COURT FILE NO.: CR- MO/19-237 DATE: 2020/01/30
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Applicant
- and -
JABRIL ABDALLA Respondent
Counsel: E. Taylor, for the Crown L. Shemesh, for the Respondent
HEARD: January 15, 2020
RULING ON APPLICATION TO QUASH SUBPOENA
A.J. GOODMAN J.:
Introduction:
[1] The respondent, Jabril Abdalla (“Abdalla”) faces murder charges in respect of both Angela Musitano and Mila Barbieri. He is also charged with the attempted murder of Saverio Serrano.
[2] The respondent seeks to disqualify or otherwise remove Mr. Milko, one of the assistant Crown attorneys from continuing in the prosecution of his case based on an alleged conflict of interest, amongst other concerns.
[3] On December, 18, 2019, I granted the respondent’s application for certiorari (citation: 2019 ONSC 7294). I ordered that the question of the assistant Crown attorney’s alleged conflict of interest be returned back to Leitch J. of the Ontario Court of Justice for a full hearing on the merits. On the same day of the release of my ruling, the respondent sought and obtained several subpoenas in the Ontario Court of Justice. This included subpoenas for both Mr. Milko and Detective Sergeant Thom (“Thom”).[^1] Specifically, the respondent did not seek to summons assistant Crown attorney Mr. Andrew Scott as a witness.[^2]
[4] In this Application, the Crown attorney, seeks to quash the issuance of the subpoena served on Mr. Milko.
Background:
[5] On November 26, 2019, a Crown witness, Amir Kayvan (“Kayvan”) was scheduled to testify at the preliminary inquiry. Upon entering into the witness stand, and immediately prior to being asked any questions by the Crown, Kayvan became quite emotional and began to cry. He indicated specifically that he would like to address a “few issues” before he carried on with his testimony. He continued with the following: “I do not want to obstruct justice. I do not want to lie, and I’m not changing my statement. My original statement stays as is – and I’ll address the issue that I have in this case one at a time.”
[6] The examination in-chief was focused on the witness’ familiarity with tracking devices and the business records he had provided to the police in April 2017. Kayvan owned a spyware shop at the time of the murders and it had been alleged that the tracking devices used to monitor the victims’ movements were purchased at his retail establishment. Kayvan was neither asked to conduct an in-dock identification nor was he asked any questions about Abdalla. Instead, Kayvan reiterated what he told police in June 2017, that he had a firm recollection that the persons responsible for the purchase of the trackers were white Caucasian males with brown hair. He confirmed that none of the persons who purchased the trackers were black males. In examination in chief, he stated: “one hundred percent male and one hundred percent no black individuals. Mostly white Caucasian.” Abdalla is not a Caucasian male.
[7] On cross-examination, Kayvan explained that Crown counsel, Mr. Milko, had “coached” him and/or “guided” him into changing his evidence as it related to the identification of the persons associated to the purchase of the trackers. Kayvan confirmed that in his June statement he had revealed that the persons associated to the purchase of the trackers were Caucasian males and that he was coached by Mr. Milko to instead, state in court that “he could not remember” the ethnicity and the height of the very individual responsible for purchasing the tracker that was ultimately found during the homicide investigation. Kayvan also testified that his deportation process is on hold because he is a witness. Kayvan confirmed that he had taken notes of this November 14, 2019 meeting.
[8] On the very morning that he was scheduled to testify, Kayvan disclosed that the Crown attorneys and Officer Thom confirmed that the best “they could do is to help with immigration, to help me with parole, and to help me with a pardon.” Kayvan testified that he informed the parties that he did not wish to testify because he was fearful for his and his family’s safety. He testified that Thom threatened to make the rest of the sentence harder by keeping Kayvan in the “bucket for one week before every court appearance and to make sure that I do time in the hole.” Kayvan confirmed that Thom threatened him in the presence of both Mr. Milko and Mr. Scott.
[9] Following the lunch break, and just prior to continuing with the cross-examination, Mr. Milko informed the court that he did not acknowledge the veracity of Kayvan’s evidence insofar as “his evidence had suggested that he had been counselled to give untrue evidence.” Moreover, the Crown confirmed that he was of the view that there was no ethical impediment to the Crown proceeding in the face of such allegations. The Crown advised with the court that they did not intend to re-examine Kayvan but that if an application was brought at a later stage – that the Crown would call “appropriate evidence” at that time. Lastly, Mr. Milko confirmed that his silence on this issue was not to be viewed as an acceptance of the allegations.
Positions of the Parties:
[10] Mr. Taylor, on behalf of the Crown, submits that the Crown attorney categorically denies the allegations. The applicant seeks to quash the subpoena for the following reasons: Mr. Milko has no material evidence to give on the respondent’s preliminary hearing or on the application to have him removed as counsel. Any evidence that Mr. Milko “may have” to give in response to the allegation made against him by Kayavn is not necessary as Mr. Milko never met with Kayvan alone and anything that Mr. Milko could say in response can be elicited from one of the investigating officers. Thom was also present when Kayvan claimed that Mr. Milko tried to influence his evidence and the officer has been subpoenaed by the respondent.
[11] The Crown submits that the subpoena itself is improper in the sense that it appears to be an attempt to compel Mr. Milko to turn over certain documents and correspondence that are subject to the Stinchcombe disclosure regime and should have been pursued as such.[^3]
[12] In summary, the Crown rests on the assertion that the respondent has failed to meet his onus to establish that Mr. Milko has material and necessary evidence to provide at the hearing into the allegations.
[13] Ms. Shemesh, on behalf of the respondent submits that Mr. Milko has material and necessary evidence. It is clear that Kayvan made very serious allegations of Crown misconduct against Mr. Milko, including witness tampering, coercion, and obstruction of justice. Specifically, the Crown witness has implicitly impugned the conduct of Mr. Milko and Detective Thom. The Crown chose not to challenge Mr. Kayvan on his evidence and his evidence remains uncontested.
[14] Messrs. Milko, Scott and Thom made arrangements to drive approximately four hours to visit with Kayvan. Such a trip with two crown attorneys is peculiar in these circumstances, since Kayvan’s evidence as it related to the documentary evidence and business records was entirely conceded. Moreover, prior to attending Bath institution, the Crown sought permission from the jail to bring with them an audio recording device, cellular phone and laptop. The correctional facility noted that the Crown attorney had sought permission to bring with them an audio recording device. It is unclear why these items were sought for this meeting, since the Crown had not sought to audio and/or video tape any other meeting with any other witness. Further, the respondent has now been informed that the Crown deliberately chose not to record the meeting.
[15] With respect to this meeting, Thom has approximately a page and a half of notes. The respondents says that the notes are neither detailed nor verbatim. There are only 43 short lines of information that do not detail or record the meeting at all. Kayvan claimed that he had discussed the potential of having his record “expunged” and sought to be placed in “witness protection.” Moreover, Kayvan sought assistance from the Crown in regards to his immigration status.
[16] Just prior to Kayvan’s attendance in court, Mr. Milko informed defence counsel that he was preparing the necessary case law in an effort to argue that Kayvan be afforded the right to perform an in-dock identification of the respondent. Kayvan had neither viewed a photo line-up nor had he ever identified the respondent. The respondent submits that this is significant since he alleges that Mr. Milko “coached” and “guided” him on the ethnicity and height of the individual(s) who had purchased the tracker(s). The respondent suggests that Mr. Milko had anticipated that Kayvan would accede to the Crown’s attempt to have him identify the respondent.
[17] The respondent says that there is no indication as to why the Crown sought to engage in any discussions at all as to an offer of assistance in “expunging a criminal record” of a witness, who was still serving a sentence and what efforts were made in that regard. Moreover, there is no indication as to what efforts were made to assist Kayvan with his immigration status.
[18] In summary, the respondent submits that Mr. Milko has relevant evidence to provide particularly in response to the serious allegations. These include: Reasons as to why Crown counsel attended the Bath Institution to interview Mr. Kayvan, particularly since his evidence was conceded; why Mr. Milko notified the defence that he would be conducting an “in-dock” identification of Abdalla during Kayvan’s examination in chief; the efforts made by Mr. Milko to seek permission to audio record the meeting and reasons as to why he chose not to record any portion of that meeting; why Mr. Milko provided a highlighter to Kayvan and requested that he note “very important” sections of his videotaped statement transcript; reasons as to why Mr. Milko assured Kayvan that he would “look into” whether he could assist in “record expungement”; the efforts made by the Crown to conduct any inquiries into whether “record expungement” was possible; (reference to an email from Mr. Milko to Angela Kinston and Crown attorney Todd Norman); efforts made by Crown counsel to inquire into Kayvan’s immigration status; Crown policy as it relates to “record expungement” and the failure of the Crown to disclose any of the above to the defence prior to Kayvan’s testimony or while the defence argued for the removal of Crown counsel.
[19] The respondent submits that it is neither a fair nor a responsive position to argue that Thom can answer any and all questions of the Crown at this stage of the inquiry. The Crown stands in a very different position than the officer-in- charge. Mr. Milko, with carriage of this matter, is alleged to have “induced” and or offered “incentives” to the witness in order to have him testify in a specific way. The Crown concedes that they had indeed made inquiries of their superiors as to whether they could offer “record expungement”. It is Mr. Milko who is the material and necessary witness to address the serious allegations of misconduct.
Legal Principles:
[20] There is no disagreement as to the governing principles relating to the quashing of a summons to a witness. Moreover, the parties discussed the law related to the quashing of a summons to an opposing lawyer, and in this case, the prosecutor.
[21] Section 698 of the Criminal Code sets out the circumstances under which a subpoena may be issued as follows:
Where a person is likely to give material evidence in a proceeding to which this Act applies, a subpoena may be issued in accordance with this Part requiring that person to attend to give evidence.
[22] The determination as to whether a subpoena should issue is a judicial act necessitating an inquiry by the justice of the peace: R. v. Nero, [2007] O.J. No. 1908 (S.C.) at para. 2. An applicant for a subpoena must demonstrate by an evidentiary foundation that the potential witness is likely, or probably, to have evidence material to the issues in the relevant proceeding: R. v. Elliott (2004), 2003 CanLII 24447 (ON CA), 181 C.C.C. (3d) 118 (Ont. C.A.) at para. 125. A mere possibility does not suffice. In other words, it is insufficient to “merely allege that the witness can give material evidence”: R. v. Harris, 1994 CanLII 2986 (ON CA), [1994] O.J. No. 1875 (C.A.) at paras. 4 and 5. Neither a “reasonable hope” nor “a possibility is…enough to justify compelling any person to testify”: R. v. Colbourne (2001), 2001 CanLII 4711 (ON CA), 157 C.C.C. (3d) 273 (Ont. C.A.) at paras. 50, 52.
[23] A justice of the peace considering issuance of a subpoena ought generally to receive an affidavit in support of the application or information provided orally: R. v. Brown, [1997] O.J. No. 6171 (Gen. Div.) at para. 13. “The justice may choose not to insist upon evidence on oath but may want to conduct an oral examination”: Foley v. Gares (1989), 1989 CanLII 5134 (SK CA), 53 C.C.C. (3d) 82 (Sask. C.A.) at para. 16. The caselaw as to whether the application for issuance of a subpoena is a court of record proceeding suggests that there should nevertheless be “a proper record of the proceedings…in a manner that facilitates a review of the entire process” should it prove necessary: Brown, at para. 13.[^4]
Discussion:
[24] Suffice it to state that the allegations in this case are serious. I agree with the respondent that bald allegations of witness tampering and obstruction of justice have been made by a Crown witness and must be addressed.
[25] During the course of oral submissions, I was advised that there has been disclosure of material evidence, emails, notes or letters implicated in this Application. Ms. Shemesh concedes that Mr. Taylor made efforts to afford relevant disclosure, which in effect, has addressed the second component of her client’s response to this Application. Mr. Taylor advised that he is working with the defence to ensure that much of the relevant materials have and will continue to be disclosed, subject to privilege. Thus, both parties agree that I need not address the issue of records or disclosure as a part of this ruling.
[26] As a matter of course, the applicant concedes that normally a subpoena will issue based on a statement by counsel that a witness has material evidence to give. However, when the issuance of a subpoena is challenged, it is the applicant’s position that the onus lies on the party proposing to call the witness to demonstrate an evidentiary basis to believe that the subpoenaed witness has material evidence to give.
[27] I accept that it is insufficient to “merely allege that Mr. Milko has material evidence to give”. While not an onerous burden, the respondent must demonstrate that Mr. Milko has evidence to give on a material issue at either his preliminary hearing or the application to have Mr. Milko removed as counsel.
[28] Instead, when a party seeks to call opposing counsel, the party seeking to do so must establish that the evidence of the opposing counsel is necessary meaning that it is not available from other sources and there is no alternative available other than compelling opposing counsel to testify.
[29] In this case, we are not addressing just any witness, but opposing counsel, and specifically, the assistant Crown attorney. In Elliott, the Court of Appeal recognized this at para. 125 as follows:
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
[30] I also must consider Campbell J.’s comments in R. v. Sungalia, [1992] O.J. No. 3718 in Elliott (Gen. Div.) reproduced at para 126:
Crown counsel and defence counsel are subject to the process of the court. They are not immune from subpoena.
As a practical matter, however, criminal litigation would be impossible if Crown counsel had the unrestricted right to call defence counsel as a witness or if defence counsel had the unrestricted right to call Crown counsel as a witness.
[31] As a general rule, neither relevance nor necessity is shown simply because opposing counsel, accompanied by an assistant, interviews a witness whose evidence or statement becomes the subject of cross-examination. If Crown counsel or defence counsel could be routinely called as a witness simply because she had previously interviewed one of her own witnesses then no lawyer, Crown or defence, could ever act or prepare properly for trial.
[32] Thus, I accept that there is a persuasive burden on the party who seeks to force opposing counsel to go into the witness box and relinquish his role as counsel. The persuasive burden must demonstrate relevance and necessity.
[33] I acknowledge that Thom’s notebook does not capture the three hour plus interview that had been conducted of Kayvan. The notes do not summarize a verbatim account of the meeting. The notes do not reflect any of the questions that were posed by either Mr. Milko or Mr. Scott. Moreover, the notes do not reflect the reasons for the meeting; the proposed in-dock identification, or the efforts made by the crown to assist in “record expungement” or immigration issues.
[34] The applicant concedes that Mr. Milko may have potential evidence to give that could assist the applicant in responding to the application. However, given Mr. Milko’s categorical denial of the allegation and Thom’s notes and availability to be examined; there is no reason to believe that Mr. Milko has any material evidence to give that would assist the respondent in establishing that Mr. Milko should be removed based on Kayvan’s allegations.
[35] In my view, given the nature of the allegations and the underlying circumstances giving rise to the subject under consideration, I am persuaded that Mr. Milko may have material evidence to provide that would assist the judge with his assessment of the conflict of interest issue. However, that in and of itself, does not resolve the ultimate question raised in this Application.
[36] When counsel conducting a case is sought to be compelled as a witness it has been held that in addition to showing that he or she is likely to give evidence on a material issue, necessity must also be demonstrated: R. v. Sungalia; R. v. Chan (2001), 2001 ABQB 834, 160 C.C.C. (3d) 207; R. v. Elliott.
[37] Necessity has been interpreted as involving extraordinary circumstances where no alternative is available: R. v. Kyling, [1996] Q.J. No. 1566; R. v. Chenier, [2001] O.J. No. 1279 (S.C.).
[38] A judgment frequently cited with approval in cases involving efforts to compel testimony from Crown counsel is found in R. v. Stupp (1982), 1982 CanLII 1897 (ON SC), 70 C.C.C. (2d) 107 (H.C.), where Craig J. stated, at para. 39:
…In my opinion, when a subpoena or the right to call a witness is challenged as here, it is not sufficient for the party proposing to call the witness to merely allege that the witness can give material evidence; but rather the onus is on the accused in this case to establish that it is likely that Brian Johnston can give material evidence. That is particularly applicable where, as here, the accused takes the extraordinary step of seeking to call crown counsel as a witness…It is an interference with the judicial process which can only be contemplated in unusual cases. In my opinion an accused person should not be permitted to call Crown counsel to conduct a fishing expedition or to examine in the hope that something might turn up that would assist him on the issue; but rather counsel must satisfy the judge that there is a real basis for believing that it is likely the witness can give material evidence.
[39] In R. v. Heyden, [1998] O.J. No. 1388, (Gen. Div.) McIsaac J. discussed the right to subpoena a Crown prosecutor, at para. 12:
From these authorities, it would appear that counsel at trial are competent to testify but this will only be permitted where their evidence is “absolutely essential” because of the disqualification that flows from such a situation: See Regina v. Jacquith and Emode, [1989] Crim L.R. 508 and Regina v. Clancey [1993] O.J. No. 4162.
[40] So the real question before this Court is whether Mr. Milko’s evidence is necessary? Can the issues be fully considered with evidence adduced before Leitch J. without having to elicit testimony from the Crown attorney?
[41] As the respondent concedes, a subpoena should only be issued where the person is likely to give material and necessary evidence. The parties are aware that there exists a general tendency not to permit counsel conducting a case to become witnesses in the proceeding, unless absolutely essential.
[42] Thom can certainly testify as to his own recollection of what transpired during the course of the meeting. While he cannot provide any evidence as to what was in Mr. Milko’s mind at the time he allegedly assured the witness that he would inquire into expunging his record and/or what efforts Mr. Milko made in following through with those assurances, there is other documentary evidence available.
[43] In any event, I find that it does not advance the inquiry into this matter as to when Mr. Milko spoke to Angela Kingston (“Kingston”) or when he sought assistance and advice from the Crown attorney, Todd Norman in relation to Kayvan. Kingston and/or Mr. Norman may be called as witnesses.
[44] I note that Kayvan testified that Thom was present on both occasions when Mr. Milko met with him and during the time that he specifically alleges the Crown attorney tried to influence his evidence. Thus, I am not persuaded by the respondent’s submissions that the evidence of Thom and other witnesses do not respond to the very essence of the allegations or that there is no alternative source of information that can be relied upon.
[45] Indeed, the respondent cannot use the subpoena to go on a “fishing expedition” with the hope of turning up something that may be useful either at the preliminary inquiry or on his application to have Mr. Milko removed: Harris, at para. 7; R. v. DiGiuseppe, [2002] O.J. No. 3133 (S.C.) at para. 10.
[46] While the respondent addressed several important issues in response to the Crown’s application, with respect, some of the factors advanced by counsel tend to be extraneous and likely fall outside the ambit of the inquiry. In other words, some of the grounds upon which the respondent seeks to compel Mr. Milko’s attendance as a witness are not material to the ultimate issue of a prosecutorial conflict of interest. This includes, but is not limited to, why Mr. Milko sought permission to audio record the meeting and chose not to do so; why Mr. Milko provided a highlighter to Kayvan to note “very important” sections of his transcript; the Crown policy as it relates to “record expungement”; and the failure of the Crown to disclose this information prior to or during the course of Kayvan’s testimony.
[47] It is clear that Thom is available to address all of the matters involving the Crown’s attorney’s contact with Kayvan at the relevant time. With this evidence and the continuing disclosure of emails and materials related to the issue, I am not persuaded that Mr. Milko’s attendance as a witness is absolutely essential or necessary. Of course, I leave it to the Crown to determine by what means, and the manner in which evidence is to be adduced in order to address or respond to the allegations.
Conclusion:
[48] In my opinion, the respondent has failed to show why it is necessary for Mr. Milko to testify and why material information sought to be adduced at the hearing could not be adequately conveyed by Thom, other witnesses or relevant documents. The respondent has not met the stringent onus to compel an assistant Crown attorney to testify at the discrete hearing before Leitch J. of the Ontario Court of Justice.
[49] The Crown’s Application is allowed. The subpoena issued to Mr. Milko is hereby quashed.
A.J. Goodman J.
Released: January 30, 2020
COURT FILE NO.: CR – MO/19-237 DATE: 2020/01/30
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Applicant
- and –
JABRIL ABDALLA Respondent
RULING ON APPLICATION TO QUASH SUBPOENA
A.J. Goodman J.
Released: January 30, 2020
[^1]: I have not been fully apprised if other persons who are not the subject of this specific Application were also served with a subpoena. [^2]: Notwithstanding the assertions made during the certiorari application, the respondent does not take any issue with Mr. Scott continuing with the prosecution of the case. [^3]: While I will deal with the issue momentarily, it has been essentially resolved by the parties. [^4]: In this case, the hearing before Chapin J. of the Ontario Court of Justice was conducted in chambers. I do not fault the respondents in this regard as counsel advised that she had sought to have the matter heard in open court. In any event, the Crown did not seriously challenge the process for the issuance of the subpoena.