by judge and jury. The record included the following:
THE COURT: Thank you, counsel. This pretrial is on the file number 12-G30003, and all counsel are here, including Mr. Zahran, thank you, sir, and you may be seated. You presently are not represented by counsel who is retained by you, that’s Mr. Michael Johnston, but you do have counsel at this point. He is just not retained. So it is on that basis that we held a pretrial without your presence, sir. But for your information I just wanted to briefly put some of the issues on the record. Mr. Johnston has said that you wish trial by judge and jury, is that correct?
GHASSAN ZAHRAN: Yes.
THE COURT: All right. All the other co-accused wish trial by judge alone, and therefore this is going to be the subject of a motion that will last for one day. And at my request, Mr. Johnston went and talked to you and has indicated to me and to the rest of counsel that you intend to retain him for that one-day motion.
GHASSAN ZAHRAN: Correct.
THE COURT: Thank you. And so that we can obtain a one-day motion date, your next appearance, then, sir, is January 10, 2014. That is in Assignment Court, and that isn’t the one-day motion. That’s just a date-setting court. Believe you’ve been in that court before. So you will have to attend on that date, unless Mr. Johnston is already retained and you’ve filed proof of his being retained for you for that motion.
GHASSAN ZAHRAN: For judge alone, six months?
THE COURT: With you being self-represented, yes. It may well be six months. It may be something shorter, but it could well extend to the six month period. If it is judge and jury, it may last longer than the six months. But at this point in time, the maximum we are going to schedule is a six month period of time.
We discussed when that could be. There are three weeks of pretrial motions on a related file involving Mr. Cheikhezzein and Mr. Kizir. Those three weeks of pretrial motions are already scheduled. They commence the weeks of September 3, 8, and 15 of 2014. Those motions, we have discussed, determine admissibility of evidence on that matter’s trial and on your trial. And so any trial involving you will not be scheduled until 2015. We haven’t yet chosen those dates. That’s generally what we discussed. This matter is also going over to February 7, 2014, Assignment Court. We have an Assignment Court, a date-setting court almost every month, in order to confirm the six-month trial period dates for you.
[26] Mr. Zahran himself was remanded to the Assignment Court of January 10, 2014 at which time, April 17, 2014, was set as the day for the re-election-plea-related motion that Mr. Johnston had said would be brought. The motion filed was, in fact, this application for an order in the nature of certiorari to quash Mr. Zahran’s committal for trial.
VI Analysis
[27] While this certiorari application does not aim directly at the mode of trial Mr. Zahran elected or the mode to which he would now like to re-elect, if successful, it could indirectly impact the mode of trial issue, significantly. If I were to quash the committal, and if the DPP were to institute new proceedings against Mr. Zahran, either by information or by direct indictment, he could elect trial by judge and jury in the case of the former, and could have a trial by judge and jury in the case of the latter in light of s. 565(2) of the Criminal Code.
[28] As for the DPP’s refusal of Crown consent to Mr. Zahran’s request to re-elect, I can only surmise that such refusal was informed by what would result by giving consent. Both Mr. McKercher and Mr. Johnston said that if the DPP consented to Mr. Zahran’s late request for trial by jury, it would force his co-accused, all of whom have elected trial by judge alone, to be tried by a jury too.[^2] I think they are correct in this view. Consent to Mr. Zahran’s request would, in light of the provisions of ss. 561 (5), (6) and (7), have brought Mr. Zahran before a judge of this court who would put him to his re-election. His re-election for trial by jury would confront the judge with different modes of trial as between the several co-accused. Section 567 of the Criminal Code grants a judge in those circumstances with the discretion to decline to record any election or re-election for trial before a provincial judge or a judge without a jury. It does not empower such judge to decline to record an election or re-election for trial by judge and jury. Thus, such judge would have to decline to record the elections of those who had asked for a trial by judge alone with the result that all the accused would be tried by judge and jury. I suppose an alternate possibility might be that the judge might record the incompatible elections, effectively severing the accused and leading to multiple trials.
[29] The DPP’s refusal of Crown consent to Mr. Zahran’s delayed request to re-elect left Mr. Zahran to be tried in accordance with his original, and obviously informed election and, averted sending the other co‑accused to trial against their elections, or alternatively, causing two trials of considerable duration and involving common evidence.
[30] The review of the record of the proceedings in Part V above shows that the circumstances of this case are quite different from those in R. v. Mitchell or R. v. Varcoe set out in Part IV. Mr. Zahran had the benefit of legal representation throughout his court appearances following his arrest near the end of 2011, through to September 11, 2012. Many of those appearances focussed on finding suitable dates for a preliminary inquiry and so Mr. Zahran and his counsel must have discussed going to trial in the Superior Court. It would be unrealistic to think that the mode of trial was not a matter on which they had settled. Indeed, with a number of co-accused, it would be unrealistic to think that any one of the lawyers representing the various accused had not discussed election plans with the others in light of s. 567, discussed above at paragraph 28, dealing with the situation in which co-accused elect different modes of trial.
[31] On March 18, 2013, when asked for their elections as to mode of trial, co-accused Thornton, Jabara and Zahran all elected trial by judge alone in the Superior Court. They all participated in the ensuing preliminary inquiry and submitted written submissions to Justice Nadelle. Throughout, Mr. Zahran was responsive to questions from the bench as to his understanding and participation in the process and appeared satisfied as to the process. When Justice Nadelle asked the accused at the conclusion of the evidence on the preliminary inquiry whether any of them were prepared to concede committal on anything at that stage, Mr. Zahran’s answer “I’ll only be contesting the crim. org. I’ll save the rest for trial.” reflected a sophisticated grasp of the process and the evidence. An examination of his written submission to Justice Nadelle at Tab 4 of the Crown’s Supplemental Application Record reflects a similar sophistication. Both are also consistent with on-going legal assistance in the background or a highly developed and knowledgeable legal capacity on his own part.
[32] The outcome of this application turns entirely on the omission to read to or specifically advise Mr. Zahran prior to his election, that if he did not make an election, he would be deemed to have elected trial by judge and jury, and, that if his election, deemed or specific, was for trial by judge alone or with a jury, he would only have a preliminary inquiry if he or the prosecutor asked for one. There is some irony in the fact that this omission appears to have resulted from Justice Nadelle’s special interventions to make sure that Mr. Zahran understood both his options for mode of trial, the procedure of a preliminary inquiry which was about to take place and which had been scheduled for many months, and that he had received and was satisfied with the disclosure.
[33] In light of all the proceedings on record, can it be said that there was substantial compliance with the informational component of s. 536(2)? Or was there information of substance that should have been communicated to Mr. Zahran, and was not? It seems to me that the failure to inform Mr. Zahran, that if he did not elect, he would be deemed to have elected trial by judge and jury, was of no substance in the circumstances because it is quite clear that he did not wish to be tried by a judge and jury. He said precisely that. He said he wanted a trial by judge alone in the Superior Court.
[34] The omission to tell him that he would have a preliminary inquiry only if he or the prosecutor requested one was equally of no substance in that a preliminary inquiry had been planned and scheduled for months, including during the period during which Mr. Weinstein was acting for Mr. Zahran. Mr. Zahran was going to have a preliminary inquiry and he knew it.
[35] What was omitted to be communicated to Mr. Zahran had no significance to him and would have been words spoken for form’s sake and not of substance or of any substantial value.
[36] In my opinion, given the record of all the circumstances, there was substantial compliance with s. 536(2) in Mr. Zahran’s case.
VII DISPOSITION
[37] Because I have concluded that the application to quash Mr. Zahran’s committal for trial lacks merit and should fail, I think I have to conclude as well, that it is not necessary in the interests of justice for me to waive compliance with C.P.R 43.04(1).
[38] Because this application was brought well beyond the thirty day period following the committal for trial, and because, for the reasons I have given, the application should not succeed on the merits, it is dismissed.
[39] Given this result, I need not address the matter of costs which was in the relief being sought.
Order accordingly.
Mr. Justice Douglas Rutherford
Released: April 29, 2014
COURT FILE NO.: 12-30003-06
DATE: 2014/04/29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
GHASSAN ZAHRAN
Applicant
REASONS FOR JUDGMENT
Rutherford J.
Released: April 29, 2014
[^1]: This background information is taken from the sentencing proceedings in R v Fang Lu, one of the co-accused of Mr. Zahran in the indictment herein, in Ottawa on Friday April 11, 2014.
[^2]: Although raised briefly during argument of this application, I subsequently sought and obtained further input on this point from counsel in an exchange of email communications, a copy of which has been added to the Court File 12-30003.