Court File and Parties
Court File No.: 16-4-50 Date: 2016-06-29 Ontario Superior Court of Justice
Between: Her Majesty the Queen And: Marshall Kazman, Applicant
Counsel: Nancy Ghobrial, for the Crown Marshall Kazman, for Himself
Heard: May 17 and June 7, 2016
Before: R. Clark J.
Introduction
[1] By application dated February 18, 2016, and supplemental application, dated April 19, the applicant seeks to have this court make what is commonly referred to in criminal proceedings as “a Rowbotham [1] order”. The respondent resists the applications.
The Facts
[2] The applicant, a disbarred lawyer, is charged with five counts of fraud, possession of the proceeds of crime and committing an offence for the benefit of a criminal organization.
[3] Mr. Kazman was arrested in May of 2011. In September 2012 he was re-arrested and charged with further offences in relation to the same investigation. Seven other persons, now co-accused with Mr. Kazman, were arrested round about the same time.
[4] The allegations in this case are succinctly set out of R. v. Tehrani, [2016] O.J. No. 1849, 2016 ONSC 2228, in which one of the applicant’s co-accused successfully brought a Rowbotham application. At para. 2, Molloy J. stated:
Mr. Tehrani is charged with two counts of fraud and a single count of committing an offence for a criminal organization. There are eight accused on the indictment, all of whom are alleged to have participated in various fraudulent schemes to obtain money through small business loans, which loans were then defaulted upon. The total amount of the loans in respect of the two charges against Mr. Tehrani is over $400,000. There will be an issue at trial as to whether the two corporations involved in the charges against Mr. Tehrani were real businesses, whether the invoices submitted to substantiate renovation costs were legitimate, and whether any work was done. If these transactions were fraudulent, there will be an issue as to the extent of Mr. Tehrani's knowledge and participation. There will also be an issue as to whether the various frauds alleged were carried out by the individuals charged as part of a criminal organization and whether Mr. Tehrani was complicit in that.
[5] The Crown alleges, and Mr. Kazman does not deny, that he was instrumental in incorporating the two corporations referred to by Molloy J. The same issues she identifies in Tehrani will be the ones to be determined in the prosecution against Mr. Kazman. The $400,000 Molloy J. mentioned is the amount alleged only as against Mr. Tehrani. According to other documentation before me, [2] the total of the alleged fraud is in excess of $2,000,000. The alleged victim is the Government of Canada and, by obvious extension, the Canadian taxpayer. There has been no recovery of any of the money.
[6] In the preliminary inquiry in this matter, the applicant was initially represented. But, when Legal Aid Ontario (“LAO”) cancelled his certificate, he represented himself from that point onward. Round about the fortieth day of that proceeding, the Crown preferred an indictment. At that point, the applicant, by then acting for himself, was in his twenty-second day of cross-examining the lead investigator. The matter is now before this court and the trial is scheduled to commence in September.
[7] Prior to launching these applications, the applicant sought to have amicus curiae appointed; on January 6, 2016, McMahon J. refused that application.
The Evidence
[8] For the applicant, the evidence consists of the original affidavit he filed in support of his first application and two supplemental affidavits. Counsel for the respondent cross-examined the applicant in this hearing on the substance of those materials.
[9] For the respondent, the evidence consists of a Responding Record, containing correspondence between LAO and the applicant, documents evidencing the transfer of certain real property in which the applicant had an interest at one time, and Service Ontario documents relating to two corporations of which the applicant was a director.
[10] The applicant’s LAO file was also entered into exhibit on May 17, 2016, when this matter was first before me. [3]
Position of the Parties
[11] The applicant asserts that (i) he is unable to have a fair trial without being legally represented; (ii) he is indigent such that he cannot afford to pay for a lawyer; and (iii) he has been refused legal aid. Thus, he contends, the Attorney General should be ordered to fund his defence.
[12] The respondent contends that the applicant has failed to demonstrate on a balance of probabilities that he meets any of the three Rowbotham criteria.
Discussion
The Test
[13] The test for the making of the order sought is well settled. It was succinctly stated in R. v. Williams, [2011] O.J. No. 5862, 2011 ONSC 7406, at para. 5:
5 In order to obtain a “Rowbotham Order”, an accused must establish three things:
(1) that he is ineligible for, or has been refused, Legal Aid and has exhausted all available appeals;
(2) that he is indigent and has no means to retain counsel otherwise; and,
(3) that his right to a fair trial will be materially compromised if he is forced to proceed to trial unrepresented by counsel.
6 The applicant must establish all three conditions on a balance of probabilities. If any one of the conditions is not satisfied, the application will be dismissed.
(1) Legal Aid Refusal
[14] While the respondent acknowledges that the applicant has been refused legal aid, it contends that the applicant was, in effect, the author of that refusal by virtue of his failure to cooperate with LAO.
[15] Speaking generally, an applicant for publicly funded legal representation cannot rely on the state’s refusal to provide legal aid where that refusal is a function of his own failure to provide information the state reasonably requires to process his application; to order the state to pay in such circumstances would “undermine the integrity of the legislated Legal Aid system”: R. v. Montpellier, [2002] O.J. No. 4279 (S.C.J.), at para. 36.
[16] In this case, as noted above, the applicant originally had a legal aid certificate, but LAO cancelled it mid-way through the preliminary inquiry when, according to LAO, the applicant failed to provide certain documentation it had requested.
[17] Mr. Kazman says that he failed to provide what LAO asked for because he did not have it to provide. I accept neither his evidence on this point nor his submission to this effect.
[18] The history of the dealings between LAO and Mr. Kazman is long and tortuous; I do not propose to set it out here. That said, the Area Committee decided that the information Mr. Kazman supplied was neither credible nor complete. In the words of the Area Committee, “Legal Aid financial policies allow an application to be refused where inconsistent and incomplete information is provided, as in this case.” That decision was upheld on appeal.
[19] I am not bound by LAO’s view of the matter, but their findings are relevant: R. v. Tang, [21011] O. J. No. 6694 (S.C.J.), at para. 3. In my view, LAO’s decision was reasonable. Likewise, looking at the matter afresh, I am far from satisfied that Mr. Kazman has been totally forthcoming with this court as to the state of his finances. Accordingly, I am of the opinion that by failing to provide that which LAO reasonably required of him, Mr. Kazman is, indeed, responsible for LAO’s refusal to continue to fund his defence. As such, he has failed to meet this arm of the Rowbotham test.
(2) Impecuniosity
[20] “[T]he law establishes that the judiciary should not be spending taxpayer money in cases where an accused chooses not to spend the money he has on his lawyer, and instead comes to court cap in hand, expecting counsel to be appointed for him”: R. v. Crichton, 2015 BCCA 138, [2015] B.C.J. No. 589, BCCA 138, at para. 52. The court in Crichton held that an applicant must provide detailed financial evidence of his financial circumstances, which includes supporting evidence: at para. 49.
[21] Mr. Kazman contends that he is impecunious. The respondent contends that the applicant has failed to convincingly demonstrate that he is impecunious.
[22] An applicant must endeavour to save money to hire counsel or to contribute to his legal fees, and must make efforts to borrow money from friends and/or family: Crichton, at para. 49; R. v. Malik, [2003] B.C.J. No. 2167, 2003 BCSC 1439, at para. 22.
[23] As for his own efforts to fund his legal defence, Mr. Kazman gives no indication that he has made any effort on his own behalf to earn a living, much less to save any money. Instead, he indicates that he lives on an Ontario Works stipend and has not filed income tax returns for approximately five years. Yet he gives no specific indication in either his affidavit or his viva voce evidence, as to why he cannot work. Instead, he relied, in his viva voce evidence, on the proposition that he must be impecunious, because, were that not so, the government would not give him the disability payments it does. That answer is not sufficient. Even assuming he is impecunious, that simply begs the question of how he comes to be so and whether he has made any reasonable efforts to reverse the situation.
[24] As for attempting to borrow money from friends or family, Mr. Kazman says nothing concerning whether he has solicited friends in this behalf. As for relatives, he claims in his supplemental affidavit [4] that he asked his two sisters for assistance, but neither is financially able to help him. His assertion is contained in the single sentence that comprises that paragraph. There is no amplification of the financial situation of either sister. He reiterated, but did not amplify, this assertion in his viva voce evidence.
[25] Beyond his own evidence, the only proof of his sisters’ inability to assist him is found in Exhibit “D” to his second supplemental affidavit. The exhibit consists of what purport to be a letter from his sister, Fern Barris, and an email in the form of a letter from his sister, Marlene Kazman. I use the verb “purport” advisedly, since neither letter is even signed. [5]
[26] Assuming that the letters are what they purport to be, if it were the case that his sisters are unable to help him, I see no reason why they would not have provided affidavit evidence to this effect. As a former lawyer, surely Mr. Kazman must understand, in a matter of this nature, the importance difference in suasive value between a letter and an affidavit. I note in this behalf that his sister, Marlene, is a lawyer. Indeed, according to Mr. Kazman’s viva voce evidence it was she who commissioned two of the affidavits he submitted in support of his application.
[27] Inasmuch as they are unsworn, the letters are at most of trifling weight, in my view. Even leaving that aside, their content is unpersuasive for the reason that neither contains any explanation of the author’s actual finances. Each is merely a bald, conclusory assertion by its author that she is unable to assist her brother.
[28] The Crown contends, and Mr. Kazman does not dispute, that a corporation, of which he was a director and part owner, owned a piece of commercial real estate that was purchased for somewhere in the neighborhood of $500,000 and sold some years later for $1,110,000. [6] Yet he claims that, once certain indebtedness in relation to the property was paid off, the company (and by extension he) realized virtually no money from the sale. Other than the bald assertion, however, there is no evidence of any substance backing up his contention. I find this claim very dubious.
[29] In a similar vein, the Crown’s responding materials [7] also show that Mr. Kazman sold a piece of real estate to one Miriam Cohen for the sum of $575,000. The date of the transfer was January 31, 2012. For his part, Mr. Kazman acknowledges that he owned the property, a house which was his primary residence, but says that it was sold under power of sale. Ms. Cohen was one of Mr. Kazman’s former business partners. Mr. Kazman did not specify in his materials how much he actually realized from the sale, once the various mortgages had been retired, but did say that he paid the lion’s share of the money he received to Ms. Cohen because he was indebted to her as a result of certain earlier business dealings. The LAO file reveals that Mr. Kazman provided a trust ledger purporting to show that, from the proceeds of the sale of the property, he paid the sum of $130,000 to Ms. Cohen. In this hearing, Mr. Kazman said he paid off this indebtedness to Ms. Cohen so that she would rent him a room in this same house. Had he not done so, he said, he would have had nowhere to live. It is this house in which he now rents a room. In the final analysis, according to Mr. Kazman, he was left with only $1,700 from the sale.
[30] Included in the material he filed, [8] are two documents purporting to evidence indebtedness to Ms. Cohen on his part. One, dated in 2008, is in the amount of $99,000. The other, dated in 2009, and in the amount of $100,000, purports to reflect indebtedness to Ms. Cohen on the part of one of the corporations in which Mr. Kazman was involved. Nowhere in the materials, however, is there any explanation of just how much money he owed to Ms. Cohen at the time of the sale of the property.
[31] This claim appears to be supported by Ms. Cohen. I say “appears to be” advisedly, because, once again, the information said to be forthcoming from Ms. Cohen is embodied in a letter, not an affidavit. Asked in cross-examination why he failed to provide an affidavit from Ms. Cohen, Mr. Kazman indicated it was because she was unwilling to provide one. As with his claim that he realized virtually nothing from the sale of the commercial property, I also find dubious his claim as to the disposition of his residence.
[32] In relation to the timing of his arrest, the property was sold under power of sale scant months later. The timing of the sale may be coincidental. That said, assuming for the sake of this discussion that Mr. Kazman is telling the truth when he says he got only $1,700 from the sale of his home (a proposition of which I am not convinced), his use of all but $1,700 of the funds he received to pay Ms. Cohen reflects a conscious choice on his part to favour retiring his purported indebtedness to Ms. Cohen (in an undetermined amount) over fulfilling his obligation to provide funds for his legal defence. In those circumstances, it does not lie in his mouth to now claim that he is impecunious.
[33] In R. v. Kizir, [2014] O.J. No. 1276, 2014 ONSC 1676, at para. 46, LaLonde J. refused to make a Rowbotham order, holding that the inquiry into the applicant’s finances must be more than cursory, and a finding on the issue should not be based on unsubstantiated alleged facts by the accused.” Even taking his evidence at face value, I find that Mr. Kazman’s account of his finances is cursory at best.
[34] Likewise, in R. v. Craig Wright, (SCJ, unrep. June 28, 2013), in refusing a Rowbotham application, Salmers J., held that the applicant in that case was obliged to “adduce more evidence of his income and resources than merely his own viva voce evidence and an affidavit containing bald assertions.” That is, in essence, all that Mr. Kazman has provided to this court and I am not persuaded by it.
[35] In summary on this point, to say that Mr. Kazman’s financial situation is murky is to indulge in understatement. On the basis of what has been put before me, I am not satisfied that Mr. Kazman is, in fact, impecunious. It being his onus of proof, he has failed to satisfy this arm of the test.
(3) Right to a Fair Trial
[36] The applicant contends that, for several reasons, he cannot receive a fair trial if he is forced to represent himself.
[37] By way of general principles, “[r]epresentation by a lawyer is not a prerequisite to a fair trial” (R. v. Rain, 1998 ABCA 315, [1998] A.J. No. 1059 (C.A.), at para. 36) and there is no positive obligation on the state to provide a lawyer to an accused at state expense: R. v. Peterman, [2004] O.J. No. 1758, 185 C.C.C. (3d) 352 (C.A.), at para. 28. That said, it is the responsibility of the judge to assist an unrepresented accused: R. v. McGibbon, [1988] O. J. No. 1936, 45 C.C.C. (3d) 334 (C.A.); R. v. Solleved, [2011] O.J. No. 6693, 2011 ONSC 3045, at para. 28.
(a) Complexity of the Case
[38] One criterion to be considered in deciding whether it will be necessary to appoint counsel to ensure that an indigent accused receives a fair trial is the complexity of the case.
[39] Mr. Kazman asserts that this case is very complex. While I do not disagree, I would adopt McMahon J.’s assessment of this issue, at p. 9 of his reasons on Mr. Kazman’s application to have amicus curiae appointed:
[T]his case boils down to its simple key elements: That is, whether the accused participated in providing forged or fraudulent documents to receive loans from five major Canadian banks.
Further, whether the funds advanced through these loans allege [sic] to be fraudulent under [the] government program were used for the purpose intended by the government program. Though there are many documents, this is a relatively straight forward trial. It is not a case of complex shell corporations and tracking money through various shell corporations, banks, and offshore entities. It is not one of tracking the money. It simply comes down to whether he participated in obtaining bank loans by fraud, and whether he used the funds for an improper purpose other than what was represented to the government. [Emphasis added.]
[40] The Crown points to numerous far more complicated frauds where accused persons charged were held to have been able to adequately defend themselves; see Williams, at paras. 12 and 13.
[41] Since, as noted above, Mr. Kazman is alleged to be, and does not deny being, one of the persons who initially incorporated the companies that received the loans at issue, the dictum of Whitten J. in Solleved, at para. 30 is apt:
The complexity lies not in any legal issues but in the nature of the solicitation and the mechanics of the investment. One must realize that these enterprises were not just there, they were created by the accused persons. Surely the creators and managers of such an enterprise know the intricate details more so than a lawyer or layperson would.
Applying those remarks to this case, any difficulties presented by the complexity of this prosecution are greatly ameliorated, in my view, by the fact that Mr. Kazman was intimately involved in the creation of these corporations. Who better than he to know the true nature of these enterprises?
[42] Mr. Kazman argues that the case is rendered complex by the sheer volume of disclosure, which, he contends, exceeds 40,000 pages. The Crown, on the other hand, while admitting that the case is voluminous, asserts that 20,000 pages is a more accurate estimate. I am inclined to accept the Crown’s estimate. In either event, the fact that the materials are voluminous does not, standing alone, necessarily imbue the trial with complexity in the sense in which that term is understood for purposes of such an application. The complexity of this case, to borrow from Solleved, at para. 40, “is not a legal complexity per se, it is a complexity which relates to effort. It is a complexity…that stems from the [alleged] machinations of the accused persons.”
[43] Mr. Kazman further argues that the case is rendered complex by virtue of the nature of the expert forensic evidence the Crown intends to call. The Crown, for its part, contends that the only expert witness it proposes to call is a forensic account. Mr. Kazman, on the other hand, contends that the Crown is proposing to call numerous expert witnesses of various types, e.g.: a forensic accountant, and a business evaluator. He has no experience, he contends, dealing with these types of witnesses.
[44] In Williams, the Crown intended to call a lawyer and a real estate agent as part of its case. Molloy J. held that, notwithstanding he had no training in either of these areas, the applicant would, by virtue of his education and training, be able to adequately deal with the issues that would arise at trial at para. 14. Unlike Mr. Williams, Mr. Kazman is legally trained and I am confident that he will be able to deal with the evidence of anyone the Crown is apt to call as a witness.
[45] In his reasons for refusing the application for an order appointing amicus curiae, McMahon J. commented on the applicant’s apparent
[46] Mr. Kazman asserts that virtually all of his co-accused have been granted the order he now seeks. He placed great reliance on this in the course of making his argument that the nature of the prosecution is such that he cannot properly defend it unrepresented. The only actual proof he has advanced, however, is the decision of Madam Justice Molloy in Tehrani. Apart from Tehrani, Mr. Kazman did not provide me with the decisions respecting the other co-accused in this matter. As for Mr. Tehrani, I find that he is in a very different position from Mr. Kazman in a number of important respects, not least among which are his rather limited education and his lack of any real proficiency in English.
(b) Mr. Kazman’s Ability to Defend the Case
[47] That brings me to Mr. Kazman’s personal ability to defend the case.
[48] First, although Mr. Kazman was a practicing lawyer for more than 22 years, he claims that he did only a small amount of criminal work and most of his trials, whether civil or criminal, were at the Provincial Court level. Thus, he contends, he does not have the forensic skills to enable to adequately defend the case against him. I disagree.
[49] I heard the instant application over the course of two days. On the first, I was asked to deal with certain matters relating to further disclosure. [9] On the second, I dealt with the merits of the application. On each day, the hearing lasted several hours. On both occasions, Mr. Kazman was able to present cogent arguments and to respond adroitly to arguments presented by the other side. In terms of his advocacy, he acquitted himself more than adequately in my opinion. I was left with the impression that the applicant is an intelligent man. Evidently, he made a similar impression on McMahon J., who, at p. 6 of his decision, referred to Mr. Kazman as “a bright, intellectual gentleman.”
[50] I am also of the view that Mr. Kazman is reasonably well versed in the criminal law and will be able to quite adequately defend himself. My impression in this behalf is reinforced by the reasons of McMahon J., who, at p. 10 of his decision, stated:
I must also examine Mr. Kazman’s ability to represent himself. Mr. Kazman is legally trained, was called to the bar of Ontario, and practiced as a lawyer in civil litigation, and on the odd criminal case, for 22 years before being disbarred. I have also had the benefit of seeing his material filed on these three applications…
Further, in his oral argument, he has been able to address the legal issues and deal with them in a professional manner.
Although my exposure to Mr. Kazman is considerably less than that of Mr. Justice McMahon, I echo his remarks.
[51] Mr. Kazman’s claim that he cannot adequately defend himself is undercut to a large degree, in my view, by the fact that he originally wanted to defend himself, but also wanted amicus curiae to be appointed. As McMahon J. noted, at p. 9:
…I note that the accused, Mr. Kazman, does not want to be represented by a lawyer and and [sic] that he has the ability to represent himself and, in his words, “control the process.”
[52] Mr. Kazman is legally trained and managed to act for himself throughout many days of a preliminary inquiry, including an approximately 22-day cross-examination of the lead investigator. Although it would have been relatively easy to do, [10] Mr. Kazman has provided no evidence before this court to demonstrate that his representation of himself at that earlier proceeding was less than adequate. It is apparent to me that, as McMahon J. noted, Mr. Kazman’s first choice would have been, as he himself said, “to control the process”, while at the same time having the benefit of some legal advice along the way. In my view, that was the reason he brought the amicus curiae application and, only when that was refused, did he then launch the present applications. That is say, in my opinion, Mr. Kazman has brought these applications, not because he genuinely feels he cannot adequately represent himself, but, rather, only because what he was perceived as the best case scenario (to wit: to be able to control the process and at the same time have free legal advice) was denied to him.
[53] Second, Mr. Kazman contends that his health is precarious to the point that it has compromised his ability to defend himself against the charges on this indictment. He raises two issues under this head.
(i) Heart Attack
[54] Mr. Kazman suffered a heart attack some years ago. He claims that this fact alone will compromise his ability to adequately defend the case. I disagree.
[55] Speaking generally, it is an unfortunate fact of life that people suffer heart attacks. Fortunately, a great many survive the ordeal and continue to lead productive lives, unhampered in any significant way in their daily activities by their earlier misfortune.
[56] As for this case, Mr. Kazman mentioned in his original affidavit that he “had a heart attack in September 2013 in part [he is] sure because of the stress of these proceedings…” I find his attribution of his heart attack to the stress of these proceedings to be utterly without foundation on the evidence. More importantly, for purposes of this application, Mr. Kazman does not indicate what effect, if any, his heart attack has had on his daily life thereafter and gives no hint as to how his heart condition would impair his ability to conduct his own defence. His assertion in this behalf is rank speculation.
[57] The only medical information before me is the letter of Dr. Stephen Gelber, dated July 30, 2015, to which I will turn momentarily. In his letter, the doctor mentions en passant the fact that Mr. Kazman had a heart attack, but appears to attach no significance vis-à-vis the purpose for which he wrote the letter, which was to speak about Mr. Kazman’s mental condition.
[58] In summary, then, on the evidence before me, I am not persuaded that Mr. Kazman’s heart condition will have any negative effect on his ability to defend the case against him.
(ii) Attention Deficit Hyperactivity Disorder
[59] Mr. Kazman further asserts that he suffers from Attention Deficit Hyperactivity Disorder (“ADHD”) such that his ability to concentrate is compromised. He asserts that this will impair his ability to defend the case.
[60] To begin, it does not follow from the mere fact that an accused suffers from some manner of mental illness that he is unable to adequately defend himself in a criminal prosecution. See R. v. Hanorah, 2015 ONSC 5659, for example, where Barnes J. refused a Rowbotham application notwithstanding he was satisfied that the accused suffered from both major depressive and post-traumatic stress disorders.
[61] In support of his contention, Mr. Kazman offers Dr. Gelber’s letter, in which the doctor reports that he initially assessed Mr. Kazman in November of 2012 and treated referred him for “diagnostic clarification”. Later when a diagnosis of ADHD was confirmed, he treated Mr. Kazman for that malady. The problem for Mr. Kazman in terms of the court attaching weight to the proposition that he presently suffers from ADHD to a degree that would impair his ability to defend himself is that the doctor notes that he has not seen Mr. Kazman since March of 2014.
[62] The doctor indicates that Mr. Kazman was taking medication for his ADHD, “with some positive response.” According to the doctor, however, Mr. Kazman discontinued the medication after he suffered a heart attack. There is no evidence before me to indicate that the medication was contraindicated by his heart condition. It seems from what Mr. Kazman said in his evidence that he simply quit taking the medication that had been prescribed for him on the basis of his own self-diagnosis.
[63] In response to Mr. Kazman having raised this issue on his amicus curiae application, McMahon J. said:
Further, I have not seen anything in the numerous interactions I have had over numerous pretrials that he is distracted and his mental health issues have impaired his ability to represent himself.
Although, as I have earlier said, my exposure to Mr. Kazman has been less than that of McMahon J., once again I come to the same conclusion he did.
[64] In summary, then, I reject Mr. Kazman’s assertion that ADHD will compromise his ability to concentrate, such that he will not be able to competently defend himself.
[65] In summary on this issue, I am far from being persuaded that Mr. Kazman will not be able to receive a fair trial by virtue of either his lack of forensic skill or experience, on the one hand, or his medical condition, on the other. On the contrary, I am confident that he is more than capable of adequately defending the case against him.
Result
[66] In the result, for the foregoing reasons, the application is hereby refused.
R. Clark J. Released: June 29, 2016
Footnotes
[1] R. v. Rowbotham, [1988] O.J. No. 271 (C.A.)
[2] Supplemental Affidavit of Marshall Kazman, (dated April 19, 2016), Exhibit “D”, LAO, Area Committee Decision Record, p. 1.
[3] In response to correspondence from the respondent seeking disclosure of his LAO file, as of the time of the hearing of this application Mr. Kazman had disclosed a heavily redacted version of his copy of the file, claiming privilege over the redacted portions. Mr. Kazman’s concern was, he said, that by revealing the redacted portions he might indirectly assist the Crown to strengthen its case against him on the actual prosecution of the indictment. To allay his concern, I indicated that I would vet the redacted portions and rule which were covered by privilege and which were not. Further, I indicated that counsel having carriage of these applications (from the Ministry of the Attorney General, Crown Law Office – Civil) were not to reveal any portions of the file to counsel having carriage of the actual prosecution. Mr. Kazman indicated that he was content that such an order would adequately protect his interests on the trial of this matter. As it turned out, after some lengthy discussion, Mr. Kazman indicated that he was content to have the entirety of the redacted portion of the file disclosed to counsel on this application.
[4] At para. 8.
[5] While I appreciate that, because it is conveyed electronically, one cannot sign an email (at least not in the conventional manner), since it was Ms. Kazman who commissioned Mr. Kazman’s second supplemental affidavit, she would have had the opportunity to actually sign it.
[6] Affidavit of Susan Roback-Lescinsky, Exhibit “D”.
[7] Op. Cit., Exhibit “E”.
[8] Second Supplemental Affidavit of Marshall Kazman, Exhibit “E”.
[9] See Note 3, supra.