COURT FILE NO.: CR-19-00000530-0000

DATE: 20221129

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

LADDY POGACHAR

R. DeFillipis and S. Patterson, for the Crown

A. Hoenisch, for Mr. Pogochar

HEARD: 19 October 2022

S.A.Q. AKHTAR J.

FACTUAL BACKGROUND AND OVERVIEW

Introduction

1Laddy Pogachar stands charged with committing the offences of Fraud Over $5,000, contrary to section 380(1)(a) of the Criminal Code, and Theft Over $5,000, contrary to section 334(a) of the Criminal Code.

2The Crown seeks an order pursuant to ss. 714.1 and 714.2 of the Code permitting specific witnesses to testify by videoconference. The application is granted for the following reasons.

Background Facts

3Mr. Pogachar and his wife ran an investment firm, New Life Capital, which was involved in the life settlement industry. Investors provided the company with funds for the purpose of purchasing insurance policies in the United States from terminally ill individuals or elderly persons with a limited life expectancy. The policies would be bought for less than face value and New Life would receive a death benefit once the polices matured. These benefits would subsequently be distributed to investors through the issuance of dividends and share appreciation.

4Mr. Pogachar is charged with misappropriating approximately $7 million of the funds for his own benefit with his trial due to commence on 14 November 2022.

5The Crown intends to call 12 witnesses, three of whom reside in the United States and three others outside Ontario.

6It applies for an order under s. 714.2(2) of the Criminal Code for the three US witnesses to testify remotely by video and an equivalent order under s. 714.1 for the witnesses outside Ontario.

7Mr. Pogachar concedes that two of the witnesses in the United States meet the requirements of s. 714.2 but argues that the court should refuse the Crown’s application with respect to the remaining witnesses located in the United States and Canada.

LEGAL PRINCIPLES

8Testimony by audio or video is governed by ss. 714.1 to 714.3 of the Criminal Code. Section 714.1 deals with the video/audio testimony of witnesses residing in Canada whereas ss. 714.2 and 714.3 control video and audio conferencing of witnesses outside the country.

9Section 714.1 of the Criminal Code governs the potential remote testimony of a witness in Canada and is reproduced as follows:

714.1 A court may order that a witness in Canada give evidence by audioconference or videoconference, if the court is of the opinion that it would be appropriate having regard to all the circumstances, including:

(a) the location and personal circumstances of the witness;

(b) the costs that would be incurred if the witness were to appear personally;

(c) the nature of the witness’ anticipated evidence;

(d) the suitability of the location from where the witness will give evidence;

(e) the accused’s right to a fair and public hearing;

(f) the nature and seriousness of the offence; and

(g) any potential prejudice to the parties caused by the fact that the witness would not be seen by them, if the court were to order the evidence to be given by audioconference.

10Section 714.2 of the Criminal Code deals with situations where a witness is outside Canada and provides:

714.2 (1) A court shall receive evidence given by a witness outside Canada by videoconference, unless one of the parties satisfies the court that the reception of such testimony would be contrary to the principles of fundamental justice.

11The most obvious difference between the two subsections is that s.714.1 confers a discretionary power upon the trial judge, whereas s. 714.2 mandates the reception of videoconference evidence unless the opposing party demonstrates that doing so would be contrary to the principles of fundamental justice.

12The mandatory nature of the section means the onus falls on the parties opposing the application. The wording of the section acknowledges the principle that a witness cannot be compelled to attend or return to Canada to testify: See R. v. Schertzer, 2010 ONSC 6686, [2010] O.J. No. 6281 at para. 34; R. v. Singh, 2015 ONSC 6823, [2015] O.J. No. 5858 at para. 52.

13Another difference between the two subsections is that the s. 714.1 test is based on the balancing of statutory factors, whereas s. 714.2 imposes a significantly more stringent threshold: R. v. Mapp-Farouk, 2020 ONSC 5040, at paras. 8-11.

ANALYSIS

Section 714.2

14There are three proposed witnesses situated in the United States who would require an order under s. 714.2 permitting remote testimony.

15Henry Safrin, who resides in New York and Heshey Safrin from New Jersey were brokers in the life settlement industry. Both are anticipated to testify about their business transactions with Mr. Pogachar. He does not oppose their testimony being adduced by videoconference.

16However, he does contest the ability of the Crown to use s. 714.2 in respect of a third witness, Jonathon Berck, who currently resides and works in New York. Mr. Berck is a lawyer who acted as trustee for several life insurance policies and is expected to provide evidence of Mr. Pogachar’s lifestyle when Mr. Berck met with him in the Bahamas and Toronto.

17The Crown anticipates Mr. Berck’s evidence to be brief but Mr. Pogachar submits that Mr. Berck must testify in person rather than remotely.

18As noted, s. 714.2 mandates the granting of a video conferencing application unless such an order would be “contrary to the principles of fundamental justice”. The onus falls on Mr. Pogachar to demonstrate this to be the case.

19Mr. Pogachar submits Mr. Berck is in a unique position because he has provided him with privileged advice. Accordingly, permitting Mr. Berck to testify remotely would be contrary to the principles of fundamental justice. Mr. Pogachar further argues that the Crown undertaking not to ask any questions which would breach solicitor-client privilege is insufficient: permitting Mr. Berck to testify in the trial either virtually or in person presents “moral and ethical problems”. Mr. Pogachar says the privilege is not Mr. Berck’s to waive and may be breached even if the Crown seeks to avoid that possibility.

20According to Mr. Pogachar, permitting Mr. Berck to testify pursuant to s. 714.2 will undermine his fair trial rights.

21The difficulty with this argument is that its complaint is rooted in the nature of Mr. Berck’s testimony rather than the mode in which it is tendered and received.

22I agree with Mr. Pogachar that solicitor-client privilege is to be jealously guarded and protected. However, what Mr. Berck is allowed to testify about or whether he is allowed to be called as a witness at all has nothing to do with s. 714.2.

23If Mr. Pogachar takes the position that Mr. Berck’s evidence is prohibited by solicitor-client privilege, he should seek to resolve this question in a separate application. If any or all of Mr. Berck’s evidence is found to be in breach of the privilege, Mr. Berck will be unable to testify about it. If, on the other hand, a court finds no privilege exists, Mr. Berck’s evidence is admissible.

24In other words, the question of privilege is immaterial in relation to whether Mr. Berck testifies by video conference or in person because if his evidence is found to be inadmissible, he will not testify. On the other hand, the reception of admissible testimony would not be contrary to the principles of fundamental justice if given remotely.

25This issue should be resolved as soon as practicable. It is up to the defence to make an application barring Mr. Berck from testifying about privileged information by identifying that information and the circumstances in which advice was given.

26For these reasons, I find that the defence has not shown that Mr. Berck’s proposed remote evidence is contrary to the principles of fundamental justice.

Section 714.1

27There are three witnesses who reside in Canada that the Crown wishes to call.

28Bill Mackay was a sales agent whose clients invested in New Life Capital. His anticipated testimony concerns his business transactions with Mr. Pogachar. He currently resides in Winnipeg and is willing to testify by videoconference.

29Stephen Griffiths is based in Alberta and was one of the clients who invested in New Life. He is anticipated to testify about the nature of his investment and his decision to invest.

30Finally, Jaspreet Dhaliwal worked for EFG Bank based in the Bahamas. He currently resides in British Columbia and is expected to testify about the nature of his social and professional interactions with Mr. Pogachar and his wife, Paola Lombardi.

31Mr. Pogachar argues that during Mr. Mackay’s phone interview with the police, his son Michael interrupted the call on numerous occasions and answered questions on behalf of his father. In addition, Mr. Pogachar submits that Mr. MacKay had memory issues and was unable to remember details including: New Life’s lawyer’s name, information received from New Life’s lawyers, and when he first received a dividend payment from the company. He also submits that Mr. MacKay has faced action by the Manitoba Securities Commission alleging a violation of securities regulations. For these reasons, Mr. Pogachar requests that the Crown application be dismissed.

32Further he opposes Mr. Griffiths’ and Mr. Dhaliwal’s videoconference evidence on the grounds that they will have difficulty remembering certain events which calls into question the reliability of their evidence. As Mr. Griffiths is one of the victims in this case, Mr. Pogachar claims his impartiality is in issue and requires in person testimony.

33I do not agree that these factors would impede Mr. Pogachar’s fair trial rights if the proposed witnesses testified by videoconference. Any lapses in memory or issues with credibility would be equally identifiable if the witnesses testified in person or outside the courtroom.

34Mr. Pogachar submits that the documentary nature of his trial would mean that witnesses would not be able to be scrutinised properly, particularly if documents were screen shared over the video conferencing platform during any witness’ questioning.

35I disagree. The witnesses will be in possession of most, if not all, of the documents that are at issue in this case and the requirement for screen sharing can be minimised. Even if a particular document needs to be screen shared during cross-examination, I do not agree that a trier of fact will be unable to adjudicate on the credibility of each of these witnesses simply because their face will be reduced on screen whilst the document is on display.

36For each of these witnesses, a review of the s. 714.1 factors favour granting the order requested by the Crown.

37All three reside outside Ontario and would need to fly to Toronto to attend court in person. Those flights would vary in length, but each is significant. Each witness would also require hotel accommodation and at this stage, it is unclear how many days they would be on the witness stand. There is also a risk that witness scheduling would require the witnesses to stay in the city for longer than one night if other witnesses ended up testifying longer than expected. The costs of making these witnesses testify in person would not be insignificant.

38The use of video-conferencing would not impair Mr. Pogachar’s right to make full answer and defence. Technology has advanced significantly over the course of the last two years to the point that many criminal trials have been conducted virtually in part or even in full. Witnesses can be seen, heard and questioned extremely efficiently using video conferencing facilities.

39I agree with my colleague, Dunphy J. in Mapp-Farouk, at para. 15:

In enacting s. 714.2 of the Criminal Code, Parliament has clearly been satisfied that videoconference technology has advanced to the point where such evidence is at least potentially capable of offering a reasonable and adequate substitute for the more traditional “in person” form of trial testimony. Indeed, this provision has been in the Criminal Code since 1999 and telecommunications technology has improved quite considerably over the intervening years. The experience of this and other courts in conducting virtual proceedings using “Zoom” and other similar technologies to cope with the current pandemic has gone a long way to convincing bench and bar that virtual court proceedings are both possible and of a degree of quality and ease of use that few would have thought possible only a few years ago.

40See also: R. v. K.Z., 2021 ONCJ 321, at para. 16.

41For these reasons, I find that Mr. Pogachar has failed to discharge his onus under s. 714.2 of the Criminal Code in relation to Mr. Berck’s proposed testimony. I also find that the Crown has satisfied me that Mr. MacKay, Mr. Griffiths, and Mr. Dhaliwal should be permitted to testify by remote video link pursuant to s. 714.1 of the Code.

42I would add that in implementing these provisions, the Crown must ensure that each witness testifies from a secure location where there is no risk that the witness’ evidence could be influenced or tainted by a third party or another outside source.

S.A.Q. Akhtar J.