Her Majesty the Queen v. Girolamo Commisso
COURT FILE NO.: CR-21-10000038-00MO DATE: 2021-07-02
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
GIROLAMO COMMISSO
Counsel: M. Bernstein, for the Crown M. Lacy and M. Ahumada, for Mr. Commisso
HEARD: 25 May 2021
S.A.Q. Akhtar J.
FACTUAL BACKGROUND AND OVERVIEW
[1] On 17 February 2021, the respondent, Girolamo Commisso, was discharged by Botham J. at his preliminary inquiry on the charge of conspiracy to commit murder. On 2 March 2021, the Crown filed a notice of application seeking to quash the preliminary inquiry judge’s order of discharge (the Notice) on both the respondent’s preliminary inquiry counsel, Lafontaine and Associates, and the Superior Court of Justice.
[2] However, on 19 March 2021, the last day for service, the Crown was informed by Julia Kushnir, an associate of Lafontaine and Associates, that her firm was no longer representing the respondent. Consequently, the Crown sought to serve the respondent personally by mail. However, the Crown took the view that rules of service meant that mailing the Notice on that date would be held to be service five days later. Instead, the Crown served the respondent with a notice of application for an extension of time to serve and file.
[3] The Crown argues that this court should find that the Notice was served on the respondent on 2 March 2021 when it was sent to Lafontaine and Associates. In the alternative, it argues that this court should allow its application for an extension of time to file pursuant to R. v. Watkins (1999), 45 O.R. (3d) 405 (C.A.), at p. 408. On the other hand, the respondent opposes the application arguing that the Crown failed to discharge its duty of diligence and also asserting a deficiency in the merits of the case.
[4] At the close of the submissions, I informed the parties that the Crown’s application would be granted with reasons to follow.
LEGAL PRINCIPLES
[5] Rule 43.04(1) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), S.I./2012-7 (the Rules) specify that any application for a prerogative remedy - in this case certiorari - must be filed and served within 30 days of the order sought to be quashed. Rule 43.04(3) permits a judge to extend the time required to file the application.
[6] Both sides correctly identify Watkins as the governing authority in this case. There, the court set out the following criteria to be met before allowing an extension:
It is common ground that on a motion such as this a number of considerations are in play in the required exercise of judicial discretion. These include whether there was a bona fide intention to appeal formed within the required time, whether reasonable diligence was exercised in attempting to locate the party for service, whether undue prejudice would result to the respondent by an extension of time, whether there is an arguable appeal, and overall, whether the extension of time is in the interests of justice.
[7] In R. v. C.D.H., 2014 ONCA 183, at para. 2, the court explained that these principles do not constitute a rigid test but a way in which the analysis is focussed on the interests of justice.
[8] In this case, there is no dispute that the Crown formed a bona fide intention to appeal within the requisite time period, as evidenced by its filing of materials with the court and the respondent’s former counsel. Nor has the respondent drawn this court’s attention to any prejudice that he would suffer if the application was granted.
[9] Instead, the respondent focusses on the issue of Crown diligence in attempting to serve him and the merits of the Crown certiorari application.
SHOULD THE EXTENSION BE GRANTED?
Background
[10] Before answering this question, some background facts are required.
[11] The respondent’s preliminary inquiry counsel, Mr. Lafontaine and Ms. Kushnir of Lafontaine and Associates had acted for the respondent since June 2019. The charges against the respondent arose out of a Guns and Gangs prosecution codenamed Project Kraken. Four sets of charges proceeded through the court system with the conspiracy to commit murder being the last to be heard in front of Botham J.
[12] Following the respondent’s discharge, Crown counsel, Susan Adams, informed Ms. Kushnir that the Crown would likely seek review of Botham J.’s order and apply for certiorari.
[13] On 17 February 2021, the day of Botham J.’s ruling, Ms. Kushnir wrote to Ms. Adams requesting assistance in seeking the return of the respondent’s gold chain seized during the execution of a search warrant. On 23 February 2021, Ms. Kushnir emailed the Crown on a second matter, requesting assistance in obtaining informations with the final endorsements of the hearing.
[14] On 2 March 2021, the Crown made good on its intentions and served the Notice on Mr. Lafontaine and Ms. Kushnir, two weeks before the filing and service deadline.
[15] On 5 March 2021, Ms. Adams emailed Ms. Kushnir with a request to obtain an agreed statement of facts that had been filed as an exhibit during the preliminary inquiry. The email exchange continued with messages on 8 March 2021 and 10 March 2021. There was no mention by Ms. Kushnir that she and Mr. Lafontaine had ceased acting for the respondent. Indeed, the nature of the correspondence gives the impression that the respondent was still their client.
[16] The Notice indicated the application was returnable in court on the next sitting of the Special Motions Assignment Court which was 19 March 2021. On 18 March 2021, Kim Motyl, Crown counsel at the Summary Conviction Appeal/Special Motions office emailed Mr. Lafontaine with the assigned Zoom link for the court. However, on 19 March 2021, when the matter was called, no one from Lafontaine and Associates appeared and the matter was adjourned to the next Assignment Court.
[17] That same day, Ms. Kushnir emailed Ms. Motyl and informed her that Lafontaine and Associates “has never been retained in respect of this matter, and is not on the record on Mr. Commisso's behalf”. She asked that the matter “be put back before the Court to make clear that this is not the case, and never has been”. Ms. Kushnir explained that the firm believed the Notice to be a “courtesy copy” notifying former counsel and that it was the Crown’s obligation to serve the respondent.
[18] By coincidence, 19 March 2021 was the last day for filing and service of the Notice on the respondent.
[19] The COVID-19 pandemic led to the creation of a new protocol to ensure the smooth functioning of judicial matters. The Toronto Region Expansion Protocol specified that any unrepresented respondents had to be served by mail rather than by email. As Rule 5.06(2) of the Rules specifies that service by mail is deemed to be effective five days after the materials are sent, the Crown had to prepare a notice of application for an extension of time and accompanying materials. That notice was sent out on 25 March 2021.
Did the Crown Act with Diligence?
[20] The Crown argues that when it served Lafontaine and Associates, it was serving the respondent’s counsel of record as they continued to act as his lawyer in matters related to the conspiracy to commit murder. I do not find it necessary to decide this issue as it is not relevant to whether the Crown acted diligently.
[21] I also reject the respondent’s submission that Rule 5.01(6) of the Rules required email confirmation of acceptance of service from Lafontaine and Associates before the Crown was entitled to assume they were acting as counsel of record. The Rules were modified by the Practice Direction created by the court to deal with matters proceeding through the pandemic, which did not contain an express provision requiring acceptance. Although the respondent may be correct that this protocol did not change or overrule Rule 5.01(6), it is of sufficient ambiguity for the Crown to have reasonably believed that it did.
[22] The issue of Crown diligence is settled by the manner in which Lafontaine and Associates failed to respond to the Notice.
[23] Mr. Lafontaine provided an affidavit explaining that Ms. Adams’ email exchange with Ms. Kushnir on 5 March 2021 provided no indication that she was looking for the agreed statement of facts in relation to the Crown’s certiorari application. I accept that Mr. Lafontaine may not have realised it was for that purpose. However, from an objective standpoint, it is difficult to understand why the Crown would be making such a request if not for use in a review of Botham J.’s decision.
[24] More surprising is Mr. Lafontaine’s assertion that when he received the Notice, he did not understand the Crown to be serving him as the respondent’s counsel. This, along with Ms. Motyl’s 18 March 2021 email containing the Zoom link, should have alerted Mr. Lafontaine that the Crown might believe he was still representing the respondent notwithstanding his other commitment in the Assignment court.
[25] At the end of February 2021, Mr. Lafontaine fell ill and was bedridden for a number of days. This clearly added to his confusion and misunderstanding of the situation.
[26] The Crown forcefully advances Lafontaine and Associates’ silence on their status as counsel when receiving the Notice as a key factor in their actions. The Crown argues that even if they believed that the Notice was being sent as a matter of courtesy, it was incumbent upon Mr. Lafontaine and Ms. Kushnir to notify the Crown that they were no longer counsel.
[27] Mr. Lafontaine asserts, at para. 19 of his affidavit, that the Crown is wrong to assume “that defence counsel from a previous level of proceeding will act as a delivery person for them and effect service on their ex-client”. He points to the Law Society of Ontario’s Rules of Professional Conduct (LSO Rules), Rule 3.3-1, commentary [3], as support for the fact that defence counsel owes a duty of loyalty to the client that continues past the end of the retainer and claims that “taking steps with no instructions to assist the Crown to serve a former client would be a breach of this professional rule”. The respondent advances this position as the correct position governing counsel’s conduct.
[28] I cannot agree.
[29] Rule 3.3-1 of the LSO Rules deals with the topic of confidential information, namely the lawyer’s duty to hold “in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship”.
[30] The rule makes it clear that the obligation not to divulge any such information continues beyond the expiry of the professional relationship unless required by law, the Law Society or with the consent of the client.
[31] Whilst I agree that there was no obligation on Mr. Lafontaine to assist with service on the respondent, I see nothing in the LSO Rules barring him from doing so. As noted, commentary [3] dictates that the “duty of confidentiality” continues and survives the professional relationship even after the lawyer has ceased to act for the client. Assisting with service has nothing to do with the duty to maintain confidentiality of information acquired in the course of the relationship.
[32] Even if Mr. Lafontaine felt he could not assist with service, I nonetheless reject the respondent’s submission that the LSO Rules forbade Lafontaine and Associates from telling the Crown that they were no longer acting for him upon receiving the Notice. I can find nothing in the LSO Rules that prohibits this. Indeed, Rule 3.7-4 makes it clear that if a lawyer withdraws from a criminal case because of non-payment or “other adequate cause” they must notify the Crown in writing that they are no longer acting.
[33] If the respondent’s position was correct it would result in the Crown continuing to correspond, file notices of applications, and provide disclosure (which might contain sensitive information) to a lawyer who had nothing to do with the case and who could not inform the Crown of that fact. Such a position would cause confusion, delay and potentially chaos in the system.
[34] The irony of the respondent’s position is reflected in the fact that on 19 March 2021, Ms. Kushnir did inform the Crown that Lafontaine and Associates were no longer the respondent’s lawyers after being contacted by Ms. Motyl enquiring about their absence from the Special Motions Assignment Court. No one could seriously suggest that, as a result, Ms. Kushnir should be charged with a breach of LSO Rules.
[35] There is nothing new in this state of affairs: it is commonplace for lawyers who are no longer acting for a client to routinely tell the Crown of that development.
[36] It has been five years since the Supreme Court of Canada, in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 116, expressed its clear view that “all participants in the justice system must work in concert to achieve speedier trials”: see also R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at paras. 35-36. That message must be taken seriously, and the Court’s comments encompass the communications that are the subject of dispute in this case.
[37] For these reasons, I find that it is incumbent on defence counsel to tell the Crown that they are no longer acting for a client. That is what should have happened in this case.
[38] I wish to make clear that I do not wish to cast any improper motives or aspersions on Mr. Lafontaine’s conduct. He was seriously unwell during the time period in question. This was a case of confusion and misunderstanding. Mr. Lafontaine’s erroneous interpretation of the LSO Rules caused him to act in an overly cautious manner.
[39] However, the diligence of the Crown’s actions must be viewed through the lens of what it believed at the time: that the respondent continued to be represented by Lafontaine and Associates. The correspondence between the Crown and Ms. Kushnir following the respondent’s discharge, and the failure of the defence to inform them otherwise, would have led the Crown to believe that Lafontaine and Associates were continuing as the respondent’s counsel. That impression would only have been reinforced by the firm’s silence after it was served with the Notice.
[40] In these circumstances the Crown was entitled to assume that Lafontaine and Associates was the proper recipient of the materials intended for service on the respondent.
[41] The Crown acted with the necessary expedition and served the materials in a timely fashion. Had Lafontaine and Associates informed them that they were no longer the respondent’s counsel when they received the material, the Crown would have had more than sufficient time to file and serve the respondent within the designated time period.
[42] Moreover, after it was eventually made aware that Lafontaine and Associates were no longer acting for the respondent, the Crown acted expeditiously in seeking an extension of time to comply with service.
[43] The totality of the evidence demonstrates that the Crown acted with due diligence.
Is There an Arguable Basis for the Application?
[44] Turning to the merits of the application, the threshold for “arguable appeal” is low. In R. v. Antonangeli (2000), 48 O.R. (3d) 606 (C.A.), at para. 21, MacPherson J.A. described arguable as an appeal that “must have some merit, some prospect of success. The test is no higher than that; it does not, for example, require the court to evaluate the appeal in terms of certainty, or even likelihood, of success”.
[45] Here, the Crown must establish that the preliminary inquiry judge committed jurisdictional error as defined in R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, and R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635.
[46] In Sazant, at para. 25, Major J. described three ways in which a preliminary inquiry judge might commit jurisdictional error:
(1) where the judge misunderstands the elements of the offence and fails to evaluate the Crown’s evidence against the correct position in law;
(2) where the judge prefers an inference favourable to the accused over an inference favourable to the Crown; and
(3) where the judge fails to consider the whole of the evidence.
[47] The Crown argues that Botham J. committed two of these errors by failing to draw the most favourable inferences to the Crown and failing to consider all of the evidence.
[48] The respondent was charged with conspiracy to commit murder based on circumstantial evidence which included payment to a co-conspirator, Salazar-Blanco, to purchase a gun and text messages that demonstrated Salazar-Blanco communicated with the respondent keeping him apprised of his activity.
[49] There was also evidence that Salazar-Blanco sent the respondent WhatsApp messages containing images of himself with the gun accompanied by the comment “It’s on”. He also told the respondent: “If he comes here, he’s mine” and “I’ll do it with my bare hands if I have to”.
[50] The preliminary inquiry judge concluded that there were inferences that the respondent and the co-conspirator were involved in an agreement or plan. She stated:
I accept that one inference reasonably available on this evidence is that Salazar-Blanco, after landing in Liberia, purchases a gun and receives some funds for the gun from Mr. Commisso. The text messages suggest that he is looking for someone, and he is keeping Mr. Commisso apprised of his activity. A reasonable inference could be drawn that Mr. Commisso is playing some role in assisting or encouraging the search, and therefore, is part of a plan to do so. Given the nature of some of the messages, an inference could be drawn that something is planned for this person should he be located. The reporting back to Commisso, again, could support an inference that he is part of a plan to do that act.
[51] However, she found that was not enough, adding:
Where the Crown’s case fails, in my view, is the complete absence of any evidence direct or circumstantial to support the inference that there is a plan to murder anyone. Even if an inference could be drawn that some harm is planned for this person, given the comments of Mr. Salazar-Blanco, what is that harm? It could be kidnapping, robbery, extortion, to name but a few criminal offences.
[52] On the evidence, I find the Crown has an arguable basis in its position that there was an available inference that Salazar-Blanco was in Liberia to commit murder and the respondent was a co-conspirator. The Crown has a prospect of success in arguing that the preliminary inquiry judge failed to draw the inference most favourable to the Crown and/or failed to consider the whole of the evidence.
[53] As noted, there is no indication that the grant of an extension would cause the respondent any prejudice.
[54] I find that it is in the interests of justice to grant the extension.
[55] Accordingly, the Crown’s application is allowed.
S.A.Q. Akhtar J.
Released: 2 July 2021
COURT FILE NO.: CR-21-10000038-00MO DATE: 2021-07-02
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
GIROLAMO COMMISSO
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.