R. v. Bajwa et al., 2016 ONSC 1110

CITATION: R. v. Bajwa et al., 2016 ONSC 1110

NEWMARKET COURT FILE NO.: CR-13-05264

DATE: 20160217

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen Respondent

– and –

Muhammad Bajwa, Amjad Ali, Sarosh Altaf, Mohammed Khokhar, Marva Jemmott Applicants

COUNSEL:

Paul Tait, for the Respondent

Mr. Bajwa, Self-Represented, Mr. Ali, Self-Represented, Jordan Weisz, for Ms. Altaf, Lidia Riva, for Mr. Khokhar, Ms. Jemmott Self-Represented

HEARD: January 25, 26, 27 and 29, 2016

RULING ON SEVERANCE APPLICATION

bird J.:

Introduction:

[1] The applicants are jointly charged in relation to an allegedly fraudulent enterprise centred around staged automobile accidents. The operation involved false or inflated claims for a variety of services being filed and also included lawsuits to recover damages. Mr. Bajwa is alleged by the Crown to be the ringleader in this business. The other four applicants worked for him in various capacities at different times. Mr. Bajwa is charged with six counts in the indictment, which covers the time period from July of 2009 to December of 2012 when all of the parties were arrested. Mr. Ali, Ms. Altaf, Mr. Khokhar and Ms. Jemmott are all jointly charged with one count of participating in a criminal organization and one count of fraud over $5,000. Ms. Altaf, Mr. Khokhar and Ms. Jemmott are only jointly charged with Mr. Bajwa in relation to the fraud. Mr. Ali is jointly charged with Mr. Bajwa, with an additional charge of obstructing a police officer. Mr. Bajwa faces a further four charges, including a count of conspiracy.

[2] All five applicants seek an order pursuant to section 591(3)(b) of the Criminal Code for severance from each other. Specifically, Mr. Bajwa and Ms. Jemmott are each asking to be tried by themselves. Mr. Ali, Ms. Altaf and Mr. Khokhar only want to be severed from Mr. Bajwa and are content to proceed to trial as a group of four, along with Ms. Jemmott. The Crown opposes any order of severance and wishes to proceed to trial with all five accused on the current indictment.

Factual Background:

[3] In August of 2010, a former employee of the King’s Legal Clinic, which was owned and operated by Mr. Bajwa, contacted the Insurance Bureau of Canada to report concerns she had about the operation of the business. In conjunction with the police, an investigation was commenced which resulted in the arrest of all of the applicants, along with several other parties, in December of 2012. The Crown asserts that Mr. Bajwa was running a “cradle to grave” operation involving staged automobile accidents, inflated or false claims for services and fraudulent lawsuits. Mr. Bajwa operated different clinics that he used to facilitate this enterprise. There was an assessment and rehabilitation clinic named Global Rehab Centre (Global) that was located at 286 Attwell Drive in Toronto. Within this building there were two separate offices: Queen’s Medical Assessment (Queen’s) and Global Rehab Clinic. The two businesses shared a common entrance and reception area but were contained within two distinct offices in the building. They had different purposes. Queen’s dealt with home care and psychological assessments, while Global focused on physical rehabilitation. There were doctors and psychologists affiliated with the businesses. Ms. Altaf worked as a manager at Global, while Mr. Ali and Mr. Khokhar worked at Queen’s.

[4] Mr. Bajwa also operated a legal clinic in the same building which was known as King’s Injury Claims (King’s). King’s had a separate entrance and the evidence at the preliminary hearing was unclear about whether an interior door that linked King’s with Global was functional at all times. Ms. Jemmott, who was once licenced to practice law in Ontario, worked at King’s along with several other staff members, including paralegals and a lawyer. She was responsible for dealing with lawsuits against insurance companies for damages arising out of the accidents.

[5] The activities of Mr. Bajwa extended far beyond the confines of the building at 286 Attwell. He had another office located on Albion Road that he used to meet with other participants in the operation on a regular, if not daily, basis. There is no evidence that Ms. Jemmott, Ms. Altaf or Mr. Khokhar ever attended at the Albion Road location. A key Crown witness, Shehryar Ahmad, who himself knowingly made false claims with the assistance of Mr. Bajwa, testified that he saw Mr. Ali at the Albion Road office many times. Mr. Ahmad also has potentially significant evidence against Ms. Jemmott, which if believed would be a critical component of the Crown’s case against her.

[6] Mr. Bajwa is alleged to have been heavily involved in recruiting drivers and passengers to participate in staged accidents, which would occur either on the road or at locations selected by him. These accidents would then be reported to the police through a reporting centre. The Crown asserts that Mr. Bajwa gave the participants instructions about what to say to the police. The cars involved in the accidents would be towed by companies chosen by Mr. Bajwa and taken to repair shops that were also involved in the scheme. There is no suggestion that Ms. Jemmott, Ms. Altaf or Mr. Khokhar were involved in any way in recruiting the accident participants, staging the accidents, arranging for tow trucks, or in the repair of the vehicles.

[7] Mr. Ali is jointly charged with Mr. Bajwa, with one count of obstructing the police by being a party to staging an accident that resulted in a false report being filed with the police. The case for the Crown, as it relates to Mr. Ali on this count, appears to depend entirely on the evidence of Mr. Ahmad. He testified at the preliminary hearing that Mr. Ali brought two potential clients to Mr. Bajwa for the purpose of arranging a staged accident. Mr. Ahmad said that both Mr. Bajwa and Mr. Ali telephoned him after some time had passed to ask him why he had not smashed the cars yet. After the staged accident did occur, it was Mr. Ali who took the information about it, including a map of the location.

[8] The participants in the staged accidents would ultimately be instructed to attend at Global to sign claim forms for services including physiotherapy, home care and psychological assessments. In many cases, no services were ever provided but claims were nonetheless made to insurance companies. The participants were asked to sign multiple blank forms on their initial visit and generally did not return to the clinic. The Crown’s position is that Mr. Ali, Ms. Altaf and Mr. Khokhar were all parties to the fraud for the benefit of the criminal organization run by Mr. Bajwa, by participating in the filing of false claims to insurance companies through Global and Queen’s.

[9] Ms. Jemmott is alleged to have been a party to the fraud for the benefit of the criminal organization through her work at King’s, processing lawsuits and settlements in relation to the staged accidents. The case for the Crown, against the accused other than Mr. Bajwa, is largely circumstantial. The Crown will argue that the circumstances surrounding the operation of the business, including the fact that clients rarely attended to receive services and received negligible amounts from any lawsuits that were settled, provided the accused with the necessary knowledge of the fraudulent nature of the enterprise.

[10] Mr. Ali, Ms. Altaf, Mr. Khokhar and Ms. Jemmott are not expected to contest the fact that Mr. Bajwa was directing a criminal organization that was involved in a large scale fraud. It will be their position that the Crown cannot prove that they had the necessary knowledge of the fraudulent nature of the business. They will say that they were innocent dupes of Mr. Bajwa. In order to run this defence they must, and intend to adduce a great deal of bad character evidence about Mr. Bajwa, to demonstrate his high level of sophistication and his ability to be extremely manipulative. Mr. Ali is Mr. Bajwa’s brother, and Mr. Khokhar and Ms. Altaf are related to him by marriage. As a result, they are uniquely positioned to know a great deal about Mr. Bajwa’s background and any acts of disreputable conduct.

[11] In addition, Mr. Bajwa has a criminal record that they will seek to adduce, together with details of his past offences, to further their defence. Their position at trial will be highly antagonistic to that of Mr. Bajwa. Mr. Bajwa is expected to challenge every aspect of the Crown’s case. He has said repeatedly, in open court, that none of his co-accused had any involvement in the frauds and has expressed an eagerness to testify on their behalves to this effect. When asked if he would call Mr. Bajwa as a defence witness if severance were granted, Mr. Weisz candidly admitted that such a decision was fraught with peril in light of Mr. Bajwa’s character and would have to be carefully considered. At this point, there is no express intention on the part of any of Mr. Bajwa’s co-accused to call him as a witness.

[12] The preliminary hearing proceeded with all five accused. Mr. Bajwa was self-represented, as he currently is. The preliminary hearing was originally scheduled for three weeks, but required approximately 80 days to complete. All parties agree that the conduct of Mr. Bajwa contributed greatly to the length of the proceedings. Specifically, he conducted extremely lengthy and hostile cross-examinations of many Crown witnesses. Several Crown witnesses were former associates of Mr. Bajwa and he clearly has a great deal of animosity towards them. During his submissions on this application, Mr. Bajwa stated that he intends to call every conceivable piece of evidence he can to demonstrate that these witnesses are unworthy of belief.

[13] Mr. Bajwa currently has a list of 184 witnesses that he wants to call in his defence. He said that he will attempt to obtain personal records of his former associates who are Crown witnesses, including their medical records, income tax records, banking records, employment records, Ministry of Transportation records and any other documents that could show them to be of questionable character. In addition, he intends to call people who know them, including current and ex-spouses to contradict their testimony.

[14] Among the 184 witnesses Mr. Bajwa intends to call, are nine accident re-constructionists to counter the Crown’s expert evidence about nine specific accidents that are alleged to be staged. He has not yet retained any experts but expressed his intention to do so. While the vast majority of the evidence Mr. Bajwa intends to adduce may not be admissible by reason of the collateral fact rule (or other rules of evidence), the length of his proposed witness list is indicative of his approach to the case. During submissions, Mr. Bajwa advised that he thinks his trial will take up to fourteen months to complete. While the trial judge will be able to exercise control over the proceedings I am satisfied, based on Mr. Bajwa’s submissions on this application and the manner in which he conducted himself at the preliminary hearing, that he will do everything he can to prolong the trial. In contrast, his co-accused have all expressed a desire to run the trial as expeditiously as possible with a focus on the issue that is critical to their case, specifically knowledge.

Legal Analysis:

[15] The legal principles that apply on an application for severance pursuant to section 591(3)(b) are not in dispute. The analysis that must be undertaken depends very heavily on the specific facts of each case. There is a presumption that jointly charged co-accused who are alleged to have acted in concert should be tried together (R. v. Savoury, 2005 CanLII 25884 (ON CA), [2005] O.J. No. 3112 (C.A.) at paragraph 22). Severance may, however, be granted when it is in the interests of justice to do so (R. v. Last, 2009 SCC 45, [2009] S.C.J. No. 45 at paragraph 14). As noted in Savoury, supra, the interests of justice include those of the accused and the community. These competing interests must be weighed and severance should not be granted unless the accused satisfies the court that it is required. As a general rule, severance is rarely granted as a single trial conserves judicial resources, avoids witnesses having to testify repeatedly and avoids inconsistent verdicts (R. v. Whylie, 2006 CanLII 9037 (ON CA), [2006] O.J. No. 1127 (C.A.) at paragraph 24).

[16] In Last, supra, the Supreme Court of Canada set out a non-exhaustive list of factors to be considered on an application for severance, which are:

(a) General prejudice to the accused;

(b) The legal and factual nexus between the counts;

(c) The complexity of the evidence;

(d) Whether the accused intends to testify on one count but not another;

(e) The possibility of inconsistent verdicts;

(f) The desire to avoid a multiplicity of proceedings;

(g) The use of similar fact evidence at trial;

(h) The length of the trial having regard to the evidence to be called;

(i) The potential prejudice to the accused with respect to the right to be tried within a reasonable time; and

(j) The existence of antagonistic defences as between co-accused persons.

[17] General prejudice to the accused in this case includes the potential that Mr. Bajwa’s co-accused will be adversely affected by the strength of the case against him, their familial relationship to him and his presentation in court. As noted above, the case against the co-accused is largely circumstantial. The preliminary hearing judge described the evidence in detail and outlined the inferences the trier of fact may draw from it to conclude that Ms. Jemmott, Ms. Altaf, Mr. Ali and Mr. Khokhar knowingly participated in the fraudulent enterprise. These are inferences that will be available to the trier of fact and may, but not must be drawn.

[18] In contrast, the preliminary hearing judge described the case against Mr. Bajwa as “absolutely overwhelming”. Minard J. said that Mr. Bajwa was “the driving mind and force” and defrauded insurance companies “based on just about any scheme that could be hatched up and put into place”. The applicants rely on the case of R. v. Guimond, 1979 CanLII 204 (SCC), [1979] 1 S.C.R. 960, wherein Ritchie J. said that when the evidence against one alleged co-conspirator appears to be substantially stronger than that against the other, the safer course is to direct separate trials (at page 18). While that case involved a statement by one accused that was not admissible against the other, there can be a concern that a trier of fact will be influenced by an apparently overwhelming case against one accused and conclude that the co-accused must also be guilty.

[19] The co-accused assert that this is particularly significant in this case because Mr. Ali is Mr. Bajwa’s brother, and Mr. Khokhar and Ms. Altaf are related to him by marriage. They argue that it will be an irresistible inference that the fraudulent enterprise was a family affair, and that the frailties of the evidence admissible against them will be overshadowed by the overwhelming evidence of Mr. Bajwa’s guilt. In support of this proposition they rely on the judgment in R. v. Matz, [1986] M.J. No. 460 (Q.B.), in which the court recognized the danger of guilt by association in the context of spouses.

[20] An additional factor in this case is the manner in which Mr. Bajwa conducts himself in court. Counsel advised that during the course of the preliminary hearing he was prone to yelling and swearing at some of the witnesses. It is reasonable to expect that his demeanour in court may be off-putting to members of a jury. The co-accused are concerned that any dislike that jurors may develop for Mr. Bajwa may be visited upon them by reason of their close association with him.

[21] The Crown acknowledges that there is a risk of prejudice to the co-accused if they are jointly tried with Mr. Bajwa, but submits it can be dealt with by a strong limiting instruction to the jury. It has long been accepted that courts must have faith in the ability of juries to follow instructions and in trial judges to properly charge them. To do otherwise would be to call into question the validity of the jury system (R. v. Corbett, 1988 CanLII 80 (SCC), [1988] S.C.J. No. 40 and R. v. Trochym, 2007 SCC 6, [2007] S.C.J. No. 6). However, as noted in Last, if a limiting jury instruction were all that was necessary to deal with potential prejudice, then prejudice would not be a relevant factor in the analysis (at paragraph 46).

[22] In this case, I find that there is a real risk of prejudice to the co-accused if they are jointly tried with Mr. Bajwa, as a result of the aforementioned issues. This factor, therefore, weighs in favour of severance.

[23] The second factor to be considered is the legal and factual nexus between the counts. The Crown submits that the activities of all of the accused are inextricably linked and can only be understood in the context of the entire case. In order to prove its case against the co-accused the Crown asserts that it would have to call most, if not all, of the same evidence as it would against Mr. Bajwa. This is particularly so on the count of participating in a criminal organization.

[24] Mr. Ali, Ms. Altaf, Ms. Jemmott and Mr. Khokhar all take the position that their trial will be very different than that of Mr. Bajwa, because it will be limited to the question of their knowledge of the fraudulent activity. They will not contest the existence of a criminal organization led by Mr. Bajwa, but will argue that the Crown cannot prove that they knowingly participated in it. As a result, they submit that the evidence required by the Crown will be far less than what will be required to prove the case against Mr. Bajwa. By way of example, they expect to concede the admissibility of the expert opinions in relation to the nine staged accidents. Mr. Bajwa will not do so and, in fact, intends to call witnesses to contradict the Crown’s experts.

[25] The involvement of Ms. Jemmott, Ms. Altaf and Mr. Khokhar in the enterprise was quite restricted and would require far fewer witnesses to prove than would be called against Mr. Bajwa. Mr. Ali is alleged to be involved in a wider range of activities than the other co-accused, but still significantly less than Mr. Bajwa. Counsel for the co-accused estimate that approximately 50 percent of the evidence tendered by the Crown at the preliminary hearing was relevant only to Mr. Bajwa.

[26] With reasonable admissions, the case for the Crown against the co-accused would be much more streamlined than that against Mr. Bajwa. However, there is undoubtedly a factual connection among all of the counts in the indictment. The allegations faced by the co-accused represent a piece of the larger puzzle, but it is the same puzzle. This factor, therefore, militates against severance.

[27] The complexity of the evidence is not a significant consideration in this case. While the evidence for the Crown is voluminous, there is nothing particularly complex about it. Further, the level of complexity would be similar whether there is a joint trial or two separate trials.

[28] The willingness of Mr. Bajwa to testify on behalf of his co-accused would weigh in favour of severance if there were a realistic possibility that they will call him as a witness. However, as Mr. Weisz fairly conceded, such a tactic would be fraught with peril. As a result, this is not a factor that weighs in favour of severance.

[29] The Crown submits that concern about inconsistent verdicts favours a joint trial. While this has been recognized as a valid consideration, on the facts of this case it is not persuasive. Mr. Ali, Ms. Altaf, Ms. Jemmott and Mr. Khokhar are running a completely different defence than Mr. Bajwa is. It is quite conceivable that even in a joint trial, some or all of them could be acquitted while Mr. Bajwa is convicted. The case against them is largely circumstantial and will be decided on the basis of the Crown’s ability to prove their knowledge of the fraudulent nature of the operation. The jury could be left with a reasonable doubt on the issue of their knowledge and yet be satisfied that Mr. Bajwa was, as alleged by the Crown, running a cradle to grave criminal organization. Such a verdict would not be inconsistent on the facts of this case. As a result, the possibility of two different juries arriving at two different verdicts does not weigh against severance.

[30] The desire to avoid a multiplicity of proceedings does weigh heavily in favour of a joint trial. As in most cases the interests of the community would be best served by one trial, from the perspective of conserving judicial resources and limiting the number of times witnesses are required to testify. This is particularly so in this case, in light of the length of time that will be required for trial. A target trial date has been set for four months. Even if the Crown only has to call half of the evidence at a second trial involving the four co-accused, this would still require many witnesses to testify again and would necessitate an additional two months of court time.

[31] The use of similar fact evidence is not a relevant consideration on this application.

[32] With respect to the length of the proceedings, it seems clear that Mr. Bajwa’s trial will be significantly longer than a trial involving only the four co-accused. This will be the case not only as a result of the additional evidence the Crown will have to call against Mr. Bajwa, but also because of the manner in which he is expected to conduct his defence. The preliminary hearing far exceeded the amount of time it was originally scheduled for. While not all of that delay can fall at the feet of Mr. Bajwa, it is conceded that he conducted extremely lengthy cross-examinations that were at times repetitive and hostile. His expressed intention to call 184 witnesses in his defence is indicative of his approach to the case. During submissions, Mr. Bajwa said that he believes his trial will take as long as fourteen months. While I am confident that the trial judge will exercise appropriate control over the proceedings to ensure that Mr. Bajwa compies with the rules of evidence, his trial will nonetheless be more lengthy than that of his co-accused if they are tried alone.

[33] Ms. Jemmott’s affidavit in support of this application outlines concerns that she has about the impact of a lengthy trial on her, especially considering her age. Ms. Altaf and Mr. Khokhar work to support their families and would experience a financial hardship if they are required to spend a significant amount of time in court for their trial. Some lost income is an inevitable consequence of being charged with criminal offences and being required to attend court. However, Ms. Altaf and Mr. Khokhar submit that the additional time they would have to spend in court, if tried jointly with Mr. Bajwa, would be considerable and cause financial prejudice to them.

[34] A target trial date has been set for four months beginning October 3, 2016. Pre-trial motions are scheduled to be heard in the summer of 2016. The Crown has stated that if severance is granted, the October trial date will be used for Mr. Bajwa’s trial, in light of his greater involvement in the alleged fraudulent enterprise. As a result, an order granting severance would result in a delay of many months for the co-accused. During the course of submissions, all of them were asked if they wished to pursue severance, knowing that it would result in a lengthy delay in their trial. All of them unequivocally stated that such a delay was far preferable to a joint trial with Mr. Bajwa. I therefore consider this factor to be neutral in the analysis.

[35] The final consideration is the existence of antagonistic defences as between co-accused persons. This is a significant issue in this case. As indicated above, the co-accused intend to defend the case on the basis of a lack of knowledge. They will allege that Mr. Bajwa is a highly deceptive and manipulative person who duped them all into working for him, without them knowing that the operation was fraudulent. In order to advance this defence, they will attempt to adduce as much bad character evidence as they can about Mr. Bajwa.

[36] Further, they will encourage the jury to find that Mr. Bajwa was the directing mind of a criminal organization as alleged by the Crown. At this point, two of the four co-accused are represented by experienced counsel. Mr. Bajwa is self-represented. The persuasive effect that the submissions of two experienced counsel will have on the jury cannot be underestimated. At a joint trial, the jury would be urged by the Crown and two defence lawyers to find that Mr. Bajwa was operating a sophisticated criminal organization. The potential prejudice that will result from this dynamic goes to the very heart of his ability to make full answer and defence. It is not something that in my view can be cured by a limiting instruction, however strongly worded.

[37] In considering and balancing the interests of the community and those of the accused, the factors that weigh most heavily are general prejudice to the accused, the desire to avoid multiple proceedings and the existence of antagonistic defences. While two trials will be a strain on judicial resources and will require several witnesses to testify more than once, the prejudice that would be caused to each of the accused by a joint trial outweighs those concerns. On the specific facts of this case, I am of the view that the prejudice to each of the accused would be so significant that it could not be overcome by limiting instructions to the jury. As a result, I am satisfied that the applicants have satisfied the burden on them to demonstrate that the interests of justice require severance.

[38] With respect to Ms. Jemmott’s request for a trial separate from all of her co-accused, I find that she has not established that the interests of justice require such an order. Her defence is consistent with that of Mr. Ali, Ms. Altaf and Mr. Khokhar. The length of time required for a trial with them would not meaningfully exceed that which would be necessary for a trial involving her alone. Given the lack of prejudice that would result from having a trial with Mr. Ali, Ms. Altaf and Mr. Khokhar, the desire to avoid a multiplicity of proceedings is determinative on the issue of severance.

Conclusion:

[39] Pursuant to section 591(3)(b) of the Criminal Code, I order that Mr. Bajwa be tried separately from Mr. Ali, Ms. Altaf, Mr. Khokhar and Ms. Jemmott who will be tried jointly.

Justice L. Bird

Released: February 17, 2016