Court File and Parties

COURT FILE NO.: CR-17-90000220-0000 DATE: 20181009 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Siavash Norouzian

BEFORE: Anne London-Weinstein, J.

COUNSEL: J. Mitschele, for the Crown J. Porter, for the Respondent

HEARD: October 5, 2018

Ruling

[1] The accused in this case is charged with trafficking heroin (x2), possession for the purpose of trafficking (heroin) and possession of property obtained by crime under $5,000.

[2] Mid-trial, the defence in this matter retained an expert to conduct an analysis of the phones. The defendant in this matter is of limited financial means, but was able to put together a very limited retainer to pay his lawyer, Mr. Lafontaine. At the conclusion of the trial, written submissions were submitted.

[3] As a result of the timing of the application to have the phones tested, and the indigent circumstances of the accused, Mr. Lafontaine retained an expert who was immediately available during the course of the trial. The result was that the data dump provided by this expert raised serious issues identified by the crown in relation to the reliability of the evidence. The crown also identified Brown v. Dunn concerns. The crown also contested that they had ever agreed to the admissibility of the data dump, except to cross examine D.C. Gazey. Significant time was absorbed in court with the translation of the information of the data dump. The crown's position regarding the data dump, and with regard to the Brown v. Dunn issue were set out in the crown's written submissions.

[4] As a result of the crown's position, the defence sought to re-open its case, and have the court call a new expert, and that the crown be required to pay the expert's fees and expenses. The defence also proposed that Detective Gazey be provided with an opportunity to be confronted with any matters that the Crown believes have not already been put to him in cross-examination.

[5] The defence points out that the rule in Browne v. Dunn is intended to ensure fairness to the witness, and is intended to be used as a shield and not a sword.

[6] The crown in this case argues that the defence should not be permitted to re-open its case as the decision not to cross-examine D.C. Gazey was a tactical one. With respect, that is the not the issue to be determined in regard to whether the defence should be permitted to re-open its case. The issue is whether an appropriate expert should be permitted to conduct a new data dump and that this evidence be permitted to be admitted into this trial.

[7] At that point, when the new evidence is admitted, the issue of whether or not D.C. Gazey should be recalled would have to be addressed. If he were not recalled, the court would be left with the evidence from the new data dump and the new expert's report, with it never having been presented to D.C. Gazey to ascertain what his position may be in regard to an explanation for any discrepancies which may arise between the proposed new evidence and his evidence at trial.

[8] I agree with the defence that if I permit a new data dump and a new expert, it would undermine the fairness of this trial to not allow D.C. Gazey to be recalled. It would distort the evidentiary landscape for the court, but would also be unfair to the crown, as D.C. Gazey may very well have an explanation for whatever potential discrepancies arise on the new proposed evidence. I agree with the defence that the appropriate remedy to a party aggrieved by a breach of the rule in Browne v. Dunn should be the recall of the witness whose evidence is at issue, as recommended by Moldaver J., in R v. McNeil (2000), 144 C.C.C.(3d) 551. It is only if recall is impossible or highly impracticable that consideration must be given to how to deal with the breach of the rule in terms of how much weight to attach to the impugned evidence.

[9] The defence has waived 11(b) in regard to the delay caused by calling this new witness and the associated delays attached to the court granting leave to re-open the defence case. The defence has also been advised that the court will not call the witness, although I recognize that I have discretion to do so. I also decline to order the crown to pay for the expert. I have invited the defence to bring a funding application in front of me to offset the cost of retaining the expert.

[10] In a case as serious as this one, where, if convicted, Mr. Norouzian will spend a considerable period of time in the penitentiary, I am of the view that it is in the interests of justice to allow Mr. Lafontaine to call a new expert, to conduct a new data dump and to present that evidence in this trial.

[11] This is a judge alone trial, where it is my view that my suggestion that we resort to written submissions to save time, in the end, did not serve the process well. While, I find no fault with the conduct of the crown, I was surprised to discover that they were objecting to the admissibility of the data dump material, despite the fact that a translator was retained to translate material which did not relate to the cross-examination of D.C. Gazey. There clearly was some miscommunication between the parties, and the court had also not noted that the defence evidence had only been marked as a lettered exhibit, until this was pointed out by the crown in written submissions.

[12] At the end of the day, these are very serious charges and it was through inadvertence and not design, in my view, which caused the defence evidence in this case to emerge in the fashion in which it did. The proposed evidence is highly probative, and the right to make full answer and defence is engaged. The prejudice to the crown in this case, particularly since Mr. Lafontaine has waived 11 (b) in relation to the delay occasioned by calling the expert and re-calling D.C. Gazey is minimal. This is a judge alone trial, and Mr. Norouzian has not been convicted yet.

[13] I will allow Mr. Lafontaine to call his proposed expert to testify, and I will order that the phones in question be released to him for testing. I have invited counsel to bring a funding application in front of me in regard to funding for the expert as Mr. Norouzian is of very limited means and has long extinguished his retainer with Mr. Lafontaine. The funding application should include the reasonable hours at the approved legal aid rate for counsel's work on this matter as well. I specifically decline to order the crown to pay for the expert. And I specifically decline to call the expert myself.

[14] I will allow the defence to recall D.C. Gazey, for reasons outlined above. In short, the decision to do so is consistent with trial fairness to the court, Mr. Norouzian and the crown. Mr. Lafontaine will not lead the witness. However, if it becomes apparent that leading questions may be required, the appropriate application can be brought before me at that time. The crown will of course be free to cross-examine D.C. Gazey and, if required, to apply to call evidence in reply.

Anne London-Weinstein, J. Date: October 9, 2018