COURT FILE NO.: CR-15-4269
DATE: 20180405
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MARSHALL KAZMAN
GAD LEVY
ARMAND LEVY
ALI VAEZ TEHRANI
MADJID VAEZ TEHRANI
ALIREZA SALEHI
EKATERINA CHAPKINA
KAMYAR GHATAN
Defendants
John Rinaldi and Tara Brun for the Crown
Marshall Kazman, Self-Represented and also represented by Richard Litkowski
Gad Levy, Self-Represented and also represented by Mitchell Worsoff (sentencing only) and Frederick Fedorson and Adam Little (s. 11(b) application, only post-conviction)
Armand Levy, Self-Represented and also represented by Samuel Goldstein
Taro Inoue, for Ali Vaez Tehrani
Alice Barton, for Madjid Vaez Tehrani
Aaron Harnett and Christine Cole, for Alireza Salehi
Jeff Chapnick, for Ekaterina Chapkina
Walter Fox, Sayeh Hassan, and Nicholas Pham, for Kamyar Ghatan
HEARD: March 27, 2018
SPIES J.
Ruling on SECOND s. 11(b) Application BROUGHT by gad levy
Introduction
[1] On March 8, 2018, the day before I was scheduled to hear sentencing submissions from Mr. Worsoff, on behalf of Mr. Gad Levy, with respect to the various offences that I convicted Mr. Levy of on September 8, 2017, different counsel on his behalf (Messrs. Fedorson and Little) served the Crown with a box of material in support of a s.11(b) application and filed a copy with this Court. This material included a Notice of Application to re-open the s. 11(b) application and other relief, seven volumes of transcripts and excerpts of transcripts, and a factum and book of authorities with respect to the re-opening application.
[2] On March 9, 2018, I proceeded to hear the sentencing submissions from Mr. Worsoff and Ms. Brun as scheduled. Messrs. Fedorson and Little were in attendance that day and it was agreed once Mr. Rinaldi had an opportunity to attend court, that he needed time to review the motion to re-open and the s. 11(b) application material and that counsel would attend before me to speak to the applications on March 27, 2018.
[3] Although all of the sentencing submissions were complete after I heard the submissions of Mr. Worsoff on March 9, 2018, I advised counsel that I was prepared to sentence all four defendants on March 19, 2018. However, due to counsel's unavailability, dates of April 12 and May 4 (as a backup date) were set for sentencing. I had no alternative but to advise Mr. Worsoff that I would not sentence Mr. Levy until his s. 11(b) application was determined.
[4] On March 27, 2018, Mr. Rinaldi and Messrs. Fedorson and Little attended before me. At that time Mr. Rinaldi made lengthy submissions as to why I should dismiss Mr. Levy’s s. 11(b) application. Mr. Little responded to those submissions and I advised counsel I would give my decision today. What follows is my decision and the reasons for that decision.
Background
[5] In order to understand the decision I have come to, some of the chronology of this trial is necessary. On September 8, 2017, following a long trial before me, I released lengthy written reasons; R. v. Kazman, 2017 ONSC 5300 and convicted Gad Levy of five counts (Counts 1 – 5) of fraud over $5,000 of the banks; Bank of Nova Scotia (BNS), Toronto Dominion Bank (TD), Bank of Montreal (BOM), Royal Bank of Canada (RBC), and Canadian Imperial Bank of Commerce (CIBC), and Industry Canada, contrary to s. 380(1)(a) of the Criminal Code; one count (Count 6) of laundering the proceeds of the fraud contrary to s. 462.31(1) of the Criminal Code (money laundering), and one count (Count 7) of committing the offence of fraud exceeding $5,000 for the benefit of, or at the direction of, or in association with a criminal organization contrary to s. 467.12 of the Criminal Code.
[6] Mr. Levy was self-represented at the trial, which took five months between September 2016 and February 3, 2017. Submissions were completed on March 23, 2017.
[7] On September 8, 2017, it was agreed that the matter would go over to October 10, 2017, for the purpose of scheduling the sentencing hearings. On that date various dates were scheduled for sentencing, commencing with the Tehrani brothers on November 25, 2017. Mr. Gad Levy asked that I postpone his sentencing submissions until January 5, 2018, which I reluctantly agreed to. On that date, Mr. Worsoff appeared on his behalf, advising that he had just been retained and that he needed time to digest my 400-page judgment and prepare for a sentencing hearing. As a result, given the time he requested and his schedule, Mr. Levy’s sentencing hearing was adjourned to March 9, 2018, which was to be the very last of four sentencing hearings.
Mr. Levy’s s. 11(b) Application brought during the Trial
[8] During the course of the trial Mr. Levy retained counsel, Samuel Goldstein, for the purpose of bringing a s. 11(b) application. I dismissed that application and the application brought by the other defendants (save for Ms. Chapkina), on the basis that the applications had not been perfected in accordance with two deadlines that had been set and missed. I gave detailed reasons for that decision in R. v. Kazman, 2018 ONSC 1913 (First s. 11(b) Decision).
[9] The chronology with respect to Mr. Levy’s first s. 11(b) application during the trial is important to an understanding of the decision I have come to with respect to his second s. 11(b) application. It is set out in detail in my First s. 11(b) Decision. I will only repeat the chronology as it relates to Mr. Levy here.
[10] It appears that Mr. Kazman was taking the lead on Mr. Levy’s first s. 11(b) application, and he and the Levy brothers[^1] decided to bring a s. 11(b) application in light of the R. v. Jordan, 2016 SCC 27 decision released in July 2016. As I set out in my First s. 11(b) Decision, it was made clear to Mr. Levy by Justice Corrick of this Court, that because of transitional provisions for cases that were in the system prior to the release of Jordan, the transcripts of each of the attendances were required. Mr. Rinaldi also made it clear the Crown took the position that virtually every single transcript from inception was relevant to the 11(b) applications.
[11] In a notice of application dated September 8, 2016, Mr. Levy joined Mr. Kazman in his application for an adjournment of the trial for 30 days in order to have his s. 11(b) application brought and determined. In his application Mr. Levy stated that he had obtained transcripts of all attendances in the Ontario Court of Justice (OCJ) from July 14, 2011 to and including March 23, 2015 and that he had ordered the transcripts of attendances before Justice McMahon and other relevant attendances in the Superior Court of Justice (SCJ) from the first attendance in May 2015 to date and that those transcripts would be ready on or before September 14, 2016. [Emphasis added] As I set out in my First s. 11(b) Decision, these representations made by Mr. Levy were false.
[12] On September 12, 2016, when I began this trial, Mr. Levy and Mr. Kazman sought a 30-day adjournment of the trial so that they could obtain all of the required transcripts to allow them to perfect their s. 11(b) applications. Mr. Kazman had already brought and abandoned a s. 11(b) application prior to trial. I accept that he and Mr. Levy might have legitimately decided to bring another s. 11(b) application following the decision in Jordan, although significantly, no other defendants who were represented by counsel sought to bring a s. 11(b) application on that date.
[13] Mr. Rinaldi took the position that the adjournment requests should be denied for a number of reasons including the fact that the applicants had not complied with the Rules and the Provincial Practice Direction Regarding Applications under s. 11(b) of the Canadian Charter of Rights and Freedoms, issued by Chief Justice Heather Smith effective September 1, 2016 as it related to the timing of the filing of all materials required for a proper assessment and adjudication of the application. It was his position that all transcripts of the proceedings were relevant to the issue and were required and that given what still needed to be done, Messrs. Kazman and Levy would not be able to complete those steps in 30 days. In the alternative to an order dismissing the applications, the Crown asked for an order that the trial commence as scheduled, that the s. 11(b) applications be set "for a specific future date and that strict timelines be set for the serving and filing of materials as required by the Rules and practice direction." [Emphasis added]
[14] The Crown stated that it had been put on the record more than once that the Crown was taking the position that there needed to be strict compliance with the Rules of the Superior Court of Justice in Criminal Proceedings (the "Rules") with respect to the s. 11(b) applications, and that contrary to statements by Mr. Kazman, all of the transcripts in the Ontario Court of Justice (OCJ) had not been provided and none from the Superior Court of Justice (SCJ) had been provided.
[15] I denied the adjournment request and advised Messrs. Kazman and Levy that their s. 11(b) applications would be heard during the course of the trial, once the required transcripts were available. At this time no represented party advised that they would be joining in on a s. 11(b) application.
[16] It is significant to my decision to note that everyone agreed that the s. 11(b) applications should be heard before the conclusion of the trial, which was anticipated to be by the end of December 2016, according to what the parties advised Justice McMahon and me. In fact when this was suggested, Messrs. Kazman and Levy took the position that they could be ready to argue the s. 11(b) applications within a couple of days and that it was too long to wait until December 2016 to argue them. I decided that one (and later a second) week in December 2016 be set aside for the hearing of the s. 11(b) applications. This was to give some flexibility to counsel that Messrs. Kazman and Levy advised they intended to retain.
[17] On September 28, 2016, I advised counsel for the other defendants who were considering bringing a s. 11(b) application that I needed to hear from them at this time so they would be bound by the timetable I intended to set. I made it clear that if anyone wanted to join in on such an application that it would have to be heard at the same time as the applications brought by Messrs. Kazman and Levy. Counsel for everyone, save for Ms. Chapkina, indicated an intention to bring a s. 11(b) application. Ultimately Mr. Salehi never did so as he pleaded guilty before Mr. Justice McMahon on November 3, 2016.
[18] I advised the parties that I needed to have the whole history of the proceeding before me in chronological order and that we had to “try to deal with this motion as efficiently as possible because it’s going to be dealt with during the course of a trial that we’re going to try to bring in before the end of December”. Mr. Levy advised that he might also be hiring counsel.
[19] On this date, September 28th, I accepted the timeline suggested by Mr. Rinaldi and set a deadline of October 28, 2016 (“First Deadline”) for delivery of the defence affidavits, all transcripts, facta and books of authorities; i.e., perfection of the s. 11(b) applications. It was agreed that the s. 11(b) applications would be heard during the week of December 12, 2016, or the week after. Once dates were set for the hearing of the s. 11(b) applications in December, no one suggested that the s. 11(b) applications should not be heard then. Significantly there was never any suggestion that any delay in completing the trial was due to the Crown or the Court.
[20] On September 30, 2016, Mr. Kazman stated that he was "working on getting the transcripts" and was going to be retaining a lawyer the following week to deal with his s. 11(b) application. Mr. Levy advised as well that he intended to retain counsel for his s. 11(b) application. Both Mr. Kazman and Mr. Levy advised that the lawyers told them they needed the transcripts. I made it clear that if they retained counsel that they needed to ensure that those counsel were able to argue the applications on the dates set in December and meet the First Deadline.
[21] Mr. Litkowski appeared before me on October 26, 2016, along with Mr. Rinaldi, who advised me that Mr. Litkowski’s and Mr. Fox’s offices had contacted him and wanted to address the upcoming First Deadline and the progress of the s. 11(b) applications. Mr. Litkowski advised me that he had been retained on the evening of October 17th to represent Mr. Kazman on his s. 11(b) application. He said that the First Deadline was “not a realistic one” although he could not tell me when he would be able to perfect Mr. Kazman’s application.
[22] Mr. Rinaldi advised me that he had sent an email to all parties a day or two earlier, reminding everyone of the First Deadline and that he would be attending before me on November 2nd to discuss the completeness of the applications. At this point he only had notices of applications from Messrs. Kazman and Levy. Mr. Rinaldi also reminded everyone that the impetus for setting the October 28th deadline; the First Deadline, was so that the s. 11(b) applications could be argued either during the week of December 12th or 19,th which at the pace the trial was going was going to be very close to the end of the trial.
[23] It was on this date that Mr. Levy advised that he and his brother had spoken to a lawyer about acting for them on their s. 11(b) applications. I advised him that he had to ensure this lawyer attended on November 2nd because whatever timelines were set on that date would be binding on that lawyer.
[24] On October 28, 2016, the First Deadline, shortly before court began, I received notices of application for s. 11(b) applications on behalf of the Tehrani brothers and Mr. Ghatan.
[25] On November 2, 2016 Mr. Sam Goldstein appeared and advised me that he was present to discuss the transcripts but that his retainer by the Levy brothers for their s. 11(b) applications was not going to be confirmed until the following Monday. At this point a considerable number of transcripts were still outstanding. Mr. Rinaldi submitted that what he had received as facta from Messrs. Kazman and Levy was not anything that approached a proper factum.
[26] Mr. Rinaldi requested that I dismiss the s. 11(b) applications outright for failure to perfect in accordance with the First Deadline I had set. I did not do so but clearly the defendants were on notice of the Crown’s intention to seek such relief. After court that day I sent an email to the parties advising in part that I required a single book of transcripts ideally before facta were prepared; and that:
… unless this common book of all transcripts is ready and all facta prepared by defence counsel are complete and have been served on the Crown by November 18th, [the Second Deadline] that it is not likely going to be possible to hear the application as scheduled. I understand that Mr. Rinaldi intends to bring a motion to dismiss the applications should that occur.
This will confirm that counsel will re-attend before me on November 18th to update me on the status of these applications. [Emphasis added]
[27] Before the November 18th deadline, no further facta were filed by Mr. Goldstein on behalf of the Levy brothers or Mr. Litkowski on behalf of Mr. Kazman.
[28] On November 18, 2016, Mr. Goldstein was in attendance on behalf of the Levy brothers and he provided me with a joint factum on behalf of Gad and Armand Levy. Although there were a few transcript references including page references, for the most part there were simply bald statements made and in some cases references to affidavits of Mr. Gad Levy and Mr. Kazman, which to the best of my knowledge were never filed.
[29] Mr. Rinaldi provided me with an updated list of the transcripts he had and the transcripts that were missing. He queried how any “facta” filed to that point could be complete given the outstanding transcripts and the fact that no attempt had been made to transcribe any relevant portions of the trial. Mr. Rinaldi renewed his request that the s. 11(b) applications be dismissed for failure to perfect the applications before the Second Deadline.
[30] Mr. Goldstein, on behalf of the Levy brothers, joined in with the submissions of other defence counsel. He submitted that the transcripts are not the only evidence and that an affidavit his clients had prepared, although not the best evidence, could be evidence relevant to the application. No affidavits from the Levy brothers had been filed and in my view any such affidavits could clearly be of no assistance without reference to all the relevant transcript excerpts. Mr. Goldstein also submitted that the digital audio recording (DAR) could be relied upon. To that I advised Mr. Goldstein that transcripts were required to ensure there was no issue as to what happened. It is not a substitute on a s. 11(b) application to provide affidavits from the parties, which no doubt would be contested, or to expect the court to listen to the DAR. Mr. Goldstein also submitted that his factum could be adjusted as new evidence came to light in the transcripts still to come. I reminded Mr. Goldstein that we were now less than 30 days before the hearing dates and that the Crown was entitled to 30 days to respond to final facta, not facta that kept changing and that I was trying to reduce the time for oral argument. I reminded all parties as well that pursuant to the Practice Direction, the obligation was on the defence to obtain all relevant transcripts.
[31] After hearing the submissions of all counsel, I decided to grant the request of the Crown and ruled that all of the s. 11(b) applications be dismissed for failure to be perfected in accordance with the timelines that all counsel had agreed to. I also denied a request to re-open two of the applications on December 14, 2016. I advised the parties that I would provide reasons for my decisions and those reasons are set out in my First s. 11(b) Decision.
Mr. Levy’s Application to Re-Open his s. 11(b) Application
[32] Mr. Levy’s new application seeks to adjourn his sentencing until three applications are determined:
an application to re-open his s. 11(b) application;
if the application to re-open is successful, then an application to have me recuse myself from hearing the s. 11(b) application; and
the hearing of the s. 11(b) application.
[33] Mr. Levy’s counsel did not serve this material on the other defendants but Mr. Rinaldi advised that he made inquiries of counsel to the remaining three defendants and he was advised that it was likely that each of them will ask to join in with Mr. Levy's s. 11(b) application.
[34] On March 27, 2018, Mr. Rinaldi submitted that I should dismiss this further application by Mr. Levy for a number of reasons including the following:
Mr. Levy’s s. 11(b) material was served on the Crown with absolutely no advance notice even though Mr. Rinaldi had received phone calls both from Mr. Little and Mr. Worsoff in the fall of 2016 indicating that they had been approached by Mr. Levy regarding a potential s. 11(b) application. He then heard nothing more from either of them on this issue until the material was served on March 8, 2018;
this material was filed in contravention of paragraph 25 of the Provincial Practice Direction Regarding Criminal Proceedings issued May 1, 2017 (2017 Practice Direction), which reads as follows:
Before filing a s. 11(b) application, the Applicant must obtain a hearing date from the court. Before seeking this date from the court, the applicant will be expected to consult with the Crown and any other accused to canvass all parties' available dates and a reasonable time estimate for the hearing of the application.
the s. 11(b) material was served 24 hours before the penultimate event before the completion of the matter, a matter that has been before the courts for the better part of six to seven years;
the s. 11(b) application has still not been perfected by Mr. Levy in that nine transcripts from the OCJ and the SCJ prior to trial, are still missing and only excerpts of the trial transcripts were filed. In this regard Mr. Rinaldi relies on Rule 27.05 (6) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) (Rules) which reads:
A party who intends to refer to a transcript of evidence at the hearing of an application shall file a copy of the transcript as provided by rule 4.08.
- Mr. Rinaldi also relies on paras. 31 and 32 of the 2017 Practice Direction which reads as follows:
[31] Unless otherwise directed by a judge and subject to paragraph 32 below, the applicant's application record must contain the transcripts of all prior court appearances in the case. Where an appearance included the hearing of evidence and submissions, only the portion of the transcript reflecting discussions about adjournments, scheduling and selection of the next court need be provided.
[32] The court encourages and expects the parties to work together to identify any periods of delay within the case that all parties agree are attributable to the defence or to "exceptional circumstances", as defined in R. v. Jordan, or (in transitional cases) to one of the five categories of delay identified in R. v. Morin ((i) inherent time requirements; (ii) delay attributable to the accused/defence; (iii) Crown delay; (iv) institutional delay and (v) other reasons for delay). Where the parties reach such an agreement, an agreed statement of fact may be filed with respect to that period, rather than transcripts.
Mr. Rinaldi argued that Rule 27.05 (6) and the combined effect of paras. 31 and 32 of the 2017 Practice Direction presupposes that the applicant has provided all of the transcripts in the case to the opposing parties so that each party can determine for themselves, what portions of the transcripts are relevant and are to be included in the court record and it's only at that point that the parties can work together towards the goals set out in para. 32;
the Crown had not been provided any of the trial transcripts but in effect has only been provided excerpts that were chosen by the applicant, and so the Crown was not able to respond to the s. 11(b) application and comply with paras. 31 and 32 of the 2017 Practice Direction and be able to participate in the s. 11(b) hearing in any meaningful way;
the Crown is not required to accept DARs as a substitute for the transcripts;
the Crown is not required to accept the excerpts from the trial chosen by the defence as the basis of a complete record upon which to proceed with a s. 11(b) hearing without the Crown having been provided the entirety of the transcripts so that the Crown can exercise its own due diligence and put forth its version of what it believes are the appropriate excerpts;
it has always been the Crown’s position that strict compliance with the Rules as it relates to any s. 11(b) applications would be required and that all transcripts needed to be provided to all parties and from there, excerpts that each party feel are relevant can be included in the document that I referred to at trial as a compendium;
nowhere do the Rules, the 2017 Practice Direction or any s. 11(b) case law require the Crown to rely on excerpts provided by defence when the full transcripts have not been provided.
Alleged Fraud on the Court by Gad Levy
[35] Mr. Rinaldi also submitted that Mr. Levy has committed a fraud on this Court and that this further supports the Crown position that all of the applications should be dismissed.
[36] Mr. Rinaldi submitted that since I dismissed the initial s. 11(b) applications and the application to re-open the s. 11(b) applications on December 14, 2016, many months had passed and that there had been no hint of Mr. Levy bringing a s. 11(b) application until the day before his sentencing hearing on March 9, 2018.
[37] Mr. Rinaldi pointed out that when Mr. Levy was making submissions to me that he needed time to retain counsel for his sentencing hearing he was in fact beginning to prepare for a s. 11(b) application. He pointed out that as early as November 21, 2017 extracts from the trial transcripts were ordered, which means that the DAR must have been reviewed before this date.
[38] For these reasons Mr. Rinaldi submitted that given that the s. 11(b) application has still not been perfected, coupled with the fraud that he argues that Mr. Levy has perpetrated on this Court, that all applications should be dismissed. He asked that Mr. Levy be adjourned to April 12th when I am sentencing the other defendants and that everyone be sentenced on that date so that this matter can finally conclude.
Position of Mr. Little
[39] Mr. Little advised that he did not know that he would need to respond to the Crown’s application. He did not however, ask for time to respond. He took the position that the Crown wants to “hide behind procedural rules” and that with respect to the various transcripts Mr. Rinaldi submitted were missing, he did not know that any of that was correct. He knew only that he had not asked for the Rowbotham applications brought by Mr. Salehi and Ms. Cohen to be transcribed as the Crown agreed that those were not relevant.
[40] As for the trial transcripts, Mr. Little submitted that trial transcripts are not required to the extent that they include evidence. He relied on paras. 31 and 32 of the 2017 Practice Direction which he argued means that the evidence does not need to be transcribed and only the portion of the transcript reflecting discussions about adjournments, scheduling and selection of the next court date need be provided.
[41] Mr. Little advised that he listened to all of the DAR for all of the days in court during the trial before he was retained by Mr. Levy, that he did not “cherry pick” and that he arranged to have transcribed everything that might be relevant to a s. 11(b) application. He objected to the proposition that Mr. Levy would have to pay for an entire transcript for every day of trial. He submitted that he was prepared to talk to the Crown to try to streamline the process.
[42] It was also Mr. Little’s position that the best that the Crown could say in response to the s. 11(b) application is that the trial took an extra month because of delays caused by the defence and that would not matter to Mr. Levy’s s. 11(b) application. He said he would concede that one month (January 1-Febraury 3, 2017) could be deducted from the time. In short it was Mr. Little’s position that Mr. Levy’s s. 11(b) application record is complete and has been perfected and that it demonstrates the onus is now on the Crown given that Mr. Levy was charged on September 8, 2011, almost seven years ago. Mr. Little disputed the suggestion that Mr. Levy had misled this Court explaining that he began to work on the s. 11(b) application before being formally retained.
[43] Mr. Little admitted that he did not serve the other defendants with his application materials because of the cost of doing so.
[44] In reply Mr. Rinaldi submitted that Mr. Little did not tell anyone about the fact that this application was in the works even after November 21, 2017. He stated that he did not want “my friends’ ammunition” and that he wanted his own. Mr. Rinaldi advised that the Crown has a completely different theory about the reasons for the delay and argued that it was not just the words of Mr. Levy that are important but his actions as well. He took the position that to establish a pattern of conduct on the part of Mr. Levy, he needed the trial transcripts. Mr. Rinaldi’s position is that the Practice Direction only makes sense if he has a copy of all the transcripts from the trial so he can decide what extracts he needs. He objected to the suggestion that Mr. Little should be able to choose what portion of the record is relevant.
[45] Mr. Inoue appeared on behalf of Mr. A. Tehrani and as agent for Ms. Barton for Mr. M. Tehrani and Mr. Litkowski for Mr. Kazman. He confirmed that the others were not aware of this matter until they were told by Mr. Rinaldi on March 16th that there was going to be an attendance in court. Mr. Rinaldi asked them whether or not they intended to proceed with s. 11(b) applications. Mr. Inoue did not advise that they would or would not but said he would report what had occurred to other counsel and “take it from there”.
The Emergency Motion
[46] I advised counsel at the conclusion of argument on March 27th that I would not decide who was correct on the issue of whether or not there were nine transcripts missing. I asked them to exchange emails on the subject and report back to me by email by the end of April 3rd. What I got instead was an emergency motion and supporting materials from Mr. Little; about one half of an inch of materials which he wanted to argue this morning before I gave my decision. Mr. Rinaldi responded and although I have not read these materials it is clear that counsel have not been able to resolve the issue of the missing transcripts.
[47] Having considered the matter, I realized that I could and should decide Mr. Rinaldi’s motion to dismiss these applications without wasting any more court time and I advised Mr. Little and Mr. Rinaldi by email that I did not need to determine the issue of who was right with respect to the missing transcripts and that I would not hear submissions on the emergency motion. The reason for my decision will become apparent as I now explain my decision in this matter with respect to the Crown’s request that I dismiss these applications.
Analysis
[48] The 2016 Practice Direction in effect when this trial began applied to all s. 11(b) applications in the SCJ, subject to any orders made by the presiding judge in a specific proceeding. It required, among other things, that all s. 11(b) applications be heard well in advance of the trial. This requirement is continued in the 2017 Practice Direction and para. 24 provides that all s. 11(b) applications must be scheduled to be heard at least 60 days before the commencement of the trial. Compliance with this provision would render the issue before me about the need for trial transcripts moot.
[49] Although I appreciate that Jordan considered the time to the end of the trial, including sentencing submissions, in my experience, typically if there is an issue with delay it is with respect to the period before the trial actually commences.
[50] Given the circumstances I was faced with on September 12, 2016, when I began this trial, I was not prepared to adjourn the trial and it is fortunate that I did not accede to that request or the objections of Messrs. Kazman and Levy that leaving their s. 11(b) applications to the end of the trial was too late.
[51] In my view it was more than reasonable to expect the defendants to perfect their s. 11(b) applications so that they could be argued in December 2016. I set two deadlines for the submission of materials and made it clear what I required the parties to do in order to perfect their s. 11(b) applications.
[52] Mr. Levy was given his chance to bring a s. 11(b) application and he eventually retained counsel. I extended the deadline for perfecting the s. 11(b) applications as far as I could without causing severe prejudice to the Crown and to my ability to decide the applications before the trial was expected to end. The Crown was entitled to 30 days to respond and Mr. Rinaldi did not ask for more time even though he was going to have to respond to six applications, all with differing facts. The 2016 Practice Direction also contemplated that I would have ten days before the hearing to review the materials and prepare for the hearing. This was essential in that I was expecting to be dealing with the s. 11(b) applications around the same time that the trial was going to be finishing.
[53] The First Deadline I imposed for perfection of the s. 11(b) applications of October 28, 2016, was not taken seriously by any of the defendants bringing s. 11(b) applications. I determined later that it was only around this time that any of them actually took steps to order transcripts and so they had no hope of ever complying with the First Deadline.
[54] What became clear is that I could not rely on what Mr. Levy told me about his preparations for a s. 11(b) application. Although on September 12, 2016, he told me that he had obtained transcripts of all attendances in the OCJ and that he had ordered all of the SCJ transcripts and that those transcripts would be ready on or before September 14, 2016, these representations were clearly false. In fact in the exchange between counsel on the issue of transcripts that I ultimately saw in the material filed on behalf of Mr. Ghatan, when he sought to re-open my dismissal of his s. 11(b) application, there was no suggestion that any transcripts had been obtained by Mr. Levy.
[55] I did not hear from counsel for Mr. Levy until November 2, 2016, after the First Deadline passed, when Mr. Goldstein appeared, but even then he had not actually been retained by the Levy brothers for their s. 11(b) application. Mr. Goldstein advised that if his retainer was confirmed he would prepare materials but would only be available on December 12th and 13th. When Mr. Goldstein inquired as to when facta were due I pointed out that the First Deadline had come and gone.
[56] I did not dismiss the s. 11(b) applications summarily on this date but clearly the defendants were on notice of the Crown’s intention to seek such relief and I set the Second Deadline of November 18, 2017.
[57] Before the Second Deadline no further factum was filed on behalf of the Levy brothers. On November 18, 2016, Mr. Goldstein was in attendance on behalf of the Levy brothers and he provided me with a joint factum on behalf of Gad and Armand Levy in court. I have already explained why it was deficient.
[58] Mr. Goldstein did not attend court and made no submissions on December 14, 2016 when I dismissed the applications brought on behalf of Mr. Ghatan and Mr. M. Tehrani to re-open their s. 11(b) applications and he has not appeared on behalf of Mr. Levy since November 18, 2016. Based on the material filed in support of the these applications to re-open their s. 11(b) applications, as I explained in my First s. 11(b) Decision, I concluded that the defendants, including Mr. Levy, were clearly not serious about the s. 11(b) applications. I note that in para. 7 of Mr. Levy’s factum in support of his notice of application to re-open his s. 11(b) application, Mr. Fedorson admits that as of December 14, 2016, there “were still a number of different transcripts that had not been transcribed which were necessary to complete the record for the s. 11(b) application.” That I do agree with.
[59] In any event I heard nothing further about a s. 11(b) application from Mr. Levy until March 8, 2018. I convicted him and Mr. Kazman and the Tehrani brothers on September 8, 2017. Mr. Levy appeared before me on October 10, 2017 along with the other defendants who had been convicted of offences. By this date Mr. Kazman had retained Mr. Litkowski. Mr. Levy advised me that he was going to retain counsel but blamed his inability to do so on the Jewish holidays. He told me that he had spoken to a few lawyers but that he needed time to get money from a younger brother for a retainer. He asked that I put his sentencing hearing beyond the dates scheduled for the other defendants; to January 2018, “in order to be safe”. I reluctantly granted Mr. Levy’s request and put his sentencing hearing over to January 5, 2018. I made it clear to him that whomever he retained would have to be ready to argue the matter on January 5th.
[60] On December 18, 2017 Mr. Levy attended at the sentencing hearing of Mr. Kazman. At the end of those submissions he addressed me and again told me that he had no lawyer, that his brother was going to assist him in getting a lawyer, that after what he had seen that day he realized that he needed a lawyer, and that he would not be able to get one by January 5, 2018. I pressed Mr. Levy and then he told me that he had spoken to Mr. Worsoff one and one half to two months earlier but that Mr. Worsoff could not be available for January 5th. I reminded Mr. Levy of what I had told him on October 10th and that he needed a lawyer who could argue the matter on January 5th. I refused to adjourn his January 5th sentencing hearing date.
[61] Mr. Worsoff appeared on January 5th on behalf of Mr. Levy. Mr. Rinaldi advised me that he had not been called by Mr. Worsoff until the day prior; January 4th, and that Mr. Worsoff had told him that he “may be assisting Mr. Levy”. Mr. Worsoff advised me that he needed a considerable amount of time to prepare for a sentencing hearing and so I reluctantly agreed to adjourn Mr. Levy’s sentencing hearing to March 9, 2018.
[62] On January 23, 2018, when the sentencing submissions for the Tehrani brothers and Mr. Kazman were completed, Ms. Brun advised that she was concerned about the delay in the sentencing of the other defendants, because of the adjournment I had granted Mr. Levy, which was going to significantly delay the sentencing of all defendants. As a result, she suggested that I should proceed with my sentencing of the other defendants before Mr. Levy’s sentencing hearing. All counsel for the Tehrani brothers and Mr. Kazman objected to this proposal, as it had always been agreed from the outset that although there would be separate sentencing hearings, which would take place over different days, that I would not sentence anyone until I had heard all submissions of all defendants to ensure that I could consider the principle of parity in making my decisions.
[63] Mr. Rinaldi is correct. Had Mr. Levy told me on December 18, 2017, that in fact on November 21, 2017, he or a lawyer on his behalf was ordering transcripts in order to prepare for a s. 11(b) application and that those transcripts were ready for pick up by December 14, 2017, I would not have given him the further lengthy extension that Mr. Worsoff asked for. I do not blame Mr. Worsoff because he was only retained on January 4th but clearly Mr. Levy was stalling so that this further s. 11(b) application he was secretly preparing could be brought and he could delay his sentencing yet again. That is presumably why he retained two other lawyers for the s. 11(b) application. For a man who could not afford one lawyer during the trial he suddenly had three lawyers attending in court on his behalf!
[64] Despite my dim view of what Mr. Levy did with respect to delaying his sentencing hearing, if there had been a material change that could impact on a s. 11(b) application since the fall of 2016 I might have been persuaded to consider hearing such an application now. It is clear however that nothing has changed since January 4, 2016, when the trial date of September 16, 2016 was set. Despite the request by Mr. Levy to adjourn the trial for 30 days, to only have the trial proceed four days a week, to attend late repeatedly during the trial (in fact he even attended one half hour late on March 27, 2018 when his second s. 11(b) application was first spoken to), his request, which I granted, to have many days off in October 2016 for Jewish holidays and to end court early on Fridays over the course of the trial, and all of the trial time I lost case-managing the s. 11(b) applications, the Crown’s case went in faster than expected. The fact the trial lasted one further month is clearly not the fault of the Crown or this Court.
[65] The closing submissions were scheduled in accordance with the consent of all parties and the Crown in fact agreed to go first and provide submissions in writing to assist the defendants, particularly Mr. Levy and Mr. Kazman. Those submissions concluded on March 23, 2017.
[66] Against my better judgment I put the matter over to June 9, 2017 for decision; hoping I could prepare my reasons in a little over two months. Although it is now alleged by Mr. Levy that I am part of the problem of delay, and perhaps others might agree, in my view given I had heard five months of evidence, had thousands of pages of exhibits, CDs of documents, and many pages of written submissions; the fact that it ultimately took me from March 23, 2017 to September 8, 2017, a period of about five months, to render a 400-page decision, does not seem unreasonable to me.
[67] As for the further delay in Mr. Levy’s sentencing that is relied upon in support of this second s. 11(b) application, that was solely due to his requests to delay his sentencing hearing; what I now know was so he could get the second s. 11(b) application materials prepared. But for this second s. 11(b) application, the schedules of counsel, and the fact that everyone has asked to be sentenced at once so that I can take the principle of parity into account, Mr. Levy and the other defendants would have been sentenced on March 19, 2018 and I would have been functus before his counsel finished preparing his second s. 11(b) application.
[68] I have not assessed the merits of a s. 11(b) application on behalf of Mr. Levy based on the timelines prior to the commencement of the trial. Mr. Little makes much of the fact that Mr. Levy was first charged in September 2011 but that was known before the case was set down for trial. As the Court of Appeal said in R. v. Pickard, 2017 ONCA 692 at para. 139, in cases where delay would not have resulted in a stay pre-Jordan, the imposition of a stay post-Jordan will only be in “relatively rare cases”.
[69] When the parties appeared before Justice John McMahon on December 18, 2015, who extensively case-managed this case for the time it was in the SCJ, he pointed out to Mr. Kazman, who was supposedly still trying to put together a s. 11(b) application, that there were some “pretty experienced lawyers” on the case and none of them were bringing s. 11(b) applications. In fact even after Jordan, those experienced lawyers did not bring their own s. 11(b) applications at the start of the trial and only joined in seemingly as an afterthought. I was ultimately satisfied they were never serious. Certainly Mr. Levy was not.
[70] Mr. Rinaldi also makes a good point that Mr. Levy’s actions speak louder than words. He may have said on the record from time to time that he was anxious to conclude this matter as quickly as possible but that was not how he behaved during the trial as I have already said. As for the preliminary inquiry, when it was dragging on because Mr. Kazman cross-examined Corporal Thompson for some 22 days, Mr. Levy opposed attempts by Mr. Rinaldi to curtail that cross-examination and in fact told the judge that he had “millions of questions to ask Corporal Thompson”. Had the preliminary inquiry not been terminated by the Crown and a preferred Indictment obtained, this matter might still be ongoing.
[71] These reasons are in my view sufficient for me to decide that I ought not to permit Mr. Levy a second opportunity to bring a s. 11(b) application now, many months after his convictions. There are however several other reasons why I should not exercise my discretion to permit Mr. Levy to do so. First of all it is clear to me that if I do, that the other defendants will also seek to join in and seek to bring their own s. 11(b) applications. There would be no reason to deny them that request if I allow Mr. Levy to do so. This would put the sentencing of all four defendants off for many months, likely well into the fall of this year. They have all been found guilty of serious fraud offences. The Crown is seeking a seven year sentence against Mr. Kazman and an eight year sentence against Mr. Levy. It would not be in the interests of justice to not sentence them for these offences now.
[72] As I said in my First s. 11(b) Decision, in the post-Jordan era, defence counsel also has a responsibility to ensure that it is not contributing to unnecessary or undue delay. In Jordan at para. 138, the Court noted that defence counsel’s role includes “actively advancing their clients’ right to a trial within a reasonable time, collaborating with Crown counsel when appropriate and, like Crown counsel, using court time efficiently.” [Emphasis added] As the Supreme Court noted at para. 33 in R. v. Cody, 2017 SCC 31, “[a]ccused persons must bear in mind that a corollary of the s. 11(b) right ‘to be tried within a reasonable time’ is the responsibility to avoid causing unreasonable delay.” [Emphasis added]
[73] The 2016 and 2017 Practice Directions are clear. The fact that in this case the s. 11(b) application could not have be brought in advance of the trial, given when Jordan was decided, did not amount to an invitation to defence counsel to ignore the Practice Directions and bring a s. 11(b) application at their leisure, just before I become functus.
[74] In my view clearly the Supreme Court of Canada did not intend that defence counsel be able to use s. 11(b) applications to delay the completion of a trial, which was what already happened back in the fall of 2016 in this case. The Court certainly could not have intended that a s. 11(b) application could be brought after conviction absent some very compelling reasons. None exist in this case.
[75] I have read a recent decision of Justice Dunphy of this court; R. v. Hobeika, 2018 ONSC 85, where he dismissed motions brought by two defendants seeking leave to bring s. 11(b) Charter applications after they were convicted but before the passing of sentence. Unlike the case at bar, these defendants did not suggest that they would bring s. 11(b) applications until after conviction, when Justice Dunphy asked the parties for dates for sentencing submissions. He refused to schedule the s. 11(b) applications until he received an explanation as to why they were being brought after conviction instead of 60 days in advance of trial. Dunphy J. dismissed the s. 11(b) applications without hearing them on the merits. I am in agreement with his reasons for doing so, and they apply with even more force to the case at bar.
[76] Justice Dunphy held that because the 2017 Practice Direction requires that proposed s. 11(b) applications must be brought at least 60 days prior to trial, unless otherwise ordered, that “at this late stage, such an application must at the very least be treated as exceptional, requiring the applicants to demonstrate cogent reasons why it would be in the interests of justice to grant an order permitting the application to be brought. They have failed to do so.” (at para. 2) In my view the same can be said of this case.
[77] In the case before Justice Dunphy, he was able to conclude that neither applicant had articulated a basis for him to believe that their application had a reasonable chance of success nor had they provided him with a satisfactory explanation for having failed to ask to assert their rights sooner. He also noted that there had been no material change in the legal or factual landscape in relation to the s. 11(b) application of either of the applicants since the matter was set down for trial and that the fact that the trial was expected to be completed 49 months following their arrest was plain and obvious from the date the trial was set. (all at para. 3)
[78] Justice Dunphy considered whether the proposed s. 11(b) applications had a reasonable chance of success. As already set out, I have done so to the extent that I can assess that after the commencement of the trial. Justice Dunphy referred to R. v. Warring, 2017 ABCA 128 where the Alberta Court of Appeal held that failure to bring a s. 11(b) application until after conviction amounts to a failure to assert such rights on a timely basis and an implicit waiver (at paras. 9-12). He reconciled Warring with the case referred to by the defence; R. v. Swanson, 2017 ONSC 7710, where proceedings were stayed post-conviction, as follows, at para. 25:
I do not read these two cases as being in fundamental conflict with each other. Warring does not assert that failure to assert s. 11(b) rights pre-conviction necessarily leads to the conclusion of waiver and Swanson did not consider the waiver issue directly. (Emphasis in original)
[79] At para. 26, Justice Dunphy also stated the following:
The burden of justifying an order under the practice direction permitting a late s. 11(b) application is upon the applicants. It is not sufficient on a motion such as this to simply assert that the Crown bears the onus of justifying transitional exceptional circumstances for delays over 30 months under Jordan. That much was known for more than a year before we began the trial.
[80] Dunphy J. concluded at para. 27 that the parties did not raise any s. 11(b) issues when the matter was set down for trial pre-Jordan because both accused persons fully appreciated that there were no such issues under the law as it was then applied. Jordan did not transform what would previously have been considered a reasonable delay into an unreasonable one; Jordan at para. 102.
[81] As Justice Dunphy pointed out at para. 37, while the right to be tried within a reasonable time is obviously primarily for the benefit of an accused person there are other important societal interests at stake. The majority in Jordan made reference to the broader societal interest in ensuring timely justice (at para. 3):
An efficient criminal justice system is therefore of utmost importance. The ability to provide fair trials within a reasonable time is an indicator of the health and proper functioning of the system itself. The stakes are indisputably high.
[82] At Justice Dunphy stated at para. 40:
The responsibility for achieving the culture shift required to implement Jordan is a shared one – bench, bar and court administration all have their part to play.
[83] Like the case before Justice Dunphy, none of the requirements of the 2017 Practice Direction were followed by counsel on behalf of Mr. Levy with respect to this second s. 11(b) application. No judicial pre-trial was requested or convened, no attempt to agree on what transcripts were needed was made and in fact this was a blatant attempt to ambush the Crown and this Court. As Justice Dunphy observed at para. 47, this is not a case of arbitrary or inflexible rules. The 2017 Practice Direction has been carefully crafted to ensure that these applications can be dealt with in an efficient and timely way. The 2017 Practice Direction was designed to avoid the situation I am now faced with and to “avoid waste of significant and scarce resources of the judicial system. Such a misapplication “deprives other worthy litigants of timely access to the courts”: Jordan (para. 43). Delay cascades through the system.” (Hobeika at para. 54)
[84] I adopt all of these reasons given by Justice Dunphy. They apply with even more force to Mr. Levy’s second s. 11(b) application before me. The interests of justice would not be served by my giving Mr. Levy leave, at this late date, to finally get serious about bringing a s. 11(b) application.
[85] For these reasons, it was not necessary for me to consider Mr. Rinaldi’s submissions that this s. 11(b) application has not in fact been perfected. That would have required further submissions on Mr. Little’s Emergency Motion dealing with the alleged nine missing transcripts and a decision from me resolving the issue with respect to the outstanding trial transcripts. That is why I advised counsel yesterday that I would not hear submissions on the Emergency Motion.
[86] For these reasons Mr. Levy’s three applications, including his s. 11(b) application, are dismissed. He will be adjourned to April 12, 2018 to be sentenced with the other defendants.
SPIES J.
Released: April 5, 2018
Edited Decision Released: April 6, 2018
COURT FILE NO.: CR-15-4269
DATE: 20180405
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MARSHALL KAZMAN
GAD LEVY
ARMAND LEVY
ALI VAEZ TEHRANI
MADJID VAEZ TEHRANI
ALIREZA SALEHI
EKATERINA CHAPKINA
KAMYAR GHATAN
Defendants
RULING ON SECOND S. 11(B) APPLICATION BROUGHT BY GAD LEVY
SPIES J.
Released: April 5, 2018
[^1]: Since I acquitted Armand Levy I will refer from here on only to Gad Levy (Mr. Levy).