SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R v. Amir Hossein Samoodi
BEFORE: Justice Chalmers
COUNSEL: B. Lerer, for the Crown/Applicant
No one appearing for the Respondent, or non-party
HEARD: November 1, 2022
ENDORSEMENT
Overview
1Amir Samoodi was charged along with Amir Firooz, Fariborz Firouz and Wendy Hicken in connection with an alleged fraudulent investment scheme. The charges against Ms. Wicken were withdrawn. Mr. Firooz and Mr. Firouz pleaded guilty to certain offences and were sentenced. The prosecution of Mr. Samoodi is ongoing.
2In June 2021, counsel for Mr. Firooz corresponded with Crown Counsel about a potential guilty plea. On December 2, 2021, Mr. Firooz pleaded guilty to one count of money laundering. The other charges were withdrawn. The Crown filed an Agreed Statement of Fact (ASF) as the basis for the guilty plea. The ASF was provided to Mr. Samoodi, along with an affidavit sworn by Mr. Firooz detailing the facts in support of the guilty plea.
3Mr. Samoodi asked for disclosure of the “full details of any plea agreement”. On December 7, 2021, the Crown wrote to counsel for Mr. Firooz and advised that it intended to disclose copies of all plea correspondence. By e-mail sent December 7, 2021, counsel for Mr. Firooz objected to the disclosure on the basis of settlement privilege. He also took the position that the conversations were clearly irrelevant.
4The Crown advises that it intends to call Mr. Firooz as a witness at Mr. Samoodi’s trial. He is expected to testify in accordance with the ASF. He will be subject to cross-examination.
5The Crown brought this application for directions with respect to the disclosure of the plea correspondence to Mr. Samoodi. The Notice of Application, Application Record, Factum and Book of Authorities was served on Mr. Firooz by e-mail. Mr. Firooz is now self-represented. Following service of the material, Mr. Firooz advised Crown Counsel that he does not have anything to add and does not wish to have any involvement with Mr. Samoodi or this case. He did not attend the hearing of the Application although he was advised of the Zoom co-ordinates. He did not file any material.
6The Crown served the Notice of Application, Factum and Book of Authorities on Mr. Samoodi. The Crown did not serve the Notice of Application which contained the plea correspondence. Counsel for Mr. Samoodi advised Crown Counsel that the Defence supports the Crown’s application and requests copies of any material that may be ordered produced. Mr. Samoodi’s counsel did not attend the hearing and did not file any material.
7For the reasons that follow, I am satisfied that the plea correspondence is relevant and is not privileged. I order the plea correspondence disclosed to Mr. Samoodi.
Analysis
8Here, the Crown intends to call Mr. Firooz as a witness at Mr. Samoodi’s trial. I am satisfied that the plea correspondence is relevant with respect to the issue of Mr. Firooz’s credibility. As noted in R. v. Bernardo, [1994] O.J. No. 1718, at para. 11:
I am satisfied that the negotiations leading up to the agreement are relevant, and may be admissible in the cross-examination of Karla Homolka [the former co-accused], to make clear her motivation in entering into the agreement and on the broader issue of her credibility.
9I am also satisfied that privilege does not apply to Mr. Firooz’s plea correspondence. Solicitor-client privilege applies to correspondence between a client and his or her lawyer. It does not generally apply when the correspondence is with a party that in adverse in interest: R. v. Bernardo, at para. 15. Once Mr. Firooz approached the Crown to reveal information for the purpose of entering into a plea agreement, Mr. Firooz must be seen to have waived any solicitor/client information that attached to the information: R. v. Nestle, 2015 ONSC 810, at para. 33.
10I am also of the view that settlement privilege does not apply to the plea correspondence. As a general rule, settlement privilege protects communications by parties as they attempt to settle a dispute. The communications cannot be used by either party against the other in the litigation, if the matter does not resolve. Here, the plea correspondence is not being used against Mr. Firooz, but instead is expected to be used in Mr. Samoodi’s trial. As noted in R. v. Bernardo, at para. 18:
In these circumstances, the negotiations between counsel for the Crown and counsel for Ms. Homolka are not being sought so that they may be used against her, rather they are being requested so that they can be used in the defence of another person. Although I readily accept the Crown’s position that a privilege ought to exist in the sense that the information should not be used against her in a subsequent prosecution, I do not conclude that the “privilege” ought to extend when that person, i.e. Ms. Homolka, is not an accused nor is at any risk of prejudice. In these circumstances, it is intended that she testify on behalf of the Crown, putting another at penal risk.
11The purpose of the plea agreement was to arrive at the resolution of Mr. Firooz’s case and for Mr. Firooz to become a witness at Mr. Samoodi’s trial. It must have been within the expectations of both the Crown and Mr Firooz that the ASF and plea correspondence would be relied upon in the ongoing criminal proceeding against Mr. Samoodi. Therefore Mr. Firooz cannot now complain that the disclosure of the information to Mr. Samoodi is unfair to him: R. v. Nestle, at paras. 65, 66.
12Mr. Firooz did not respond to this Application and did not assert that he will be prejudiced by the disclosure of the plea correspondence. He has not put any evidence before the court of any risk or prejudice if the material is disclosed. The criminal matter involving Mr. Firooz is completed and he does not face any additional criminal prosecution: R. v. Nestle, at para. 64.
13I conclude that the plea correspondence is relevant, and its production is not governed by any privilege. There is no evidence that Mr. Firooz had an expectation that the correspondence would not be disclosed to Mr. Samoodi. He has not submitted any evidence to support a claim that the production of the material would result in prejudice to him. In the circumstances I am satisfied that the plea correspondence is to be produced to Mr. Samoodi.
Disposition
14I direct the Crown to forthwith disclose the plea correspondence between it and Mr. Firooz to Mr. Samoodi. The order shall go in accordance with the draft order filed and signed by me.
_____________________ Chalmers J
Date: November 1, 2022