In Moore’s ruling, which he made at the end of a two-day hearing that began July 25, the judge noted that when the Crown’s office disclosed its evidence to the defence in May 2015, the disclosure was missing key information like summaries of what several Crown witnesses would testify to. Also missing was evidence relating to the conspiracy charges facing the three men, even though that information had been available to the Crown’s office since the time of the arrests.
It wasn’t until January 2016, 18 months after the arrests, that the Crown’s office provided enough disclosure for both sides to be prepared to set trial dates.
According to the judge, the assistant Crown who was originally assigned to the case, an attorney named Craig Power, “departed the Crown office” in the fall of 2015 for “personal reasons,” and once assistant Crown Scott Patterson stepped in to take the lead “matters proceeded in a more timely fashion.”
Power, who is still listed by the Canadian Law List as an assistant Crown, did not return messages requesting comment this week. The Ministry of the Attorney General refused to comment on his employment status, citing the confidentiality of human resources issues.
At the July hearing, Patterson argued that the delays were reasonable because of the complexity of the case, which he said required linking the “thousands and thousands” of items found during searches of Cuschieri’s and Zych’s homes to documents that allegedly proved they were TTC property.
But Moore dismissed that argument and said that the legal issues involved in the case were “simple and straightforward.”
In his reasons for judgment, Moore cited a recent Supreme Court of Canada ruling that laid out new deadlines for cases tried in provincial court. The court set a “presumptive ceiling” of 18 months from the time someone is charged to the end of their trial, and ruled that delays longer than that should be presumed to be “unreasonable” and a violation of charter rights unless the Crown can show exceptional circumstances.
The trial for Cuschieri, Doron, and Zych was scheduled to begin in October and finish in January 2017, or 31 months after their arrest, which would have exceeded the ceiling by 13 months.
Asked if the Crown intended to appeal Moore’s decision, Brendan Crawley, a spokesman for the Ministry of the Attorney General, said it would be “inappropriate to comment” because the case was still within the appeal period.
Cuschieri’s lawyer, Aaron Spektor, said his client was “extremely happy and relieved.”
Cuschieri worked as a TTC foreman and manager in the agency’s revenue and security equipment maintenance department, but retired on May 30, 2014. Twelve days later, he was charged with theft over $5,000, fraud over $5,000, breach of trust, conspiracy, and possession of stolen property over $5,000 for the purpose of trafficking.
Spektor said that the evidence presented to obtain search warrants almost “never matches” the information that comes out at trial, and that Cuschieri would have pleaded not guilty if the charges hadn’t been stayed. He added that his client “is presumed to be innocent, just like you and I would be, of any charges that are laid against him.”
Zych was working as a TTC repairman at the time of his arrest but resigned soon after, according to the transit agency. He was facing charges of conspiracy and possession of stolen property over $5,000. His lawyer, Paul Genua, said that his client had always maintained his innocence and that, if the case had gone to trial, “I was confident that . . . I was going to win that case.”
Genua emphasized that the judge’s decision to stay the charges wasn’t a technicality, but recognition of the “important right that all citizens have to be tried within a reasonable time.”
Doron, 52, the only one of the three who didn’t work at the TTC, was charged with conspiracy. His attorney, Seth Weinstein, said most of the evidence in the ITO didn’t pertain to Doron and “we were always confident in our defence.”
The ITO that led to the charges was based on information provided to the police by TTC employee Staff. Sgt. Mark Russell, a veteran investigator who led the transit agency’s probe.
According to the document, Russell alleged that, between 2008 and 2014, the accused billed the commission for more than $100,000 in fraudulent purchases, including almost $20,000 for residential door hardware and other material the transit agency had no need for, $16,838 for four tool cabinets and drawers that didn’t appear to be on TTC property, and $1,445 for a cordless drill kit that the TTC didn’t need.
According to the ITO, Cuschieri had signing authority for purchase orders up to $15,000, and between 2007 and February 2014 his department spent more than $65,000 on high-end Snap-On brand tools for auto mechanics. Russell estimated that more than 95 per cent of the purchases couldn’t be considered legitimate.
Russell also alleged that Cuschieri, Doron and Zych intended to set up a company to manufacture turnstiles, and when Cuschieri issued a TTC procurement request for 200 turnstiles worth a collective $4,000,000, he listed the company as a suggested supplier.
At the time of the arrests, allegations that TTC employees had perpetrated a sustained and elaborate fraud against the transit agency rattled TTC leaders. CEO Andy Byford wrote a letter to employees in which he acknowledged the alleged crimes had “harm(ed) our collective reputation and the public’s trust of us in the process.”
According to TTC spokesman Brad Ross, in response to the allegations the commission established a new whistleblower policy to protect employees who report wrongdoing from reprisals. The commission’s code of conduct policy was also updated, about 200 senior managers received ethics training, and the commission put a system in place to detect unusual purchases.
“The decision to stay the charges is outside of the TTC’s control and not a reflection on the investigation or the actions we took as an organization,” Ross said. “The TTC’s reputation as an organization that takes wrongdoing seriously — criminal or otherwise — is extremely important for both employees and the public that funds us to understand.”
Although the arrests prompted changes at the transit agency, by spring of last year the cases against the six accused were falling apart.
Charges against one of the men, Amadeo Cuschieri’s son, were stayed in April 2015. Steven Cuschieri, a 37-year-old who was working as a TTC bus mechanic in 2014, had been accused of possessing stolen tools and tool chests worth over $5,000. In November 2015 the case against Lorenzo Lamanna, 58, a TTC repairman charged with theft and fraud under $5,000, was also stayed.
According to Crawley, the attorney general spokesman, the Crown stayed the charges after it examined the evidence and determined there was “no reasonable prospect of conviction” in either case.
Steven Cuschieri remains employed at the TTC. His lawyer declined the Star’s request for comment, but Ross, the TTC spokesman, said: “In the end, there was no evidence of any wrongdoing on his part.”
On Jul. 22 of this year, the Crown also abandoned the case against John Mulhall, a 67-year-old former TTC worker who had been Amadeo Cuschieri’s supervisor. Mulhall, who was retired at the time of his arrest, was facing charges of theft over $5,000, criminal breach of trust, and fraud over $5,000. The Crown stayed those charges after Mulhall’s attorney filed an application claiming the case had been unreasonably delayed.
Mulhall’s lawyer declined to comment to the Star about the case.