Court File and Parties

Court File No.: CR-24-10000106-00MO Date: 2024-12-31 Ontario Superior Court of Justice

Between: His Majesty the King – and – Alexander Megdiche

Counsel: T. Wightman, for the Crown S. Smith, for Mr. Megdiche

Heard: 25 October 2024

Before: S.A.Q. Akhtar J.

Factual Background and Overview

Introduction

[1] Alexander Megdiche, was arrested in Montréal on 16 December 2022 and charged with several offences relating to human trafficking and the possession of a restricted prohibited firearm while knowingly not holding a licence.

[2] Mr. Megdiche’s trial was due to commence on 29 October at the Ontario Court of Justice before Mocha J. Pre-trial motions were heard in June 2024 and then further pre-trial applications were scheduled in October 2024. One of the pre-trial applications was an abuse of process motion; Mr. Megdiche sought a stay based on the Crown’s alleged failure to comply with its disclosure obligations. The lead Crown counsel in this case was Monica Gharabaway, but she was unavailable on the motion dates due to work commitments. In her absence, Tim Wightman was the Crown assigned the task of arguing the abuse of process motion.

[3] On 16 October 2024 the defence emailed Ms. Gharabaway attaching a subpoena requiring her to attend court on 18 October 2024 as a witness in the abuse of process application.

[4] In response, the Crown brought an application to quash that subpoena.

Background Facts

[5] The defence alleges an abuse of process on the basis that disclosure was improperly withheld.

• They cite the following examples of Crown conduct:
• The report of warrant of execution provided to the defence, dated 16 December 2022, stated that three mobile phones were seized from Mr. Megdiche. However, the defence was later advised that four phones had been seized.
• In June 2024, the Crown advised that no contemporaneous independent notes from any Montréal police officers existed. However, the defence were told that notes taken by the Montréal police are routinely uploaded into their computer system. The defence claims that the Crown has not explained why the Montréal police officers did not take contemporary notes as required by protocol.
• On June 3, 8, and 10, 2024 the defence were informed that Mr. Megdiche’s police booking video no longer existed as its retention period had expired. The defence argues that the Crown has not explained its failure to secure the video for disclosure purposes.
• The defence were told in a report dated 7 May 2024 that only one of the mobile phones seized from their client had been examined. There was no indication of the specific phone. Subsequently, the defence discovered that the mobile phone extractions the Crown had provided came from two cellular devices. Moreover, in October 2024, the Crown provided an affidavit from Officer Vanderkerckhove stating that three phones had been analysed. The defence argues that they were taken by surprise because they had not received extractions for a third phone and the Crown had maintained that the defence had been provided with all accessible data from the phone.
• On 4 October 2024, the defence were given a copy of mobile phone extractions from the third phone which amounted to 27,000 pages. They argue that the cell phone had been accessed by the police on the 11th of March 2024. Previously, on the 8th of June 2024, Ms. Gharabaway had advised that the defendant had all of the evidence that had been seized from the phone. She stated that having reviewed that evidence, in her view, there was no relevant evidence in relation to the case. Accordingly, Ms. Gharabaway told the defence that they would not be calling any evidence relating to their client’s phone at the trial. The defence submits that Ms. Gharabaway “needs to answer why the phones were characterised as minimal, when they are over 27,000 pages, as well as why the Defence was not informed as soon as the phone became accessible, instead of being advised in the midst of Pre Trial Motions”.

[6] The defence also argues that a fourth phone exists and that the Crown must have known of this and did not advise them. They claim that the defence was not told about the third cell phone so that the police could continue to investigate their client.

[7] With respect to all of these allegations, the defence states in their response to questioning about the subpoena that Ms. Gharabaway "needs to answer" all of these allegations under oath so that they can determine “whether the information was purposely withheld to assist the police investigation”.

[8] At the end of oral submissions, I granted the application and quashed the subpoena with reasons to follow. I now provide those reasons.

Positions of the Parties

[9] The defence’s reasons for why they wish to call Ms. Gharabaway as a witness are found at para. 23 of their reply factum. They include the following:

• Providing an explanation of when she learned that the third phone was accessible and why the information was only conveyed to the defence in the midst of pre-trial motions;
• Why the custody footage was not sought earlier to prevent the police from destroying it;
• Why did the Crown advise that only two phones were accessible when a third phone had been accessed in March 2024?
• Why has the Crown been taking the position that disclosure is complete when it was not?
• Why is Defence receiving over 27,000 pages of cell phone extractions in the midst of Pre Trial Motions?
• Why was Defence not advised as soon as the police got into the third phone?
• Why was Defence only advised in the midst of the Pre Trial motions that police are still trying to get into the fourth phone?
• Did the Crown withhold information regarding the access to the phones in order to give the police more time to investigate Mr. Megdiche for further criminal offences found in these phones such as fraud?

[10] The Crown submits that there is no evidentiary foundation for the application. Further, they claim it is actually a “fishing expedition” where Ms. Gharabaway will be cross-examined in the hope of securing evidence that might support the abuse of process application.

Legal Principles

[11] The authority to issue a subpoena derives from s. 698 of the Criminal Code, R.S.C. 1985, c. C-46 which states:

698. (1) Where a person is likely to give material evidence in a proceeding to which this Act applies, a subpoena may be issued in accordance with this Part requiring that person to attend to give evidence.

[12] When a party applies to quash a subpoena, the party who obtained the subpoena bears the onus of demonstrating that the subject has relevant, material and admissible evidence to give in court: R. v. Lindsay, [2004] O.T.C. 825 (S.C.), at para. 24.

[13] When the subject of the subpoena is opposing counsel, the situation is somewhat different. As explained by the late A. Campbell J. in R. v. Sungalia, [1992] O.J. No. 3718 (Gen. Div.), at para. 2: “[a]s a practical matter, however, criminal litigation would be impossible if Crown counsel had the unrestricted right to call defence counsel as a witness or if defence counsel had the unrestricted right to call Crown counsel as a witness.”

[14] In R. v. Harris, 93 C.C.C. (3d) 478 (Ont. C.A.), the court made clear that in these circumstances it is not sufficient to merely show the witness “may have” evidence material to the case. The obtaining party must demonstrate that the witness “would probably have evidence material to the issues raised”: Harris, at p. 480. The mere possibility that the witness might have material evidence is not enough: R. v. Colbourne, 157 C.C.C. (3d) 273 (Ont. C.A.), at para. 50.

[15] It is also clear that compelling a prosecuting counsel to give evidence must not become a fishing expedition in the hope of eliciting evidence that counsel might “shed some additional evidentiary light on the relevant events”: Colbourne, at paras. 51-52.

[16] When prosecuting counsel is the subject of the subpoena, the party seeking the subpoena must go further. In addition to showing relevance, it must establish that counsel’s evidence is also necessary: R. v. Elliott, 181 C.C.C. (3d) 118 (Ont. C.A.), at paras. 114-115. The court made clear in Elliott, at para. 114, that opposing counsel in a case could only be forced to testify in “exceptional circumstances”. This “stringent test” applies to both Crown and defence counsel if they seek to call each other as a witness.

[17] The impact of Elliott has been recognised as imposing an obligation on the obtaining party “to provide a more fulsome record that the proposed witness likely has material evidence to give. Where the respondent provides no further evidence to justify the issuance of the subpoena, the subpoena will be quashed”: Dykstra v. Greensword, 2016 ONSC 8211, at para. 66.

Analysis

[18] For the following reasons, I find this application to be misconceived.

[19] First, it is clear that the defence do not fully understand the implications of subpoenaing the lead Crown counsel in their trial. As was evident in their submissions to this court, the defence took the position that since another Crown counsel - Mr. Wightman - was conducting the abuse of process of motion, there would be no need for her to be removed as Crown counsel for the trial. This is clearly incorrect.

[20] Rule 5.2-1 of the Law Society’s Rules of Professional Conduct states that:

A lawyer who appears as advocate shall not testify or submit their own affidavit evidence before the tribunal unless

(a) permitted to do so by law, the tribunal, the rules of court or the rules of procedure of the tribunal, or

(b) the matter is purely formal or uncontroverted.

[21] The commentary accompanying the Rules notes that “[t]he lawyer who is a necessary witness should testify and entrust the conduct of the case to another lawyer.”

[22] Second, there is no indication what evidence Ms. Gharabaway will impart, let alone whether it is material and relevant. The abuse of process motion, as described, appears to allege that disclosure was deliberately withheld. However, I am at a loss to understand how some of the alleged misconduct constitutes an abuse of process. For example, even if true, consider the allegation that Ms. Gharabaway described the evidence elicited from the phones as “minimal” when the defence received over 27,000 pages. Why, would this be characterised as an abuse of process when it was material that was disclosed to the defence as the Crown was obliged to do? In other words, how does the Crown’s view and its assertion that the information was minimal constitute an abuse of process? There may be a dispute over what the Crown meant and an argument over the description, but it is unclear, from the materials provided, why a court would find this to be “flagrant” etc.

[23] Moreover, it is also clear from the hearing that the defence does not know what Ms. Gharabaway’s evidence will be. Their purpose in subpoenaing Ms. Gharabaway is revealed in para. 21 of their factum. There, the defence argues that they “believe the third phone had been accessed was so that the police could continue to investigate Mr. Megdiche for further criminal activities, such as fraud. Ms. Gharabaway needs to answer to this under oath so the Defence can determine whether information was purposefully withheld to assist the police investigation”. In other words, they seek to call Ms. Gharabaway to see if they can elicit evidence that would support their application. This is clearly a fishing expedition and runs afoul of the comments made in Colbourne and Harris.

[24] This approach also reveals another misunderstanding: the onus of demonstrating an abuse of process lies on the defence and a threshold must be met before the court reviews the exercise of prosecutorial discretion: R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 55. It is for the defence to establish that the evidence they have satisfies the threshold for establishing an abuse of process. There is no obligation on the Crown to assist them in furnishing evidence to support their application and raise it to the level that they could argue an abuse of process. The presumption applies until the defence demonstrates that the threshold in Anderson has been met, and then it would be for the Crown to rebut it. They may wish to point to evidence in their possession or call witnesses to the stand to do so.

[25] Nor can the defence establish necessity in calling Ms. Gharabaway. The officer in charge of the case, Det. Vanderkerckhove, could be called by either side to testify on the matters the defence wishes to question Ms. Gharabaway upon.

The Process

[26] There is another aspect to this application that requires comment.

[27] During the course of the hearing, it became clear that when applying for the subpoena, the defence did not notify the issuing Justice of the Peace that Ms. Gharabaway was lead Crown counsel who had responsibility for prosecuting the offences. Nor was the Justice of the Peace given any details of the likely material evidence Ms. Gharabaway was to provide, and why it was necessary to call her as a witness.

[28] I agree with the comments made by Durno J. in Dykstra, that subpoenas cannot be issued without some case specific inquiry.

[29] By contrast, what happened here was very troubling. In Dykstra, at para. 90, Durno J. provided a series of guidelines setting out the criteria for obtaining a subpoena.

[30] Using that framework, I set out the following procedure that must be followed when a party seeks to subpoena opposing counsel in a trial.

[31] First, the obtaining party must provide an affidavit to the issuing justice notifying them that the witness sought to be subpoenaed is counsel on the trial. The party seeking the subpoena must specify the exact reasons for which the subpoena is sought, and set out in detail material evidence that the proposed witness will likely give. The obtaining party must also explain why this evidence is relevant and why the witness is necessary.

[32] Secondly, that affidavit must be attached to the subpoena when it is granted by the justice and served on the witness. The defence must retain a copy of the affidavit and any material filed with the justice in its application for a subpoena.

[33] If the subpoena is challenged, the affidavit and material must be filed so the reviewing court may evaluate what was placed before the issuing justice and whether it meets the test set out in the jurisprudence.

[34] I would emphasise that this procedure applies only to subpoenas sought and issued in respect of opposing counsel.

S.A.Q. Akhtar J. Released: 31 December 2024