Court File and Parties

COURT FILE NO.: CRIMJ(P) 1987/16 DATE: 2018 09 11

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN C. Coughlin and V. Aujla, Crown Counsel RESPONDENT

- and -

PRABHJEET SINGH L. Salloum, Counsel for Prabhjeet Singh

ABHIJEET NAGRA R. Gadhia, Counsel for Abhijeet Nagra

DILSHER SINGH N. Rozier and K. Perchenok, Counsel for Dilsher Singh APPLICANTS

HEARD: February 21st and 26th to 28th, 2018

REASONS FOR DECISION- MOTION TO PROHIBIT TESTIMONY

LEMAY J.

[1] The three accused in this case are each charged with one count of unlawful act manslaughter. The charges arise out of an incident that took place on March 6th, 2015 at Fresh Line Foods, a company that processes fresh fruit and vegetables.

[2] Early in the morning of March 6th, 2015, the three accused and the deceased, Gurvinder Singh, were all working at Fresh Line Foods as cleaners on the night shift. They were using water hoses and other tools to clean the machinery in the plant. All three accused were employees of Just N Rush, which is a company that provides temporary workers to other companies such as Fresh Line Foods.

[3] An interaction took place between the three accused and Mr. Gurvinder Singh involving a high pressure air hose. Mr. Gurvinder Singh was injured, and succumbed to his injuries approximately twelve days later.

[4] During the course of the evening of March 6th, 2015, the three accused were taken by Mr. Harjinder Jhaj to see a local lawyer, Manbir Sodhi. They spent a few minutes with Mr. Sodhi. No one who testified thought the meeting was longer than a half an hour. The meeting took place on the evening of March 6th, 2015 either in a car in a parking lot in Brampton or in the parking lot next to the car. Mr. Jhaj was present for at least part of this meeting.

[5] During the examination-in-chief of Mr. Jhaj, Mr. Coughlin had been being careful to avoid any discussion of the contents of this conversation. However, Ms. Gadhia confirmed that she intended to cross-examine Mr. Jhaj on this conversation, and we discussed the issue of privilege. It was clear to me at the end of our discussion in Court that all of the accused had waived any privilege that attached to that conversation.

[6] During the course of cross-examining Mr. Jhaj, portions of the conversation between the three accused, Mr. Sodhi and Mr. Jhaj were put to Mr. Jhaj. He confirmed some of what was put to him by counsel, and denied other portions of what was put to him.

[7] As a result of the cross-examination and the waiver of privilege, Crown counsel proceeded to interview Mr. Sodhi in the presence of Officer Jozwa who has been in the Courtroom for the duration of the trial. In the course of that discussion, it is clear that at least one or two of the questions that were asked in Court were disclosed to Mr. Sodhi, and that this was a violation of my Order excluding witnesses.

[8] As a result of receiving additional disclosure about the conversation with Mr. Sodhi, and about the breach of the Order excluding witnesses, Ms. Gadhia brought a motion to prevent the Crown from calling Mr. Sodhi’s evidence at trial. She also sought, in the alternative, a mistrial. I dismissed that motion, for written reasons to follow, on February 27th, 2018.

[9] As a result of events that I will describe below, after argument had concluded, and I had advised the parties that I was dismissing Ms. Gadhia’s motion, a series of additional motions relating to essentially the same issues were brought on February 28th, 2018, one by each accused. I have dismissed all of those motions as well for written reasons to follow.

[10] However, as the facts and the law are all interrelated, this decision is the written reasons for the dismissal of all of the motions.

[11] On this motion, I heard viva voce evidence from Mr. Sodhi. In addition, I had the notes of Officer Jozwa, a statement signed by Mr. Sodhi, an e-mail from Mr. Sodhi and a series of e-mail exchanges between counsel. These documents were all marked as lettered exhibits in the trial. In addition, the parties consented to me using the evidence of Mr. Jhaj from the trial in order to consider the issues on the voir dire, although Crown Counsel argued that this evidence was irrelevant.

The Events Giving Rise to the Motion

[12] At the outset of trial, an exclusion of witnesses order was requested, and granted. That Order reads as follows:

ORDERS EXCLUDING WITNESSES

“(WOULD ALL WITNESSES IN THE MATTER OF _________, PLEASE STAND).

DIRECTION OF HIS/HER HONOUR, ALL WITNESSES IN THIS CASE ARE TO BE EXCLUDED FROM THE COURTROOM UNTIL CALLED WITH THE EXCEPTION OF _______. WHILE WAITING TO BE CALLED YOU WILL NOT ATTEMPT TO COMMUNICATE IN ANY WAY WITH ANY WITNESS WHO HAS PREVIOUSLY TESTIFIED INTHIS CASE. IF YOU ARE BEING CALLED AS A WITNESS YOU WILL LEAVE THE COURTROOM AT THIS TIME, AND BE AVAILABLE TO COME TO THE COURTROOM WHEN REQUIRED. DURING OR AFTER GIVING YOUR EVIDENCE, YOU WILL NOT COMMUNICATE TO ANY EXCLUDED WITNESS THE EVIDENCE YOU GAVE, NOR ANY OF THE QUESTIONS YOU WERE ASKED, EITHER IN DIRECT OR IN CROSS-EXAMINATION.

WOULD COUNSEL ENSURE THAT THE RESPECTIVE WITNESSES LEAVE THE COURTROOM. FOR WITNESSES WHO ARE NOT PRESENT IN THE COURTROOM, IT IS THE RESPONSIBILITY OF THE COUNSEL WHO WILL BE CALLING THE WITNESS TO ENSURE THEY ARE ADISED OF THE ORDER AND GIVEN A COPY OF THE ORDER. COPIES ARE AVAILABLE FROM THE REGISTRAR.

[13] The exception to the exclusion of witnesses Order was Officer Martin Jozwa who was present throughout the trial, except during the voir dire for this motion.

[14] During the course of the trial, at the end of each witness’s evidence, I cautioned them that they could not discuss what had happened in Court with anyone who was not in Court until the trial was over.

[15] One of the witnesses who testified was Mr. Jhaj. He was cross-examined about a meeting that he had with the three accused and Mr. Sodhi on March 6th, 2015, the night of the incident giving rise to the charges. In the course of that cross-examination, counsel suggested to Mr. Jhaj that he had heard Mr. Sodhi, a lawyer, tell the three accused to lay low, as no charges had yet been laid. Mr. Jhaj denied hearing that comment, but also testified that he had not been present for the entire discussion. Mr. Jhaj provided his testimony over the course of two days, February 15th and 16th, 2018.

[16] Mr. Manbir Sodhi had been listed as a potential witness when the jury was selected, and his name was read out to the jury panel. However, the Crown interviewed Mr. Sodhi in a conference call with Officer Jozwa on February 20th, 2018. As a result of that interview, a statement was taken from Mr. Sodhi, which included the following question:

Did you tell them to hide, disappear or make themselves scarce?

[17] In addition, Mr. Manbir Sodhi provided an e-mail to the Crown Attorneys on February 22nd, 2018 that confirmed that Mr. Sodhi had been advised of the following five points during his discussion with the Crown Attorneys on the 20th of February:

1. That the 3 Accused in the above captioned matter had waived their solicitor/client privilege (in open court) relating to any and all discussions that they may have had with me in relation to this matter; and
2. That one of the defence lawyers in the case has suggested during cross examination to Harjinder Jhaj that I advised the 3 accused to flee the jurisdiction in order to avoid apprehension by police.
3. That Mr. Coughlin objected to this line of questioning, however, the presiding Justice overruled and permitted it;
4. That, having known my character, that both of you were confident that I would not have given such advice;
5. That the possibility would exist that I may be required to testify on Friday, February 23, 2018;

[18] The documentation relating to Mr. Sodhi’s statement was disclosed by the Crown Attorneys between Wednesday, February 21st and the morning of Friday February 23rd. On the morning of Friday, February 23rd, I was advised that the defence viewed the asking of the question, and the suggestion that it had been said in Court, as a breach of the Order excluding witnesses.

[19] Mr. Coughlin, on behalf of the Crown, accepted that my Order had been breached, but characterized the breach as a minor, technical breach. I agree with Mr. Coughlin’s description of the breach as a minor breach, as all that was disclosed to the witness was a question. I will review my findings on the nature of the breach more fully below.

[20] As a result of the breach, Ms. Gadhia brought an application to exclude the evidence, on the basis that it had been improperly tainted. This application was supported by both Mr. Salloum and Ms. Rozier, who also argued that the evidence should be excluded under section 24(2) of the Charter and the principles outlined in R. v. Harrer (, [1995] 3 S.C.R. 562).

[21] Officer Jozwa was excluded from the Courtroom for all of the argument and evidence on the voir dire. None of the parties sought to call him as a witness when evidence was originally being heard on the voir dire.

[22] Evidence was heard on Monday, February 26th, 2018 from Mr. Sodhi as part of the voir dire.

[23] On Tuesday, February 27th, in the morning, I heard argument from the defence about their position on the motion to either exclude the evidence, or grant a mistrial. At the conclusion of the defence’s arguments, I dismissed the motions, with written reasons to follow.

[24] After I advised the parties of my decision, Mr. Coughlin sought to file some additional e-mails. Those e-mails were in furtherance of Mr. Coughlin’s position that Ms. Gadhia had, during the course of her argument, misstated when the Crown disclosed the documents to defence counsel. Having reviewed my notes, I am of the view that the timing of when Ms. Gadhia received these documents was misstated by her in her submissions to me.

[25] In filing this material, however, it became clear that Mr. Coughlin had not disclosed all of the relevant information to defence counsel. Specifically, one e-mail had not been disclosed. It was an exchange between Officer Jozwa and Mr. Coughlin over the questions that were to be asked of Mr. Sodhi.

[26] I was, and remain, very concerned about the Crown’s failure to disclose this document in a timely way. In court on February 27th, I advised Mr. Coughlin that, if there was even a comma difference between the questions asked of Mr. Sodhi and the questions proposed in the e-mail, I would permit the defence to re-open the motion to exclude the evidence. I adjourned court until the next morning so that the parties could consider their positions.

[27] The next morning, Ms. Gadhia brought an application for a stay of proceedings and/or the declaration of a mistrial. For the first time, Ms. Gadhia argued abuse of process, and relied specifically on the abuse of process case-law. There had been no explicit discussion of abuse of process prior to the morning of February 28th, 2018.

The Positions of the Parties

[28] Ms. Gadhia argues that the evidence of Mr. Sodhi should be excluded, and not heard by the jury at all. In the alternative, she argues that a mistrial should be declared if I am prepared to allow the Crown to call Mr. Sodhi. She advances this argument on the basis that Mr. Sodhi’s evidence has been so tainted that it is completely unreliable. She also, on the second hearing of the motion, argued that the Crown’s conduct amounted to an abuse of process.

[29] The other defence counsel argued that the evidence should be excluded, or a mistrial should be ordered, for many of the same reasons that were advanced by Ms. Gadhia. However, both Mr. Salloum and Ms. Rozier argued that the fair trial rights of the accused would be vitiated if I permitted the evidence of Mr. Sodhi to be heard by the jury.

[30] In addition, however, on the second hearing of the motion, both Mr. Salloum and Ms. Rozier brought forward a new argument. Mr. Salloum argued that the Crown counsel should be called as witnesses on the voir dire, and that they should not be allowed to continue with the case at this stage. Ms. Rozier argued that she should be entitled to cross-examine Officer Jozwa. For clarity, Ms. Rozier only sought to cross-examine Officer Jozwa after the missing email described in paragraph 25 came to light, and I made a decision to permit the parties to re-argue the motion.

[31] Mr. Coughlin, on behalf of the Crown, opposes this application on the basis that the evidence is relevant and admissible, and that the breach of the exclusion of witnesses Order was of a minor, and technical, nature.

The Issues to be Decided

[32] Based on the foregoing facts and positions, the following issues are to be decided:

a) Should the evidence of Mr. Sodhi be excluded because it has been tainted by the breach of my exclusion of witnesses Order? b) Should the evidence of Mr. Sodhi be excluded as a result of a breach of the Charter, and the fair trial rights of the accused? c) Is abuse of process an issue that is properly before me? If so, should Mr. Sodhi’s evidence be excluded as a result of abuse of process on the part of the Crown? d) If Mr. Sodhi’s evidence is not excluded, should a mistrial be declared? e) Should I have permitted Mr. Salloum to bring a motion to have Crown counsel called as witnesses in this case? f) Should I have permitted Ms. Rozier the opportunity to cross-examine Officer Jozwa once the missing e-mail was disclosed?

[33] I will address each of these issues in turn.

The Nature of the Breach

[34] Before addressing each of these issues, I will set out my conclusions on the nature of the breach. Briefly put, I share Mr. Coughlin’s view that the breach in this case was on the low end of the range of possible breaches for three reasons.

[35] First, it was only the question that was disclosed to the witness. Questions are not evidence. They may suggest what evidence is to come but they are, in themselves, not evidence. As a result, disclosing the question that was asked in Court is a less significant breach than disclosing the answer that was given.

[36] Second, and related to the first point, none of the answers given in Court were disclosed to Mr. Sodhi. Indeed, during the course of the voir dire, Mr. Sodhi testified that he asked Mr. Coughlin about the answers that were given in Court, and that Mr. Coughlin was not prepared to advise him of the answers because of the exclusion of witnesses Order.

[37] Finally, the question deals with one fact, about one facet of the overall case. It is not even directly about the incident itself, but concerns post-incident conduct. As a result, it will have a more limited impact on the outcome of the trial.

Issue #1- Exclusion on the Basis of Taint

[38] Defence counsel, particularly Ms. Gadhia, argue that the contact between the Crown Attorneys, Officer Jozwa and Mr. Sodhi has so tainted his evidence that it cannot be heard by the trier of fact. The law does not provide any support for this position and I reject it.

[39] In R. v. Dobberthein (, [1975] 2 S.C.R. 560) considered the failure of a Crown witness to comply with an order excluding witnesses. In that case, the majority, following a long line of old English cases, held that the Court should not reject a witness’s evidence for breaching an Order excluding witnesses.

[40] Since that decision, the leading case in Ontario on the exclusion of witnesses on the ground that their evidence is tainted is R. v. Buric (, [1996] O.J. No. 1657 (C.A.)). In Buric, the Court considered the evidence of a witness who had received significant detail about the police investigation from the police before testifying. The trial judge excluded the evidence because he found it to be suspicious, the police had not kept proper records of their interviews with the witnesses, and no one had taken any steps to record what the witness had said before he had been given details about the police investigation.

[41] The majority of the Court of Appeal overturned the trial judge’s decision, and permitted the witness to testify, in spite of the concerns about the quality of his evidence. In reaching this decision, Labrosse J.A. stated (at paragraph 25):

It is difficult to foresee how a trial will unfold when the witness has not yet been heard. It is not clear how the defence would have been restricted or prejudiced in the cross-examination of Pietrorazio. That issue would have been clearer after he had testified before the trier of fact. It must be remembered that Mr. Pietrorazio would not have testified with a clean slate. He made statements to the police, there is an intercepted telephone conversation on December 5, 1991 (which may be relevant to tainting) and he already testified at the preliminary hearing, at the first trial and was extensively cross-examined on the voir-dire. It is likely that, in light of the purposes for which the trial judge embarked on the voire dire, the evidentiary exploration would be much broader if Pietrorazio testified at trial. In appropriate circumstances, the jury could be alerted to the absence of a pretainting statement, the similiarities between his evidence and the statements of other persons, the limited purpose for which these statements may be used, the contradictions with respect to Anna Steduto, his criminal record and his favourable treatment from the authorities. There could also be an appropriate warning from the trial judge as to the dangers of accepting his evidence. The defence is likely to have a great deal of munition with which to attack the credibility of the witness. At this stage, I cannot accept that the trial would be unfair. If it were to become unfair, the appropriate relief would still be open to the trial judge.

[42] In the course of his reasons, Labrosse J.A. relied on the decision of the Court of Appeal in R v. Dikah ((1994), 18 O.R. (3d) 302 (C.A.)), aff’d sub nom. Naoufal v. R, [1994] 3 S.C.R. 1020. In that case, the Court of Appeal noted that it would be a “rare case indeed” where a witness would be found to be completely untrustworthy before they had given their evidence.

[43] In other words, in most cases, witnesses who have been tainted by breach of an exclusion Order, or by other information coming to their attention, are usually cross-examined on the taint, and a limiting instruction is given to the jury to address any issues with their evidence. The extent and effect of any tainting is an issue for the trier of fact to determine.

[44] However, in this case, Ms. Gadhia wanted me to adopt the reasoning in the dissent to exclude the evidence. The problem with this submission is that the dissenting judge, Laskin J.A. states (at paragraph 61):

I agree with Labrosse J.A. that the trial judge appeared to misinterpret the Surpreme Court’s decision in R v. Mezzo, [1986] 1 S.C.R. 802, 27 C.C.C. (3d) 97, by referring to the reasons of Wilson J. and Lamer J. and ignoring the majority judgment of McIntyre J. I also agree with Labrosse J.A. that in Harrer the Supreme Court did not intend to overrule Mezzo and R v. Monteleone, [1987] 2 S.C.R 154, 35 C.C.C (3d) 193. The trial judge would have erred in law if he had excluded Pietrorazio’s evidence simply because the police tainting made the evidence “manifestly unreliable’. The cases my colleague refers to establish that the quality of the evidence – its inherent reliability or unreliability – is a question of weight, not admissibility. Manifest unreliability, standing by itself, is not a sufficient reasons to keep evidence from the jury.

[45] In other words, even if I applied the dissent in Buric, the manifest unreliability of the witness will not be enough, on its own, to result in the Court prohibiting a witness from testifying.

[46] This brings me back to the facts of this case. There is no merit to the submission that Mr. Sodhi’s evidence is so tainted that it cannot be heard by the jury. I reach that conclusion for three reasons.

[47] First, there are extensive written records of the questions that Mr. Sodhi was asked, as well as the interactions that he had with the Crown Attorneys and Officer Jozwa. This documentation will permit the defence to cross-examine Mr. Sodhi on the accuracy of his recollections, as well as providing the defence with the ability to illustrate to the jury the potential problems with Mr. Sodhi’s evidence.

[48] Second, the breach in this case is both minor and identifiable. The particular question that breached my Order, as well as the background to that breach, are both clear from the documentation that was provided by the Crown Attorneys. There is a very limited risk that the jury will be misled about any potential taint in this case.

[49] Finally, a limiting instruction can be given to the jury so that they understand that, as a matter of law, there may be issues with Mr. Sodhi’s evidence. I advised counsel that such an instruction would be included in the jury charge.

[50] I should note, for completeness, that the additional e-mail that was disclosed by the Crown after this motion had been argued the first time does not change this analysis in the slightest. That e-mail was a list of the questions that were to be posed by Officer Jozwa to Mr. Sodhi in the interview. The differences between that e-mail and the questions that were actually asked (and properly disclosed to defence counsel) are miniscule.

[51] The specific differences between the e-mail and the questions that Mr. Sodhi was asked are as follows:

a) The date of March 6th, 2015 was added to one of the questions that Officer Jozwa asked. b) The words “did you” were added to a question in order to make them grammatically correct. c) A question proposed by the Crown Attorneys about which type of law Mr. Sodhi practiced was not asked because he volunteered the information in response to the previous question. d) A question proposed by the Crown attorneys about what time the meeting took place on March 6th, 2015 was not asked.

[52] When these are reviewed, there is no possible prejudice that any of the accused could have suffered by not having this list of questions in advance of the cross-examination of Mr. Sodhi. It must be remembered that the questions that were actually asked of Mr. Sodhi were disclosed in a timely way. The e-mail that was disclosed late was a communication between the Crown and the Police. It had no direct effect on Mr. Sodhi’s evidence.

[53] As a result of the foregoing, I found that there was no merit to this submission, and did not require the Crown to respond to it.

Issue #2- Should Mr. Sodhi’s Evidence Be Excluded as a Result of a Charter Breach?

[54] This argument was primarily advanced by Mr. Salloum and Ms. Rozier. It was based on the reasoning of the Supreme Court in R. v. Harrer, supra. In that decision, LaForest J. explained, for the majority that the right to a fair trial is enshrined in the constitution. He also explained that, if the admission of evidence would lead to an unfair trial, then that evidence should be excluded.

[55] Specifically, at paragraph 21 of Harrer, supra, LaForest J. stated:

I should add that, had the circumstances been such that the admission of the evidence would lead to an unfair trial, I would have had no difficulty rejecting the evidence by virtue of the Charter. I would not take this step under s. 24(2), which is addressed to the rejection of evidence that has been wrongfully obtained. Nor would I rely on s. 24(1), under which a judge of competent jurisdiction has the power to grant such remedy to a person who has suffered a Charter breach as the court considers just and appropriate. Rather, I would reject the evidence on the basis of the trial judge’s duty, now constitutionalized by the enshrinement of a fair trial in the Charter, to exercise properly his or her judicial discretion to exclude evidence that would result in an unfair trial.

[56] From this, it is clear that evidence can be excluded under the Charter if it will affect the accused’s fair trial rights.

[57] I am of the view that, in this case, the admission of Mr. Sodhi’s evidence will not affect the accused’s fair trial rights. Although the analytical framework is somewhat different under this issue than it is under the first issue, the reasons are largely the same.

[58] The accused will have the opportunity to explore any possible concerns with Mr. Sodhi’s evidence in cross-examination. The jury will be instructed about the problems with Mr. Sodhi’s evidence in the jury charge. As a result, the accused’s fair trial rights are not affected by the admission of this evidence.

Issue #3- Abuse of Process

[59] Abuse of process was only raised by Ms. Gadhia when the additional e-mail was disclosed by Mr. Coughlin. As a result, there is a question about whether the issue is even properly before me. In particular, the issue of abuse of process was not raised directly the first time that these issues were argued. The opportunity to reargue was given because of the late disclosure of one e-mail.

[60] However, the late disclosure of the e-mail described above leaves me in a position where I must permit the defence to re-argue the issues relating to Mr. Sodhi’s evidence. While I should have put limits on that argument, I did not. As a result, I will consider the abuse of process issue.

[61] As a result of an alleged abuse of process, Ms. Gadhia is seeking a stay of proceeding, which is a very significant remedy. The abuse of process that is being alleged in this case is that the Crown Attorneys directed and coached Mr. Sodhi, as well as communicating with him what happened in Court. In addition, the alleged abuse of process extends to the fact that a highly relevant e-mail was only disclosed after the initial ruling on the voir dire. I would note that this “highly relevant” e-mail did not add anything of significance to the record before the Court.

[62] In R. v. Babos (2014 SCC 16, [2014] 1 S.C.R. 309), Moldaver J. stated the following (at paragraphs 30 and 31):

30. A stay of proceedings is the most drastic remedy a criminal court can order (R v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 53. It [page 322] permanently halts the prosecution of an accused. In doing so, the truth-seeking function of the trial is frustrated and the public is deprived of the opportunity to see justice done on the merits. In many cases, alleged victims of crime are deprived of their day in court.

31. Nonetheless, this Court has recognized that there are rare occasions- the “clearest of cases” –when a stay of proceedings for an abuse of process will be warranted (R v. O’Connor, [1995] 4 S.C.R. 411, at para 68). These cases generally fall into two categories: (1) where state conduct compromises the fairness of an accused’s trial (the “main” category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual” category) (O’Connor, at para. 73). The impugned conduct in this case does not implicate the main category. Rather, it falls squarely within the latter category.

[63] There is no basis whatsoever for a stay in this case. To understand the reasons for my conclusion, the facts in Babos should be considered. In Babos, the Court was concerned with three different instances of misconduct. These were as follows:

a) Attempts by the original Crown Attorney to intimidate the accused into foregoing their right to a trial by threatening them with additional charges if they did not plead guilty. b) Collusion on the part of police officers to mislead the Court about a material fact. c) Improper means used to obtain the medical records of one of the accused while he was in custody.

[64] Each one of these allegations of misconduct was, in and of itself, serious. However, the Supreme Court found that a stay was not an appropriate remedy. In doing so, the Supreme Court set out the three part test (at paragraph 32) for considering whether a stay was granted. I will consider the first two branches of the test. The final branch, which requires a balancing, does not arise on these facts.

[65] The first branch requires a consideration of whether there is prejudice, either to the accused’s fair trial rights or to the integrity of the justice system. In this case, I am not persuaded that there is prejudice in either area that would be manifested or aggravated through continuing with this trial. The original breach was a minor, technical breach. The late disclosure of the e-mail did not have any significant effect on the accused’s case, as the differences between the questions proposed in the e-mail and the questions asked were trivial.

[66] To the extent that these breaches of the Crown’s obligations go to the administration of justice in the larger sense, they are on the low end of the scale in terms of their seriousness. To find that these types of breaches would engage the right to a fair trial or the integrity of the justice system would be to overreach. It would make almost any breach grounds for finding an abuse of process.

[67] In any event, however, on the second branch of the test, there are numerous alternative remedies that are available to remedy any problems. First, defence counsel will have the opportunity to cross-examine Mr. Sodhi on these documents and issues. Second, a limiting instruction is available and suitable in this case.

[68] As a result, there was no merit to the claim that the Crown had engaged in an abuse of process that would justify a stay in this case. I did not call on the Crown to respond to this argument.

Issue #4- Should a Mistrial Be Declared?

[69] All of the defence counsel suggested, at one point or another, that if I was not going to exclude Mr. Sodhi’s evidence completely, I should declare a mistrial. I rejected that request for a number of reasons, most of which are addressed in my previous analysis.

[70] My reasons for denying the mistrial application can be briefly stated as follows. A mistrial is a remedy of last resort (see R. v. Toutissani 2007 ONCA 773). In this case, there were a number of other remedies that could be (and were) provided to the defence to address any concerns about Mr. Sodhi’s evidence. Those remedies were sufficient to fully address any concerns about his evidence and a mistrial was not necessary.

Issue #5- Should Mr. Salloum Be Permitted to Bring a Motion to Call Crown Counsel as Witnesses?

[71] This was an issue that Mr. Salloum raised on the second hearing of this motion. He advised the Court that he was seeking to call both Mr. Aujla and Mr. Coughlin as witnesses on the voir dire. I asked him whether he had any materials for this motion. He advised me that he did not, as he did not want to disclose the materials to Mr. Coughlin or Mr. Aujla, as they would be witnesses on the motion.

[72] I dismissed Mr. Salloum’s request to have the Crown Attorneys called as witnesses. The failure to file any materials alone is, in my view, sufficient to dispose of this request. However, it was a request that formed, at least implicitly, part of the submissions of all counsel. As a result, I will provide more complete reasons to explain why this request was dismissed.

[73] The suggestion was made, on more than one occasion by every one of the defence counsel, that Mr. Coughlin and Mr. Aujla should no longer be permitted to conduct at least the voir dire, as they were potentially witnesses in the voir dire. In particular, Ms. Gadhia, on behalf of Mr. Nagra, made it clear that one of the grounds for her application on the second hearing of the voir dire was that the Crowns prosecuting the case failed to remove themselves for the purposes of the voir dire.

[74] The argument that the Crown Attorneys should have been witnesses in this voir dire, or that they should have been excluded from the voir dire as counsel because they might be witnesses is an argument unsupported by either the law or the facts of this case.

[75] In R. v. Elliott ((2003), 179 O.A.C. 219 (C.A.)), the Court of Appeal was concerned with a case where a trial judge had permitted the defence counsel to call Crown counsel as witnesses. In explaining why the trial judge erred in doing so, the Court stated:

114. It is only in exceptional circumstances that Crown or defence counsel will be permitted to call opposing counsel as a witness. It is not sufficient that the counsel may have material evidence to give. The party seeking to call opposing counsel must lay an evidentiary foundation for showing that the counsel’s evidence is likely to be relevant and necessary. This stringent test applies whether it is defence counsel seeking to call Crown counsel or Crown counsel seeking to call defence counsel.

[76] As a result, before the Court will permit one party to call the other party’s counsel, an evidentiary foundation must be laid. Further, merely showing that opposing counsel interviewed a witness whose statement is the subject of cross-examination will not be sufficient to entitle the party conducting the cross-examination to call the opposing counsel (see R. v. Sungalia [1992] O. J. No. 3718).

[77] In this case, the content of the discussions between Crown counsel and Mr. Sodhi are clear. In addition, Officer Jozwa was present for the impugned conversation. If any of the counsel had wanted further information on that conversation, it was open to them to call Officer Jozwa as a witness on the voir dire. None of them chose to do so originally. Only Ms. Rozier, on behalf of Dilsher Singh, sought to do this on the second hearing of the voir dire.

[78] Further, the ability to choose counsel is not something that should be lightly interfered with. This is, in my view, particularly true when one party seeks to call the other party’s counsel in the middle of a trial. The effect of having Mr. Coughlin and Mr. Aujla called as witnesses, and unable to act on the voir dire would have inevitably led to a significant delay in the completion of the Crown’s case as new counsel would have had to be briefed on what had taken place, and would have to prepare to conduct the voir dire.

[79] There is a further issue that would likely have arisen. No counsel specifically stated that the new lawyers brought in by the Crown to conduct the voir dire would have had to refrain from discussing the case with Mr. Aujla and Mr. Coughlin. However, given Mr. Salloum’s position that he did not file materials because he did not want the Crown Attorneys to know what was in them, it is likely that counsel would have raised this issue. The result would have been some of the same problems that the Court encountered in Elliott, supra.

[80] Given the documentation that was available, and the fact that Officer Jozwa could have been (at least on the first voir dire) called as a witness, there was no basis for the request to have the Crown Attorneys replaced, or to have them called as witnesses.

Issue #6- Cross-Examining Cst. Jozwa

[81] As I have noted elsewhere, Cst. Jozwa was excluded from the courtroom for the hearing of the voir dire. Part of the reason that I had for agreeing to make that Order is that it was clearly possible that the defence might have wanted to have Officer Jozwa testify.

[82] No one sought to call him on the first hearing of the voir dire. It was only on the second hearing that Ms. Rozier sought to call him as a witness. The only difference in the evidence between the first hearing of the voir dire and the second hearing was the disclosure of an e-mail from Crown Counsel to Officer Jozwa outlining the questions that Officer Jozwa was to ask the witness.

[83] As I have set out at paragraph 51, the differences between the questions proposed and the questions actually asked were miniscule. As a result, there was no basis to permit Officer Jozwa to be called on the second hearing of the voir dire.

[84] In essence, Ms. Rozier was seeking to call Officer Jozwa on the second voir dire in order to have a “redo” of the evidentiary portion of the voir dire. If the parties had wanted to call Officer Jozwa as a witness, there was an opportunity to do so on the first voir dire.

Conclusion

[85] I expressed my concerns with the Crown Attorneys for breaching the Court Order. I also expressed my significant concerns about the failure to disclose, in a timely way, all of the documentation relating to this Order. I repeat those concerns here. Crown counsel has an obligation to ensure that documentation is disclosed in a timely way and that Court orders are adhered to.

[86] I would be remiss, however, if I did not also express some concern, as I have in the body of these reasons, for some of the positions taken by defence counsel. Particularly in a post-Jordan world, defence counsel have a responsibility to the Court to carefully consider the merits of their motions. That was not done here. In particular, the remedies sought by defence counsel for the breach in this case were not within the scope of realistically available remedies.

[87] In the result, I find that there is no merit to the request to exclude the evidence of Mr. Sodhi, and no merit to any of the requests that flowed from the Crown’s failure to disclose all of the relevant documentation. As a result, all of these applications are dismissed.

LEMAY J. Released: September 11, 2018