ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMJ(P)0033/20
DATE: 2021 12 15
ADDENDUM: 2022 03 25
B E T W E N:
HER MAJESTY THE QUEEN
Respondent
David King for the Provincial Crown Respondent
Xenia Proestos for the Public Prosecution Service of Canada
- and –
RAFFAELE SIMONELLI and
MICHAEL SIMONELLI
Applicants
Sonya Shikhman for Applicant Raffaele Simonelli
Lindsay Daviau for Applicant Michael Simonelli
HEARD: September 17, 2021 by videoconference
D.E HARRIS J.
1 On January 15, 2021, in written reasons, I found that the prosecution against both Applicants, Raffaele Simonelli and his cousin Michael Simonelli, constituted an abuse of process by reason of the systemic delays in the holding of their bail hearings in Brampton. A stay of proceedings was entered with respect to all the charges they were facing, which included illegal gaming offences and firearm offences: R. v. Simonelli, 2021 ONSC 354.
2 Several months later, on March 29, 2021, a new information was laid against the Simonellis arising out of the same investigation – Project Hobart – which had led to the original charges. It charges Raffaele with tax evasion, property obtained by an indictable offence over $5000 and money laundering. Michael is charged in the same information with tax evasion only.
3 The Applicants argue that the laying of the new information against them constitutes an abuse of process. The Applicants’ contention is posited on a different basis than their original application. While that stay was as a result of systemic delays in conducting lengthy bail hearings in Brampton over a period of several years, including in the Applicants’ own bail hearings, the current application is unrelated to bail itself. In short, the Applicants argue that the laying of the new charges was for the purposes of circumventing the termination of the prosecution brought about by the original stay. That, they contend, is abusive.
4 In order to demonstrate what was behind the decision to lay the new information, the Applicants request that a wide range of disclosure be ordered encompassing communications between investigators and between investigators and prosecutors. They also request that will-says be prepared by several prosecutors, both federal, with respect to the tax evasion counts, and provincial, with respect to the money laundering and possession of property obtained by crime counts.
5 The Applicants are on solid ground with respect to the legal foundation for their disclosure request. The laying of criminal charges is a matter of core prosecutorial discretion and is only reviewable for abuse of process: R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167 (S.C.C.), at para. 48; Krieger v. Law Society (Alberta), 2002 SCC 65, [2002] 3 S.C.R. 372 (S.C.C.), at para. 32; R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566 (S.C.C.), at para. 31. Disclosure in the present circumstances can only be ordered if the Applicants make a threshold showing of abuse of process and, in addition, also meet the exceptionally rigorous standard for the piercing of solicitor client privilege. These reasons examine whether the Applicants have attained these thresholds.
THE BASIS FOR THE ABUSE OF PROCESS CLAIM
6 Disclosure is premised on relevancy and relevancy can only be assessed in relation to the particular application at hand: R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at para. 39; R. v. O’Connor 1995 51 (SCC), [1995] 4 S.C.R. 411 at para. 22. In this instance, a first step must be the articulation of the factual ingredients supporting the claim. Ms. Daviau, in her factum, formulates it this way,
If investigators and/or prosecutors deliberately delayed the laying of the tax evasion charge in order to keep it outside the ambit of Harris J.’s abuse of process ruling, this could constitute an abuse of process.
7 I would put it slightly differently. Abusive conduct could encompass laying a charge substantially for the purpose of defeating, at least in part, the original termination of the charges against the Applicants.
8 For example, the accused were originally charged with several different firearms offences stemming from the same act of firearm possession. These offences were charged under different sections of the Criminal Code. They were variations on a theme each with slightly different delicts. One of these variations was possession of a firearm knowing that the serial number had been altered contrary to Section 108(1)(b) of the Criminal Code. If this had not initially been charged, laying this count in the aftermath of the stay could well have been found to be abusive of the court’s process. Charging a variation of the same basic allegation of firearms possession could be construed, depending on all the evidence, as an attempt to circumvent the stay and improperly resurrect the prosecution.
9 Contrary to a suggestion in Ms. Shikhman’s factum, the bare fact that a charge was laid against the Applicants after the stay was imposed is clearly insufficient to lend weight in and of itself to an abuse of process claim. Although it is not necessary to map at this early stage the precise features of abuse of process in the present context, on the most general level, it would necessarily involve a violation of the Crown’s quasi-judicial function as a Minister of Justice. As the Court of Appeal summarized in R. v. T. (A.), 2015 ONCA 65, 124 O.R. (3d) 161, at para. 26,
The Crown occupies a special position in the prosecution of criminal offences, which "excludes any notion of winning or losing" and "must always be characterized by moderation and impartiality": R. v. Boucher1954 3 (SCC), [1955] S.C.R. 16 (S.C.C.), per Rand J., at p. 24 and Taschereau J. (in translation), at p. 21.
Also see R. v. Delchev, 2015 ONCA 381, 126 O.R. (3d) 267, at paras. 63-66.
10 In the sense used in the case law, the Applicants allege that the Crown intends to “win” in a prosecution against them. The Supreme Court in R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167 (S.C.C.), at paras. 49-50, reviewed the onerous standard that must be met to demonstrate abuse of process arising out of Crown conduct in the exercise of prosecutorial discretion:
The jurisprudence pertaining to the review of prosecutorial discretion has employed a range of terminology to describe the type of prosecutorial conduct that constitutes abuse of process. In Krieger, this Court used the term “flagrant impropriety” (para. 49). In Nixon, the Court held that the abuse of process doctrine is available where there is evidence that the Crown’s decision “undermines the integrity of the judicial process” or “results in trial unfairness” (para. 64). The Court also referred to “improper motive[s]” and “bad faith” in its discussion (para. 68).
Regardless of the precise language used, the key point is this: abuse of process refers to Crown conduct that is egregious and seriously compromises trial fairness and/or the integrity of the justice system.
11 The specific nature of the Applicants’ allegation supporting the abuse of process claim is reasonably clear. The new offences are different than those originally alleged. Nonetheless, similar to the fundamental concern underlying double jeopardy, repeated efforts to convict the Applicants is at the root of the argued unfairness. In Green v. U.S., 355 U.S. 184, 198: S.C.T. 221, 229 2L. Ed (2nd) 199 (1957), the Supreme Court of the United States held:
[T]he right not to be placed in jeopardy more than once for the same offence is a vital safeguard in our society, one that was dearly one that should continue to be highly valued. If such great constitutional protections are given a narrow, grudging application, they are deprived of much of their significance.
Mr. Justice Black added:
The underlying idea, one that is deeply engrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offence, thereby subjecting him to embarrassment, expense and ordeal, compelling him to live in a continuing state of anxiety and insecurity. (Emphasis Added)
Also see R. v. Shubley, 1990 149 (SCC), [1990] 1 S.C.R. 3, at para. 24 and p. 15.
12 The difference between the Applicants’ abuse of process claim and a double jeopardy argument is that, in this case, the prosecution is not attempting to re-prosecute the same offence or the same delict. However, according to the Applicants, the kernel of the prosecutorial action is similar: a second attempt to convict the Applicants of closely associated offences after the first attempt has failed. If the laying of the charge was for the purpose of resurrecting the criminal prosecution against the Applicants for the principal purpose of ensuring that they were not able to simply walk away from their alleged criminal misconduct, that finding could rise to the level of an abuse of process.
13 This aspect was never argued at the original stay application as the constituent factual elements underlying it had not yet coalesced. The offences charged against the Applicants upon which they were arrested and held for bail on the takedown date of December 12, 2019 were the direct target of the stay application. Since it was these charges which were responsible for the Applicants’ protracted detention while caught in the systemic delays in Brampton lengthy bail hearings, it was appropriate that they were the subject matter of the stay.
14 It is self-evident that a stay could not have been argued against the charges in the new information at the original hearing on November 23, 2020 as they were not yet in existence. Nor as a factual finding, could it be contended that as of December 12, 2019 when the initial charges were laid against the Applicants and other targets of Project Hobart, the tax evasion and money laundering offences were held back just in case the other counts were stayed for abuse of process. An abuse of process stay could not possibly have been envisioned at that point. The bail hearing delay had not yet occurred nor was the pivotal finding of a systemic, long-term delay in holding lengthy bail hearings in Brampton available. It was not until the filing in late September, 2020 of the extensive, focussed record compiled by the Applicants that the chronic nature of the bail problem was revealed.
15 It is only if the laying of the new charges was a reaction to and an attempt to resurrect the termination of the charges that the Applicants can legitimately be heard to complain. The violation, if there was one, occurred upon the laying of the new information.
16 A threshold requirement must be satisfied before the Applicants can succeed in compelling the disclosure they seek and, in these circumstances, in going further to pierce solicitor-client privilege. There is, in effect, a double threshold that must be hurdled. These thresholds protect closely related but distinct interests. First, any attack on the exercise of core prosecutorial discretion is narrowly circumscribed to ensure that the prosecutorial function is not unduly hampered. Moreover, as will be explored in more detail below, solicitor client privilege is fundamental to the legal system and must be steadfastly protected, only giving way as truly a last resort.
17 In Nixon, at paras. 61-62, the issue was whether the repudiation of a plea agreement constituted abuse. For the Supreme Court, Justice Charron discussed the threshold requirement necessary to challenge prosecutorial discretion,
61 Threshold requirements may be imposed for pragmatic reasons alone. As this Court observed in Pires (at para. 35):
For our justice system to operate, trial judges must have some ability to control the course of proceedings before them. One such mechanism is the power to decline to embark upon an evidentiary hearing at the request of one of the parties when that party is unable to show a reasonable likelihood that the hearing can assist in determining the issues before the court.
62 Quite apart from any such pragmatic considerations, there is good reason to impose a threshold burden on the applicant who alleges that an act of prosecutorial discretion constitutes an abuse of process. Given that such decisions are generally beyond the reach of the court, it is not sufficient to launch an inquiry for an applicant to make a bare allegation of abuse of process. For example, it would not suffice for an applicant to allege abuse of process based on the fact that the Crown decided to pursue the charges against him but withdrew similar charges against a co-accused. Without more, there would be no basis for the court to look behind the exercise of prosecutorial discretion.
Also see Delchev, at paras. 48-56.
18 Justice Charron held that because the repudiation of a plea agreement is an exceptional and rare event and plea agreements are of critical importance, the circumstances met the necessary threshold: para. 63.
19 In the present circumstances, applying the threshold from Nixon, the evidence marshalled by the Applicants must be reasonably capable of leading to the conclusion that the integrity of the criminal process has been undermined and an abuse of the court’s process occasioned. To analyze this issue, the tax evasion charges will first be examined followed by the money laundering charges.
THE TAX EVASION CHARGES
20 The lengthy synopsis at the original bail hearing for the Applicants stated in the first paragraph,
These charges arise from an Ontario-Provincial-Police-led investigation named Project Hobart. The investigation began in February 2018.
Police investigated an online book-making operation known as “Privada” and investigated illegal gaming, betting, book-making, money laundering, tax evasion and criminal organization offences. (Emphasis Added)
21 The synopsis does not again explicitly mention either offence. However, other evidence clarifies that these offences were on the police radar during the Project Hobart investigation. The tax evasion investigation was ongoing more than a year before the Project Hobart arrests of the Applicants and over 20 others on December 12, 2019. The Canada Revenue Agency (CRA) entered into a formal written Joint Forces Operation (JFO) with the OPP for the purpose of a tax evasion investigation on October 30, 2018.
22 The CRA’s investigation was a net worth investigation initially looking at the five years of activity between 2014-2018. This type of investigation is laborious as it requires a determination of the targets’ true assets and liabilities. On arrest, over 50 search warrants were executed and financial records and other documents were seized. Production orders were granted which in turn generated further production applications.
23 There were extensive investigative steps taken between the takedown of Project Hobart in late 2019 and the first referrals to the prosecutors in October 2020. These included seeking access to digital records; geowarehouse requests made on three different properties associated with Raffaele Simonelli; reviewing the results of judicial authorizations; interviews of third parties; and most importantly, the preparation of net worth calculations for the Applicants.
24 The CRA sent referrals to the Public Prosecution Service of Canada (PPSC) in the fall of 2020 alleging tax evasion offences committed by both Applicants. The investigation continued and revised referrals were sent in March 2021 with respect to both men.
25 The stay of proceedings took place on January 15, 2021. The Respondent can show a large amount of work by the investigators between the first referrals in the fall of 2020 and the second in March 2021, a period of time which bridges the imposition of the stay. All of this is extensively documented in the material before the court. Shortly after the second referral, on March 29, 2021, both the Applicants were arrested and the information charging tax evasion and the other offences against Raffaele Simonelli were laid.
26 Ms. Proestos argues for the PPSC in her factum,
This Court’s finding of an abuse of process in relation to the applicants’ delayed bail hearings was premised entirely on the systemic failings in ensuring the important right to an early bail hearing is properly guarded. The decision is not applicable to the tax evasion charges where the applicants did not require bail hearings because they were released on their own undertakings.
27 This argument misconstrues the nature of the abuse of process argument made by the Applicants. It is not based on the right to reasonable bail in Section 11(e) of the Charter of Rights and Freedoms as was the original application. It is premised on the improper laying of charges for the purposes of circumventing the effect of the stay. Although derivative of the original stay, the present claim is an extension of it and based on Section 7 of the Charter, not Section 11(e).
28 In my view, the Applicants’ request for disclosure with respect to the tax evasion charges and the piercing of solicitor-client privilege cannot succeed. The documentary evidence convincingly demonstrates that the tax evasion charges were not a reaction to or in any significant way connected to the judicial stay. The tax charges were in the works well before the arrests and the seizure of documents on December 12, 2019. The investigators continued working on the tax evasion allegations right up to when the new information was laid. There was a temporal relationship between the stay and the tax evasion charges but there was no other meaningful relationship between the two.
29 In order to justify disclosure and the yielding of solicitor-client privilege, an exceptional step, there must be some evidence of impropriety or bad faith. There is no evidence of any action like the repudiation of the plea agreement in Nixon which, on its face, could raise eyebrows. Nor is there anything else. Any potential impropriety which could be said to be raised by the delay in laying the charge is conclusively rebutted by the evidence of the work undertaken in order to support the tax evasion charges.
30 In light of this conclusion, the aspect of the application requesting disclosure of the tax evasion investigation, and the application by Michael Simonelli, must be dismissed.
THE MONEY LAUNDERING AND POSSESSION OF PROPERTY OFFENCES
31 In the March 29, 2021 information, besides tax evasion, Raffaele Simonelli was also charged with property obtained by an indictable offence over $5000 and money laundering. As noted above, the synopsis for the bail hearing indicates that money laundering was being investigated as part of Project Hobart.
32 In the September 18, 2019 notes of one of the senior investigators, the money laundering charge against Raffaele Simonelli is mentioned. On or about December 5, 2019, a week before the Project Hobart takedown, Detective Sergeant Walker (“Walker”) of the OPP prepared a money laundering summary and charge wording with respect to Rafaelle Simonelli and provided them to Detective Sergeant Stewart of the OPP (“Stewart”). For reasons unknown, the money laundering charge was not laid with the other charges on the takedown date of December 12, 2019. The Applicants filed their application for a stay of proceedings on August 4, 2020 and obtained leave for an oral hearing in early September 2020. Soon thereafter, a date of November 23, 2020 was set for the hearing. On September 25, 2020, the Applicants filed their materials for the hearing.
33 A few days later, on September 28, 2020, Stewart sent an email to Walker and Crown David King saying that he realized that the money laundering charge against Rafaelle Simonelli was not laid and asking for input with respect to laying the charge. He stated that a reasonable solution would be to re-lay the informations with the money laundering included and asked whether this would work for everyone. Mr. King has said that he did not return the email and does not remember a phone call discussing the matter. No further explanation was given.
34 Internal emails disclosed by the Crown for the purpose of this application reveal that the police were aware of the stay application in the days before it was heard on November 23, 2020. The day of the stay hearing, Walker sent the provincial Crown working with Mr. King, Rob Levan, the original Raffaele Simonelli money laundering summary and asked for input re: whether it would be sufficient to get the charges laid. On November 27, 2020, Walker sent King and Levan a new summary she had put together with respect to the money laundering charge. Again, there is no indication that any discussion took place or that any action was taken.
35 About two hours after the release of the stay ruling on January 15, 2021, Mr. King for the provincial Crown emailed other Crowns involved in the Project Hobart prosecution as well as several police investigators including Walker and Stewart. He proposed a meeting for the next business day, Monday January 18, 2021. The last several lines of this email have been redacted. Mr. King said,
I don’t want to spoil the surprise, but here’s how the decision ends – the charges against the Simonellis have been stayed by the court due to delays caused by the court in getting them their bail hearings.
I think we should all talk on Monday and I’m asking Alisa to set up a zoom meeting for 2.00 p.m., hoping that as many of you can make it as possible, so we can discuss where to go from here.
A couple of things. First, John [Kingdon, the Crown on the original application] has begun the process of asking for an appeal, but it will take some time for that to get going – various paperwork and approvals are needed from this end, and then people at [Crown Law Office Criminal] will look at everything and decide if they will take the appeal. Second, the bail hearings in question related to firearms charges and the gaming offences. I know that money laundering charges against Raffaele Simonelli were also the subject of interest among the investigators.
(Emphasis Added)
36 The next four or five lines are redacted. It is safe to assume based on the context that they are in reference to the money laundering charges mentioned immediately before in the italicized sentences.
37 Officer Walker of the OPP replied within minutes to Mr. King, saying that she did not believe that the CRA had yet laid tax evasion charges against the Simonellis but it was her understanding that they were planning on it. She continued in relation to the money laundering charge,
… it was my intention to lay it with all of the others at the beginning. It was inadvertently missed which I discovered later and requested it be laid. There was additional evidence gained on this front as a result of TD; however, there was enough to lay it before that.
38 Several months later, on March 29, 2021, the money laundering and possession of property obtained by crime counts against Raffaele Simonelli were laid together with the tax evasion counts against both cousins.
39 The information and synopsis for the money laundering charge indicates that the money laundering allegations were downstream from the illegal gaming allegations against Raffaele Simonelli. The draft synopsis states,
These [unsourced] cash deposits [which Rafaelle Simonelli deposited into his personal bank account] provide examples of the first placement stage of money laundering, where the cash obtained from the illegal gaming operation is inserted into the financial system.
40 The second and third stages of money laundering were also derived from the illegal gaming operation:
The use of nominee owners provide examples of methods employed during the second layering stage of money laundering, to attempt to hide the criminal source of funds and the true, beneficial ownership of property.
The acquisition of real estate, vehicles and bank accounts provide examples of the final integration stage of money laundering, where funds obtained from the illegal bookmaking operation have been “cleaned” or legitimized and placed in assets controlled by Raffaele Simonelli.
41 It does not appear that any additional work was necessary to lay the money laundering charge beyond what had been done prior to the laying of the other charges on December 12, 2019. It is noteworthy that the Crown did not argue, as did the federal Crown pointing at the extensive documentation, that the charge was not yet ready to be laid with the other charges.
42 The possession of property obtained by crime count related to several matters already charged but also encompassed the proceeds of the illegal bookmaking operation. It charges acts related to the money laundering. I do not intend to refer to it further in these reasons. Its stands on the same footing as the money laundering charge.
43 In responding to the Applicants’ position, Mr. King, like the federal Crown, misapprehends the nature of this application. He says in his factum,
18…The applicant seems to suggest that 2021 charges were laid at the time they were in order to somehow circumvent the effect of the anticipated s. 11(e) ruling (which was released in January 2021). This argument is without merit for two reasons.
First, the applicant was not held for bail on the 2021 charges. It would not be anticipated that any charge laid after the December 2019 bail hearing was completed could somehow be stayed because of a bail hearing delay for other charges.
Second, if charges laid after the bail hearing concluded could be stayed because of the December 2019 bail delay, then it didn’t matter when those charges were laid – an application could always be brought arguing that they should be stayed because of the original bail hearing delays. In the 11(e) application, the Crown conceded the Charter breach, so all that would be required on a renewed application would be to argue the remedy – i.e. that the charges laid after the bail hearing should also be stayed.
44 Again, the crux of the challenge is the laying of the provincial charges for the purpose of circumventing or undermining the termination of the prosecution brought about by the stay. Ms. Shikhman for Raffaele Simonelli does not dispute that the money laundering and the possession of property obtained by crime charges were not laid originally as a result of inadvertence. This concession, however, does not end the matter. The money laundering may have remained an uncharged allegation were it not for the stay which is alleged to have prompted the authorities to forge ahead with it. The Applicants argue that it only came to the fore and was laid in order to replace the lost charges.
45 In my view, there has been a threshold showing of abuse of process by the Applicant Raffaele Simonelli which is sufficient to found a disclosure order. In summary, there was a lengthy delay in laying the money laundering count. It stretched from December 12, 2019, the day of the takedown and the laying of the original charges, through the imposition of the stay on January 15, 2021 until it was finally laid on March 29, 2021. The delay is not itself a Charter breach: R. v. Hunt, 2017 SCC 25, [2017] 1 S.C.R. 476. It is, however, an integral part of the history and is important to an understanding of the course of this proceeding. The police and Crowns were aware of the omission to charge the money laundering count after the initial charges were laid and it was raised several times, including before and after the stay application was argued on November 23, 2020. In the face of these discussions and the repeated prodding of the investigators, the prosecutors apparently took no action. They lay curiously silent and did not respond to the investigators’ inquiries, so it seems. It was only upon the imposition of the stay on January 15, 2021 that Mr. King raised the prospect of laying the charge in his email in the late afternoon of that day.
46 This timing is suspicious. The email from Mr. King is a key element leading to the conclusion that this application crosses the arguable threshold. In the email, Mr. King first discusses that the Crown has put the wheels in motion to contemplate an appeal from the stay decision. He then turns to the money laundering charge and says that he knows that it was a subject of interest to the investigators. The continuation of that thought has been expurgated.
47 The impression left by the email is that both an appeal and the laying of a money laundering charge were remedial steps to be considered in the aftermath of the stay. Pursuing the possibility of an appeal was entirely legitimate and the prosecutors were duty bound to explore it as an option. Ultimately an appeal was not taken.
48 The deployment of the money laundering charge was suggested in the same breath as the appeal. A reasonable interpretation is that this too would be a way for prosecutors and investigators to partially reverse the stay and the termination of proceedings against Raffaele Simonelli.
49 In his submissions, Mr. King was in the uncomfortable position of being engaged as a principal prosecutor in the money laundering charge and, at the same time, making submissions as counsel with respect to it. He said that there was no other Crown available to argue the motion. Clearly, this was less than ideal. As a result of his knowledge of what had been redacted and the background of conversations and decisions made in concert with the investigators, it was necessary to remember at times that he was making submissions and not giving evidence.
50 In his factum on this disclosure application, Mr. King went to considerable lengths to suggest why the money laundering charge was not laid before it was. He wrote,
- So when it was pointed out in September 2020 that the money laundering charge had not been laid, any responsible Crown would have to consider issues like:
if this charge is added to the current information, will it delay the applicant’s election and thereby delay the case for all of the accused?
given the delay clock starts ticking from the day the charge is laid, what is the state of the disclosure relevant to this charge?
is the investigation into this charge completed or are there additional production order results outstanding?
These are all legitimate considerations, so the mere fact that the money laundering charge was not laid in September 2020 is in no way suspicious.
- Once the section 11(e) [stay] application was under way, even more procedural issues arise. For example:
if the charges were stayed by the court and the Attorney-General appealed, would the best course be to lay the money-laundering charge now or, if the appeal were successful, prosecute everything together at a later date?
should Crown and police await the 11(e) ruling to see if anything in it precluded laying more charges, especially since future litigation against the applicant was raised in the 11(e) argument?
if the charges against the applicant are not stayed and adding the money-laundering charge will cause undue complications, is it worth it, given that convictions on the other charges will hold the applicant accountable for his criminal behaviour?
51 Again, Mr. King was raising these matters as hypotheticals, not as an actual recounting of his mental process. There is no direct evidence on the point. Despite these conjectural musings, the fact is that the sooner the money laundering charge was laid, the fewer complications would be encountered in the ongoing criminal prosecution. Laying new charges in an ongoing prosecution is almost inevitably better accommodated at the outset of a prosecution then further in. One would normally expect that the omitted money laundering charge would be laid as soon as possible after it was noticed that it was missed when the initial charges were instituted.
52 It is unusual that a charge would be held back and unusual that there was not some response from the prosecutors to the inquiries from the police investigators. Mr. King’s reflection that there were other possible reasons for the delay, none of which are overly compelling, fails to rebut the conclusion that the threshold discussed in Nixon has been crossed.
53 The money laundering charge, whether by accident or design, remained in the back pocket of the investigators as a potential fail safe to rectify the finality of the stay. There is some inferential evidence from Mr. King’s January 15, 2021 email that this was the very purpose behind the laying the charge in late March 2021. In my opinion, based on all of the evidence, the threshold for the ordering of disclosure in relation to the money laundering charge has been met.
THE PIERCING OF SOLICITOR-CLIENT PRIVILEGE
54 It is agreed by all parties that Mr. King’s communications with the police were at least initially protected by solicitor-client privilege. The purpose was to inform and advise the police of next legal steps: R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, at paras. 36-37; R. v. Shirose, 1999 676 (SCC), [1999] 1 S.C.R. 565, 133 C.C.C. (3d) 257 (S.C.C.), at para. 49-50. Mr. King has divulged part of his January 15, 2021 email but redacted another part of The disclosure of part of the email and the redaction of the other part does not itself amount to waiver by the investigators. There is no indication of who actually made the redactions although it is safe to assume that it was Mr. King. The clients’ instructions or acquiescence to revealing some of the communication cannot be construed as waiver in these circumstances.
55 While it was suggested at the hearing that Mr. King had waived privilege by virtue of some of his suggestions in written and oral submissions of why the money laundering charge was not laid earlier, the privilege is held by the police who are the client, not by Mr. King, who is the solicitor. Mr. King could not waive a privilege that was not his: Shirose, at para. 67; McClure, at paras. 36-37.
56 Solicitor-client privilege is a vigilantly guarded privilege which can only yield if there has been a threshold showing that disclosure is absolutely necessary in order to pursue “innocence at stake.” No alternatives to piercing the veil must be available: also see R. v. Brassington, 2018 SCC 37, [2018] 2 S.C.R. 617, at paras. 36-37. Justice Major commented in McClure, at paras. 52-53, with reference to Stage #1 of the process,
The first stage of the innocence at stake test for invading the solicitor-client privilege requires production of the material to the trial judge for review. There has to be some evidentiary basis for the request. This is a threshold requirement designed to prevent “fishing expeditions”. Without it, it would be too easy for the accused to demand examination of solicitor-client privileged communications by the trial judge. As this request constitutes a significant invasion of solicitor-client privilege, it should not be entered into lightly. On the other hand, the bar cannot be set so high that it can never be met. The trial judge must ask: “Is there some evidentiary basis for the claim that a solicitor-client communication exists that could raise a reasonable doubt about the guilt of the accused?”
It falls to the accused to demonstrate some evidentiary basis for his claim that there exists a solicitor-client communication relevant to the defence he raises. Mere speculation as to what a file might contain is insufficient.
57 The delay with respect to laying the money laundering charge, the prodding of the investigators to allow them to lay the charge beginning in September 2020, the apparent failure of the Crown to respond on multiple occasions, and Mr. King’s email arguably suggesting that the money laundering could ameliorate the effect of the stay, pave an evidentiary basis to continue the claim. This is not a fishing expedition. There is an evidentiary basis potentially raising to the level of constituting an abuse of process and necessitating a stay of proceedings.
58 At the same time, the evidence available to Raffaele Simonelli at this stage is insufficient to conclude that an abuse of process has occurred. It is reasonably clear what the prosecutors and the police did. They omitted laying the charge and then urged the prosecutors that it be laid. After a long delay and the awareness that the money laundering charge was still sitting dormant, it was only laid after the original charges were terminated by the stay. Mr. King, in a quick reaction after the stay decision was released, immediately revisited the issue of the money laundering charge in his email. The tale that needs to be told is what was in the minds of the investigators and prosecutors and why the charge was laid when it was. That is at the heart of the matter. The evidence presently available provides a clue towards further exploration but is insufficient in itself.
59 There is no other alternative available to the Applicant than to pierce solicitor-client privilege in order to ascertain what the investigators and Crowns said and what was in their minds. In my view, this pre-condition has been met. The evidence is “absolutely necessary” to demonstrate innocence at stake: Brassington, at para. 49. Piercing privilege is the only means to discover this. It is truly a last resort.
60 Traditionally, innocence at stake has only related to instances of factual innocence and the spectre of wrongful convictions. The issue in the case at hand does not fit into this tradition. What is sought is a Charter or common law remedy premised on upholding the integrity of the criminal process. It lies in the residual category of abuse of process: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309 (S.C.C.), at paras. 35-47. Neither the Supreme Court nor the Court of Appeal for Ontario has pronounced on whether solicitor client privilege can be pierced for the purpose of making out abuse of process. There is no binding authority.
61 The British Columbia Court of Appeal has extended “innocence at stake” beyond factual guilt or innocence to encompass abuse of process claims: R. v. Creswell (2000), 2000 BCCA 583, 149 C.C.C. (3d) 286 (B.C. C.A.), at paras. 46-49, 51-55; R. v. Desabrais, 2000 BCCA 585, 146 B.C.A.C. 23, 149 C.C.C. (3d) 305, (B.C. C.A.); R. v. Castro, 2001 BCCA 507, 157 C.C.C. (3d) 255 (B.C. C.A.), leave to appeal refused [2001] S.C.C.A. No. 533, at paras. 27-29 and 34-39; also see R. v. Schacher, 2003 ABCA 313, 179 C.C.C. (3d) 561, at paras. 25-29. Justice Hill, relying on these cases and other considerations, has done the same in R. v. Rutigliano, 2013 ONSC 6589, 302 C.C.C. (3d) 228 (Ont. S.C.), at paras. 99-133. Although the Court of Appeal reversed, it was on other grounds. The Court explicitly sidestepped the question of whether the innocence at stake exception can apply to abuse of process, just as the Supreme Court had previously done in Shirose. In both cases, it was held that it was unnecessary to decide: R. v. Rutigliano, 2015 ONCA 452, 126 O.R. (3d) 161 (Ont. C.A.), at paras. 42-47; Shirose, at paras. 65-67.
62 I must follow Justice Hill’s approach unless I am convinced that it is plainly wrong: R. v. Sullivan, 2020 ONCA 333, 387 C.C.C. (3d) 304 (Ont. C.A.), at para. 38. Not only am I not convinced, in my view Justice Hill’s reasons are persuasive. I agree with them. Together with the accumulation of appellate jurisprudence on the issue from the British Columbia and Alberta Courts of Appeal referred to above, the authorities lean strongly in favour of permitting the piercing of solicitor-client privilege for abuse of process claims.
63 This accords with basic principle. The two primary objectives of the criminal trial process are: (1) Accuracy of verdicts, particularly those of guilt: accused who are found guilty must be guilty in fact; and (2) The trial process must be fair and just. A verdict produced by an unfair trial cannot stand: Sections 686(1)(a) and 686(1)(b)(iii) of the Criminal Code.
64 The law is well settled that innocence at stake applies to the first objective, the accuracy of guilty verdicts. If there is a reasonable possibility that piercing solicitor-client privilege will assist in demonstrating a wrongful conviction, the privilege must give way to the extent necessary. While solicitor-client privilege is fundamental in our law, accuracy of verdicts is a value of superordinate importance. That is why it has been decided that solicitor-client privilege must yield in these circumstances.
65 The second purpose, the fairness and integrity of the process, is also an indispensable element of a Canadian criminal trial. Abuse of process is a well-recognized means of policing and protecting these values. If there were no exceptions to solicitor-client privilege for abuse of process claims, there would inevitably be situations in which a threshold showing of abuse was made but further exploration was nonetheless barred by the privilege. The privilege would stand as an impenetrable barrier shielding the conduct of the authorities. In effect, in every case, solicitor-client privilege would be elevated to assume a dominant position over the necessity to protect the integrity of the process. In my view, that cannot be correct. There must be instances, rare as they may be, where solicitor-client privilege must yield for the purpose of vindicating the integrity of the court process.
66 Piercing the veil of solicitor-client privilege for factual innocence at stake and to support abuse of process are different applications made in different contexts. It may well be that it will be more common to pierce the veil in the former case than in the latter. But, in the present case, in my view, the threshold has been achieved to support the abuse of process claim.
THE ORDER TO BE MADE
67 The application is allowed in relation to the money laundering and possession of property obtained by crime counts but dismissed in reference to the tax evasion charges. Therefore, Michael Simonelli’s application is dismissed and Raffaele Simonelli’s is allowed in part.
68 At this first stage, written documents can be ordered produced. In addition, oral communications can be ordered disclosed. Justice Major said in R. v. Brown, 2002 SCC 32, [2002] 2 S.C.R. 185, at paras. 63-65,
63 Restricting the McClure application to written documents contained in the file would undermine the rationale for that application. McClure was intended to provide a last resort to accused individuals whose innocence is at stake, and who otherwise face the possibility of wrongful conviction. This threat of wrongful conviction is considered sufficient to require the infringement of solicitor-client privilege in cases where there is no other way to raise a reasonable doubt. The rationale for breaching privilege with respect to written materials is equally applicable to oral communications. An accused should not face the likelihood of wrongful conviction simply because a third party’s solicitor-client communications were not committed to paper.
64 That being said, I am mindful of the danger that requiring counsel to testify about the privileged communications may render the McClure application a fishing expedition akin to a discovery process. To avoid that, the amplification of the record should consist of an affidavit for the benefit of the trial judge. Its use at this stage is to assist the trial judge, not to provide additional or better evidence to the accused.
65 When a judge orders a lawyer to produce his or her files relating to certain client communications, the judge, for his eyes only at this stage, may also request the lawyer to supply an affidavit stating either that the information contained in the files is a complete record of the communications in question or containing all other information necessary to complete the record. The judge will then be in a position to review the solicitor-client communications and to determine whether any part of the communications is likely to raise a reasonable doubt as to the guilt of the accused. (Emphasis Added)
69 I make this disclosure order:
a. An unredacted copy of Mr. King’s January 15, 2021 email to Crowns and investigators will be produced.
b. All written communications between the investigators themselves and between the investigators and any prosecutor between December 12, 2019 and March 30, 2021 mentioning or discussing the money laundering and or new possession of property obtained by crime charges will be produced.
c. An affidavit or affidavits will be drafted like those referred to in paragraph 65 of Brown conveying the substance of all oral discussions between investigators, including Stewart and Walker, and between investigators and prosecutors and between prosecutors from December 12, 2019 to March 30, 2021 discussing or mentioning the new provincial charges against Raffaele Simonelli eventually laid in the March 29, 2021 information. This would include details of the meeting of January 18, 2021 at 2 p.m. referred to in Mr. King’s January 15 2021 email to investigators and Crowns and other subsequent meetings held for the same purpose.
70 These documents should be delivered under seal to the trial co-ordinators’ office, no later than 30 days from the date of the release of this ruling.
Dated: DECEMBER 15, 2021
ADDENDUM (March 25, 2022)
- Following the order above, disclosure of Mr. King’s full email of January 15, 2021 was made. The partial, edited version is excerpted above at paragraph 35. The remaining part now disclosed carries on and states,
We should discuss what evidence of further offences may have arisen for both accused persons after the bail hearings were held and whether charges for those offences should be laid. I’ve attached the money laundering synopsis here. Further, although the firearms charges were stayed, there is ample evidence that both Raffaele and Michael Simonelli possessed an illegal firearm and we should consider whether firearms prohibition applications should be brought under s. 117.05.
- I am informed that both Applicants’ matters have now been resolved. This continuing application is therefore moot.
D.E HARRIS J.
COURT FILE NO.: CRIMJ(P)0033/20
DATE: 2022 03 24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E N:
Her Majesty the Queen
Respondent
- and –
RAFFAELE SIMONELLI and
MICHAEL SIMONELLI
Applicants
RULING
D.E HARRIS J.
Released: March 25, 2022