COURT FILE NO.: CR-16-10000689
DATE: 20190917
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
STEVEN NOWACK
John Scutt, for the Crown
Steven Nowack on his own behalf
HEARD: January 25, 2019
R.F. GOLDSTEIN J.
REASONS FOR JUDGMENT ON APPLICATION TO REMOVE COUNSEL
[1] Mr. Nowack is charged with 13 counts of fraud. Crown counsel with carriage of the prosecution is Renna Weinberg, an Assistant Crown Attorney. Mr. Nowack seeks an order removing Ms. Weinberg. He argues that she is in a conflict of interest.
[2] Crown counsel on this motion, Mr. Scutt, summarily moved to dismiss Mr. Nowack’s application on the grounds that it has no reasonable chance of success: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659 at para. 38. Mr. Scutt argued that there is no point in an evidentiary hearing. The grounds do not make out any basis to remove Ms. Weinberg. Moreover, he argued, it is clear that this motion was simply a transparent attempt by Mr. Nowack to delay his trial.
[3] I agreed with the Crown. On January 25, 2019 I granted Crown counsel’s application to summarily dismiss Mr. Nowack’s application. I indicated that I would release my reasons in due course. These are my reasons.
BACKGROUND
[4] The Crown theory is that Mr. Nowack knowingly made misrepresentations to multiple investors. Those investors provided funds to Mr. Nowack to put into currency trading. Mr. Nowack allegedly diverted some of the funds to his personal use. He deceived the investors about how he invested the funds. He has never, allegedly, provided an accounting of the funds. The total loss to the investors is alleged to be about $15 million.
[5] Some of the investors launched civil suits against Mr. Nowack. Mr. Nowack has advanced the theory in this Court several times that this prosecution is an abuse of process. It is simply a disguised attempt by the litigants to put pressure on him to obtain a result that they could not obtain civilly. Mr. Nowack argues that Ms. Weinberg is in a conflict of interest because she has knowingly pursued the prosecution and colluded with the complainants in order to assist them.
[6] Although his material was rather scattershot, Mr. Nowack’s original Notice of Motion set out several grounds:
• Ms. Weinberg allegedly co-wrote an article with Norman Groot. The article purports to argue that civil plaintiffs can coordinate with Crown counsel to extort money out of fraudsters in exchange for no jail time or house arrest. Mr. Groot is counsel to some of the alleged victims, who were successful plaintiffs in a civil proceeding and have been unsuccessful in recovering any money;
• Ms. Weinberg allegedly authorized the release of a forensic accounting report as well as Crown disclosure;
• Ms. Weinberg allegedly misrepresented important facts about the forensic accounting report to Mr. Nowack’s counsel;
• Ms. Weinberg indicated to Justice McMahon that she would “never leave the case”;
• Ms. Weinberg improperly informed Mr. Groot about the withdrawal of charges without telling Mr. Nowack, the accused;
• Ms. Weinberg indicated to Justice McMahon in settlement discussions that she would seek a term of 20 years after conviction, which is much lengthier than a normal term of imprisonment for similar frauds; and,
• Ms. Weinberg improperly colluded with Mr. Groot to pressure Mr. Nowack through the criminal proceedings. That pressure was designed to force Mr. Nowack to pay the investors back.
[7] Mr. Nowack filed further material on the day of the hearing. This material was a factum and several emails between Mr. Groot, counsel for most of the complainants, and Ms. Weinberg. Mr. Nowack argued that these emails are evidence of collusion and coordination between Mr. Groot and Ms. Weinberg.
ANALYSIS:
[8] There is no doubt that Crown counsel is a quasi-judicial officer. The public rightly expects that Crown counsel will comport him or herself with the highest integrity. Crown counsel are required to act in accordance with the public interest. One can quote any number of cases on that point. The most famous, of course, comes from Justice Rand in R. v. Boucher, 1954 CanLII 3 (SCC), [1955] S.C.R. 16 at para. 26:
It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.
[9] The threshold for removing Crown counsel is very high: R. v. Khan, [2002] O.J. No. 3623 (Sup.Ct.). A court has an inherent power to control its own process. This inherent power includes the power to remove a lawyer. That power may be exercised in order to maintain the appearance of fairness and integrity and to otherwise maintain confidence in the administration of justice: R. v. Brown, [1996] O.J. No. 5319 (Gen.Div.). The standard is that of a reasonably informed member of the public: Everingham v. Ontario (1992), 1992 CanLII 7681 (ON SC), 8 O.R. (3d) 121 (Div.Ct.). The burden is on Mr. Nowack on this application is to show that Ms. Weinberg has engaged in behaviour that compromised the appearance of fairness and integrity.
[10] The material submitted by Mr. Nowack does not on its face provide any basis for removing Ms. Weinberg. There is no point in having an evidentiary hearing because it could not succeed. Mr. Nowack proposes to call 14 witnesses at the evidentiary hearing. Quite frankly, there is no basis to call any of them. His proposed evidentiary hearing is a barely-disguised fishing expedition.
[11] In my view, the motion is an attempt by Mr. Nowack to derail the prosecution. This is the third trial date. The first two were adjourned at Mr. Nowack’s request. He brought a certiorari application with regard to the committal for trial on one of the thirteen counts against him. The application was dismissed, as was an appeal to the Ontario Court of Appeal. An application for leave to appeal to the Supreme Court of Canada was also dismissed. Justice Ducharme also dismissed an application for delay under s. 11(b) of the Charter: R. v. Nowack, 2018 ONSC 826. In doing so Justice Ducharme stated at para. 28:
… Mr. Slansky cannot demonstrate that he, his predecessor counsel on the case, or Mr. Nowack took "meaningful steps that demonstrate a sustained effort to expedite the proceedings."
[12] Moreover, many of the claims made by Mr. Nowack were factually incorrect or misleading. I will deal with each of the allegations made by Mr. Nowack in a summary way:
Did Ms. Weinberg write an article with Norman Groot?
[13] Ms. Weinberg allegedly co-wrote an article with Norman Groot. The article purports to argue that civil plaintiffs can coordinate with Crown counsel to obtain money from fraudsters in exchange for no jail time or house arrest. Mr. Groot is counsel to some of the alleged victims, who were successful plaintiffs in a civil proceeding. Most of the plaintiffs have been successful in obtaining civil judgments. None have been successful in recovering their investment, or any part of it, since Mr. Nowack’s arrest.
[14] Whether or not the article is proper or improper, Mr. Nowack’s own materials disclose that Ms. Weinberg’s name on the article was a mistake. Mr. Nowack, in his affidavit, stated that he asked Ms. Weinberg about the article. She indicated she was unaware of the article. Mr. Slansky, who was acting for Mr. Nowack at the time, wrote to the Association of Forensic Investigators of Canada. The Association wrote back and indicated that Ms. Weinberg’s name was on the article in error. Apparently Ms. Weinberg participated in a conference with the Association. That may have prompted the error.
[15] In my view the evidence that Ms. Weinberg co-authored the article with Mr. Groot is simply not sufficient to consider it at a full evidentiary hearing. Calling Mr. Groot to give evidence would add nothing. In an email Mr. Groot stated that he did not recall that Ms. Weinberg was his co-author. It is obvious that it was simply a mistake.
Did Ms. Weinberg improperly authorize the release of a forensic accounting report and Crown Disclosure?
[16] Mr. Nowack alleged that this material was improperly given to the complainants in their civil actions. Ms. Weinberg, he argued, had breached her obligations by authorizing it. This, he said, was a very serious breach of her obligations as Crown counsel.
[17] According to Mr. Nowack, the complainants had gone to court to obtain Mr. Nowack’s criminal disclosure and the accompanying forensic accounting report. Civil counsel for the Ministry of the Attorney General, according to Mr. Nowack, had to obtain authorization from Ms. Weinberg to release that material. Ms. Weinberg did so. As a result, he argued, the complainants improperly obtained Mr. Nowack’s criminal disclosure.
[18] It appears from a review of Justice Dunphy’s decision that Mr. Nowack misled the Court about what really happened. Ms. Weinberg did not improperly produce the Crown disclosure to the civil plaintiffs. Justice Dunphy made an order that Mr. Nowack produce his criminal disclosure: 2363523 Ontario Inc. v. Nowack, 2017 ONSC 5240 at para. 16. Justice Dunphy’s comments are illuminating:
During the course of his examination, Mr. Nowack pleaded that he was unable to answer some questions directed at him because he claimed not to have access to the Crown disclosure. To call this exasperating (to me) is to understate things somewhat. For months leading up to the sentencing in August, 2016, the problem was the inverse: Mr. Nowack had the disclosure but claimed to be prohibited from sharing any of it (including his own records) with the plaintiff. I ordered him at that time to deliver up the Crown disclosure under seal and to permit the plaintiff to get a copy made on notice to the Crown who could object to the extent it had an interest to protect.
[19] According to Mr. Nowack’s actual material, civil counsel from the Ministry of the Attorney General indicated that he needed to consult with the prosecuting Crown during the course of hearing before Justice Dunphy of this Court. It is difficult to see how that constitutes Ms. Weinberg “improperly authorizing” disclosure of the report. I fail to see how an evidentiary hearing would assist Mr. Nowack in the face of Justice Dunphy’s order.
Did Ms. Weinberg misrepresent important facts about the forensic accounting report to Mr. Nowack’s then-counsel, Paul Slansky?
[20] There is simply no evidence that Ms. Weinberg misrepresented any facts to Mr. Slansky. She may have made errors as to what the report concluded, or some of the facts in the report (it is quite voluminous) but that is hardly the same thing as a misrepresentation. I see no evidence that Ms. Weinberg intended to mislead Mr. Slansky in any way. I note as a matter of interest that it was Mr. Nowack who made this argument on his own behalf. Mr. Slansky, who has represented Mr. Nowack, did not act on this application. I see no point in embarking on an evidentiary hearing on this point.
Did Ms. Weinberg indicate to Justice McMahon that she would “never leave the case”?
[21] The crux of Mr. Nowack’s argument is that Ms. Weinberg’s attitude was one of relentlessness contrary to the principles of fairness that bind crown counsel. It showed, he argued, an attitude that was simply in appropriate and shocking.
[22] I have reviewed the transcripts of the judicial pre-trials before Justice McMahon. The pre-trials were held on the record. Mr. Nowack’s argument is devoid of merit. It is clear that the comment was made in the course of discussions about this very motion during an on-the-record judicial pre-trial conference. Ms. Weinberg indicated that she was not prepared to get off the record as Crown counsel in the absence of an order. She clearly took the position at the pre-trials that this application was frivolous. There was nothing improper or shocking about her position or her attitude. She was right: this application is frivolous.
[23] An evidentiary hearing would add nothing because the transcripts alone reveal what occurred.
Did Ms. Weinberg indicate to Justice McMahon in settlement discussions that she would seek a term of 20 years after conviction, which is much lengthier than a normal term of imprisonment for similar frauds?
[24] The crux of Mr. Nowack’s argument is that Ms. Weinberg was totally unreasonable and, again, acting contrary to the principles of fairness that bind Crown counsel.
[25] In fact, nothing of the sort happened.
[26] I have reviewed the transcript of an on-the-record judicial pretrial held on June 22 2017. Justice McMahon was presiding. Justice McMahon raised the issue of resolution. He asked Ms. Weinberg for the Crown’s position after trial. Ms. Weinberg stated:
Ms. Weinberg: I don’t know. Some – very high, like eight to ten years, plus a fine in lieu which is another ten years or whatever.
[27] Justice McMahon then noted that the fine in lieu of payment was important. The following discussion ensued (I excerpt the key parts):
The Court: So if the fellow can’t make good in the restitution… the number on the allegedly… let’s say it was an 8-million or 7 – whether it’s eight, ten, or seven, that would be a big number. If the person couldn’t pay it, that would be tacked on to the sentence.
Ms. Weinberg: Yes.
The Court: So if the person hypothetically was prepared to say they were sorry and you got a free-standing restitution order… you could do away with the fine in lieu and take a restitution order.
Ms. Weinberg: It’s the first thing that would generally come off the table.
[28] In other words, Ms. Weinberg indicated that the Crown’s position after trial was 8-10 years in the penitentiary, with a fine. By the operation of the Criminal Code, an unpaid fine can cause an offender to be imprisoned for a very lengthy period of time: s. 734(5).
[29] In the event of a guilty plea, Crown counsel was prepared to substitute a free-standing restitution order, which would lower the amount of time that Mr. Nowack might spend in prison.
[30] Justice McMahon later stated:
The Court: … if it goes to trial and the gentleman loses, it would be my expectation between the fine in lieu and the nature of the fraud and the amount, he’d clearly be looking at double digits, probably fall in probably around 12 to 15.
[31] Four points need to be made about these discussions:
[32] First, Mr. Nowack is simply factually wrong that Ms. Weinberg indicated that she would seek a 20-year prison sentence. She indicated she would seek an 8-10 year sentence after trial. Any extra time would be by operation of law if a fine were imposed in lieu of forfeiture.
[33] Second, these were pre-trial discussions of possible resolution. Crown counsel is permitted to take a position and then negotiate. I cannot see anything wrong with that. Indeed, it is an important part of Crown counsel’s job.
[34] Third, there was nothing inappropriate about Ms. Weinberg’s position. Her statement of the range of sentence for a $15 million fraud was not unreasonable or outside of the range.
[35] Fourth, the transcripts reveal what occurred. An evidentiary hearing would add nothing.
Did Ms. Weinberg improperly inform Mr. Groot about the withdrawal of charges without telling Mr. Nowack?
[36] In an email dated November 23, 2016 Ms. Weinberg informed Mr. Groot that she was not proceeding against Mr. Nowack on charges relating to a complainant named Elliot Sud. She briefly explained her reasons.
[37] Mr. Nowack indicated in submissions that he was unaware that the Crown was not proceeding on Mr. Sud. Mr. Nowack claimed that he only became aware of the withdrawal when Ms. Weinberg wrote to Mr. Slansky two years later. He also claims that it was also improper for Ms. Weinberg to explain her reasoning to Mr. Groot.
[38] I cannot accept that submission. Mr. Groot was counsel for the complainants. There is nothing wrong with Crown counsel explain the reasons for withdrawing charges to a complainant. Indeed, Ms. Weinberg was arguably under a duty to do so: Victim’s Bill of Rights, 1995, S.O. 1995, c. 6, s. 2(2).
[39] What is clear is that even a brief perusal of the indictment would show that the charge in respect of Mr. Sud was not on it. It is clear that neither Mr. Nowack nor his counsel inspected the indictment that the Crown actually preferred. Perhaps Ms. Weinberg should have informed Mr. Nowack or his counsel that she was not proceeding with one of the charges as a matter of courtesy. That argument is not without merit, but it hardly rises to the level of egregious behaviour that would justify an order to remove Crown counsel.
Did Ms. Weinberg improperly collude and cooperate with Mr. Groot?
[40] Mr. Nowack introduced a series of emails between Ms. Weinberg and Mr. Groot. Some of these emails included updates on the proceedings at the preliminary inquiry. In other emails Ms. Weinberg asks if Mr. Groot has certain documents, including the criminal information. Mr. Groot provided a large number of documents.
[41] At one point Mr. Groot provided information about a civil case concerning Mr. Nowack. Ms. Weinberg responded:
Norm – please don’t include me on your civil emails, especially since Nowack himself is being copied. I like keeping the civil and criminal separate. Otherwise, it looks like we have ulterior motives.
[42] Mr. Nowack argued that the reference to ulterior motives shows that Ms. Weinberg did, in fact, have an ulterior motive. That suggests that a denial should be taken as an affirmation and an affirmation as a denial. Without more, that is simply not logical.
[43] Moreover, it should be noted that there is nothing wrong with complainants in a fraud providing documents to the police or to the Crown. In this case, the documents were allegedly provided by Mr. Groot, counsel to several of the complainants, to the police or Crown. A lawyer is not permitted to hold back physical evidence from the authorities. Physical evidence can include documents: Rules of Professional Conduct of the Law Society of Ontario, Rule 5.1-2A and commentaries.
[44] As a practical matter, it would be very difficult for the police to investigate (or the Crown to prosecute) any fraud case without cooperation from the complainants. There is, of course, always a danger that the complainants could fail to provide potentially exculpatory documents or alter documents – the first of which is arguably criminal offence and the second certainly is – and the police and the Crown have a duty to be on the lookout for such things. But there is nothing wrong with a complainant or his or her lawyer providing information to the authorities. In any event, Mr. Nowack has not alleged any such behaviour by the complainants.
DISPOSITION
[45] None of the alleged conflicts are made out on the face of the material filed by Mr. Nowack. Ms. Weinberg will not be removed as Crown counsel. The application is dismissed without the necessity of a full evidentiary hearing.
R.F. Goldstein J.
Released: September 17, 2019
COURT FILE NO.: CR-16-10000689
DATE: 20190917
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
STEVEN NOWACK
REASONS FOR JUDGMENT ON APPLICATION TO REMOVE CROWN COUNSEL
R.F. Goldstein J.