R. v. Kassam, 2016 ONSC 6962

CITATION: R. v. Kassam, 2016 ONSC 6962

COURT FILE NO.: 15-6476

DATE: 20161109

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

INAYAT AL-NASHIR KASSAM

Defendant

COUNSEL:

Paul Attia for the Crown

Inayat Kassam in person

HEARD: October 13, 2016

ruling on Mr. Kassam’s Garofoli application

boswell j.

The Application

[1] Mr. Kassam is charged with a half dozen fraud-related offences. He was arrested on February 14, 2014. On that same date, officers of the York Region Police Service executed search warrants at his home and his place of business.

[2] Mr. Kassam applies to have the fruits of the search warrants excluded from evidence, asserting that the warrants were not validly issued and that the searches conducted at his home and business were unreasonable and an infringement of his s. 8 Charter right to be free from unreasonable search and seizure.

[3] The warrants in this case were sought and issued under s. 487 of the Criminal Code. They were issued on the strength of an Information to Obtain (“ITO”) sworn by the lead investing officer, Detective Constable Ian Mason. The ITO is a sworn document in which the affiant typically sets out some background to the investigation and then addresses the preconditions to the issuance of a warrant under s. 487(1)(b): reasonable grounds to believe that an offence has been committed and that the places sought to be searched contain evidence with respect to the commission of the offence.

[4] Applications involving an attack on the validity of a warrant are generally referred to as Garofoli applications, in recognition of the Supreme Court’s decision in R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421; (1990), 60 C.C.C. (3d) 161 (“Garofoli”).

[5] At the outset of the argument of this application, Mr. Kassam signalled his desire to cross-examine DC Mason on the ITO he swore to obtain the impugned warrants. Pursuant to Garofoli, a defendant does not have an automatic right to cross-examine the affiant of an ITO. Instead, the trial judge has a discretion to determine when to permit cross-examination, as well as what, if any limits should be placed on any permitted examination.

[6] After hearing argument from Mr. Kassam and the Crown on the issue, I declined to grant Mr. Kassam leave to cross-examine DC Mason save with respect to clarify whether the original ITO filed with the court had been properly sworn (the copy provided to Mr. Kassam by way of disclosure was unsworn). I indicated that written reasons would follow for my decision on the question of leave. These are those reasons. In addition, these reasons explain why the Garofoli application proper is dismissed.

The Test for Leave to Cross-Examine

[7] It is well-settled that the court’s discretion is to be exercised in favour of cross-examination of the affiant of an ITO only where the evidence “would elicit testimony tending to discredit the existence of one of the pre-conditions to the authorization, as for example the existence of reasonable and probable grounds.” (Garofoli, para. 88).

[8] Fifteen years after Garofoli was decided, the Supreme Court revisited the cross-examination issue in R. v. Pires; R. v. Lising (2005), 2005 SCC 66, 201 C.C.C.(3d) 449, 259 D.L.R. (4th) 441 (S.C.C.) (“Pires”). In Pires, Justice Charron confirmed that the right to cross-examine is of fundamental importance to the criminal trial process, but it is neither unlimited nor absolute. She concluded that the right to make full answer and defence is contextually informed, saying, at para. 3:

The Garofoli threshold test requires that the defence show a reasonable likelihood that cross-examination of the affiant will elicit testimony of probative value to the issue for consideration by the reviewing judge. It is grounded in two basic principles of evidence: relevance and materiality. It is also born out of concerns about the prolixity of proceedings and, in many cases, the need to protect the identity of informants. The rule does not infringe the right to make full answer and defence. There is no constitutional right to adduce irrelevant or immaterial evidence. Further, the leave requirement strikes an appropriate balance between the entitlement to cross-examination as an aspect of the right to make full answer and defence, and the public interest in the fair, but efficient, use of judicial resources and the timely determination of criminal proceedings.

[9] The contextual approach requires a mindfulness about the purpose of a Garofoli review. It is not a test of the merits of the Crown’s allegations against the accused. Rather it is a hearing to determine the admissibility of evidence obtained through a judicially authorized warrant. The reviewing court’s inquiry is really very narrow: the question is whether there was any basis on which the authorizing court could have issued the warrant?

[10] In this instance, the validity of the warrants obtained by DC Mason is challenged by Mr. Kassam on the basis that the ITO was insufficient to establish the applicable statutory preconditions. I mentioned them above, but to be clear, they are:

(1) That the officer had reasonable grounds to believe that an offence had been committed; and,

(2) That the officer had reasonable grounds to believe that there was, inside both Mr. Kassam’s personal residence and his place of business, anything that would afford evidence with respect to the commission of the offence.

[11] The test for leave, as Justice Charron identified, is about relevance and materiality. Those concepts must be assessed within the court’s narrow scope of review. In the result, cross-examination will only be permitted to the extent that it will elicit evidence probative of one of the two statutory pre-requisites and probative of the ultimate issue of whether there was any evidence upon which the warrants could be granted.

[12] To be clear, although there may only be a narrow opportunity for cross-examination, the test for leave is not otherwise an onerous one. It is not necessary for the applicant to demonstrate that the cross-examination will inevitably be successful. It need only be demonstrated that there is a reasonable likelihood that the cross-examination will elicit evidence that will be of assistance to the court in determining a material issue.

The ITO

[13] The ITO in this instance was prepared and filed by Detective Constable Ian Mason, the officer in charge of the investigation against Mr. Kassam.

[14] I do not intend to microscopically parse each paragraph of the ITO. In my view, it is appropriate to read it as a whole as opposed to analysing it line by line.

[15] The ITO is some 83 paragraphs in length. It is broken down into sections. It commences with an overview where DC Mason outlines the offences under investigation. Specifically, an alleged fraud against Adam Seif, which involved Mr. Kassam purportedly writing himself a cheque from Mr. Seif’s trust account at a time when he was employed by Mr. Seif in an administrative capacity. After leaving Mr. Seif’s employ, Mr. Kassam purportedly opened a firm called Blackstone Law and, it is alleged, held himself out as a lawyer, when he has no license to practice law.

[16] The ITO then lists a number of witnesses who provided the police with information, then goes into a more detailed examination of the background to the investigation.

[17] DC Mason deposed that Adam Seif contacted the police to complain of the alleged fraud. He advised DC Mason that Mr. Kassam had worked for him for about a year. After he left the law firm, Mr. Seif’s bookkeeper identified irregularities in relation to some transactions involving Mr. Kassam. In particular, Mr. Kassam made an entry into Mr. Seif’s trust account for $6,390. He then wrote himself a cheque for $6,000 and recorded it in Mr. Seif’s accounting records as a “reimbursement to client”. After obtaining a production order, DC Mason was able to access Mr. Kassam’s bank account records from the CIBC and identified the deposit of the impugned $6,000.

[18] DC Mason then reviewed the steps he took in his investigation of Blackstone Law and his having confirmed with the Law Society of Upper Canada that Mr. Kassam is not licensed to practice law in Ontario.

[19] DC Mason further reviewed an investigation he made into a number of vehicles Mr. Kassam leased through Honda Finance. Two vehicles were allegedly acquired by Mr. Kassam using Adam Seif as a guarantor. Mr. Kassam purportedly provided Honda Finance with a power of attorney over Mr. Seif’s affairs. Mr. Seif advised DC Mason that he had only guaranteed one leased vehicle and had never given Mr. Kassam his power of attorney.

[20] After providing details about his investigations, DC Mason outlined his grounds for believing that there may be documents associated with Mr. Kassam’s alleged fraudulent activities at his home and business addresses.

The Applicant’s Assertions

[21] Mr. Kassam submitted that he ought to be granted leave to cross-examine DC Mason for the following reasons:

(a) DC Mason made material misrepresentations that could only be deliberate; and,

(b) DC Mason’s belief that offences had been committed was based on a single conversation with Adam Seif, who had a motive to fabricate;

[22] The Crown opposed leave to cross-examine DC Mason, arguing that Mr. Kassam provided no evidentiary basis in support of the alleged misrepresentations. Moreover, the ITO was detailed and contained much more than a reference to a single conversation. The Crown’s expressed view was that Mr. Kassam was simply seeking to cross-examine DC Mason at large about the triable issues in the case.

Analysis of the Leave Issue

[23] I am not, on the record filed on this application, able to conclude that there is even a hint that DC Mason may have misrepresented any material parts of his ITO.

[24] Mr. Kassam failed to provide an evidentiary record to support any of the alleged misrepresentations. When questioned by the court about this deficiency, Mr. Kassam indicated that he had raised his concerns about the ITO in his factum.

[25] In his factum, Mr. Kassam submitted that cross-examination of DC Mason would be capable of eliciting evidence tending to undermine the existence of one or both preconditions to the granting of the warrants in this case. He enumerated the reasons supporting that assertion as follows:

(i) DC Mason deposed that Mr. Kassam was employed by Mr. Seif to assist with entering the company’s financial transactions. Mr. Kassam indicated in his factum that he was not employed in that capacity;

(ii) DC Mason deposed that Mr. Kassam was “found to have made an entry to an in trust account that was fictitious”. Mr. Kassam indicated in his factum that no such finding has been made in this proceeding;

(iii) DC Mason deposed that Mr. Kassam opened Blackstone Law in Richmond Hill. Mr. Kassam asserts in his factum that this statement is implausible or untrue;

(iv) DC Mason deposed that Mr. Kassam had an extensive criminal record for fraud related activities. Mr. Kassam takes issue with this statement without saying why; and,

(v) DC Mason deposed that Mr. Kassam was related to a number of corporations, which he listed. Mr. Kassam again takes issue with this statement, but again without saying why.

[26] Despite the fact that there is no evidentiary basis to support any of the assertions made in in the factum or in oral submissions, I will address them one by one.

[27] As I noted, Mr. Kassam made no submissions to support the significance of his complaint that DC Mason referred to his criminal record in the ITO or the fact that he was related to a number of companies. I am at a loss to understand how cross-examination on these issues may impact on the determinations I have to make about the validity of the warrants.

[28] Mr. Kassam took issue with how his employment capacity was described in the ITO. I am not entirely sure what turns on the exact description of Mr. Kassam’s employment with Mr. Seif. The core of the allegation is that he made fraudulent entries into Mr. Seif’s bookkeeping program and profited personally from it. These allegations arose from information provided by Mr. Seif to the investigating officer.

[29] Mr. Kassam has misunderstood the reference in the ITO to a finding that Mr. Kassam made a fictitious entry into Mr. Seif’s trust account. The ITO does not purport to say that the information provided by Mr. Sief has been found to be true. It refers to information relayed by Mr. Seif and it details steps that DC Mason took to substantiate what he was told. The validity of any of the information provided by Mr. Seif or his bookkeeper remains a triable issue – that much would have been patently clear to the authorizing judge.

[30] Again, the information regarding Mr. Kassam’s relationship to Blackstone Law was provided by Mr. Siddiqi. The veracity or reliability of Mr. Siddiqi’s evidence is an issue for trial.

[31] I have no evidentiary basis upon which to conclude that DC Mason may have made misrepresentations in his ITO, much less that they were deliberate. There is nothing in the materials filed that would suggest that DC Mason misrepresented the information provided to him by Mr. Seif, Mr. Siddiqi or Honda Finance. I have no evidentiary, nor logical, basis upon which to conclude that permitting cross-examination on the alleged misrepresentations would elicit information tending to undermine the preconditions to the granting of the warrants. DC Mason by and large outlined his sources of information and the information provided to him. He did not put his own personal spin on it.

[32] Mr. Kassam may take issue with the information provided to DC Mason by Mr. Seif and others and it is his right to do so at a trial. Cross-examining DC Mason on a Garofoli application is not the place to challenge the credibility of Crown witnesses.

[33] Mr. Kassam’s submission that DC Mason relied on a single conversation with Mr. Seif is simply not borne out in any way when one reads the ITO. Again, whether Mr. Seif had a motive to lie is not a matter for DC Mason to answer.

[34] At the end of the day, the issue is whether the authorizing judge could have granted the warrant on the information contained in the ITO. Mr. Kassam has not persuaded me in the least that there is any reasonable likelihood that cross-examination of DC Mason will assist me in making that ultimate determination. I agree with the Crown’s submission that Mr. Kassam really just wants to cross-examine DC Mason about the live issues in this proceeding. He will get that opportunity at trial.

[35] For these reasons, the request for leave is dismissed.

The Garofoli Application Proper

[36] Having been denied leave to cross-examine DC Mason, Mr. Kassam had no further submissions to make to the court about why the warrants issued in this case ought to be set aside.

[37] I find that there was ample support in the ITO upon which the warrants could issue.

[38] In my view, this application was ill-conceived and is dismissed.

Boswell J.

Date: November 9, 2016