ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
R. Dhandhari, for the Crown
Crown
- and -
JOSEPH EMILE ISSA
D. Humphrey and A. Zhang, for the Accused
Accused
HEARD: February 17, 18, 19, 20, 23, 24, 25, 26, 27 2026
REASONS FOR JUDGMENT
FRAGOMENI J.
1The accused, Joseph Emile Issa, is charged on a six-count indictment as follows:
- Joseph Emile ISSA stands charged:
That he, on or about the 9th day of February 2023, at the City of Mississauga, in the Central West Region, did in person or by telephone knowingly utter a threat to Muhammad Shoaid to cause bodily harm or death to Muhammad Shoaid, contrary to section 264.1(1)(a) of the Criminal Code of Canada;
- Joseph Emile ISSA further stands charged:
That he, on or about the 9th day of February 2023, at the City of Mississauga, in the Central West Region, did use an imitation firearm, while committing the indictable offence of utter threats, contrary to section 85(2)(a) of the Criminal Code of Canada;
- Joseph Emile ISSA further stands charged:
That he, on or about the 6th day of February, 2023, at the City of Mississauga, in the Central West Region, did use an imitation firearm, while committing the indictable offence of forcible confinement, contrary to section 85(2)(a) of the Criminal Code of Canada;
- Joseph Emile ISSA further stands charged:
That he, on or about the 6th day of February 2023, at the City of Mississauga, in the Central West Region, did use an imitation firearm, while committing the indictable offence of extortion, contrary to section 85(2)(a) of the Criminal Code of Canada;
- Joseph Emile ISSA further stands charged:
That he, on or about the 6th day of February 2023, at the City of Mississauga, in the Central West Region, did without lawful authority confine Tyler Hershberg, contrary to section 279(2) of the Criminal Code of Canada;
- Joseph Emile ISSA further stands charged:
That he, on or about the 6th day of February 2023, at the City of Mississauga, in the Central West Region, without reasonable justification or excuse and with intent to obtain anything from Tyler Hershberg, did, by threats, accusations, menaces or violence, induce or attempt to induce Tyler Hershberg to sign a document, contrary to section 346(1) of the Criminal Code of Canada.
2I will deal with each complainant separately and review the trial evidence separately as it applies to each of the complainants.
Muhammad Shoaid
3Counts 1 and 2 relate to Muhammad Shoaid.
4At the close of the Crown’s case, the Crown requested that the charge relating to Count 1 be dismissed. Count 1 is therefore dismissed.
5Shoaid testified that he met Issa in December 2022. Shoaid has a truck repair business, and he was looking for a new location. Shoaid and Issa negotiated a rental deal wherein Shoaid would rent premises owned by Issa. The rent was set at $30,000 or $32,000 per month. In addition to that amount a further amount would be paid by Shoaid’s friend Abukar Mohamed in the sum of $28,000 to $30,000 in cash. Abukar would be parking his trucks and trailers at the location, and they would be repaired there.
6The location of Issa’s premises is 3229 Wolfedale Road in Mississauga, Ontario. A lease agreement was never executed; however the agreement was that the rent would start January 1, 2023.
7On or about December 26 or 27, 2022, Shoaid left for Pakistan with a return date of January 31, 2023.
8Shoaid had three mechanics that he employed. Abukar had a dispatch team of 4 people. The space rented by them included a big workshop and warehouse area, 10-12 trailers could park outside; the entire bottom floor; two washrooms; some rooms upstairs.
9While he was in Pakistan Shoaid became aware of criminal activity at Issa’s premises, so he did not want to stay. He advised Issa that under those circumstances he was not going to continue to rent the premises. Issa then changed the locks on his premises. When Shoaid returned from Pakistan he was unable to get back into the premises.
10Issa had advised Shoaid that a door and fence had been damaged by Shoaid’s workers and he was holding Shoaid responsible for the cost of the necessary repairs. In addition to that Issa demanded that Shoaid pay an additional months rent before Issa would permit Shoaid to take all of his items out from the premises.
11The last meeting between Issa and Shoaid took place on February 9, 2023. It was at this meeting that Issa and Shoaid discussed the damage to the door and fence and payment of an additional month’s rent. This meeting took place at the workshop on the downstairs floors. Also present at this meeting was Issa’s son and a lady. The meeting lasted between 15-30 minutes.
12After Issa asked for an additional months rent Shoaid said no he would not pay it. The discussion between them became heated.
13Issa became angry. He left the area where Shoaid, his son and the lady were situated and returned shortly thereafter with a gun. The gun was black. He cannot remember what Issa said in its entirety or exactly, but Issa was flicking or waving the gun and said, “Get out from my property”, “Get out from my property”. While saying this Issa was pushing him to get out with his other hand.
14During the gun and pushing incident the lady was sitting in the same room and said nothing. At this point Issa’s son had gone to the washroom. Shoaid never saw him again after.
15Shoaid left the property and called the police.
16Exhibit 4 is a list of items still located at Issa’s premises that Shoaid has not yet retrieved. The list includes the following:
- Tools - $120,000
- Inventory - $80,000
- Tires - $65,000
- Computer - $1,000
- Total Value - $266,000
17It also included the following: shocks, airbag, brake chambers, brake shoes, drum, headlights, fog light, nuts & bolt, coolant drum, windshield washer drum, oil pails, filter and hanger bearings. This handwritten list was prepared by Shoaid.
Cross-Examination
18In cross-examination by the defence, Shoaid acknowledged that throughout his initial conversations with the police he was concerned about getting his property back that Issa was holding at his premises without a valid reason.
19When asked whether he hoped that this criminal trial would help get his things back Shoaid stated not really. He was asking the police what was going to happen with his things left at the premises and what was going to happen to the accused.
20Shoaid confirmed that the rent would commence January 1, 2023, but Issa said he could move into the premises in mid December 2022 with the time period from mid-December to the end of December being rent free.
21Shoaid also confirmed that there were two lockouts at the premises by Issa. One related to Shoaid’s bounced cheque which Shoaid replaced with a bank draft. The second lock out took place after Shoaid told Issa he wasn’t going to stay at the premises. Issa told him he was locking him out and holding Shoaid’s property until the repairs to the door and fence were done.
22Shoaid asked for and wanted his property returned to him, but Issa said no until Shoaid paid for the repairs. The damaged door was a big metal rolling door where the trucks go into the shop to be repaired.
23Shoaid testified that before the February 9, 2023, meeting with Issa, he never spoke to his lawyer about getting his property. However, in his police statement he said something different:
MOHAMMAD: That whatever it is that is. But the stuff in the shop that’s mine. OFFICER 2: Yeah. Okay. MOHAMMAD: Okay. Even we argument, we-, he, he can’t tell me like, clearly, Mohammad, I’m not gonna give you. OFFICER 2: Yeah. MOHAMMAD: So then I go to my lawyer so we can fi-, figure out what we can do, right? This not like, come tomorrow. Every day he’s calling me. Come. Okay. When I go morning, come four o’clock. Yesterday, I go over there four o’clock with my friend, he don’t talk with me when I was with people. He said okay, come eight o’clock in the morning. I went there eight o’clock and then he asked me, come at two o’clock, right?
24In his police statement he stated that he did speak to a lawyer. He acknowledged in cross-examination that being locked out of the premises and not being able to get his property was a big problem.
25At the February 9, 2023, meeting Shoaid and Issa were talking about a resolution. Shoaid’s son was sitting at the reception desk, and the lady was sitting on a chair beside the reception desk. When they started having a heated conversation Issa’s son was still present.
26Shoaid confirmed that the conversation became heated when Issa told him he had to pay an additional months rent. Shoaid testified that he wasn’t upset, he just wanted to sort it out.
27Issa left the reception area and went down the corridor and returned holding a gun. Issa was gone for about one minute. Issa told Shoaid, “to get out of my property” twice. He can’t remember what else Issa said.
28Shoaid agreed with the suggestion by the defence that during the argument their voices were loud.
29Shoaid denied saying to Issa that he would return with the cops because he needed his stuff, “I need my stuff”. All he said was “I’ll return with the cops”.
30The defence put to Shoaid a portion of his statement to the police on this point. In his February 9, 2023, statement Shoaid stated:
MOHAMMAD: All right. So I-, when I go outside, I – uh, but I, before I leave. I told him, I go to-, I gonna come back with cops. 12:11: I told him before I left. When we was on the door, he was-he pushed me to the outside door. I just go. And then he was inside. I said , Joe will come back with the cops. I need my stuff. There’s nothing for you, nothing for you. I just came, I go, I call, uh, 9-1-1.
[31] The defence asked Shoaid why he didn’t just leave if he was trying to save his life and Shoaid said: “If someone has a gun pointed at me and has my stuff I’m not just going to leave”
[32] After he left the premises and called the police and after they came to the scene Shoaid spoke to a senior officer, Sgt Sablic. Shoaid acknowledged that the following exchange took place: OFFICER: So you don’t care about the gun, you just want your stuff back. SHOAID: Yeah my stuff’s there, how can I leave those things.
33Shoaid testified that he also said, “if something happens to me who will be responsible for that”.
Acting Detective Ryan Breston
34Officer Breston was the exhibits office in relation to the search conducted at 3229 Wolfedale Road in Mississauga. The search of the premises was conducted on February 10, 2023, with nine officers. Officer Breston took photos of the premises as well. Trial Exhibit 12 is the Search Warrant Execution Package and page 12 of Exhibit 12 reveals a black plastic gun located in a storage shelf.
35Officer Breston described the gun as an imitation firearm, He stated it is readily apparent that the gun was not real. It was not an authentic firearm.
36Officer Breston confirmed that the gun was not fingerprinted.
Cross-Examination
37In cross-examination Officer Breston again described the gun as a plastic fake gun. It was easily recognizable as fake. It lacked a slide mechanism.
38Officer Breston also confirmed that in addition to no fingerprints taken off the gun there was no DNA testing conducted.
39Officer Breston noted that the gun was in plain view.
Defence
Daniel Issa:
40Daniel Issa is the son of Issa and is now 21 years old. He presently lives with his mother in Cambridge, Ontario.
41At the relevant time in February 2023, Daniel was living with his father in Burlington, Ontario. Daniel was working for his father full time at his office on Wolfedale Road. His role was essentially as an assistant to his father.
42On the date in question, namely February 9, 2023, he was working with his father Issa at the Wolfedale premises. Daniel arrived at 9am and shortly thereafter Shoaid arrived. He noticed that Issa and Shoaid were having a dispute. Issa wanted Shoaid to pay a months rent and repair damages. Shoaid wanted his property.
43Daniel left Issa and Shoaid and went to the washroom. He was in in the washroom for two minutes. While in the washroom he could still hear the dispute. Daniel stated that the whole dispute lasted three minutes.
44When Daniel came out of the washroom Issa and Shoaid were still arguing. Issa told Shoaid to “Get the fuck out”. Shoaid left. Ten minutes after he saw police arrive and he spoke to the police.
45In the room where Issa, Shoaid and Daniel were, a lady by the name of Warda was also present. Warda was close by.
46While Daniel was in the washroom, he could still hear them arguing. Shoaid wanted his property back, but Issa said that Shoaid could not get his property back until he is paid.
47Daniel described the tone of their voices as on edge, agitated but not a screaming match. Their voices were slightly elevated. While he was in the washroom there were no pauses to the argument. He could not hear any movements of a person walking past the bathroom door.
48At no time did Daniel see Issa holding anything.
Cross-Examination by Crown
49In cross-examination Daniel again confirmed that the tone of the argument between Shoaid and Issa was that it was agitated, not a screaming match, normal, slightly elevated.
50While he was in the bathroom Issa, Shoaid and Warda were all still out in the reception area. Daniel could hear the dispute from the bathroom.
51Daniel testified that he does not know of his father having firearms. He has no knowledge of his father having a replica firearm. He has never seen one while he was at the Wolfedale premises.
Warda Amsaadi
52Trial Exhibit 15 is an Agreed Statement of Facts Pursuant to s. 655 of the Criminal Code Re: Evidence of Warda Amsaadi:
Agreed Statement of Facts Pursuant to S. 655 of the Criminal Code Re: Evidence of Warda Amsaadi
- Ms. Warda Amsaadi is the current girlfriend of Joseph Issa.
- On February 9, 2023 Ms. Amsaadi attended 3229 Wolfedale Road in Mississauga, Ontario with Mr. Issa and his son, Daniel Issa. She was present when the police arrived at the property that morning. She spoke briefly with Sgt. Sablic #2778 in French on two occasions. The first conversation took place in private in the vestibule of the building. The second conversation took place in the front reception area off to the side of where others were conversing with the police. Each conversation lasted approximately two minutes, and both conversations were captured by Sgt Sablic’s body worn camera.
- The video from Sgt. Sablic’s body worn camera records the following: i. Ms. Amsaadi told Sgt. Sablic that she had observed Mr. Issa speaking with another man at the front reception area earlier that morning. She told him that she does not understand English and therefore did not understand the conversation between Mr. Issa and the other man. The only part she understood was when Mr. Issa said “go”. After he said this, the man left the building. ii. After the man left, Mr. Issa returned to where she was. She then asked Mr. Issa what had just happened. Mr. Issa told her that the man was a renter and owed him money and had not paid, so he told the man to “go” iii. Ms.Amsaadi told Sgt. Salic that she was in the front reception area drinking coffee during the entire interaction between Mr. Issa and the other man. She pointed to the reception desk and said the two men were in the area of the reception and that Mr. Issa was sitting in a chair. iv. Sgt. Sablic asked Ms.Amsaadi whether she saw a gun or any other weapon during the interaction between Mr. Issa and the other man. She said she did not see any guns or weapons. All she saw was the two men yelling back and forth at each other.
- Later that morning, Ms Amsaadi attended the police station where she provided a formal video recorded statement in French. Police have since made efforts to locate this recording. However, the recording of that interview cannot be located.
- Ms.Amsaadi is unable to testify due to heath complications,. The Crown and defence mutually anticipate that she would have provided testimony consistent with what she told Sgt. Sablic on February 9, 2023, and agree to have this agreed statement of facts presented in place of her viva voce evidence.
Counts 3 to 6 – Relating to Tyler Hershberg
Tyler Hershberg
53Tyler Hershberg was born on May 17, 1974. At the relevant time in February 2023, Hershberg was a Real Estate Developer. He was an owner and partner in a company that developed mixed use and high-density buildings.
54Hershberg met Issa back in 2018 and over the years had met with him in person and had also had telephone communication with him. Prior to the events in February 2023, his relationship with Issa was cordial. He was trying to develop a relationship of trust. The reason for doing so was because he was interested in acquiring property from Issa as part of an assembly of land for re-development. Issa’s property was situated at 1754 Weston Road, Toronto Ont. His relationship with Issa was not personal, it was a business relationship.
55The chronology of events leading up to the February 6, 2023, events that form the subject matter of the charges before the court confirms that two agreements were in play. Hershberg testified that in March 2022 an Agreement of Purchase and Sale (APS) had been executed by Hershberg and Issa for the purchase of 1754 Weston Road. The purchase price was $600,000.00. Exhibit 1 is the Agreement of Purchase and Sale.
56In addition to the APS a Consulting Agreement was discussed as Issa wanted a Consulting Agreement fee. Exhibit 2 is the Consulting Agreement. At Schedule A of the Consulting Agreement fees due and payable to the consultant, namely Issa, would be $4,400,000.00. The description of Consultant Services/Deliverable set in Schedule “A” are as follows:
Property 1: Services rendered, on a best efforts basis, in respect of assisting with the entering into a binding agreement of purchase and sale as between the developer and owners of the properties municipally known as 2 Wilby Cres and 1762 Weston Rd, Toronto , On.
57Hershberg testified that he was never going to execute the Consulting Agreement.
58The Consulting Agreement concept came about because Hershberg wanted to acquire neighbouring properties, and he felt that Issa could have facilitated a relationship with those neighbouring properties.
59In March 2022, although the APS was executed by him and Issa, he doesn’t think anyone signed the Consulting Agreement.
60Hershberg explained that there was a restriction registered on title such that Issa’s ex-wife would have to consent to the removal of that restriction to allow for the completion of the APS. Issa also had to consent to the removal of the restriction.
61Issa’s ex-wife did consent, and she was content with the purchase price and that the funds be paid into court. However, Issa did not consent and would not co-operate with the requirements set out in the APS.
62Months prior to the February 6, 2023, incident Hershberg and Issa met at the King Edward Hotel. They discussed the APS and Hershberg told Issa it was best for him to consent to remove the restriction and co-operate to finalize and complete the APS. The meeting was cordial and polite. At this time the consulting terms came up but not the Consulting Agreement itself.
February 6, 2023
63On February 6, 2023, Hershberg met with Issa at Issa’s place of business in Mississauga, Ont. They met in Issa’s office. A person by the name of Belad was also present. Hershberg and Issa were having the same discussion that they had at the King Edward Hotel meeting. Hershberg was recording the meeting on his phone.
64Hershberg testified that Issa alarmed him. Issa had his own agenda. He had never met Belad. Belad was not there for a good reason, and he thought Issa was dangerous. Hershberg asked why Belad was there. Issa told Belad to leave and he did. Belad returned and grabbed Hershberg’s phone out of his hand. Issa was turning red. It is a blur on what Hershberg did next. He turned around and Issa had a gun.
65Issa requested or motioned to Hershberg to go over to him while pointing the gun near his head to the right side of his head.
66Hershberg thought he was going to be executed. Hershberg tried to reason with Issa and Issa lowered the gun.
67Issa was on the phone with his lawyer, Talal Chehab, to arrange for all of them to go to Chehab’s office.
68Hershberg was also able to talk to Chehab and told him he was there with Issa and Belad.
69Hershberg stated that he had lost sight of Issa, Issa had placed the gun on a two-seat sofa. They also put their jackets on. Hershberg testified that the gun had come out of a file cabinet and then put on the two-seat sofa. He can’t say that Issa put the gun in his jacket, but it had to be because it was not on the sofa or in the cabinet. He did not actually see Issa put the gun in his jacket.
70Issa told Hershberg “It’s all a big joke, the gun is not real-hahaha”.
71They drove to Chehab’s office. Hershberg described Chehab as a mid-level regular lawyer and thought it was strange that Chehab was available to meet them at 8:00pm.
72Once they arrived at Chehab’s office Issa and Belad were threatening Hershberg not to say anything. Hershberg at this point is very insecure and feeling worried.
73After Chehab enters the meeting room Hershberg felt better. He was trying to give Chehab hints about what was going on by telling him he doesn’t have his phone, he came here with these guys, and my car is back where it was.
74During the meeting Hershberg was making a show of fake negotiations. He was fake negotiating the terms of the Consulting Agreement. This was his best chance of survival. Hershberg signed a version of the Consulting Agreement, but it was not his correct signature. The initials he put on the pages was TP, standing for Toilet Paper. Exhibit 3 is the Consulting Agreement he signed and initialed that were not his true signature or initials.
75After the document was signed they drove back to Issa’s property. He had a cigarette or two with Belad. Hershberg got his phone back. All the recordings were deleted from his phone.
76Hershberg described the gun as grey, metal, medium sized. It was a real gun. When the gun was pointed at him, he testified that this is when your life passes before your eyes, it felt like he was going to get shot.
77Hershberg stated that while at the meeting with Chehab at his office at no point did he think he could leave. He testified that Issa was off his rocker so he could shoot everyone there and had a gun in his pocket.
78After Hershberg drove home and before he went to the police, he told his wife and his business partner what had happened with Issa. He went to the police a couple of days later as he wanted a day to feel normal and have a normal day. He was protecting Chehab’s life.
79Hershberg called Chehab and told him about the subtle messages he was giving off to him at the meeting. He told Chehab that Issa was a serious guy and he should be careful. He told Chehab he had signed the document under duress, and the document is not valid, and the meeting was a crime scene.
80Chehab had very few words to say and was not really reacting to anything Hershberg was telling him. Hershberg took that as a bit sketchy.
Cross-Examination
81In cross-examination Hershberg acknowledged, confirmed or admitted the following:
- Although the incident described by him took place on February 6, 2023, his statement to the police is made on February 9, 2023;
- The purchaser in the APS was his company 2643929 Ontario Inc. Issa’s company on the APS is I-Land Corp. Hershberg’s company is suing Issa’s company for specific performance. Hershberg denied the suggestion by defence counsel that a conviction on these charges would help the specific performance action. Hershberg noted that there is no connection at all to the civil litigation;
- Hershberg’s communications with Issa started in 2018 or 2019, he wasn’t sure exactly when;
- In 2022, Issa hired Talal Chehab to represent him. Prior to that Issa’s lawyers were Peter Chmiel and Kurt Sunn;
- Hershberg attended law school in Ontario. He was called to the bar in both Ontario and Manitoba. He then obtained an MBA. He never practised law and went into the Real Estate and Development business;
- Hershberg had no recollection of an email dated July 14, 2020, from him to Constantine Law offering to pay $2,000,000 for 1754 Weston Road. Exhibit 8 is the email and the APS. The APS is not fully signed but his signature appears on page 11 of the APS and dated July 13, 2020.
82Charbal, the lawyer at Constitutive Law told Hershberg Issa couldn’t sell as he had Divorce proceedings ongoing. Issa’s ex-wife had an interest in the property.
- Hershberg described Peter Chmiel as half a criminal himself
- Hershberg testified that he preferred to have Issa’s trust. They knew that Issa was someone they had to deal with over a long period of time, so it was better if they were friends
- Exhibit 9 is the Book of Documents. The Tab 5 email has two attachments. The email from Hershberg to Talal (Issa’s lawyer) states:
We have asked counsel to prepare a draft of the form of agreements that had been prepared by and ok’d by Joe’s former counsel to facilitate drafting. Please review the form of agreement prior to our meeting. Best case scenario, we can input the agreed upon financial terms, make minor modifications, and get a deal done in short order to accommodate our timing window. This should simplify the process significantly, I hope. Looking forward to our meeting.
83Hershberg stated that his motivation for sending the email is to get Issa to show up at a meeting.
- Exhibit 9 Tab 6 sets out an email from Chehab to Hershberg with the handwritten changes. Hershberg testified that the changes made by Chehab sounded good, but Issa would never show up to sign the documents. Further Hershberg stated he would never sign the Consulting Agreement for $4.4 million.
- Exhibit 9 Tab 7 is a February 23/2022 email from Hershberg to Chehab incorporating Chehab’s handwritten notes and typing those changes into the Consulting Agreement.
- Hershberg wanted Issa to sign the APS, so he fabricated an urgency by telling Chehab that there was a zoning application pending when in fact there was no zoning application filed. He was giving a false story to create a false sense of urgency. He added that people in real estate do this all the time.
- March 6, 2022 – he attended at Chehab’s office regarding the APS and Consulting Agreement. Tab 8 is Chehab’s email to Hershberg eclosing both agreements signed by Issa.
- Hershberg testified that it was insane that Issa signed the APS and Consulting Agreement as he didn’t sign anything, it surprised him. Hershberg was never going to sign the Consulting Agreement.
February 6, 2023
- Hershberg wanted Issa to sign the consent so that the APS could be finalized. This was the same discussion that they had at the King Edward Hotel meeting. At the February 6, 2023, meeting Issa was trying to get an enforceable Consulting Agreement. Issa was becoming agitated and Hershberg was getting worried.
- Regarding the gun produced by Issa he described it as a lighter shade of grey, looked like a regular gun, dark color, bland. In his February 9, 2023, statement to the police he described the gun as “grey” matte, not shiny, lighter grey”
- With respect to the recordings he made on his phone being deleted he never took any steps to see if they could be retrieved. He never spoke to an IT person. He was happy to give his phone to the police, but they never asked for it. Hershberg said that the recordings were not important and never really mattered.
- When Issa was speaking to Chehab to arrange to go to his office, Hershberg was skeptical he was actually speaking to him so he asked to speak to Chehab himself. Hershberg thought Issa was going to kill him.
- During the drive to Chehab’s office Hershberg was afraid for life. His goal was survival.
- Hershberg thought it was unusual for Chehab to be at his office at 8:00pm. He is a one man law firm so it was strange that at 60 years of age Chehab would be at the office at 8pm for a $600,000 deal.
- Hershberg would have signed anything to survive
- In the meeting with Chehab in the boardroom Issa was calm. He didn’t say much and his face was not normal, it was strained and agitated and stressed. He had crazy eyes.
- Hershberg would have signed anything. His goal was to go home without getting shot. Hershberg is not 100% sure he signed the documents in front of Chehab.
- After they left Chehab’s office they returned to Issa’s premises on Wolfedale. He got his phone back and his keys and he left.
- After he told his partner and his wife what had happened neither of them suggested that he report it to the police right away. He didn’t think calling the police would make him safer.
- Before he eventually went to the police on February 9, 2023, he called Chehab on either February 7th or 8th probably the 7th. Chehab needed to know what happened. He told Chehab that Issa had a gun pointing at him. He told Chehab his life was in danger. The defence asked: Did Chehab tell him he didn’t look like he was under any duress? Hershberg responded, yes probably, I did a pretty good acting job and fooled him.
- Hershberg denied telling Chehab that he had until 5pm to sign the consent or he would go to the cops. He did tell Chehab that this was going to be a police matter
Acting Detective Ryan Breston
84The evidence I reviewed earlier apply to these counts as well.
Defence
Talal Chehab
85Chehab is 62 years of age. He was called to the Bar of Ontario in 1989. He is the Managing Lawyer at Affinity Law Professional Corporation in Markham. Affinity Law has 15 lawyers, a few Articling Student and Law Clerks. In total the law firm has 40-50 people working at the law firm. Chehab’s practice relates to Corporate/Commercial and Real Estate transactions.
86Chehab represented Issa and his company with respect to negotiations relating to the sale of 1754 Weston Road, a property owned by Issa’s company. Chehab dealt primarily with Hershberg and his lawyers.
87Chehab’s first involvement was in February 2022. Exhibit 9 Tab 5 is the February 10, 2022, email from Hershberg to Chehab with two attachments, the APS and the Consulting Agreement.
88The title search of the property showed a lien or order that was registered on title. As such Issa could not deal with the property without his ex-wife’s consent or a court order.
89The Consulting Agreement was needed to have Issa do the deal. The Consulting Agreement was more important to Issa than the deal relating to the APS.
90Since the value of the property was to be fixed as at the date of separation (the v-day), it motivated Issa to have two agreements.
91The Consulting Agreement at Tab 5 did not have the amounts filled in as the price was still to be negotiated.
92A meeting was held at his office on February 10, 2022, with Issa and Hershberg. Issa told Hershberg that to get the deal done he would need $5 million in the Consulting Agreement. If not, he wouldn’t sell the property.
93Exhibit 9 Tab 6 are Chehab’s handwritten notes and amendments to the APS and Consulting Agreement.
94Exhibit 9 Tab 7, in his email dated February 23/2022, Hershberg sends back an amended version with typed red line changes made by Hershberg on both the APS and Consulting Agreement.
95On March 6, 2022, a further meeting is held at Chehab’s office with Issa and Hershberg. They finalize negotiations. Issa signed in Chehab’s presence. Tab 8 indicates that the two agreements were sent to Hershberg as one PDF attachment.
96Hershberg had not signed the two agreements on March 6, 2022. Hershberg would have three days to sign. Both agreements had to be signed. Hershberg advised Chehab that he didn’t want to share with his counsel the fact of the Consulting Agreement.
97Chehab was always of the view that this was a deal involving both the APS and Consulting Agreement.
98At Tab 9, the March 8, 2022, email from Hershberg to Chehab only enclosed the APS signed by Hershberg. The Consulting Agreement was not signed by Hershberg. Hershberg told Chehab that Issa had not advised who the entities would be as the consultants. Chehab told Hershberg that it could be filled in at a later date.
99In late August 2022, Chehab did his search to ensure the status of the consultant entities. In late October or early November 2022, he sent those names to Hershberg. They still needed Issa’s consent regarding the restriction on title.
February 6, 2023
100On February 6, 2023, Issa called Chehab to advise that he was with Hershberg and could they meet at his office. Chehab told them to come to his office, and they arrived sometime after 7pm.
101At the meeting Hershberg said that interest rates had gone up and they would now have to restructure the deal. Issa said no. Chehab spoke to Issa privately and advised him to do the deal as it was still a good deal. Negotiations continued and Chehab made the necessary changes. Both signed. Chehab told Hershberg to take it to his lawyer and have his lawyer look at it.
102In the meeting, Issa’s demeanor was laid back. He didn’t care, he would walk away from both deals if they couldn’t agree. Hershberg’s demeanor was his usual high octane and very talkative.
103On February 6, 2023, Hershberg signed both agreements in front of him so there was no need to authenticate Hershberg’s signature.
104Chehab was next waiting for an email from Hershberg’s lawyer sending back the signed documents with an Independent Legal Advice (ILA) certificate. Nothing came.
105Hershberg called Chehab the following Monday and said they needed to talk. He told Chehab he signed under duress. It was not his signature. Chehab responded by telling him you didn’t sign under duress. If there was no deal, Issa said he was prepared to walk away.
106Hershberg told Chehab he wanted Issa to sign the consent so the APS could close. Chehab said no, and that if Hershberg doesn’t sign the deal is off. Hershberg told Chehab that if Issa doesn’t sign the consent, he will go to the police.
107Chehab gave a statement to the police. The police were led to believe that Hershberg was extorted to sign. Chehab explained to them that was not the case, negotiations had been going on for a long time.
108When Hershberg called Chehab before going to the police, Chehab said to him that nothing appeared like you were signing under duress. Hershberg said if Issa doesn’t sign the consent by 5PM, he would go to the police.
Cross-examination
[109] In cross-examination by the Crown, Chehab confirmed or acknowledged the following:
- This transaction was the first file he had worked on for Issa.
- On February 10, 2022, he conducted a title search of the subject property and found a lien/order registered on title.
- Hershberg told Chehab at their first meeting on February 10, 2022, he is a lawyer, but not practising law, and he felt quite comfortable doing this transaction on his own. Since nothing was going to be signed that day it was not an issue that he didn’t have a lawyer. The agreements were presented to Chehab, so Chehab assumed Hershberg’s lawyer had reviewed them.
- On March 6, 2022, Chehab was still negotiating with Hershberg, and a final version was arrived at so Issa signed. Hershberg was not signing on March 6, 2022, so he could bring it to his lawyer for review.
- The whole negotiations deal with two agreements, the APS, and the Consulting Agreement.
- The APS signed March 6, 2022, Exhibit 9 Tab 9, states at para. 3. Re: closing: that the court order registered on title has to be removed from title. Nothing could happen with the APS until the court order is removed from title.
- From March 2022 to December 2022, Chehab conducted the search regarding the consultant entities, and they were all fine. The searches were done in August 2022, but Chehab got sick, so he was only able to advise Hershberg in November 2022. However, Hershberg was now saying that the Consulting Agreement had to be done another way.
- The consent to remove the court order registered on title was key to the deal as the deal could not be completed without it. Hershberg’s lawyers were constantly emailing him about the consent, that was their “ace in the hole”.
February 6, 2023, Meeting
- They all met in Chehab’s boardroom. The meeting commenced at close to 8pm and lasted until 10 or 10:30pm.
- The APS had already been signed so the meeting dealt with the Consulting Agreement only.
- After hearing Hershberg’s concerns about the Consulting Agreement, it was amended.
- Hershberg had advised them that the market had changed, and the interest rates had gone up. Hershberg said he could not agree to $5 million total for the APS and the Consulting Agreement. Issa said okay then we will do mutual releases, and he would return the $50,000 deposit back to Hershberg.
- At this point, the tone of the conversation is normal. Issa was calm. Chehab told Issa to at least retain the $50,000 deposit.
- After Chehab made the amendments to the Consulting Agreement, Hershberg reviewed it very carefully and changed the names on page 1 (namely the consultant entities) plus Schedule A. The rest of it stayed the same.
- Three copies were signed on February 6, 2023. Chehab told Hershberg to go back and tell his lawyer what he was doing and to have his lawyer email him the signed agreements on his lawyer’s email.
- Hershberg signed in front of Chehab so there was no need to check or authenticate his signature.
- After the February 6, 2023, meeting, later that week or the following Monday, Hershberg called Chehab. He as very dramatic and said their lives were in danger. Chehab asked him where the Consulting Agreement was. Hershberg told him he had signed under duress, but Chehab told him there was no duress, he could have walked away from the deal.
- Hershberg told Chehab that if the consent is not signed by 5pm he would go to the police. Chehab said “are you trying to blackmail us? If you don’t want the deal fine, but we’re not signing the consent.”
- It was ridiculous that he was saying their lives were in danger. Chehab said you are threatening us, we are not going to sign the consent.
Analysis & Conclusion
Governing Legal Principles
110It is useful and informative to set out the legal principles relevant to the issues in this case.
Presumption of Innocence
111Every person charged with an offence is presumed to be innocent, unless and until Crown counsel proves his guilt beyond a reasonable doubt. The presumption of innocence means that Issa started this trial presumed to be innocent of the offences charged. The presumption of innocence is only defeated if and when Crown counsel proves the guilt of Issa beyond a reasonable doubt.
Burden of Proof
112The obligation to prove Issa’s guilt rests with the Crown. From start to finish, that obligation never shifts. Issa does not have to prove anything, he does not have to prove that he is innocent. The onus to prove these offences always rest on the Crown and on a standard of proof beyond a reasonable doubt.
Reasonable Doubt
113Of course, proof beyond a reasonable doubt is a very important part of our criminal justice system. As I tell juries in my jury charges, reasonable doubt is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence or absence of evidence. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt.
Agreed Statement of Facts s. 655 of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)
114In this case, the parties filed an Agreed Statement of Facts relating to Warda Amsaadi. When the parties agree, no witnesses have to be called. What the parties agreed to, are facts in this case.
Single Accused-Multiple Counts-Without Evidence of Similar Acts
115The indictment alleges that Issa committed numerous offences. Each allegation is a separate charge. Each charge is to be dealt with only on the basis of the evidence that relates to that charge. The Crown in this case did not proceed with a Similar Fact Application. As such the court cannot consider the evidence that relates to one or more counts in deciding whether the Crown has proven Issa’s guilt beyond a reasonable doubt on another different count or counts.
Assessment of Credibility & Reliability
116In R v. J.D. 2019 ONSC 2685, at para 82, I set out Trimble, J’s informative review on assessing credibility in his decision in R v. M.H. [2018] O.J. No. 6870:
In R. v. M.H., [2018] O.J. No. 6870, Trimble, J. conducts an informative review on assessing credibility at paras. 76-80 as follows: 76. The credibility of the witness is determined by addressing two questions: 1) is the witness “believable”, and 2) is the witness’s evidence “reliable”. 77. Trial judges, like juries, rely on many factors in assessing the weight to be given to the testimony of witnesses based on an assessment of that witness' reliability and ultimate credibility. Triers of fact can also believe some, none, or all of the testimony of any particular witness. 78. Assessing credibility involves assessing many factors. As the Ontario Court of Appeal said in R. v. M.W.M. [1998] O.J. No. 4847 at para. 3: …In weighing credibility, it is appropriate for a trier of fact to consider a witness' motive or lack of motive to fabricate and, although the trial judge dealt with the subject at considerable length, we are not persuaded that he shifted the onus to the appellant to prove such motive nor that he equated credibility with the absence of such motive… 79. Some of these factors are: a) The demeanour of the witness – this is an important factor, although not the only factor. People react differently in what, to them, is a strange environment. Witnesses come from different cultural and social backgrounds. All of this means that the non-veR.B.al cues may be difficult to assess. Findings of credibility should not be made on demeanour, alone. See: R. v. L.H., [2007] O.J. No. 1588 (S.C.J.), para. 83 to 86, R. v. K.A. (1999) 1999 3756 (ON CA), 123 O.A.C. 161 (C.A.), para. 172. b) Does the evidence of the Witness make sense? - is the testimony in harmony with the preponderance of probabilities which a practical and informed person would find reasonable given the particular place and condition? See: Faryna v. Chorny, 1951 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.). c) Internal Consistency. Does the evidence have an internal consistency and logical flow? R. v. C.H., 1999 18939 (NL CA), [1999] N.J. No. 273 (Nfld C.A.). d) Prior inconsistencies. Is the evidence consistent with prior statements (e.g. Discovery evidence)? How significant are the differences, and are they adequately explained? R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788. e) Is there independent confirming or contradicting evidence? R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531. (S.C.C.). f) Interest in the outcome and a motive to fabricate. Does the witness have such motivation? The mere motivation to win or lose the case is not sufficient. The interest must be beyond that. See: R. v. S.D, 2007 ONCA 243, 218 C.C.C. (3d) 323. The absence of evidence of motive to lie does not mean that there is an absence of motive. There is a difference between an absence of apparent motive and proven absence of motive. The Court must remember that there is no onus on the defence. See: R v. L.L. [2009 ONCA 413](https://www.minicounsel.ca/oca/2009/413