Court File and Parties

COURT FILE NO.: 18-5176 DATE: 2021/03/03

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Ahmad and Fadhil

BEFORE: Somji J.

COUNSEL: Stephen Lichti for the Crown Anthony Paciocco for Mr. Ahmad Kim Hyslop for Mr. Fadhil

HEARD: February 4, 2021

Endorsement on Charter Application

[1] On February 3, 2021, I ruled that Counsel for Mr. Fadhil (“Applicant’s Counsel”) could bring a s. 10(b) Canadian Charter of Rights and Freedoms application five days after the start of trial. This decision sets out the reasons for that ruling and refers to the parties’ positions and status of the trial at the time of the ruling.

[2] The accused, Salam Fadhil and Mahmood Ahmad, are jointly charged with of one count of sexual assault on the complainant on September 16, 2018.

[3] The trial commenced on Thursday January 28, 2021. Prior to trial, counsel for both accused gave the Crown notice that the voluntariness of statements made by each accused to the police would be challenged. All the parties agreed that the voluntariness issues could proceed by way of a blended voir dire which would address the admissibility of each of the accused’s statements. The parties also agreed that to avoid recalling the officers, the testimony of Detectives Dompierre and Riopel in the trial proper could be applied to the voluntariness voir dire. Any other evidence the parties wished to call exclusively on the voluntariness issue on the voir dire would be specified as such during the trial.

[4] The first witness at trial was Det. Dompierre, the lead investigator. He also interviewed each of the accused. After four days of examination and cross-examination, Ms. Hyslop, the Applicant’s Counsel, filed a Notice of Application to have Mr. Fadhil’s statement excluded pursuant to s. 10(b) and s. 24(2) of the Charter on the grounds that Mr. Fadhil was not granted his counsel of choice.

[5] Applicant’s Counsel explained that based on the contents of the accused’s statement, she had always been operating under the assumption that Det. Dompierre had retrieved the telephone number from Mr. Fadhil’s phone to call his counsel of choice as that is what appears to have been suggested at page four of his statement. During cross-examination, Det. Dompierre testified that he could not recall if he had retrieved the number for Mr. Fadhil’s counsel of choice from his phone or whether he had relied on a telephone number listed for the firm.

[6] Applicant’s Counsel explained that it was at this juncture of the cross-examination that the issue of whether the Applicant Fadhil was given his right to counsel of choice crystallized and which prompted her to bring the Charter application the following morning on February 3, 2021. Applicant’s Counsel also states that she only received the one page of Det. Dompierre’s handwritten notes concerning Mr. Fadhil’s arrest after the trial had started, on February 2, 2021. These handwritten notes, along with other aspects of Det. Dompierre’s testimony, contributed to her reconsideration of the issue.

[7] The Applicant wishes to bring an application alleging that Det. Dompierre did not take reasonable steps to facilitate his right to counsel of choice as per s. 10(b) of the Charter.

[8] The Crown requests that the Charter application be summarily dismissed given that it was not filed in a timely manner and that the late application prejudices the Crown. The Crown argues that the right to counsel of choice issue could have been anticipated earlier and that nothing new has arisen. More importantly, Mr. Lichti, Counsel for the Crown, argues that had he been aware that there was going to be a Charter application, he would have had an opportunity to prepare Det. Dompierre to address the issue, and he would have asked him questions related to the issue in his examination-in-chief. Det. Dompierre was in the middle of cross-examination when the application arose. The Crown also expresses concerns about the Charter delay that might result if the application proceeds.

[9] In addition, the Crown takes the position that even if I exercise my discretion to allow the Charter application to proceed, the Crown is not agreeable to having the matter heard as part of the existing blended voir dire on voluntariness. A separate voir dire will have to be held and evidence called in support of the particular Charter application.

[10] Rule 31 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7, requires that applications to exclude evidence are to be filed 30 days in advance of pre-trial hearing dates or the trial: r. 31.04(1). The applications must also be sufficiently particularized. There are two reasons for this: one, to ensure sufficient time is scheduled for such applications so that they can proceed in a focused manner; and two, to ensure the Crown can properly identify the relevant issues for trial and prepare accordingly: R. v. Greer, 2020 ONCA 795, at para. 104.

[11] I would also add that trial efficiency is not simply a matter of court scheduling and convenience, but a serious consideration in light of the potential impact that late applications can have on s. 11(b) Charter delays. As stated in R. v. Polanco, 2018 ONCA 444, at para. 21, trial judges must be continually mindful of the progression of trial proceedings in light of the Supreme Court of Canada’s decision in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631: leave to appeal refused, [2018] S.C.C.A. No. 271. In this case, Applicant’s counsel has made it clear that any delay arising uniquely from this Charter application is waived.

[12] Counsel for the co-accused Mr. Ahmad indicates that his client is not opposing Mr. Fadhil’s application. Counsel for Mr. Ahmad has also provided me with a helpful memorandum of law addressing various procedural options for efficiently proceeding with a second voir dire should the application be granted.

[13] Trial judges must be cautious before foreclosing an inquiry into an alleged Charter violation simply because of a failure to comply with notice requirements: R. v. Loveman (1992), 71 C.C.C. (3d) 123 (Ont. C.A.), at p. 125; R. v. Tash (2008), 166 C.R.R. (2d) 358 (Ont. S.C.), at para. 15 (8). Careful consideration must be given to the Charter claim sought to be advanced, the potential prejudice to the opposing party, and the impact of the application on the trial process: Loveman, at p. 127; Greer, at para. 112.

[14] The trial judge must also provide the parties an opportunity to make submissions before summarily dismissing a late application based on a failure to comply with the rules: Greer, at para. 110. Upon hearing the submissions of the parties, the trial judge should give due consideration to some or all of the following factors, as indicated by Greer, at para. 112, and Tash, at para. 23:

• The degree of noncompliance of the rules;
• Explanations for non-compliance with the rules;
• The measure of prejudice to the Crown;
• Whether the prejudice can be cured without dismissal of the application;
• The degree of disruption in the proceedings;
• The history of the litigation;
• The prospect of success on the application; and
• The principles of justice and fairness to all parties involved.

[15] Upon hearing the submissions of the Crown, Applicant’s Counsel, and Counsel for the co-accused, I agree to grant Mr. Fadhil the right to bring a late Charter application alleging a violation of his s. 10(b) Charter rights. I make this decision having considered the reasons for the late filing, the nature of the application, and the potential prejudice to the Crown.

[16] I accept Ms. Hyslop’s explanation that there is a valid reason for the late application. Having reviewed the accused’s statement during the voluntariness voir dire, I agree that one might have been left with the impression that the phone number used to contact counsel of choice was retrieved from Mr. Fadhil’s phone, and that this was put into question during Det. Dompierre’s cross-examination. Whether the outcome would have been any different if the phone number was selected from Mr. Fadhil’s phone or whether the circumstances of the arrest resulted in a s. 10(b) Charter violation is not to be decided at this stage.

[17] I find that the late application does result in some prejudice to the Crown, but that the prejudice can be addressed. First, both defence counsel have agreed that the Crown can have more latitude in conducting the reply with Det. Dompierre and may ask additional questions in relation to the right to counsel issue should he wish to. This testimony can then be applied to the voir dire relating exclusively to the Charter right to counsel issue. Second, only one of the two officers who have testimony to give on the taking of the statements has testified. Hence, the Crown can examine Det. Riopel on both voluntariness and right to counsel when he is called. Given where we currently are at in the trial proceeding with only one of five Crown witnesses having testified, the late application, while not convenient, minimally disrupts the proceedings.

[18] Furthermore, irrespective of the late Charter application, additional time will be required for the continuation of this trial. In scheduling additional trial time, the parties can build in extra time specifically for another voir dire on the Charter issue.

[19] For all these reasons, I order that Mr. Fadhil can bring an application on the issue of his right to counsel of choice as per s. 10(b) of the Charter.

[20] In the absence of Crown consent, the s. 10(b) Charter application will not be part of the blended voir dire on voluntariness. The s. 10(b) Charter application issues will be addressed as part of a separate voir dire. Not having had any opportunity to prepare for this Charter issue prior to the start of trial, the Crown is not precluded from recalling Dets. Dompierre and Riopel for the second voir dire should he wish to do so. The parties have available to them various options for determining what evidence they wish to tender on the Charter voir dire. The parties may all agree to have the testimony of Dets. Dompierre and Riopel apply to the second voir dire or the Crown may recall the two officers for further questioning on the Charter issue.

[21] I also order that the time for service of the Notice of Application, Factum, and Book of Authorities can be abridged. A Notice of Application with sufficient particulars has already been filed by Applicant’s Counsel and the Factum and Book of Authorities can follow.

Somji J.

Released: March 3, 2021