Court File and Parties

COURT FILE NO.: 17-120

DATE: 2018-10-24

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DINESH KHANNA Applicant

COUNSEL:

F. McCracken & L. Ellins, on behalf of the Crown

J. Rosen and L. Daviau for the Applicant

G. Parker for the Complainant, J. Zarboni, for Palenko, W. Oughtred, for M., P. Boushy, for R., K. Hepburn, for F., J. Read for G.2, D. Morris, for A., M. Wendl, for G.1, M. Visentini for the Third Party, Hamilton Police Service, A. Majeed for self.

HEARD: June 18, 19, 20 and 22, 2018

BEFORE: a.j. goodman J.

RULING WITH RESPECT TO DISCLOSURE OF THIRD PARTY RECORDS

[1] The applicant is alleged to have committed sexual assaults and a large scale fraud against many individuals while engaged as a mortgage broker.

[2] In order to address the volume of materials expected to be filed in this omnibus application and to ensure a timely trial, I was appointed case management judge pursuant to s. 551 of the Criminal Code to deal with this discrete issue prior to trial.

[3] The applicant requests production of certain records related to the charges, held by various third parties. Responding to subpoenas, various third party record holders attended court and tendered the requested documents pending argument of the application. Prior to the submissions of the parties, I had not seen the documents, nor had counsel for the Crown or counsel for the applicant.

[4] While none of the records can be classified as counselling or therapeutic records, on consent of all parties there is no dispute that these documents are "records" as defined by section 278.1 of the Criminal Code as the applicant is charged with an offence enumerated in section 278.2. Accordingly all parties concede that the regime set out in sections 278.3 to 278.9 govern this application.

Background:

[5] The applicant is a mortgage broker. On December 16, 2015, the applicant was charged with one count of sexual assault in relation to N. G.. The assault is alleged to have occurred on or about February 27, 2015, at the applicant’s place of business.

[6] On Thursday, March 3, 2016, officers from Hamilton Police Service arrested the applicant and charged him with six additional counts of historical sexual offences and related offences in connection with three further complainants, L.G.2, D.R. and T. F.. Offences related to these three complainants are alleged to have occurred between October 1, 2011 and October 31, 2011, March 1, 2012 and March 31, 2012, October 1, 2013 and October 31, 2013 and on June 9, 2015, respectively.

[7] On September 28, 2016, the applicant was arrested for a third time and charged with multiple fraud related offences involving complainants, N. G., L. G.1, J. A., L.G.2, S. P., D. and A. R., F. and R. M. and several financial institutions. The charges date back to between April 2010 and February 2015. Aside from the sexual charges, the Indictment further alleges two counts of defrauding the public, which relates to properties owned by or related to the four complainants as well as others.

[8] With respect to the first count of defrauding the public, the applicant is alleged to have made false or misleading statements to client/borrowers, including the complainants in the sexual assaults, on which they relied when they entered into mortgage or other real estate transactions relating to one or more of the subject properties. The sexual assault charges are closely connected to this fraud count, in that it is alleged that the applicant committed the sexual assaults while dealing with the sexual assault complainants in respect of mortgage and related financial transactions.

[9] With respect to the second count of defrauding the public, the applicant is alleged to have made false or misleading statements to lenders and others on which they relied when they entered into mortgage and related financial transactions with the named complainants and others and advanced money in relation to one or more of the subject properties.

[10] All the records sought by the applicant are financial in nature or related to the management of the Third-Party respondent’s finances.

Positions of the Parties:

[11] The applicant submits that all of the documents sought are financial in nature and relate to the respondent or Third Parties and their dealings with or related to the subject properties. The documents sought are necessary to allow the applicant to complete the narrative in relation to the transactions at issue, which will also impact on the issues raised in respect of the alleged sexual assaults including the credibility of the complainants.

[12] The applicant says that he requires these documents in order to make full answer and defence, and in particular to demonstrate, in relation to each respondent or Third Party and other witnesses to be called by the Crown, the following: The nature and extent of the relationship between each of the respondent/Third Parties, other witnesses and the applicant; The narrative and chronology of the mortgage and real estate transactions and related financial transactions as they pertain to each of the respondent/Third Parties and the subject properties; A complete financial picture of each of the respondent/Third Parties during the relevant time frame; Details of the financial aspect of each transaction including monies paid and received, whether in cash or otherwise, the source of funds, and the use made of funds by various parties including the respondent/Third Parties and witnesses to be called; The financial knowledge, understanding and experience of each of the respondent/Third Parties; The motivation of each of the respondent/Third Parties and other witnesses to make their allegations against the applicant. The Applicant submits that he requires the documents to be able to fully cross-examine all of the prosecution witnesses.

[13] The Crown attorney and the various parties conceded likely relevance with respect to a limited number of the records deposited with the Court. Nonetheless, the Crown, supported by counsel for the third parties, oppose the release of some of the records claiming that the applicant has not met the threshold test of likely relevance and has not substantiated his application in accordance with the well-established legal principles. While the Crown concedes that the application raises some valid points, for the majority of the records sought to be released, there must be more than bald assertions of relevance in order to make the records relevant, which is not found here.

[14] The respondents and various parties who are represented by counsel take similar positions as advanced by the Crown and while concede that some of the records meet the likely relevance test, they have collectively voiced their opposition to the release of the records based on the relevant threshold test.

[15] Mr. Visentini for the Hamilton Police Service, opposes the release of any or all police records based on the applicant failing to meet likely relevance for their production.

Legal Principles:

[16] The constitutional validity of the relevant provisions of the Code was upheld by the Supreme Court of Canada in R. v. Mills (1999), 1999 CanLII 637 (SCC), 139 C.C.C. (3d) 321 (S.C.C.). The statutory provisions themselves were enacted by Parliament following the decision of the Supreme Court of Canada in R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411. The Court of Appeal, in R. v. Batte (2000), 2000 CanLII 5751 (ON CA), 145 C.C.C. (3d) 449 considered the import of the provisions, and the appropriate tests to be considered by a trial judge in determining whether documents should be ordered to be produced.

[17] Section 278 provides for a complete code and procedure for production of third party records in cases involving sexual offences. The relevant provisions include:

Application for production

278.3 (1) An accused who seeks production of a record referred to in subsection 278.2(1) must make an application to the judge before whom the accused is to be, or is being, tried.

No application in other proceedings

(2) For greater certainty, an application under subsection (1) may not be made to a judge or justice presiding at any other proceedings, including a preliminary inquiry.

Form and content of application

(3) An application must be made in writing and set out

(a) particulars identifying the record that the accused seeks to have produced and the name of the person who has possession or control of the record; and

(b) the grounds on which the accused relies to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify.

Insufficient grounds

(4) Any one or more of the following assertions by the accused are not sufficient on their own to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify:

(a) that the record exists;

(b) that the record relates to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received or is receiving;

(c) that the record relates to the incident that is the subject-matter of the proceedings;

(d) that the record may disclose a prior inconsistent statement of the complainant or witness;

(e) that the record may relate to the credibility of the complainant or witness;

(f) that the record may relate to the reliability of the testimony of the complainant or witness merely because the complainant or witness has received or is receiving psychiatric treatment, therapy or counselling;

(g) that the record may reveal allegations of sexual abuse of the complainant by a person other than the accused;

(h) that the record relates to the sexual activity of the complainant with any person, including the accused;

(i) that the record relates to the presence or absence of a recent complaint;

(j) that the record relates to the complainant’s sexual reputation; or

(k) that the record was made close in time to a complaint or to the activity that forms the subject-matter of the charge against the accused.

[18] It is clear that there is no duty on third parties whose records are not part of a criminal investigation to disclose them to an accused. Where there exists a reasonable expectation of privacy in the sought-after records, there exists competing constitutional rights – an accused’s s.7 Charter right to a fair trial including the right to make full answer and defence, and, a third party’s right to privacy protected by the same constitutional regime. Although the court’s obligation is to balance those rights within the factual context of a specific prosecution, fair trial interests may require intrusion upon privacy. In R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668 at para. 94, the Supreme Court held:

In summary, the following broad considerations apply to the definition of the rights at stake in this appeal. The right of the accused to make full answer and defence is a core principle of fundamental justice, but it does not automatically entitle the accused to gain access to information contained in the private records of complainants and witnesses. Rather, the scope of the right to make full answer and defence must be determined in light of privacy and equality rights of complainants and witnesses. It is clear that the right to full answer and defence is not engaged where the accused seeks information that will only serve to distort the truth-seeking purpose of a trial, and in such a situation, privacy and equality rights are paramount. On the other hand, where the information contained in a record directly bears on the right to make full answer and defence, privacy rights must yield to the need to avoid convicting the innocent.

Analysis:

[19] The test to order the production of records requires the applicant to satisfy me on a balance of probabilities that the records are likely relevant to an issue at trial and their production is necessary in the interests of justice.

[20] Indeed, I must balance the right of the applicant to make full answer and defence against the right to privacy and equality of the complainants, taking into account the factors set out in s. 278.5(2) of the Code. If at the end of this balancing process I am not certain as to whether or not to order production or there is a danger that the accused's right to make full answer and defence will be violated, the interests of justice require that I err on the side of production: Mills at paras. 132 and 137.

[21] As noted by O’Connor J. in R. v. L.F. (2006), 2006 CanLII 1024 (ON SC), 37 C.R. (6th) 152 (Ont. S.C.), the accused often finds himself or herself in a dilemma, simply because he or she does not know what the records contain, and is thus hampered in his or her ability to demonstrate likely relevance. However, it is clear from the cases interpreting the legislative provisions, that the applicant must demonstrate likely relevance through evidence, and not through speculation or assumptions. As stated by Doherty J.A. in R. v. Batte (2000), 2000 CanLII 5751 (ON CA), 145 C.C.C. (3d) 449 at para. 53: “The likely relevance of the records to an issue at trial, a witness’ credibility or the competence of a witness to testify is a prerequisite to an order compelling production of the records to the judge.” Moreover, “the onus is on the accused to establish likely relevance. In doing so, the accused cannot rely on speculative assertions”.

[22] There was no dispute amongst counsel that in accordance with Mills at para. 124, the test for "likely relevant" in s. 278.5(1) is whether there is a reasonable possibility that the information is logically probative to an issue at trial which can include the credibility of witnesses and the reliability of evidence. This requires case-specific evidence or information to show that the record in issue is likely relevant to an issue at trial.

[23] The applicant seeks production and disclosure of the following records:

a. All relevant documents in the possession of each of the respondent/Third Parties relating to all of their dealings with him, including but not limited to all past financial and personal dealings, including files, letters, notes, records, ledgers, cheques, diaries, e-mails, text messages, video and audio tape recordings and any other communications with the applicant; All relevant documents in the possession of each of the respondent/Third Party Record Holders relating to all of their dealings with the applicant, the respondent/Third Parties and the subject properties, including but not limited to all past financial and personal dealings, all files, letters, internal notes, records, ledgers, cheques, diaries, e-mails, text messages, video and audio tape recordings and any other similar material.

b. With regard to the respondent/Third Party record holder banks, financial institutions and mortgage lenders, or non-institutional named Third Party record holders, all relevant banking and financial records including mortgage files, loans, investments, cheques and deposits and account information, letters, internal notes, ledgers, e-mails, text messages, internal communication logs, video and audio tape recordings and any other similar material relating to each of the respondent/Third Parties and/or the subject properties and/or the applicant.

c. More particularly, with regard to the respondent/Third Party lawyers and law firms, all relevant records including mortgage files, loan file, investment files, cheques and deposits for trust and general accounts, client account information, letters, internal notes, ledgers, e-mails, text messages, video and audio tape recordings and any other similar material relating to any of the respondent/Third Parties, the subject properties and the applicant that are not subject to lawyer/client privilege;

d. With respect to the respondent and the Ministry of Community and Social Services, Criminal Injuries Compensation Board, Financial Services Commission of Ontario (“FSCO”), all records including files, ledgers, cheques and deposits and account information, letters, internal notes, e-mails, text messages, and any other material relating to any or all of the respondent/Third Parties and with respect to the Hamilton Police Service, all records including occurrence reports, internal memoranda, police reports and police officers’ notes pertaining to each of the Respondent/Third Parties.

[24] The documents to be reviewed are not what one would typically find under a s. 278 application. None are journal entries, counselling or therapeutic records. All of the records sought relate to financial transactions or mortgages, involving the complainants, the applicant and/or third parties in relations to direct or indirect financial transactions.

[25] As mentioned, for much of the voluminous records deposited with the Court, the parties have not conceded that Stage 1 – as it is often referred to – had been established by the applicant. In other words, the Crown, respondents and Third Party counsel dispute that the records are likely relevant to an issue at trial. Therefore, I am required to determine whether the impugned records are likely relevant to an issue at trial.

[26] I must consider the statutory criteria in s. 278.1 in conjunction with the documents and purpose for disclosure as framed by counsel for the applicant. In this case, the applicant request not only financial transactions, but also to personal information related to banking transactions and any occurrence reports within the possession of the Hamilton Police Service. Counsel suggests that there is good reason to suspect that there may be something in those records that would assist his client.

[27] It is true that these records are not related to any therapeutic or counselling process, and accordingly, they may not enjoy a higher expectation of privacy. However, the applicant must still demonstrate through evidence that production of the records is necessary in the interests of justice.

[28] Even if I conclude that there is a nexus to the allegations of fraud and are likely relevant to other issues; I must consider whether or not production of the records in the interests of justice, applying the factors enumerated in s. 278.5(2).

In determining whether to order the production of the record or part of the record for review pursuant to subsection (1), the judge shall consider the salutary and deleterious effects of the determination on the accused’s right to make a full answer and defence and on the right to privacy and equality of the complainant or witness, as the case may be, and any other person to whom the record relates. In particular, the judge shall take the following factors into account:

(a) the extent to which the record is necessary for the accused to make a full answer and defence;

(b) the probative value of the record;

(c) the nature and extent of the reasonable expectation of privacy with respect to the record;

(d) whether production of the record is based on a discriminatory belief or bias;

(e) the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates;

(f) society’s interest in encouraging the reporting of sexual offences;

(g) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences; and

(h) the effect of the determination on the integrity of the trial process.

[29] I pause to add that in my view, at this stage of the process, I do not consider it to be part of my function to assess the weight to be given to evidence that may be relevant to an issue at trial, or to assess any explanations that may be given by the complainant.

[30] In the packages of materials filed, there are voluminous records and documents filed in relation to the 10 distinct complainants. (Exhibit “GG”)

[31] Certain records were not challenged by the parties as to their potential production to the applicant and where it was conceded that these records were likely relevant have been detailed in Appendix “A”. The parties concede that all records pertaining to FSCO were relevant.

[32] I note that amongst other rationale, the applicant seeks a complete financial picture of each of the respondents during the relevant time frame. In my opinion, that is somewhat overreaching and impacts directly on the reasonable expectation of privacy in those records. The applicant has not demonstrated the likely relevance of such a request as it pertains to the respondents’ personal banking records or financial information.

[33] Other than generic statements of some potential relevance, and given the inherent reasonable expectation of privacy in police occurrence reports (distinct from the offences alleged), I am not persuaded that the applicant has demonstrated any likely relevance whatsoever in relation to any and all records held by the Hamilton Police Service.

[34] The first stage, having been met in part with some of the records, I now turn to whether the production of the record is necessary in the interests of justice. I therefore conducted an in camera inspection of the records (ss. 278.4-278.5).

[35] I observe that in Batte, Doherty J.A. also made it clear that merely because a record might assist in cross-examining a complainant is not sufficient. It must contain something that has impeachment value. At para. 77, he stated:

It will not, however, suffice to demonstrate no more than that the record contained a statement referable to a subject matter which would be relevant to the complainant’s credibility. The mere fact that a witness has said something in the past about a subject matter on which the witness may properly be cross-examined at trial does not give that prior statement any relevance. It gains relevance only if it is admissible in its own right or has some impeachment value. In my view, the mere fact that a complainant said something about a matter which could be the subject of cross-examination at trial, does not raise a reasonable possibility that the complainant’s statement will have some probative value in the assessment of her credibility.

[36] While fully recognizing the expectation of privacy in these financial records I must also balance the applicant’s right to make full answer and defence.

[37] In my review, certain records listed in Appendix “A” met the Stage 2 test for actual relevance, either in full or in part. Certain of these records have already been released to the applicant under the statutory framework.

[38] Appendix “B” outlines the records where the parties do not concede likely relevance, but where, upon an examination at Stage 1, I have determined that they are all “likely relevant”. Having reached this result, I considered these records under Stage 2. I conclude that some of records, in whole or in part, are clearly relevant to an issue at trial and the applicant has satisfied his onus with respect to s. 278.3(4).

[39] Appendix “C” details the records where I am not satisfied that the applicant has demonstrated likely relevance to the issues advanced in this application. This includes but is not limited to personal information, banking records unrelated to the applicant or any of the numerous financial or mortgage transactions with their various permutations that have not been shown to meet the threshold. These records will not be disclosed.

[40] As the production of some specific records are necessary in the interests of justice, I order the relevant records found in Appendices “A” or “B”, with any redacted excerpts be produced to the applicant. These complete or partial records or documents have or will be produced on the following conditions:

(a) that the Crown attorney, the applicant, counsel for the applicant not disclose the contents of the excerpts or reports to any other person, except with the approval of the Court;

(b) that a copy of the record or excerpts, rather than the original, be produced; and that no copies of the record be made except with the approval of the Court;

(c) that at the conclusion of the case, and after the expiry of any time limit for appeal, or upon the disposition of any final appeal, the records shall be returned to the custodian of the records.

[41] The remainder of the records shall continue to be sealed. These reasons may be published, provided measures are taken to preserve anonymity.

A.J. Goodman J.

Released: October 24, 2018

APPENDIX “A”

“Likely Relevance” of the records is conceded by all parties:

1. FSCO Full production and disclosure of all documents on consent.

2. S. P. Ex. EE Personal documents - relevant, complete disclosure

3. F. and R. M. Ex. AA Italian Canadian Savings- relevant, partial disclosure Ex. B Gligoric (lawyer) – relevant, partial disclosure ** Ex. C DeRubeis, (lawyer) – relevant, complete disclosure Ex. A4 Sherk (lawyer) – relevant, complete disclosure Ex. P1 Personal documents (Sherk) – relevant, complete disclosure Ex. P2 Personal documents (IC Savings) – relevant, partial disclosure Ex. P6 Personal documents (Gligoric)- relevant, substantial disclosure

4. D. and A. R. Ex. E Ross McLeod (lawyer) – relevant, partial disclosure Ex. A1 Sherk (lawyer) – relevant, substantial disclosure Ex. K 1044010 Ont. Inc./Guyatt- relevant, complete disclosure

5. T. F. Nothing to disclose under Appendix “A”

6. L.G.2 Ex. BB O. Khan – on USB/flashdrive- TO BE REVIEWED Ex. A3 Sherk (lawyer) – relevant, substantial disclosure Ex. F2 Golfi- relevant, partial disclosure

7. J. A. Ex. A2 Sherk (lawyer) relevant, substantial disclosure Ex. JJ CIBC – relevant, substantial disclosure Ex. Z Stewart Title – relevant, partial disclosure ** Ex. FF Personal documents, relevant, partial disclosure **

8. N. and L. G.1 Ex. F3 Golfi – relevant, substantial disclosure Ex. CC 1125916 Ont. Inc.- on USB/flashdrive- TO BE REVIEWED Updated: October 2018- relevant, complete disclosure Ex. BB O. Khan- on USB/flashdrive- TO BE REVIEWED Updated: October 2018 - relevant, complete disclosure.

9. Jose Vaz Ex. Q Personal documents- relevant, complete disclosure

10. Neelam and Abdul Majeed Ex. R Personal documents, relevant, substantial disclosure Ex. II Personal documents, duplicate of Ex. “R” Ex. A5 Sherk (lawyer), not relevant.

** Submissions required re: actual relevance on certain limited segments of the records reviewed at this stage.

APPENDIX “B”

“Likely Relevance” established:

1. S. P. Ex. G2 Effort Trust, - relevant, complete disclosure

2. F. and R. M. Ex. G1 Effort Trust - relevant, substantial disclosure Ex. V Citi Financial Inc. - relevant, complete disclosure Ex. D Deni/New Haven - relevant, partial disclosure * Ex. P3 Personal documents (Deni) – relevant, partial disclosure Ex. F1 Golfi - relevant, substantial disclosure Ex. L Peoples Trust Inc., relevant, complete disclosure

3. T. F. Ex. L Peoples Trust Inc., relevant, substantial disclosure

4. N. and L. G.1 Ex. S New Haven/Eigles - relevant, partial disclosure Ex. T Rose and Rose (Solicitors) – relevant, complete disclosure Ex. U Strelshik – relevant, complete disclosure

• Limited segments of the records reviewed contain solicitor-client information.

APPENDIX “C”

“Likely Relevance” NOT established:

1. S. P. Ex. M Royal Bank (personal banking/financial)

2. F. and R. M. Ex. P4 Burns- (Solicitor/client) Ex. P5 Personal documents- (Re: Effort Trust- already disclosed) Ex. P6 Personal documents – (Solicitor/client or already disclosed.) Ex. P7 Hamilton Police Service (no nexus/relevance to application) Ex. P8 Personal documents - (Home Trust- already disclosed) Ex. M Royal Bank – (personal banking/financial) Ex. Y1-3 TD Bank - (personal banking/financial) Ex. W 2nd mortgagee - re: 6 Attfield (no relevance to application) Ex. I4 Scotiabank- (personal banking/financial) Ex. DD Wells Fargo/National Bank- (personal banking/financial)

3. D. and A. R. Ex. DD National Bank - (personal banking/financial)

4. L.G.2 Ex. I5 Scotiabank- (personal banking/financial)

5. J. A. Ex. I2 Scotiabank - (personal banking/financial) Ex. H Baars - (Solicitor/client) Ex. X Hamilton Municipal Credit Union - (personal banking/financial)

6. N. and L. G.1 Ex. J Liptay - (no nexus/relevance to application) Ex. I3 Scotiabank - (personal banking/financial) Ex. M Royal Bank - (personal banking/financial) Ex. Y1-3 TD Bank - (personal banking/financial)

7. Jose Vaz Ex. M Royal Bank - (personal banking/financial)

8. Neelam and Abdul Majeed Ex. Y1-3 TD Bank - (personal banking/financial)