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33754

Ewaryst Prokofiew v. Her Majesty the Queen

(Ontario) (Criminal) (By Leave)

Docket

Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.

List of proceedings
Date Proceeding Filed By
(if applicable)
2012-10-17 Appeal closed
2012-10-15 Formal judgment sent to the registrar of the court of appeal and all parties
2012-10-15 Judgment on appeal and notice of deposit of judgment sent to all parties
2012-10-12 Judgment on the appeal rendered, CJ LeB De F Abe Ro Cro Mo Ka, The appeal from the judgment of the Court of Appeal for Ontario, Number C42992, 2010 ONCA 423, dated June 10, 2010, heard on November 8, 2011, is dismissed, the Chief Justice and LeBel, Fish and Cromwell JJ. dissenting.
Dismissed
2012-09-25 Correspondence received from, Jennifer Woolcombe dated September 25/12 re: consent Her Majesty the Queen
2012-09-24 Correspondence received from, Russel Silverstein & Associate by fax, re.: release of judgment Ewaryst Prokofiew
2011-11-28 Transcript received, (92 pages)
2011-11-08 Judgment reserved OR rendered with reasons to follow
2011-11-08 Hearing of the appeal, 2011-11-08, CJ LeB De F Abe Ro Cro Mo Ka
Judgment reserved
2011-11-08 Acknowledgement and consent for video taping of proceedings, All parties consented
2011-11-08 Intervener's condensed book, Filed in Court Attorney General of Quebec
2011-11-08 Respondent's condensed book, Filed in Court Her Majesty the Queen
2011-11-08 Appellant's condensed book, Filed in Court Ewaryst Prokofiew
2011-11-04 Correspondence received from, Possibility of adjournment Ewaryst Prokofiew
2011-11-02 Notice of appearance, P. Andras Schreck and Lucy Saunders will be appearing and Mr. Schreck will addressing the Court. Criminal Lawyers' Association of Ontario
2011-11-02 Notice of appearance, Russell Silverstein and Ingrid Grant will be appearing and will both address the Court. Ewaryst Prokofiew
2011-10-25 Notice of appearance, Jennifer Woollcombe and Ivan Bloom will be present at the hearing. Her Majesty the Queen
2011-10-24 Notice of appearance, James C. Martin and Richard Kramer will be appearing Attorney General of Canada
2011-10-24 Notice of appearance, Frank Addario, Gerald Chan and Nader R. Hasan will be appearing Canadian Civil Liberties Association
2011-10-19 Correspondence received from, Gowlings dated October 19, 2011. Re: Page 5 of the supplementary reasons of Corbett is missing from volume ! of the appellant's record. (Sent to the Court on October 20, 2011) Ewaryst Prokofiew
2011-10-17 Order by, LeB, FURTHER TO THE ORDERS dated July 28, 2011, and September 12, 2011, granting leave to intervene to the Criminal Lawyers' Association of Ontario and the Canadian Civil Liberties Association;
IT IS HEREBY FURTHER ORDERED THAT the interveners are granted permission to present oral argument not exceeding ten (10) minutes at the hearing of this appeal
Granted
2011-10-13 Notice of appearance, Me Sylvain Leboeuf and Me Gilles Laporte will be appearing Attorney General of Quebec
2011-09-29 Order on motion for additional time to present oral argument, byTHE REGISTRAR
2011-09-29 Decision on motion for additional time to present oral argument, Reg, UPON APPLICATION by the appellant for an order extending the time for oral argument on this appeal by thirty (30) minutes;
AND THE MATERIAL FILED having been read;
IT IS HEREBY ORDERED THAT:
The motion is dismissed.
Dismissed
2011-09-29 Submission of motion for additional time to present oral argument, Reg
2011-09-22 Intervener's book of authorities, Completed on: 2011-09-22 Criminal Lawyers' Association of Ontario
2011-09-22 Intervener's factum, Completed on: 2011-09-22 Criminal Lawyers' Association of Ontario
2011-09-22 Intervener's book of authorities, Completed on: 2011-09-22 Canadian Civil Liberties Association
2011-09-22 Intervener's factum, Completed on: 2011-09-22 Canadian Civil Liberties Association
2011-09-12 Order on motion for leave to intervene
2011-09-12 Decision on the motion for leave to intervene, Abe, UPON APPLICATION by the Canadian Civil Liberties Association for an extension of time to apply for leave to intervene and for leave to intervene in the above appeal;
AND THE MATERIAL FILED having been read;
IT IS HEREBY ORDERED THAT:
The motion for an extension of time to apply for leave to intervene and for leave to intervene of the Canadian Civil Liberties Association is granted and the said intervener shall be entitled to serve and file a factum not to exceed 10 pages in length on or before September 22, 2011.
The request to present oral argument is deferred to a date following receipt and consideration of the written arguments of the parties and intervener.
The intervener shall not be entitled to raise new issues or to adduce further evidence or otherwise to supplement the record of the parties.
Pursuant to Rule 59(1)(a) of the Rules of the Supreme Court of Canada, the intervener shall pay to the appellant and respondent any additional disbursements occasioned to the appellant and respondent by its intervention.

Granted
2011-09-12 Submission of motion for leave to intervene, Abe
2011-09-09 Response to the motion for additional time to present oral argument, (Letter Form), Completed on: 2011-09-09 Her Majesty the Queen
2011-09-06 Response to the motion for leave to intervene, (Letter Form), of CCLA - rec'd by e-mail, Completed on: 2011-09-06 Her Majesty the Queen
2011-09-01 Motion for additional time to present oral argument, Completed on: 2011-09-01 Ewaryst Prokofiew
2011-08-29 Notice of hearing sent to parties
2011-08-26 Response to the motion for leave to intervene, Consent to CCLA's motion to intervene and extension of time included in motion, Completed on: 2011-08-26 Ewaryst Prokofiew
2011-08-26 Motion for leave to intervene, Book Form - motion extension of time and consent of the appellant included, Completed on: 2011-08-26 Canadian Civil Liberties Association
2011-08-26 Correspondence received from, Noël et Associés dated August 26, 2011, re: counsel's name for the attorney general of Quebec Attorney General of Quebec
2011-08-23 Intervener's factum - AG on constitutional question, Completed on: 2011-08-23 Attorney General of Quebec
2011-08-23 Intervener's book of authorities, Completed on: 2011-08-23 Attorney General of Quebec
2011-08-12 Intervener's book of authorities, Completed on: 2011-08-12 Attorney General of Canada
2011-08-12 Intervener's factum - AG on constitutional question, Completed on: 2011-08-12 Attorney General of Canada
2011-08-03 Supplemental document, (Supplemental Authorities pursuant to rule 29(4)) - original with service rec'd Aug. 4/11, Completed on: 2011-08-04 Ewaryst Prokofiew
2011-08-03 Reply factum on appeal, (Pursuant to Rule 29(4)) - original with service rec'd Aug. 4/11, Completed on: 2011-08-17 Ewaryst Prokofiew
2011-07-28 Decision on motion to extend time, LeB
Granted, no order as to costs
2011-07-28 Submission of motion to extend time, LeB
2011-07-28 Order on motion for leave to intervene, (BY LEBEL J.)
2011-07-28 Decision on the motion for leave to intervene, LeB, UPON APPLICATION by the Criminal Lawyers' Association of Ontario for an extension of time to apply for leave to intervene and for leave to intervene in the above appeal;
AND THE MATERIAL FILED having been read;
IT IS HEREBY ORDERED THAT:
The motion for an extension of time to apply for leave to intervene and for leave to intervene of the Criminal Lawyers' Association of Ontario is granted and the said intervener shall be entitled to serve and file a factum not to exceed 10 pages in length.
The request to present oral argument is deferred to a date following receipt and consideration of the written arguments of the parties and the intervener.
The intervener shall not be entitled to raise new issues or to adduce further evidence or otherwise to supplement the record of the parties.
Pursuant to Rule 59(1)(a) of the Rules of the Supreme Court of Canada, the intervener shall pay to the appellant and respondent any additional disbursements occasioned to the appellant and respondent by its intervention
Granted
2011-07-28 Submission of motion for leave to intervene, LeB
2011-07-22 Appeal hearing scheduled, 2011-11-08, (start time 9:00am)
Judgment reserved
2011-07-21 Appeal perfected for hearing
2011-07-19 Respondent's book of authorities, (4 volumes), Completed on: 2011-07-19 Her Majesty the Queen
2011-07-19 Respondent's factum, [Rule 29(3) included], Completed on: 2011-07-19 Her Majesty the Queen
2011-07-14 Respondent's record, Completed on: 2011-07-14 Her Majesty the Queen
2011-06-30 Response to motion to extend time, (motion by CLA), Completed on: 2011-06-30 Her Majesty the Queen
2011-06-28 Motion to extend time, (included in motion), Completed on: 2011-06-28 Criminal Lawyers' Association of Ontario
2011-06-28 Motion for leave to intervene, (ext. time included in motion), Completed on: 2011-06-28 Criminal Lawyers' Association of Ontario
2011-05-30 Appellant's book of authorities, Completed on: 2011-05-30 Ewaryst Prokofiew
2011-05-27 Appellant's factum, Completed on: 2011-05-27 Ewaryst Prokofiew
2011-05-19 Appellant's record, (6 volumes), Completed on: 2011-05-19 Ewaryst Prokofiew
2011-04-06 Notice of intervention respecting a constitutional question Attorney General of Quebec
2011-03-28 Notice of intervention respecting a constitutional question Attorney General of Canada
2011-03-09 Notice of constitutional question(s), (served March 9/11) Ewaryst Prokofiew
2011-03-07 Order on motion to state a constitutional question, (BY THE CHIEF JUSTICE)
2011-03-07 Decision on the motion to state a constitutional question, CJ, UPON APPLICATION by the appellant for an order stating constitutional questions in the above appeal;
AND THE MATERIAL FILED having been read;
IT IS HEREBY ORDERED THAT THE CONSTITUTIONAL QUESTIONS BE STATED AS FOLLOW:
1. Does s. 4(6) of the Canada Evidence Act, R.S.C. 1985, chap. C-5, infringe s. 7 of the Canadian Charter of Rights and Freedoms?
Le par. 4(6) de la Loi sur la preuve au Canada, L.R.C. 1985, ch. C-5, contrevient-il à l’art. 7 de la Charte canadienne des droits et libertés?
2. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms?
Dans l’affirmative, l’atteinte constitue-t-elle une limite raisonnable prescrite par une règle droit et dont la justification peut se démontrer dans le cadre d’une société libre et démocratique au sens de l’article premier de la Charte canadienne des droits et libertés?
3. Does s. 4(6) of the Canada Evidence Act, R.S.C. 1985, chap. C-5, infringe s. 11(c) of the Canadian Charter of Rights and Freedoms?
Le par. 4(6) de la Loi sur la preuve au Canada, L.R.C. 1985, ch. C-5, contrevient-il à l’al. 11c) de la Charte canadienne des droits et libertés?
4. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms?
Dans l’affirmative, l’atteinte constitue-t-elle une limite raisonnable prescrite par une règle droit et dont la justification peut se démontrer dans le cadre d’une société libre et démocratique au sens de l’article premier de la Charte canadienne des droits et libertés?
5. Does s. 4(6) of the Canada Evidence Act, R.S.C. 1985, chap. C-5, infringe s. 11(d) of the Canadian Charter of Rights and Freedoms?
Le par. 4(6) de la Loi sur la preuve au Canada, L.R.C. 1985, ch. C-5, contrevient-il à l’al. 11d) de la Charte canadienne des droits et libertés?
6. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms?
Dans l’affirmative, l’atteinte constitue-t-elle une limite raisonnable prescrite par une règle droit et dont la justification peut se démontrer dans le cadre d’une société libre et démocratique au sens de l’article premier de la Charte canadienne des droits et libertés?
Granted
2011-03-07 Submission of motion to state a constitutional question, CJ
2011-01-13 Notice of change of counsel, Kenneth Campbell dated January 12, 2011. Re: Counsel for respondent is changed from Public Prosecution to Attorney General of Ontario Her Majesty the Queen
2011-01-13 Reply to the motion to state a constitutional question, (Letter Form), from Ingrid Grant dated Jan. 13/11 (original rec'd Jan. 18/11), Completed on: 2011-01-13 Ewaryst Prokofiew
2011-01-13 Response to the motion to state a constitutional question, (Letter Form), from Kenneth L. Campbell dated Jan. 13/11, Completed on: 2011-01-13 Her Majesty the Queen
2010-12-17 Motion to state a constitutional question, Completed on: 2010-12-17 Ewaryst Prokofiew
2010-12-02 Letter advising the parties of tentative hearing date and filing deadlines (Leave granted)
2010-11-19 Copy of formal judgment sent to Registrar of the Court of Appeal and all parties
2010-11-19 Judgment on leave sent to the parties
2010-11-18 Notice of appeal, Completed on: 2010-11-18 Ewaryst Prokofiew
2010-11-18 Judgment of the Court on the application for leave to appeal, The application for leave to appeal from the judgment of the Court of Appeal for Ontario, Number C42992, 2010 ONCA 423, dated June 10, 2010, is granted without costs.
Granted, without costs
2010-10-18 All materials on application for leave submitted to the Judges, LeB De Cha
2010-10-14 Applicant's reply to respondent's argument, Completed on: 2010-10-14 Ewaryst Prokofiew
2010-10-07 Respondent's response on the application for leave to appeal, Completed on: 2010-10-07 Her Majesty the Queen
2010-09-10 Letter acknowledging receipt of an incomplete application for leave to appeal
2010-09-08 Application for leave to appeal, Charge to the jury missing - Rec'd on September 13, 2010 (Bookform), Completed on: 2010-09-13 Ewaryst Prokofiew
2010-06-22 Notice of application for leave to appeal, Amended Notice rec'd June 23-10, Completed on: 2010-06-30 Ewaryst Prokofiew

Parties

Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.

Main parties

Main parties - Appellants
Name Role Status
Prokofiew, Ewaryst Appellant Active

v.

Main parties - Respondents
Name Role Status
Her Majesty the Queen Respondent Active

Other parties

Other parties
Name Role Status
Attorney General of Canada Intervener Active
Attorney General of Quebec Intervener Active
Criminal Lawyers' Association of Ontario Intervener Active
Canadian Civil Liberties Association Intervener Active

Counsel

Party: Prokofiew, Ewaryst

Counsel
Russell Silverstein
Ingrid Grant
116 Simcoe Street
Suite 100
Toronto, Ontario
M5H 4E2
Telephone: (416) 977-5334
FAX: (416) 596-2597
Email: russel@silverstein-law.com
Agent
Brian A. Crane, Q.C.
Gowling WLG (Canada) LLP
2600 - 160 Elgin St
Box 466 Station D
Ottawa, Ontario
K1P 1C3
Telephone: (613) 233-1781
FAX: (613) 563-9869
Email: brian.crane@gowlingwlg.com

Party: Her Majesty the Queen

Counsel
Jennifer M. Woollcombe
Ivan S. Bloom, Q.C.
Attorney General of Ontario
720 Bay Street
10th Floor
Toronto, Ontario
M5G 2K1
Telephone: (416) 326-4604
FAX: (416) 326-4656
Email: jennifer.woollcombe@ontario.ca
Agent
Robert E. Houston, Q.C.
Burke-Robertson
441 MacLaren Street
Suite 200
Ottawa, Ontario
K2P 2H3
Telephone: (613) 236-9665
FAX: (613) 235-4430
Email: rhouston@burkerobertson.com

Party: Attorney General of Canada

Counsel
James C. Martin
Richasrd Kramer
Attorney General of Canada
Suite 1400, Duke Tower
5251 Duke Street
Halifax, Nova Scotia
B3J 1P3
Telephone: (902) 426-2484
FAX: (902) 426-7274
Email: james.martin@justice.gc.ca
Agent
Robert J. Frater
Attorney General of Canada
Bank of Canada Building
234 Wellington Street, Room 1161
Ottawa, Ontario
K1A 0H8
Telephone: (613) 957-4763
FAX: (613) 954-1920
Email: robert.frater@justice.gc.ca

Party: Attorney General of Quebec

Counsel
Sylvain Leboeuf
Procureur général du Québec
1200, Route de l'Église, 2ème étage
Québec, Quebec
G1V 4M1
Telephone: (418) 643-1477 Ext: 21010
FAX: (418) 644-7030
Email: Sylvain.leboeuf@justice.gouv.qc.ca
Agent
Pierre Landry
Noël et Associés, s.e.n.c.r.l.
111, rue Champlain
Gatineau, Quebec
J8X 3R1
Telephone: (819) 503-2178
FAX: (819) 771-5397
Email: p.landry@noelassocies.com

Party: Criminal Lawyers' Association of Ontario

Counsel
P. Andras Schreck
Lucy Saunders
Schreck Presser LLP
6 Adelaide Street East, 5th Floor
Toronto, Ontario
M5C 1H6
Telephone: (416) 977-6268 Ext: 1
FAX: (416) 977-8513
Email: schreck@schreckpresser.com
Agent
Henry S. Brown, Q.C.
Gowling WLG (Canada) LLP
2600 - 160 Elgin St
P.O. Box 466, Stn "D"
Ottawa, Ontario
K1P 1C3
Telephone: (613) 233-1781
FAX: (613) 788-3433
Email: henry.brown@gowlings.com

Party: Canadian Civil Liberties Association

Counsel
Frank Addario
Sack Goldblatt Mitchell LLP
1130 - 20 Dundas St West
Box 180
Toronto, Ontario
M5G 2G8
Telephone: (416) 979-6446
FAX: (416) 591-7333
Agent
Colleen Bauman
Sack Goldblatt Mitchell LLP
500 - 30 Metcalfe St.
Ottawa, Ontario
K1P 5L4
Telephone: (613) 235-5327
FAX: (613) 235-3041
Email: cbauman@sgmlaw.com

Summary

Keywords

None.

Summary

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Charter of Rights and Freedoms - Criminal law – Charge to jury – Right to silence – Consideration of s. 4(6) of the Canada Evidence Act - Whether Court of Appeal erred in concluding that the trial judge was not required to specifically caution the jury on the improper use of the Applicant’s decision not to testify at trial – Charter of Rights and Freedoms ss. 7, 11(c) and 11(d).

The Applicant and his co-accused, Peter Solty, were charged with one count of conspiracy to defraud the Government of Canada and one count of defrauding the Government of Canada of about $3.25 million. The Crown alleged that both accused participated in a fraudulent scheme involving the fictitious sale of heavy equipment to generate harmonized Sales Tax (“HST”) that was then not remitted to the federal government as required. The fraudulent nature of the scheme was never challenged. The involvement of the applicant and Mr. Solty in the scheme was also conceded. The question for the jury was whether either or both accused were aware of the fraudulent nature of the scheme. The applicant did not testify. The applicant was convicted and sentenced and his appeals were dismissed.

Lower court rulings

January 8, 2005
Ontario Superior Court of Justice

n/a

Conviction; fraud over $5,000 and conspiracy to commit fraud

April 11, 2005
Ontario Superior Court of Justice


Sentence: 3 years

June 10, 2010
Court of Appeal for Ontario

C42992, 2010 ONCA 423

Appeals dismissed

Memorandums of argument on application for leave to appeal

The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filing out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.

If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.

Downloadable PDFs

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Factums on appeal

The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.

If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.

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Date modified: 2025-02-27