ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-13-10000003-0000
DATE: 20140929
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MOHAMMAD KHAN and YANNICK MUELLENBACH
Christopher Webb and John Pearson, for the Crown
Jessyca Greenwood, for Mohammad Khan
Paul Slansky, for Yannick Muellenbach
HEARD: September 8-12 and 15-19, 2014
M.A. CODE J.
REASONS FOR JUDGMENT
A. OVERVIEW
[1] The accused Mohammad Khan and Yannick Muellenback (hereinafter, Khan and Muellenbach) are charged in an Indictment with various forgery-related offences, (contrary to ss. 367, 368 and 369(b) of the Criminal Code), money laundering (contrary to s. 462.31), and income tax fraud (contrary to s. 380). Their trial is scheduled to commence on January 5, 2015. It is presently estimated to last eight weeks, that is, until the end of February 2015.
[2] The facts of the case, in brief summary, are that Khan and Muellenbach were allegedly the directing minds behind a business known as Flash Jack, located in a building at 361 Yonge Street in downtown Toronto. The building was owned by their family. There is no serious dispute that false identification was being produced and sold through Flash Jack. The first live issue in the case is whether that false identification is a “false document”, within the meaning of s. 366 and, if so, whether those responsible for making and selling it had the requisite intent that it be “used or acted on as genuine”. The defence, in this regard, is that the false identification was a mere “novelty” item. See: R. v. Sommani (2007), 2007 BCCA 199, 218 C.C.C. (3d) 168 (B.C.C.A.). The second live issue in the case is whether Khan and Muellenbach were mere owners and landlords of the building and had no involvement in any illegal activities carried on by their tenants. The police investigation of the forgery-related offences developed into a tax fraud and money-laundering investigation, as the police tried to discover the identity of the directing minds behind the businesses operating out of 361 Yonge Street.
[3] The parties have brought a large number of pre-trial Motions which I heard over a two week period in early September, 2014. I may or may not be the trial judge in this case, depending on my schedule in January and February of 2015. However, the parties have agreed to be bound by my rulings on the pre-trial Motions, absent some material change in circumstances sufficient to justify re-argument of any Motion.
[4] I reserved judgment at the end of oral argument on each of the Motions, in order to keep the hearing moving expeditiously. These are my Reasons for Judgment on the pre-trial Motions.
B. ADDING NEW COUNTS TO THE INDICTMENT PURSUANT TO S. 574
[5] At the end of a lengthy eighteen day preliminary inquiry involving Khan, Muellenbach and two other co-accused (Osman and Saleh), Khawly J. committed Khan and Muellenbach for trial on the s. 367 and s. 368 forgery offences that were charged in the Information, and on added s. 369(b) offences, all of which are presently charged in the Indictment.
[6] However, Khawly J. declined to exercise his powers under s. 548(1)(a), to commit the accused for trial on additional charges of money laundering and income tax fraud that were not charged in the Information. The Crown had given notice at the beginning of the preliminary inquiry that he would seek committal for these further offences and would submit that they were part of the “same transaction” as the forgery-related offences, as required by s. 548(1)(a).
[7] After failing to persuade Khawly J. to commit for these further offences, the Crown included them in the Indictment, exercising powers under s. 574(1)(b) to add further offences “disclosed by the evidence taken on the preliminary inquiry”. The Applicants Khan and Muellenbach submitted before me that it is an abuse of process, and a violation of s. 7 of the Charter of Rights, to circumvent a judicial decision under s. 548(1)(a) by resort to the powers found in s. 574(1)(b). It was further submitted that the powers granted the Crown in s. 574(1)(b), to add further charges “disclosed by the evidence”, was no longer available once the Crown had engaged judicial powers under s. 548(1)(a) at the preliminary inquiry.
[8] In my view, there is no merit to this submission. The judicial powers set out in s. 548(1)(a) are quite distinct from the Crown’s powers set out in s. 574(1)(b). The “same transaction” requirement is unique to s. 548(1)(a) and is not found in s. 574(1)(b). Furthermore, the “same transaction” requirement has been given a narrow technical construction that significantly limits the judicial power to commit for additional offences.
[9] Historically, the power of a judge to commit for trial at the end of a preliminary inquiry was limited to only those offences charged in the Information, or some lesser included offence. By way of contrast, the Crown’s power to indict after a committal was always much broader and expressly included any other “offences disclosed by the evidence taken on the preliminary inquiry”.
[10] In 1985 Parliament statutorily reversed the decision in Chabot by amending s. 535 and s. 548 of the Criminal Code and expressly enacting a new power to inquire into and commit for “any other indictable offence in respect of the same transaction”.
[11] The Court of Appeal addressed this issue in an important decision which was never reported, to my knowledge, perhaps because it was an oral endorsement. In R. v. Dean Hoffman, September 15, 1992 (Ont. C.A.), Hoffman submitted on appeal that the Indictment at his trial was a nullity.
[12] Subsequent and earlier authorities have arrived at the same conclusion.
[13] The above authorities hold that a refusal to commit for trial in relation to additional offences not charged in the Information, pursuant to s. 548(1)(a), is not a “discharge” within the meaning of s. 548(1)(b).
[14] I have considerable doubt as to whether the added offences of tax fraud and money laundering in the present case could be considered part of the “same transaction” as the forgery-related offences.
[15] For all these reasons, I am satisfied that the Crown’s use of s. 574 powers in this case, to indict Khan and Muellenbach for the additional offences of money laundering and tax fraud, was fair and lawful and was not an abuse of process or a breach of s. 7 of the Charter. This Motion is, therefore, dismissed.
C. WARRANTLESS SEIZURE OF TELEPHONE SUBSCRIBER INFORMATION
[16] There is considerable evidence in the case at bar about two telephone numbers that consistently appeared on various banking and business records.
[17] The police obtained information concerning the person who was associated with the two phone numbers by contacting the carrier, Rogers Communications, who voluntarily identified their subscriber.
[18] When the police executed a search warrant at 361 Yonge Street on June 10, 2009, Cpl. McMath observed a “night directory information listing … in case of emergency”.
[19] At the preliminary inquiry, the Crown followed up and obtained a business records Affidavit from Rogers Communications, confirming that Mohammad Khan was the subscriber for both telephone numbers.
[20] The Applicants Khan and Muellenbach have now brought a Charter Motion alleging that the warrantless seizures of the telephone subscriber information violated s. 8.
[21] In my view, there is no merit to this argument. I am not satisfied that there was any breach of s. 8 as there is a long line of authority holding that a warrant is not required to identify the subscriber associated with a telephone number.
[22] As noted above, it was in March 2010 that the police first obtained subscriber information, on a voluntary basis and without obtaining a warrant, from Rogers Communications.
[23] Mr. Slansky conceded that Anke Muellenbach had no reasonable expectation of privacy in the phone number openly displayed on her cheques.
[24] The leading authorities concerning warrantless seizures of the name associated with a telephone number were summarized in R. v. Schertzer et al.
[25] The extent to which the issue was regarded as uncontroversial is illustrated by R. v. Brown et al.
[26] Courts have distinguished subscriber identity information from detailed call records which attract greater privacy protection.
[27] In light of the authorities, I am satisfied that there was no violation of s. 8 when the police obtained Khan’s name from Rogers Communications as the subscriber.
[28] In the event that I am wrong concerning this s. 8 issue, I will briefly address the s. 24(2) remedy.
[29] In terms of the gravity of the s. 8 breach, any violation would be the result of a recent change in the law brought about by the decision in R. v. Spencer.
[30] Mr. Slansky conceded that the second set of Grant factors favours admission of the evidence.
[31] Finally the seized information is an undoubtedly reliable business record.
[32] For all these reasons, I would not have excluded the evidence pursuant to s. 24(2) even if I had found a violation of s. 8 of the Charter. This Motion is dismissed.
(The judgment continues with the full remaining sections exactly as in the source:
D. THE GROUNDS FOR THE PRODUCTION ORDERS AND LEAVE TO CROSS‑EXAMINE THE AFFIANT
E. ADMISSIBILITY OF EVIDENCE RELATING TO KHAN’S CHARACTER
F. TRIAL WITHIN A REASONABLE TIME
G. PRE‑CHARGE DELAY
H. POST‑OFFENCE CONDUCT
I. THE CO‑CONSPIRATOR’S EXCEPTION TO THE HEARSAY RULE
J. FORENSIC ACCOUNTING OPINION EVIDENCE
K. PARTICULARS
L. CERTIORARI TO QUASH THE COMMITTAL
M. ABUSE OF PROCESS, CROWN AND POLICE MISCONDUCT
N. CONCLUSION)
M.A. Code J.
Released: September 29, 2014
COURT FILE NO.: CR-13-10000003-0000
DATE: 20140929
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MOHAMMAD KHAN and YANNICK MUELLENBACH
REASONS FOR JUDGMENT
M.A. Code J.
Released: September 29, 2014