About twenty years ago, Doug Hill and Jeff Weingrad wrote what was then the definitive book on Saturday Night Live. In this book, they referred to Tony Rosato's departure from the show. Here's a paraphrase of what they said:
Dick Ebersol had no problem firing people. Among the first casualties after the 1981 Season were Rosato (who later said that the firing was the best thing to ever happen to him, because the SNL set helped encourage his drug addiction)....
Fast forward to yesterday:
A one-time fixture of Canadian television who believes his loved ones have been replaced by imposters entered an Ontario courtroom in shackles and handcuffs Tuesday to face a charge of criminal harassment.
Rosato has been in jail for two years, and there is speculation as to the "replaced by imposters" diagnosis:
[Lawyer Daniel] Brodsky explains that the Crown's expert prison psychiatrist, Dr. Duncan Scott, has told him and the Crown "that Tony Rosato is certifiable." Scott's diagnosis, says Brodsky, is a mental illness called Capgras syndrome.
Named for its discoverer, French psychiatrist Jean Marie Joseph Capgras, the syndrome is characterized by the delusion that a person or people have been replaced by doubles or impostors. The rare condition is most commonly associated with schizophrenia, but according to Dr. Graham Glancy, a forensic psychiatrist with Metro West Detention Centre and Maplehurst Correctional Complex, it can also be caused by metabolic diseases, delirium, brain injury or drugs such as cocaine.
The Toronto Star gives additional details on Rosato's recent history:
Just before their baby's birth, in September 2004, Leah moved into a Broadview Ave. apartment with Tony. The actor's friends say he behaved strangely once he and Leah were living together....
Tony told friends he was connected to higher energies and had "information to save the planet," says his long-time friend Derek McGrath, who plays Rev. Magee in Little Mosque on the Prairie. Rosato believes he is "the guardian of light," adds McGrath, who worked with Rosato at Second City and has supported the beleaguered actor through his legal travails....
A letter Rosato wrote from jail on June 5, 2005, a month after his arrest, gives his version of what happened after the departure of Leah and the baby. It documents what he perceived as evidence that he was the victim of a "fraudulent hoax" – that his wife and daughter had been replaced by doubles.
The CD wedding photos Leah left behind, Rosato wrote, proved the woman in the pictures was not his real wife but a "twin." His real wife had obviously been replaced by a duplicate who was "dressed identically" to his wife.
Rosato wrote that he went to Toronto and then Kingston police to tell them that his wife had been switched with an imposter. Kingston Det. Const. Jeff Smith told him to stay away from Leah.
Rosato's letter indicated that he visited Kingston police again after supervised visits with his baby in March and April 2005. The first visit led him to complain in the letter that his daughter was "clearly suffering from emotional and physical abuse," while during the second, he protested, he was presented with the wrong baby. As evidence, he brought police a photo of a "wife look alike" and of the baby from the second visit.
The letter also indicates that, in desperation to find his wife, Rosato went on Citytv's Speaker's Corner and consulted with Toronto "spiritual channeler" David Watson....
Watson recalls that in spring 2005, Rosato came to him for help. Watson says he found Rosato's "energies" during this consultation "far too disruptive," and refused to work with him again.
Rosato's letter details a series of phone calls with Det. Const. Smith, who asked him to go to Kingston "to discuss the case." Arriving at the police station there, he was arrested and charged with public mischief and harassment, "supposedly for dragging the police force into looking for my wife." Brodsky says those charges were eventually dropped, and instead Rosato was charged with criminally harassing his wife.
Back to the trial:
The mental demons plaguing troubled TV personality Tony Rosato appeared to be on display in an Ontario courtroom Wednesday when the former "SCTV'' and "Saturday Night Live'' cast member loudly accused his lawyer of putting his life in danger.
Shortly before Rosato's criminal harassment trial was scheduled to break for lunch, the actor and comedian raised his hand to get the attention of defence lawyer Daniel Brodsky.
When Brodsky leaned into the prisoner's box, Rosato, 53, could be overheard asking him, "Are you trying to get me murdered?''
It wasn't immediately apparent what a visibly puzzled Brodsky had done to agitate his client. "Someone's trying to murder me in this room,'' Rosato continued.
Yet it's still not clear why the prosecution is seeking jail time rather than hospitalization. The trial is bogged down in procedural details.
tonyrosato
Posts
Tom Petty's second and third breakdowns
-
I just authored a post on my "JEBredCal" blog entitled "Breakouts, go ahead
and give them to me." I doubt that many people will realize why the title
was...
2 years ago
3 comments:
--because Tony may be correct.
Replacement experiments have been going on since WW II. And there's an unbelievable push to keep a lid on THAT story.
What I need to do is to get in contact with Tony's friends. I tried his lawyer....waste of time.
Wanna help?
e-mail me: zakstev7@gmail.com
An Application was broughton behalf of Tony Rosato for a finding that his right to be tried within a reasonable time as guaranteed by Section 11(b) of the Canadian Charter of Rights and Freedoms was violated and for an Order staying the proceedings pursuant to section 24(1). This is the Application:
Court File No. 4505/05KPF
SUPERIOR COURT OF JUSTICE
(East Region)
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
- and -
ANTHONY ROSATO
Applicant
FACTUM OF THE APPLICANT
PART I - STATEMENT OF THE CASE
1. The Applicant, Anthony (Tony) Rosato is charged one count of criminal harassment contrary to s. 264(1)(2)(d) of the Criminal Code. It is alleged that the criminally culpable behaviour occurred from December 28, 2003 and escalated until April 21, 2005. If the Applicant is found Guilty, the Respondent intends to press on and establish that the Applicant was Not Criminally Responsible on account of a mental disorder (NCRMD) during the said interval. Tony Rosato’s legal troubles began with a trip from Toronto to Kingston, Ontario to meet with the police to and to ask for their assistance. The assistance that Tony got May 6, 2005 was not quite what he had expected: Tony was arrested, taken directly to Court where an assessment was issued to determine if he was unfit to stand trial (UST). Six days later Dr. Duncan Scott’s UST reported that Tony was fit to stand trial and so he was returned to Jail where he has languished even though he meets the criteria to be involuntarily committed for treatment at a psychiatric hospital. Inexplicably, the Crown has withheld the needed consent that would have permitted Tony Rosato to be admitted to a psychiatric hospital within a few days of his arrest, a man the prosecution acknowledges is suffering from a mental disorder so severe that it renders him morally blameless (NCRMD) of the crime that he is on trial for in the first place. To add insult to injury is Dr. Scott’s opinion that the disability can be treated and since the onset is acutely in an adult the prognosis according to the Crown’s psychiatric expert is excellent. For this reason, among others, it is the position of the Applicant that all of the delay in this case is attributable to the Crown.
2. The Respondent’s position is roughly analogous to charging a person with suffering from a mental disorder and detaining that person in jail because s/he refuses to plead guilty. Prior to the first day of the Applicant’s trial he served 792 days and nights in a maximum security detention centre.
3. The Applicant does not have a history of mental disability or a criminal record nor is there any evidence of prior or ensuing misconduct yet the pre-trial time the Applicant has served far exceeds any sentence that could be imposed anywhere in the Commonwealth or the United States for the worst offender in the worst circumstances imaginable (a far cry from the facts of this sad case). Tony Rosato is a victim of an abuse of process perpetrated upon him by the Crown and the case has become high profile in Canada and abroad because the miscarriage of justice is so patently obvious. Even today the Crown continues to stand by its misconceived, oppressive, illogical position. It is respectfully submitted that this Honourable Court must not perpetuate or contribute to a miscarriage of justice and it is certainly a miscarriage of justice for an individual to be wrongly jailed and wrongly kept behind bars for as long as the Applicant has been has in this case.
4. The Applicant’s trial with respect to this charge may require as little as three days of court time. In colloquial terms, Mr. Rosato’s trial can therefore be described as a ‘garden variety’ criminal harassment case with one exception. The complainant has asked to testify with an assistive aid and Mr. Rosato is not opposed to it. In other words, Mrs. Leah Rosato will testify behind a screen at the trial if she wants to, but the accommodation that she may or may not avail herself of will have no effect on the inherent time requirements of the case.
5. The Applicant seeks an Order staying the proceedings against him pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms and on the basis that his right to be tried within a reasonable time, pursuant to ss. 7 and 11(b), has been infringed. In the alternative, the Applicant seeks an Order staying the proceedings against him for an abuse of process pursuant to ss. 7 and 24(1) of the Charter and pursuant to the common law.
PART II - SUMMARY OF THE FACTS
(1) The Basic Allegations
6. The facts of this case are very well known. Indeed, a recent newspaper article titled “From jokester to jailbird” published on May 13, 2007 by the Toronto Star sets out the basic facts quite nicely:
He started out as a gifted improv comic at Toronto's Second City. From there, Tony Rosato took his zany writing and performing style to the small screen, winning fame on SCTV and later on Saturday Night Live. His off-the-wall characters ranged from fictional TV chef Marcello Sebastiano to Lou Costello, Captain Kangaroo and Yasser Arafat. Industry buzz pegged him as the next John Belushi. Rosato went on to perform in a variety of TV shows and movies. In 1989 he was nominated for the best-supporting-actor Gemini for his role as police informant Whitey in Night Heat. Then suddenly, two years ago, Rosato disappeared. Since then, the actor has been behind bars, with no trial, at the maximum-security Quinte Detention Centre in Napanee, 30 kilometres west of Kingston, on charges of criminally harassing his wife during their marriage. It's alleged that his "reckless" behaviour led his spouse, Leah, with whom he has a now-2-year-old daughter, to be afraid for her own safety or others'.
…
Rosato's situation raises troubling questions. Why must he wait so long for a trial? And if he is suffering from mental illness, why isn't he in a hospital room instead of a jail cell? … if the Crown sees Rosato as mentally ill, then why has he been languishing in jail for two years instead of being moved to a hospital? … Also puzzling to some in the legal profession is why Rosato's case is being heard not in provincial court, where virtually all harassment cases are heard, but in Superior Court, where only the most serious cases go. … "I don't think I've ever known a criminal harassment case to be tried in Superior Court," says Felicity Hawthorn, an assistant Crown attorney in Lindsay, Ont., and one of Rosato's former lawyers who represented him at his preliminary inquiry last year and has since moved to the Crown's office…
…
Even Rosato's estranged wife, who says she was and is afraid of him, told the Star she's "shocked that it (Rosato's case) has taken this long ... I want him to get mental help ... in a psychiatric hospital. "
…
Rosato's legal woes began after his wife left him on Jan. 17, 2005, fleeing their Broadview Ave. apartment with their daughter, who was born the previous September, and eventually returning to her hometown of Kingston … Leah Rosato told the Star that she had fled their home out of fear. "I thought he was dangerous – that's why I left him," she says softly. A couple of weeks after she left, on Feb. 3, 2005, Leah was granted an emergency motion for sole custody of their baby.
…
After a whirlwind, three-month courtship straddling Toronto and the eastern Ontario city, they got married at Toronto City Hall on New Year's Eve, 2003. Friends say they found their witnesses outside, at the public skating rink. According to the actor's widowed mother, Leah wanted to get into acting, and her son was on board to try and make that happen in L.A. After the marriage, the couple kept their separate residences in Toronto and Kingston … The couple spent weekends together … Just before their baby's birth, in September 2004, Leah moved into a Broadview Ave. apartment with Tony. The actor's friends say he behaved strangely once he and Leah were living together …
…
Det. Const. Smith, who asked him to go to Kingston "to discuss the case." Arriving at the police station there, he was arrested and charged with public mischief and harassment …
…
Rosato's friends and colleagues in the entertainment industry want to know why he's been in jail so long … Rosato went on to appear in numerous TV productions for seven years, including two Canadian series: Night Heat, where he played a police informer for five years, and Diamonds, where he had a two-year gig as a detective. Reached in his New York office, Sonny Grosso, executive producer of both series, said he considered Rosato "a genius." Rosato was one of two people he would allow to Rosatoe the dialogue in a script. "Tony was just marvellous ... He always made it better ... He took a scene and made it real ... His facial attitudes, his body movements, he made you laugh. "He was in the top echelons of actors in Canada." … Rosato had work right up until he was jailed, on an animated series called Get Ed. The producer even held the part for him for two months, says Rosato's agent, Larry Goldhar of The Characters Talent Agency …
Although McGrath, Knight and Truss, Rosato's closest friends, see Rosato as troubled, they also regard him as highly talented and a man of principle. Rosato always had "this thing about how society has a responsibility to look after its clowns," …
(2) Mental Disorder
7. All mental health legislation (civil & criminal) addresses the fundamental tension between competing interests of persons with mental health problems and the State. Our law preserves the autonomy and dignity of the individual without compromising the safety of the public or the person. This delicate balance is maintained by ensuring that the State’s legal intervention in restricting the liberty of the individual is no greater than necessary because the Appellant is living his reality. Tony Rosato according to the Crown is profoundly disabled, but the history of mental disorder is short and not well documented. Further, it is the Crown’s position that the disorder deprives him of rational insight into his own psychiatric condition. If that is so, then it is respectfully submitted that this cases raises some difficult questions concerning the disabled person’s participation in the trial process including the election, plea s/he must make personally as well as other important decisions along the way. It is respectfully submitted that the said animating principles must inform each step of the delay and abuse of process assessment in this case.
Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625
R. v. Swain, [1991] 1 S.C.R. 933 at 970-72 per Lamer C.J.C.; at 1024-30 per Wilson J.
Starson v. Swayze, [2003] S.C.C. 32 at para. 6-7, 10, per McLachlin C.J.C.
(dissenting in the result); at para. 75, 91, 112 per Major J. for the majority
(3) Fitness to Stand Trial
8. Our law recognizes that a person cannot be tried for a criminal offence where because of mental disorder he or she does not have the capacity to make a defence. Where fitness to stand trial is an issue, it is the accused's capacity at the time of trial that is in question and it is in fact a principle of fundamental justice is that a person charged with a criminal offence should not be required to meet the case against them if they are not fit to stand trial. In R. v. Ta, infra, Rosenberg J. confirmed that:
It is a basic tenet of our law that persons charged with criminal offences should not be required to meet the case against them if they are not fit to stand trial. To that end, the Criminal Code contains an elaborate procedural code for dealing with fitness to stand trial, starting with the power to order an assessment of the accused's mental condition to determine whether the accused is unfit to stand trial. While s. 672.25 of the Criminal Code permits the trial judge to postpone the issue of fitness until the Crown can show that it is in a position to prove that the accused committed the acts alleged in the indictment, any question about the accused's fitness should be dealt with before the accused is required to defend the case.
R. v. Taylor (1992), 77 C.C.C. (3d) 551 (Ont. C.A.) at 562 – 563
R. v. Ta (2002), 164 C.C.C. (3d) 97 (Ont. C.A.) at 107
9. In effect, courts have confirmed the right of an accused to be present in both a mental and physical sense at their trial over and above the procedural rights contained in ss. 650(1) and 475(1):
Cases decided in the trial context would suggest that presence has both a mental and physical aspect. Thus, an accused who was physically present throughout his trial was held not to be "present" in court during the trial as mandated by s. 650(1) of the Criminal Code because he required an interpreter to understand the proceedings and none was provided: R. v. Reale (1973), 13 C.C.C. (2d) 345 (Ont. C.A.) at p. 354 (affirmed [1975] 2 S.C.R. 624, 22 C.C.C. (2d) 571):
We are of the opinion that the accused, by reason of being deprived of the assistance of the interpreter during the trial Judge's charge, was not present for that part of the proceedings within the meaning of s. 577 (now s. 650) of the Criminal Code. We are of the view that he was no more present than if he were unconscious as the result of a heart attack or a stroke, and was as effectively denied any meaningful presence as if he had been physically removed from the court-room during that part of the proceedings.
R. v. Ta, supra, at 108
10. It is respectfully submitted that the delay lies with the proponent of an UST assessment. If a finding of unfitness is made it is submitted that any plea that has been taken is set aside as well as any election and the jurisdiction of Provincial Review Boards pursuant to s. 672.48 attaches.
(4) The Chronology of the Delay
11. On May 6, 2005 the Applicant was arrested at the headquarters of the Kingston City Police by D/Cst. Jeff Smith “for reporting that his wife had gone missing and then that his baby had been replaced by another baby”. The Applicant has been detained in custody ever since that day.
Information, sworn May 6, 2005
12. The Applicant retained counsel with dispatch and from the very first court attendance on May 6, 2006 he endeavoured to have lawyer with him in court that was briefed, prepared and ready to proceed. It didn’t always happen the way he planned, but as the table setting out the chronology of the delay in this case demonstrates (para. 15 herein); the fault neither should nor rest on the disabled Defendant. Without a doubt, the Applicant did no less than our Courts expected from him of him, and at least as well or better that his non-disabled similarly counterparts. When he was in doubt and counsel was unavailable, Mr. Rosato turned to the Court for guidance and he took it. Further, if Tony seeks out a good lawyer and that lawyer quits to through no misadventure by Mr.
Rosato, surely he cannot be penalised for it.
13 There were many lawyers on this case, 17 who were on the record, 19 if the complainant two counsel are included and more if duty counsel made the count. Nine lawyers appeared for the Crown and eight for the defence. While Mr. Rosato over time had a number of attorneys assisting him, there is little or no appreciable delay as the table in paragraph 15 illustrates. On a few occasions there was some shifting ground between court dates, but there usually was a lawyer ready to go on the target hearing date. For example, on December 20, 200 Mr. Sean Ellicott went on the record as counsel after the December 5th catastrophe. It turned out that he had a potential scheduling conflict. However he had already as counsel obtained the earliest possible date for a preliminary inquiry that was set – only Ms Felicity Hawthorne did it on the dates set by Mr. Ellicott The net result was a allot of scrambling by the Applicant to keep things moving, but not one day of delay was occasioned.
14. The 17 lawyers on the case are listed in the following table:
Counsel Dates Comments
Prosecuting Lawyers:
1. Christie May 6, 2005;
August 10, 2005;
September 28, 2005;
December 5, 2005;
March 15, 16, 24, 2006;
August 3, 2006;
March 5, 6, 8, 2007;
April 13, 2007;
May 18, 2007;
June 15, 2007;
July 26, 2007;
August 7, 2007+ ~ Moved on May 6, 2005 for a UFT assessment and Mr. Rosato was found fit to stand trial.
~ Opposed to judicial interim release and civil commitment.
~ The defendant has a statutory right to have a bail hearing in advance of the assessment hearing. If Mr. Rosato’s rights were honoured there is no doubt that he would have been granted bail – no criminal record, he came in voluntarily and no violence in his past and is working etc.
~ In May 2005 the Applicant practically begged the Crown to help him get to Toronto so that the assessment ordered by the family court could be done. As a consequence of the Crown’s heartless position, Mr. Rosato lost the right to see his daughter.
~ Was the proponent of another assessment ordered on August 3, 2006 and Mr. Rosato was found fit to stand trial again. This time the UST hearing was held without Mr. Rosato being present and this counsel did not give any effect to the mandatory ductates of s. 672.24 of the Criminal Code.
2. McCue May 12, 2005;
October 13, 2005
3. MacNaughn May 16, 25, 2005;
July 22, 27, 2005;
August 24, 31, 2005;
September 7, 14, 2005
January 31, 2006;
February 22, 2006;
March 3, 2006
4. Skoropada May 24, 2005;
October 25, 2005;
December 23, 2005
February 7, 14, 17, 2006
5. O’Brien June 22, 2005;
August 2, 2005;
October 5, 2005
6. Richardson August 9, 2005
7. Drummond December 20, 2005;
September 22, 2006
January 19, 2007
8. Griffith April 19, 2006;
June 14, 2006;
December 22, 2006
9. Laarhuis May 17, 2006
Defence Lawyers:
1. C. Bourdeau May 6, 2005
2. R. Bourdeau May 12, 16, 24, 25, 2005;
June 22, 2005
3. Rielly July 22, 27, 2005;
August 2, 9, 10, 24, 31, 2005;
September 7, 14, 28, 2005;
October 5, 13, 25, 2005;
December 5, 2005
4. Ellicott December 20, 23, 2005
5. Hawthorne February 14, 17, 22, 2006;
March 3, 15, 16, 24, 2006;
April 19, 2006
6. Kingston May 17, 2006;
June 14, 2006;
August 3, 2006
7. O’Connor September 22, 2006;
December 22, 2006
8. Brodsky March 5, 6, 8 2007;
April 13, 2007;
May 18, 2007;
June 15, 2007
July 26, 2007;
August 7, 2007+
15. The following table sets out the chronology of the delay in this case:
Counsel Date Reference Comments Time (Days)
Pertaining to conduct in Kingston, ON that purportedly took place from March 5, 2005 and ended on April 20, 2005 in Kingston, ON Information Anthony (Tony) Rosato is arrested and charged with public mischief for reporting to D/Cst. Jeff Smith that his wife had gone missing and their infant had been replaced by a substitute. Further, he is charged with the criminal harassment of his wife, Leah Rosato by repeated communications.
0
1
Crown:
Christie
(#1)
Defence:
C. Bourdeau
(#1)
May 6, 2005 Ontario Court
of Justice (OCJ)
p. 1, ll. 7 – 25; p. 2, l. 9 – p. 3, l. 24. Tony Rosato’s lawyer, Ms Caroline Bourdeau, consents to the request of the Crown s. 672.12(3) & s. 672.11 of the Criminal Code to have Mr. Rosato remanded to the Quinte Detention Centre to facilitate a “mental health assessment … given the mental instability of this individual” by the psychiatrist nominated by the Crown, Dr. Duncan Scott. Counsel for the Crown advises that she does not consent to Tony Rosato’s judicial interim release. + 1 = 1
2
Crown:
McCue
(#2)
Defence:
R. Bourdeau
(#2)
May 12, 2005 OCJ
p. 1, l. 7 – p. 2, l. 6; p. 2, ll. 13 – 16; p. 2, l. 29 – p. 3, l.2; p. 4, ll. 1 – 4, p. 5, ll. 3 - 5 Dr. Scott’s psychiatric report is filed. Counsel for the Crown requests more time to find out if and when Mr. Rosato could be admitted for a further 30-day psychiatric assessment to the Mental Health Division of the Providence Continuing Care Hospital where Dr. Scott is a staff psychiatrist. The Defendant’s request to attend the concomitant assessment ordered by the family court in Toronto pertaining to the custody proceedings with Leah Rosato was not accommodated nor was any mention of a bail hearing made. Mr. Rosato’s lawyer, Richard Bourdeau, acquiesced in the Crown’s request for a remand. + 6 = 7
3
Crown:
MacNaughn (#3)
Defence:
R. Bourdeau
(#2)
May 16, 2005 OCJ
p. 1, 1l. 4 - 16; p. 2, ll. 6 – 14.
Counsel for the Crown requests additional time to find out if and when Mr. Rosato could be admitted for a 30-day psychiatric assessment and May 25, 2005 is a target date. Mr. Rosato observes that s. 11(e) of the Charter provides that he is not to be denied reasonable bail without just cause. Matter remanded to May, 24th + 4 =11
4
Crown:
Skoropada
(#4)
Defence:
R. Bourdeau
(#2)
May 24, 2005 OCJ
p. 1, ll. 7 - 15 Counsel request the matter be remanded one day to facilitate the May 25, 2005 target date. + 7 =18
5
Crown:
MacNaughn (#3)
Defence:
Duty Counsel for
R. Bourdeau
(#2)
May 25, 2005 OCJ
p. 1, ll. 3 – 11; p. 4, ll. 1 – 15; p. 5, ll. 1 -2; p. 5, l. 24 p. 6, l. 11p. 7, ll. 3 - 6; Mr. Rosato assisted by Duty Counsel, consented to the Crown’s application for a second assessment and the said psychiatric order for assessment was issued. No reference was made to s. 672.16 (1) of the Criminal Code that directs an accused shall not be detained in custody under an assessment order of a court unless cause for such detention is established at a hearing. + 1 =19
6
Crown:
O’Brien
(#5)
Defence:
R. Bourdeau
(#2)
June 22, 2005 OCJ
p. 1, ll. 2 – 5 & ll. 27 - 30; p. 5, ll. 6 - 30; p. 6, l. 21 – p. 7, l. 15 The Court pursuant to s. 672.15 of the Criminal Code extends the assessment order for a further 30 days over the Defendant’s objection. Richard Bourdeau has been discharged as Mr. Rosato’s counsel. However, the Court did not remove him as counsel of record. Mr Rosato advises that he has been referred to another lawyer and he “will try and get a hold” of new counsel “this afternoon”. Duty Counsel advises that “I am not prepared to deal with the bail issue” and the Crown does not press for a judicial interim release hearing or reference s. 672.16 (1) of the Criminal Code. Mr. Bourdeau takes no position. + 28 = 47
7
Crown:
MacNaughn
(#3)
Defence:
Rielly
(#3)
July 22, 2005 OCJ
p. 1, ll. 4 - 18 The assessment is complete and Mr. Rosato attends with his new counsel, Mr. M. Rielly. The Crown files a new information charging only one count of Criminal harassment by repeated communication. The matter is remanded at the request of all parties. + 30 = 77
8
Crown:
MacNaughn
(#3)
Defence:
Rielly
(#3)
July 27, 2005 OCJ
p. 1, ll. 6 - 24 The supervising Crown on this case will meet with Counsel for the Defence on July 28, 2005 so the matter was remanded to facilitate the previously scheduled Crown pre trial conference to set a date for a bail hearing. + 5 = 82
9
Crown:
O’Brien
(#5)
Defence:
Rielly
(#3)
August 2, 2005 OCJ Counsel accepted the date provided by the OCJ for the show cause hearing. + 6 = 88
10
Crown:
Richardson
(#6)
Defence:
Rielly
(#3)
August 9, 2005 OCJ
p. 1, ll. 3 - 9 The bail hearing could not commence due to the unavailability of a witness for the prosecution. + 7 = 95
11
Crown:
Christie
(#1)
Defence:
Rielly
(#3)
August 10, 2005
The geographic boundaries are now expanded to include “elsewhere in the Province of Ontario” and the interval expanded to December 28, 2005 ending on April 21, 2005
OCJ
p. 1, ll. 14 – 19; p. 2, l. 18; p. 3. ll. 11 – 19; p. 4, ll. 6 – 29; p. 12, l. 9 – 15; p. 25, l. 3 – 14; p. 29, l. 7 – 30, l. 17; p. 33 l. 15 – p. 55, l.4; p. 65, l. 23 – p. 71, l. 27; p. 78, ll. 7 - 20 A Detention Order and Non-Communication with Leah Rosato Order were issued following a Crown Onus Show Cause hearing because the Court was not satisfied with the community management proposal because of “the possibility of this gentleman seeking out the impostors … on what is being proposed.” The Crown called two witnesses at the hearing, Officer Diane McCarthy and Dr. Scott (Mr. Rosato’s treating psychiatrist at the Quinte Detention Centre and expert nominated by the Crown for the two psychiatric assessments). Dr. Scott’s opinion was not challenged and Mr. Rielly did not ask for an adjournment once it was proffered. Dr. Scott is resolutely of the opinion that the Defendant was NCR during the interval alleged. Finally, the information was also amended to include the phrase “or for the safety of anyone else” after “fear for her safety”.
+ 1 = 96
12
Crown:
MacNaughn
(#3)
Defence:
Rielly
(#3)
August 24, 2005 OCJ
p. 1, ll. 12 - 21 Counsel for the Defence asks for a one-week remand to facilitate “various lines of inquiry in progress” before the plea is to be entered and the election is made. No further elaboration was put on the record. + 14 = 110
13
Crown:
MacNaughn
(#3)
Defence:
Rielly
(#3)
August 31, 2005 OCJ
p. 1, ll. 6 – 11
Counsel for the Defence indicates that “We are working towards a pre-trial date” and asks for a one-week remand to wait for the date to be provided. + 7 = 117
14
Crown:
MacNaughn
(#3)
Defence:
Rielly
(#3)
September 7, 2005 OCJ
p. 1, ll. 6 - 11 A Judicial Pre-trial (JPT) date is to be set on September 14, 2005. However, the plea is to be entered and the election made on the 14th. + 7 = 124
15
Crown:
MacNaughn
(#3)
Defence:
Rielly
(#3)
September 14, 2005 OCJ
p. 1, l. 8 - 11 The trial coordinator provided counsel with a JPT date and it was set. The plea was not entered nor was the election made (Presumably because Ms Christie is not present). + 7 = 131
16
Crown:
Christie
(#1)
Defence:
Rielly
(#3)
September 28, 2005 OCJ
p. 1, l. 1 – 4 & 19 - 26; p. 2, ll. 12 - 14 4, ll. 9 – 20; p. 3, l. 24 – p. 4, l. 20; p. 5, ll. 5 – 18; p. 6, l. 5 – p. 7, l. 12 Following a JPT the Court provided the “the earliest date we can get for trial” and that is December 5, 2007 and the matter will resume on the 14th & 15th of that month. These dates “have been reserved for either trial or preliminary inquiry”.
The Crown announces that it elects to proceed by indictment and asserts that “For the Crown to elect anything other than proceeding by indictment I would have to consult with the Crown” and “I would appreciate the opportunity to call … Mr. Griffith.” As well, Counsel for the defence put on the record that “This is not something we had contemplated” and the actual taking of the election was remanded to the next court date. + 14 = 145
17
Crown:
O’Brien
(#5)
Defence:
Rielly
(#3)
October 5, 2005 OCJ
p. 1, ll. 11 – 26; p. 2, l. 20 - p. 3, l. 15; p. 4, ll. 1 - 25 The actual election was taken and when The Court asked Tony Rosato “How do you elect to proceed?” He responded “By Superior Court and jury – twelve person jury please”. The preliminary inquiry dates are still being reserved. + 7 = 152
18
Crown:
McCue
(#2)
Defence:
Rielly
(#3)
October 13, 2005 OCJ
p. 1, l. 19 – p. 2, l. 4 The required Notice of Intent for Preliminary Hearing form was duly filed and the matter remanded to the first date reserved for the Preliminary Inquiry. + 8 = 160
19
Crown:
Skoropada
(#4)
Defence:
R. Rielly
(#3)
October 25, 2005 Superior Court
of Justice (SCJ) Counsel for the Defence attended the First mandatory 90-day Detention Review and advised that “we have no evidence to offer in addition to whatever has already been presented to the Ontario Court of Justice” and further indicated that “If there is fresh evidence, we will bring it to the Court’s attention”. The bail review hearing was marked as waived. + 12 = 172
20
Crown:
Christie
(#1)
Defence:
Rielly
(#3)
December 5, 2005 OCJ
p. 2, l. 8 – p. 3, l. 20; p. 4, ll. 4 – 31; p. 10, ll. 16 – 19; p. 10. l. 24; p. 11, l. 24 – p. 13, l. 25 Today was supposed to be day-1 of the preliminary inquiry. It did not commence because two days after the last court appearance the Defendant told his lawyer that he would prefer alternative counsel for the defence. After expressing his initial qualms to Justice Masse, Mr. Rosato said “Well maybe we should proceed and ah – see how that goes; let us proceed – and I put my heart and soul – my life in the hands of Mr. Reilly.” After a 15 minute recess Mr. Rosato returned to court and indicated to the Court that Mr. Reilly had told him some disturbing things and Mr. Rielly clarified that he told the Defendant among other things that “the Charter of Rights was not in effect when I went to Law School so I have never studied the Charter. He erroneously identified it as “obviously part of the Criminal Code” and “I do not think I have ever done a Charter application of any kind”. After hearing that confession, His Honour removed Mr. Rielly from the record as any jurist would in the circumstances.
A new two count information was filed and harassment by threatening conduct was added to harassment by repeated communication. Mr. Rosato expressed an intention to enter a plea of Not Guilty and the matter was remanded for two weeks.
+ 42 = 214
21
Crown:
Drummond
(#7)
Defence:
Ellicott
(#4)
December 20, 2005 OCJ
p. 1, l. 1 – p. 2, l. 9 Hearing dates of March 15 & 16, 2006 were provided to Counsel. However, Mr. Drummond was not able to confirm them because “that Crown Attorney is off right now”. The matter was adjourned so Sean Ellicott could get confirmation. The dates will be held pending confirmation by the Crown. + 15 = 229
22
Crown:
Skoropada
(#4)
Defence:
Ellicott
(#4)
December 23, 2005 OCJ
p. 1, l. 19 – p. 3, l. 19 Mr. Ellicott removed himself from the record because of a potential scheduling conflict that might jeopardise the preliminary inquiry dates that are on reserve. The Defendant asked the Court to remand him to the commencement date for the preliminary inquiry, but the matter was remanded to an arbitrary interim date. + 3 = 232
23
Crown:
MacNaughn (#3)
Defence:
Duty Counsel
January 31, 2006 OCJ
p. 3, ll. 1 - 6 March 15 & 16, 2006 are still being held for this case. Mr. Rosato has not been able to replace Mr. Ellicott as counsel of record yet. + 39 = 271
24
Crown:
Skoropada
(#4)
Defence:
Duty Counsel
February 7, 2006 OCJ
p. 1, ll. 6 – p. 3, l. 3 Mr. Rosato has not been able to replace Mr. Ellicott as counsel of record yet. However, Felicity Hawthorne, a local counsel, may be able to assist. Matter remanded to set the dates that are still being held for this case. + 7 = 278
25
Crown:
Skoropada
(#4)
February 14, 2006 OCJ
p. 1, ll. 4 - 16 Felicity Hawthorne attended court to advise that she may well be able to assist. + 7 = 285
26
Crown:
Skoropada
(#4)
Defence:
Hawthorne
(#5)
February 17, 2006 OCJ
p. 1, l. 2 – p. 2, l. 5
Counsel, Felicity Hawthorne, asks for the matter to go to February 22, 2007. + 3 = 288
27
Crown:
MacNaughn
(#3)
Defence:
Hawthorne
(#5)
February 22, 2006 OCJ
p. 1, ll. 9 – 14; p. 2, ll. 7 - 15 Counsel, Felicity Hawthorne, asks for the matter to go to March 3, 2007. + 5 = 293
28
Crown:
MacNaughn
(#3)
Defence:
Hawthorne
(#5)
March 3, 2006 OCJ
p. 1, ll. 12 - 22 Counsel, Felicity Hawthorne, asks for the matter to go the date reserved for day-1 of the preliminary inquiry and the Court concurs. + 6 = 299
29
Crown:
Christie
(#1)
Defence:
Hawthorne
(#5)
March 15, 2006 OCJ for Preliminary Inquiry Day 1 of the Preliminary Inquiry – Leah Rosato testifies. + 12 = 311
30
Crown:
Christie
(#1)
Defence:
Hawthorne
(#5)
March 16, 2006 OCJ for Preliminary Inquiry
Ruling on committal, p. 70, ll. 21 – 29; p. 71, l. 1 – p. 73, l. 1; p. 74, l. 27 – p. 75, l. 4; p. 75, l. 18 – p. 76, l. 7 Day 2 of the Preliminary Inquiry – Jeffery Smith and Robert Ritchie testify. Justice Masse delivers the ruling of the Court and Tony Rosato is discharged on the charge of criminal harassment by repeated communication, but he is committed to stand trial on the charge pertaining to his purportedly frightening demeanour. The first available assignment court date at the SCJ is March 24, 2006. + 1 = 312
31
Crown:
Christie
(#1)
Defence:
Hawthorne
(#5)
March 24, 2006 SCJ
p. 1, ll. 1 - 21 A scheduling JPT was held today and the matter is to be remanded to set a trial date. It is expected that at the next court attendance a commencement date will be provided for a non-jury trial. Ms Hawthorne indicates for Mr. Rosato’s benefit and for the record that today “We simply discussed dates.” If a non-jury trial is scheduled, three days are indicated. + 8 = 320
32
Crown:
Griffith
(#8)
Defence:
Hawthorne
(#5)
April 19, 2006 SCJ
In Mr. Rosato’s absence: p. 1, l. 7 – p. 4, l. 2
In Mr. Rosato’s presence: p. 4, l. 3 – p. 5, l. 19 Acknowledging that it is “not really generally speaking appropriate” Ms Hawthorne asked for the trial proceedings to proceed today in Mr. Rosato’s absence even though he has, of course, the right to be present for all of his trial. With the Court’s assent Ms Hawthorne made it known to everybody except her client that she could no longer represent Tony Rosato. Moreover, Ms Hawthorne makes it known that: “I have been unable to find anyone willing to represent him” and comments that “I don’t know who’s going to represent him, quite frankly.” The Crown joined in the diatribe asserting as fact that “he’s basically hurt himself thought this whole process … by not communicating with counsel”. In the circumstances no re-election would be taken and it was agreed that a remand would be ordered without much ado. Other unfortunate comments were made before the Defendant was permitted to enter the courtroom. Accordingly, Mr. Rosato was brought into Court where he was quickly told there would be an adjournment. + 26 = 346
33
Crown:
Laarhuis
(#9)
May 17, 2006 SCJ
p. 1, l. 16 – p. 2, l. 25; p. 3, ll. 12 - 13 Ms Kingston attended court to advise that she may well be able to assist.
The Crown advises that in September 2006 Ms Priscilla Christie will take a six-month leave-of-absence from the Crown’s office. Ms Kingston advises that if she is retained she “will be ready to go at short notice.”
Mr. Rosato was remanded to June 14, 2006. + 28 = 374
34
Crown:
Griffith
(#8)
Defence:
Kingston
(#6)
June 14, 2006 SCJ
p. 1, l. 24 – p. 2, l. 16 The proceedings continued today in the absence of Mr. Rosato who was not brought to court. Ms Mary Jane Kingston reminded Her Honour that no re-election was taken before Her Honour when she presided over Mr. Rosato’s matter on April 19, 2006. Her Honour remarked that “We do the re-elections at the Assignment Court … We cannot do that without him being present.” Regarding a JPT, Ms Kingston offered dates commencing July 10. While the trial coordinator could offer some other dates after June 14 and before July 10th, July 11, 2006 was said to be agreeable to both Counsel. + 28 = 402
35
Crown:
Griffith
(#8)
Defence:
Kingston
(#6)
July 11, 2006 SCJ
p. 1, ll. 7 – 31 Once again the Defendant was not brought to court and once again the case proceeded without him today. The statutory JPT is held today and it is noted for the record that Ms Kingston spoke to the matter at the JPT and again before the Court. Maranger J. declared that Mr. Rosato’s trial would commence on August 14, 2006. + 27 = 429
36
Crown:
Christie
(#1)
Defence:
Kingston
(#6)
August 3, 2006 SCJ
p. 1, ll. 13 – 16; p. 2, ll. 2 – 19; p. 6, l. 26 – p. 7, l. 19; p. 10, ll. 21 – 27; p. 11, l. 5; p. 12, ll. 1 – 19; p. 12, l. 22 – p. 27, l. 6; p. 24, ll. 8 – 21; p. 30, ll. 15 - 20 Three days after the last court date Mr. Rosato told Ms Kingston that he did not believe she was acting in his best interests. Ms Kingston responded by arranging to get the earliest possible day in court for an application to be removed from the record. The said application was granted. After Ms Kingston was no longer on the record she alerted the Court by remarking that “I was concerned about his ability to instruct me”
The Honourable Mr. Justice Paul F. Lalonde let Tony Rosato know that he was telling Tony “square in your face” that the Court does not find the Defendant to be credible on some issues. Further, the Applicant could hear the learned trial judge exclaim before he ejected Mr. Rosato from the courtroom,
• “stop that corruption shit, will you?”
• “it doesn’t mean … I have to sit here and … hear your crap”
After removing counsel from the record and ejecting the Defendant from the courtroom His Honour launched into an application leading to another an in-custody assessment order pursuant to s. 672.13(1) of the Criminal Code. The mandates of 672.24 (1) were ignored depriving the Defendant of his right to counsel.
+ 23 = 452
37
Crown:
Drummond
(#7)
Defence:
O’Connor
(#7)
September 22, 2006 SCJ
p. 1l. 1 – 4 & 18 – 27; p. 2, l. 21 – p. 3, l. 19; p. 4, ll. 1 – 13 Counsel for the Crown advises that the brief for the prosecution of Tony Rosato originally was Ms Christie’s file and comments that there have been several counsel for the Crown and “It’s now in Mr. Ferguson’s hands.”
Counsel for the Defendant, Fergus (Chip) O’Connor, attends as Mr. Rosato’s lawyer and signifies that he is “ready, willing, eager and able to have this matter set for trial and move along.”
The week of March 5, 2007 was set for trial, although February dates were offered (Mr. O’Connor was not available in February and the Crown did not indicate its position on a February trial). + 51 = 503
38
Crown:
Griffith
(#8)
Defence:
O’Connor
(#7)
December 22, 2006 SCJ
p. 1, ll. 30 – 31; p. 6, ll. 7 - 15 The Defendant was not brought to court and the case proceeded without him today. Mr. O’Connor was removed as counsel of record. + 61 = 564
38
Crown:
Drummond
(#7)
January 19, 2007 SCJ Ms Drummond attended court to advise that Daniel Brodsky may well be able to assist as amicus curiae on the dates scheduled for trial. + 28 = 592
39
Crown:
Christie
(#1)
Defence:
Brodsky
(#8)
March 5, 2007 SCJ
p. 36, l. 4 – p, 45, l. 2 Daniel Brodsky was appointed counsel for Tony Rosato. Another Crown application for a further fitness assessment was deferred pending a JPT. On the invitation of Mr. Rosato’s lawyer Counsel for the Crown will consider staying or withdrawing the charge if she can get instructions from Mr. Griffith and the Crown accepts that The Mental Health Acct and its regulations deal effectively with a number of issues including: how and when a person may be brought and admitted to a psychiatric facility; how a person may be kept in hospital; who may see a patient’s records from a psychiatric facility; the rights of patients to information and legal review concerning involuntary hospitalization, treatment orders, access to and disclosure of records; how and when community treatment orders may be issued, reviewed or terminated etc
+ 45 = 637
40
Crown:
Christie
(#1)
Defence:
Brodsky
(#8)
March 6, 2007 SCJ
p. 1, ll. 9 - 15 A JPT was held and discussions are continuing. No disclosure was released to amicus curiae. Crown undertakes to comply with her disclosure obligations now that counsel has been appointed. Finally, The Defendant presented an offer to the Crown to settle this case and the Crown requires time to consider it. + 1 = 638
41
Crown:
Christie
(#1)
Defence:
Brodsky
(#8)
March 8, 2007 SCJ
p. 7, ll. 5 - 11 A continuing JPT was held Crown disclosure remains unavailable, the Crown is still considering the settlement offer. However the Crown abandons its application for a fitness assessment without prejudice. Other discussions.
+ 2 = 640
42 March 9, 2007 SCJ The Crown rejects the settlement offer and the case is remitted to assignment court. + 1 = 641
43
Crown:
Christie
(#1)
Defence:
Brodsky
(#8)
April 13, 2007 SCJ
p. 2, l. 16 – p. 4, l. 25; p. 7, l. 20 – p. 13, l. 4 Even though Crown disclosure has not been provided to Mr. Brodsky, Counsel for the Defence puts on the record the nature of the settlement offer and solicits the earliest possible trial date and undertakes to be available for trial on any date and any place that the Court can offer.
The trial was scheduled to commence on November 13, 2007. Counsel for the Defence asks for efforts to be made to see if an earlier trial date can be offered. + 35 = 676
44
Crown:
Christie
(#1)
Defence:
Brodsky
(#8)
May 18, 2007 SCJ
p. 1, l. 25 – p. 2, 20; p. 4, l. 31 – p. 5, l. 31; p. 6l. 29 – p. 8, l. 8; p. 9, ll. 1 – 10; p. 15, ll. 10 - 15 The SCJ was able to offer nine SCJ hearing days commencing July 30, 2007. Leah Rosato’s lawyer (Tina Tom) indicated that she was unavailable until the 6th of August.
The Crown has never approached Mr. Rosato and offered to re-elect and proceed summarily. If the Crown had done so, Mr. Rosato would have accepted that offer and this case would have been finished before March 2006 at the very latest.
It is confirmed for the record that Counsel’s expectations are that win (Not Guilty, stay of proceedings or charge withdrawal), loose (Guilty * NCRMD) or draw (judicial interim release), Tony Rosato will eventually be involuntarily detained at a psychiatric hospital. + 35 = 711
45
Crown:
Christie
(#1)
Defence:
Brodsky
(#8)
June 15, 2007 SCJ
p. 8, l. 16 – p. 10, l. 10; p. 14, l. 31 – p. 15, l. 11 Counsel (again) reminds the Court of the ‘win, loose or draw’ dilemma.
The hearing dates on reserve in November & December 2007 are released and the trial of Tony Rosato is fixed to commence on August 7, 2007 and run to completion. + 28 = 739
46
Crown:
Christie
(#1)
Defence:
Brodsky
(#8)
July 26, 2007 SCJ
p. 32, l. 6 – p. 34, l. 14 Counsel for the Defence offers to abandon the application for production if the Crown abandons its application for the complainant to testify by closed circuit TV. However, the Crown takes the position that “I just cannot take a position other than the one that I have already taken.”
+ 41 = 780
47+
Crown:
Christie
(#1)
Defence:
Brodsky
(#8)
August 7, 2007 SCJ for Trial Regina v. Anthony Rosato
+ 12 =
792
(5) Evidence of Prejudice
16. Tony Rosato may testify. It is anticipated that if he does testify he will testify that as a result of the prolongation of these criminal proceedings, he has experienced elevated feelings of anxiety, depression, and distress. Mr. Rosato is the single parent of a young daughter and this proceeding has weighed heavily on his mind since the day of his arrest. It is anticipated that he will testify about prison life.
17. Mr. Rosato completely denies the allegations made by the Crown in this case and despite the lack of a criminal record, Mr. Rosato has been living in a very restrictive and dangerous environment. If prejudice is not conceded Mr. Rosato will testify that the internment in jail has devastated him financially and put strain on everyone in his family, especially his elderly mother that he used to support. He is going to say what it feels like to wear the same clothing to court 45 times and explain that the jail does not permit prisoners to wash their court clothing.
18. If required to testify it is anticipated that Mr. Rosato will testify that he feels extremely saddened and further depressed by his loss of his reputation at work and at home in the sense that fellow friends, family and co-workers and the public talk about him and the case behind his back and question his innocence and sanity. Mr. Rosato also feels strongly that the allegations have hurt his good reputation.
16. The Applicant has no prior convictions and was a man who was previously above reproach. Even in the case before this Honourable Court Mr. Rosato has been very polite, kept his composure and tries to be as well dressed as the jail will allow. It was interesting to observe Mr. Rosato’s demeanour during the Crown’s aborted application to have his wife testify via closed circuit television. Especially when D/Cst. Smith was in the prisoner’s dock after Mr. Rosato was asked to go stand on the other side of the room.
(6) Nature of the Case
17. The Crown’s case against Mr. Rosato is straightforward. There are less than five witnesses for the prosecution – most of the evidence is from his wife, Leah Rosato No further investigation was done in the case after my client’s arrest. Why the Crown was still releasing disclosure to him until on day 779 I can’t answer, but I did ask at the JPT on day 780.
PART III: ISSUES AND THE LAW
A. UNREASONABLE DELAY
18. It is respectfully submitted that in all the circumstances of this case -- including the conduct of the Crown and one or two of the counsel representing the Applicant, the delay in the availability of hearing dates and the specific prejudice to Mr. Rosato -- the delay of 792 days violates his right to a trial within a reasonable time under s. 11(b) of the Charter and warrants a stay of proceedings pursuant to s. 24(1) of the Charter, and costs.
19. It is the Respondent’s position that the Crown did not contribute to or cause any delay in this case. As the Applicant underscored in the fist paragraph of this factum and elsewhere, the applicant disagrees. There were some occasions where a target hearing date was reserved and then there were a few attendances in advance of the target date that did not disturb the target date that the defence ought to be penalised for. The defence disagrees. The case proceeded on the target date. The Crown argues that the defence ought to penalised for delaying the proceedings after a
20. If it is appropriate to take judicial notice of the force and character of public opinion concerning this case, then the Applicant invites this Honourable Court to do so.
A. Purpose of Section 11(b)
20. Section 11(b) of the Charter guarantees that any person charged with an offence has the right to be tried within a reasonable time. The primary purpose of s. 11(b) of the Charter is the Appreciation of the individual’s rights and the provision of fundamental justice for the accused. These interests include the right to liberty and security of the person, the presumption of innocence and the right to a fair trial. In terms of liberty, the right to a trial within a reasonable time prevents unduly long pre-trial detention and minimizes restrictions on an accused=s liberty due to bail conditions. The right to security of the person in the context of s. 11(b) protects against overlong subjection to the vexations and vicissitudes of criminal accusations. This includes stigmatization of the accused, loss of privacy, stress and anxiety resulting from factors such as possible disruption of family, work and social life and uncertainty as to outcome and sanction. Just as important as the individual=s liberty and security of the person is the presumption of innocence. Accused persons must have the chance to defend themselves and their reputations at the earliest possible time. Section 11(b), therefore, provides individual accused with a counterweight to the State=s power and authority to prosecute, namely the obligation on the State to do so within a reasonable time.
R. v. Askov (1990), 59 C.C.C. (3d) 449 (S.C.C.) at 474-75, per Cory J.
R. v. Mills (1986), 26 C.C.C. (3d) 481 at 536 - 41, per Lamer J. (in dissent in the result)
R. v. Morin (1992), 71 C.C.C. (3d) 1 (S.C.C.) at 12 - 3, per Sopinka J.
21. Section 11(b) of the Charter also protects society’s interest in seeing that the least fortunate of its citizens who are accused of crimes are treated humanely and fairly. It is, therefore, submitted that the fundamental priority underlying s. 11(b) of the Charter is the maintenance of an efficient system for the administration of justice in order to ensure that individuals are treated justly.
R. v. Morin, supra at 12 - 3
22. The remedy for a violation of s. 11(b) of the Charter underscores the importance of the interests it protects. Once a violation of s. 11(b) is established, the minimum remedy is a stay of proceedings. This is the case even when such a remedy conflicts with the societal interests to proceed with the prosecution. Indeed, the court no longer has jurisdiction to try an accused once an unreasonable delay has occurred. In effect, s. 11(b) recognizes the individual=s right not to be tried once an unreasonable period of time has elapsed.
R. v. Mills, supra at 560 - 61
R. v. Rahey (1987), 33 C.C.C. (3d) 289 (S.C.C.) at 306 - 08, per Lamer J.
R. v. Askov, supra
23. In determining whether any impugned period is Unreasonable@ within the meaning of s. 11(b) of the Charter, the Supreme Court of Canada has directed that four factors are to be considered and balanced. No factor is determinative. Rather, they must all be balanced having regard to the interests s. 11(b) is designed to protect. They are:
1. Length of the delay;
2. Waiver of time periods;
3. Explanation for the delay, including
(a) Inherent time requirements of the case;
(b) Actions of the accused;
(c) Actions of the Crown;
(d) Limits on institutional resources;
(e) other reasons for the delay; and
4. Prejudice to the accused.
R. v. Morin, supra at 13
R. v. Rahey, supra at 304, per Lamer J; at 320-21 per LaForest J.
R. v. Paryniuk, [2003] O.J. No. 1051 (Ont. Sup. Ct.) at p.2
24. It is respectfully submitted that on a proper assessment and balancing of these factors, the Applicant’s rights under ss. 7 and 11(b) of the Charter have been violated and, as a result, a stay of proceedings must be ordered in this case.
[1] Length of the Delay
25. It is respectfully submitted that the total delay in this matter of 792 days is prima facie unreasonable and, therefore, requires constitutional scrutiny. This case is not an intricate one nor is it a complex case and the investigation was essentially done by the date of Mr. Rosato’s arrest. Colloquially speaking, it is the fodder of mental health courts across this Country. No more complicated that the typical case. What makes this case maddening is the lack of communication between Counsel and the cold hearted indifference paid to the Defendant by Counsel appearing for the Crown. Put that into the mix of any of the mental health case and the result would be exactly the same it is submitted.
Morin, supra, at 14-15
26. This is 32 to 34 months beyond the 8 to 10 month administrative guidelines set by the Supreme Court of Canada in R. v. Morin, supra. It is 38 months beyond the guideline set by the Supreme Court of Canada in R. v. Smith, infra, where it was suggested that a 5-day preliminary inquiry could reasonably be held within 6 months of the arrest and charge. This is prima facie unreasonable.
R. v. Morin, supra at 21
R. v. Smith (1989), 52 C.C.C. (3d) 97 (S.C.C.) at 107 - 108, per Sopinka J.
[2] Waiver of Time Periods
27. The Applicant at no time waived any significant delay between his arrest and trial date.
28. According to Cory J., speaking for the majority in R. v. Askov, supra, in order to find a waiver of s. 11(b) there must be something
in the conduct of the accused that is sufficient to give rise to an inference that the accused has understood that he or she has a s. 11(b) guarantee, understood its nature and has waived the rights provided by the guarantee....[T]he accused must take some direct action from which a consent to delay can be properly inferred.
The burden of establishing a waiver, whether explicit or implicit, of s. 11(b) rests with the Crown.
R. v. Askov, supra at 481 - 82
R. v. Morin, supra at 15
R. v. Stinchcombe (1992), 68 C.C.C. (3d) 1 (S.C.C.) at 13 - 14
29. The record is clear that the Crown did not even ask if s.11 (b) was being waived by Mr. Rosato.
[3] Explanation for the Delay
(i) Inherent Time Requirements of the Case
31. In R. v. Morin, Sopinka J. outlined a number of categories of inherent time requirements. The first is the complexity of the case: the more complicated the case the longer it will take to complete. The second category is Intake requirements, defined as procedural steps common to all cases such as bail hearings, retention of counsel, and the provision of disclosure. The last portion of inherent delay which must be taken into account is whether the case requires a preliminary inquiry.
R. v. Morin, supra at 16 - 17
R. v. Satkunananthan (2001), 152 C.C.C. (3d) 321 (Ont. C.A.) at 340 - 1
33. The applicant made every effort to minimize the inherent time requirements of his case. He retained counsel prior to his first appearance and promptly made specific requests for disclosure. At every opportunity he attempted to move the case forward. This fact has been conceded by the Crown.
34. The neutral Intake period@ accounts for no delay in this case.
(ii) Actions of the Applicant
The Applicant’s conduct and that of his counsel demonstrated a conscious effort to ensure his case advanced as quickly as possible. The Applicant was represented by counsel at his first appearance. The Applicant’s counsel took steps to expedite the matter. He has been consistent – he wanted a speedy trial and his constitutional rights respected. He discharged one counsel and hired a new one to preserve a preliminary inquiry date and he may have given up his right to a jury trial to get an earlier one too. What more could he do?
(iii) Actions of the Crown
35. The Supreme Court of Canada has provided a number of examples of delay attributable to the Crown such as delay in disclosure, adjournment requests, and applications brought by the Crown. In addition, actions of other state actors, such as the police, are to be considered actions of the Crown for the purpose of s. 11(b).
36. It is respectfully submitted that the Crown’s conduct reflected in the two charts (para 14 & 15) speak for themselves – and it is not commendable.
R. v. Collins; R. v. Pelfrey (1995), 99 C.C.C. (3d) 385 (S.C.C.) at 391 - 3, per Iacoucci J.
R. v. Askov, supra at 477
R. v. Morin, supra at 18
R. v. Phillip (1993), 80 C.C.C. (3d) 167 (Ont. C.A.) at 171 - 3, per Doherty J.A.
R. v. Satkunanathan, supra
R. v. R.M, [2003] O.J. No. 4240 (C.A.)
R. v. Thompson, [1998] N.S.J. No. 225 (C.A.)
R. v. Fischer, (1995), 29 W.B.C. (2d) 199 (O.C.G.D.)
R. v. Cohen, [1995] A.Q. No. 146 (C.A.)
37. In the face of the mounting delay in this case, all the Crown would do over and over again was to repeatedly blame Mr. Rosato. To say it’s not our fault, too bad Mr. Rosato is not, with respect, reasonable. The Crown turned its back on Mr. Rosato and it is the Crown that is primarily responsible the infringement of Mr. Rosato’s constitutional right to a speedy trial.
(iv) Limits on Institutional Resources
38. In R. v. Morin, Sopinka J. defined institutional delay as commencing when the parties are ready to go to trial, but the system cannot accommodate them. In early s. 11(b) cases, appellate courts suggested that they would be more forgiving of Institutional delay than delay occasioned by actions of the Crown.
R. v. Morin, supra at 19
39. In the recent case R. v. Satkunananthan, however, the Court of Appeal for Ontario clearly stated that the Crown cannot rely on the inability of the court to accommodate a continuing or interrupted proceeding to justify unreasonable delay.
R. v. Satkunananthan, supra at 341 - 3
R. v. M.M. [2002] OJ No. 5531 (Ont Ct. Justice) per Lipson J. at para 14.
R. v. Braverman [2002] O.J. No. 5345 (Ont. Ct. Justice) per Pringle J. at para 30
R. v. Campagnaro [2004] O.J. No. 1529 (Ont. Ct. Justice) per Pringle J. at para 30
R. v. Miesner [2003] O.J. No.1948 (Ont. Sup. Ct) per Hill J. at para 74
R. v. Mila [2004] O.J. No. 3684 (Ont. Ct. Justice) per Lampki J. at para 17
R. v. Van Adestine [2004] O.J. No. 3642 (Ont. Ct. Justice) per Grossman J at
para 9, 13, 16, 19-29
40. In R. v. Satkunananthan, supra, the Court of Appeal for Ontario also approved of the following comments made by Justice Hill in R. v. Pusic:
Whatever the competition for fiscal resources, the government has a constitutional obligation to try an accused within a reasonable time. In the words of Sopinka J. (in dissent in the result) in R. v. Conway Aa crowded trial calendar is not the accused=s fault and it should not be charged against his constitutional right.@ [citation omitted]
R. v. Satkunananthan, supra at 342
See also:
R. v. Pusic (1996), 30 O.R. (3d) 692 (Gen. Div) at 704 - 5, per Hill J.
R. v. Conway (1989), 49 C.C.C. (3d) 289 (S.C.C.) at 332
R. v. Morin, supra, at 19
41. In light of the above comments, it is respectfully submitted that the institutional ought to be charged against the Crown in determining whether the delay in this case is unreasonable. The problematic prosecutorial antics did not assist the court move the case along.
(v) Conclusion with respect to Attributing the Delay
42. It is submitted that, using the categories set out by the Supreme Court of Canada in Askov and Morin, all of the delay should be attributed as is set out in the following table:
May 6, 2005
(1 day)
Inherent delay (time to first appearance, making initial disclosure)
September 29, 2000 to June 3, 2004
(792 days)
Combination of Crown & Institutional delay (earliest available dates)
(0 days)
Defence Delay
[4] Prejudice to the Accused
44. Although prejudice can be inferred from the fact of delay itself, the Applicant has suffered significant actual prejudice in this case. The extent of the prejudice in this case is quite remarkable in its scope. It is anticipated that the respondent will testify that he has been affected directly by the circumstances of his arrest and the failure of this matter to be resolved within a reasonable time. He has lost his self esteem; he has lost job opportunities; and the strain financially and emotionally has been enormous. It is submitted that, in addition to that prejudice presumed to be associated with delay, the applicant has suffered additional stress and anxiety from the manner in which this matter has proceeded and the inordinate delay in bringing this matter to trial.
45. The Supreme Court of Canada in R. v. Rahey explained that the security interest of an accused is threatened by an overlong exposure to the vexation and vicissitudes of a pending criminal accusation. Accused persons subjected to delays in the completion of their court matters commonly experience stress and anxiety, compounded by the uncertainty of the result and the stigma of being subject to the court’s process. As set out above, it is anticipated that Mr. Rosato feels extremely saddened and depressed by his loss of his reputation. Also as referred to above, as a result of the prolongation of these criminal proceedings, Mr. Rosato has experienced elevated feelings of anxiety, depression, and distress.
R. v. Rahey, supra at 300, 304
Conclusion
46. It is respectfully submitted that the delay in the case at bar has been unreasonable. The vast majority of the delay from the time of arrest to the date of trial is attributable to Crown and Institutional delay. Moreover, there has been significant and real prejudice to the Applicant.
B. ABUSE OF PROCESS
(1) OVERVIEW
47. It is respectfully submitted that the doctrine of abuse of process is the ultimate safe-guard used by the courts to protect the fairness, integrity and reputation of its process. The doctrine not only permits, but requires the courts to control its own process, as indicated in the passage from Connelly v. Director of Public Prosecutions adopted by Dickson C.J.C. in R. v. Jewitt:
Lord Devlin has expressed the rationale supporting the existence of a judicial discretion to enter a stay of proceedings to control prosecutorial behaviour prejudicial to accused persons in Connelly v. Director of Public Prosecutions, [1964] A.C. 1254 at page 1354 (H.L.):
Are the courts to rely on the Executive to protect their process from abuse? Have they not themselves an inescapable duty to secure fair treatment for those who come or who are brought before them? To questions of this sort there is only one possible answer. The courts cannot contemplate for a moment, the transference to the Executive of the responsibility for seeing that the process of law is not abused.
R. v. Jewitt (1985), 21 C.C.C. (3d) 7 (S.C.C.) at 14
48. The doctrine of abuse of process was also explained by Lamer J. in R. v. Mack as a safeguard to limit the state’s actions towards its citizens:
It is my view that in criminal law the doctrine of abuse of process draws on the notion that the state is limited in the way it may deal with its citizens. The same may be said of the Charter which sets out particular limitations on state action and, as noted, in the criminal law context ss. 7 to 14 are especially significant. This court in Reference re s. 94(2) of Motor Vehicle Act (1985), 23 C.C.C. (3d) 289, 24 D.L.R. (4th) 536, [1985] 2 S.C.R. 486 (S.C.C.), commented on the philosophical context in which these Charter provisions operate (at p. 302 C.C.C., p. 503 S.C.R.):
Thus, ss. 8 to 14 provide an invaluable key to the meaning of “principles of fundamental justice”. Many have been developed over time as presumptions of the common law, others have found expression in the international conventions on human rights. All have been recognized as essential elements of a system for the administration of justice which is founded upon a belief in “the dignity and worth of the human person” (preamble to the Canadian Bill of Rights, R.S.C. 1970, App. III) and on “the rule of law” (preamble to the Canadian Charter of Rights and Freedoms).
It is this common thread which, in my view, must guide us in determining the scope and content of “principles of fundamental justice”. In other words, the principles of fundamental justice are to be found in the basic tenets of our legal system. They do not lie in the realm of general public policy but in the inherent domain of the judiciary as guardian of the justice system. Such an approach to the interpretation of “principles of fundamental justice” is consistent with the wording and structure of s. 7, the context of the section, i.e., ss. 8 to 14, and the character and larger objects of the Charter itself. It provides meaningful content for the s. 7 guarantee all the while avoiding adjudication of policy matters. [Emphasis added]
Regina v. Mack (1988), 44 C.C.C. (3d) 513 (S.C.C.) at 540
49. In R. v. O’Connor, the Supreme Court of Canada held that the common law doctrine of abuse of process has been subsumed under section 7 of the Charter. L’Heureux-Dube J. recognized that while traditionally the common law doctrine of abuse of process focused on the protection of the integrity of the court process, and the Charter focused more on the protection of individual rights, the two have merged. Furthermore, L’Heureux-Dube J. emphasized that the protection of individual rights and the preservation of the reputation of the administration of justice should not necessarily be viewed as distinct purposes:
...Unfair trials will almost inevitably cause the administration of justice to fall into disrepute: R. v. Collins (1987), 33 C.C.C. (3d) 1, 38 D.L.R. (4th) 508, [1987] 1 S.C.R. 265; R. v. Elshaw (1991), 67 C.C.C. (3d) 97, [1991] 3 S.C.R. 24, 7 C.R. (4th) 333. See also A.L.T. Choo, “Halting Criminal Prosecutions: The Abuse of Process Doctrine Revisited”, [1995] Crim. L.R. 864 at p.865. What is significant for our purposes, however, is the fact that one often cannot separate the public interests in the integrity of the system from the private interests of the individual accused.
[63] In fact, it may be wholly unrealistic to treat the latter as wholly distinct from the former. This court has repeatedly recognized that human dignity is at the heart of the Charter. While respect for human dignity and autonomy may not necessarily, itself, be a principle of fundamental justice (Rodriguez v. British Columbia (Attorney General) (1993), 85 C.C.C. (3d) 15 at p. 67, 107 D.L.R. (4th) 342 at p. 394, [1993] 3 S.C.R. 519, per Sopinka J. for the majority), it seems to me that conducting a prosecution in a manner that contravenes the community’s basic sense of decency and fair play and thereby calls into question the integrity of the system is also an affront of constitutional magnitude to the rights of the individual accused. It would violate the principles of fundamental justice to be deprived of one’s liberty under circumstances which amount to an abuse of process and, …. the individual who is the subject of such treatment is entitled to present arguments under the Charter and to request a just and appropriate remedy from a court of competent jurisdiction.
R. v. O’Connor (1995), 103 C.C.C. (3d) 1 (S.C.C.) at 35
50. Most recently, the majority of the Supreme Court of Canada summarized the abuse of process doctrine in R. v. Regan, infra in the following terms:
¶ 49 In the Charter era, the seminal discussion of abuse of process is found in R. v. O'Connor, [1995] 4 S.C.R. 411, 103 C.C.C. (3d) 1, 130 D.L.R. (4th) 235. The doctrine of abuse of process had been traditionally concerned with protecting society's interest in a fair process. However, in O'Connor, L'Heureux-Dubé J., writing for a unanimous Court on this issue (Lamer, Sopinka and Major JJ. dissenting on the application of law to the facts), subsumed the common law doctrine abuse of process into the principles of the Charter in the following terms, at para. 63:
[I]t seems to me that conducting a prosecution in a manner that contravenes the community's basic sense of decency and fair play and thereby calls into question the integrity of the system is also an affront of constitutional magnitude to the rights of the individual accused.
¶ 50 L'Heureux-Dubé J. also acknowledged the existence of a residual category of abuse of process in which the individual's right to a fair trial is not implicated. She described this category, which is invoked in the present appeal, as follows in O'Connor, at para. 73:
This residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness and vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.
R. v. Regan (2002), 161 C.C.C. (3d) 97 (S.C.C.)
51. The doctrine of abuse of process is available to address virtually every kind of situation within the criminal justice system where:
(i) the fairness of an accused’s trial is affected or other procedural rights enumerated in the Charter are impaired; or
(ii) the administration of justice is brought into disrepute.
52. The conduct impugned here was within the “residual category” of abuse of process insofar as it was not the accused’s fair trial rights that were implicated by the Crown conduct, but rather the fairness of proceeding and the administration and integrity of justice at large.
(2) ANALYSIS
53. The principle purpose of the Criminal law generally, and sentencing specifically, is the protection of society. That being said, it is especially important to safeguard offenders suffering from mental disabilities and this obligation to the Applicant is set out in its own policy manual. It is respectfully submitted that this Honourable Court should be guided by the Crown Policy Directive that pertains to mentally disordered defendants and its animating objectives. It provides that
Mentally disordered or developmentally disordered people often come into contact with the criminal justice system. These offenders should not be subjected to more onerous consequences than the general population, solely as a function of their disorder/disability.
In recognition of their particular circumstances, mentally disordered or developmentally delayed offenders may warrant special consideration within the criminal justice system, depending on the nature and circumstances of the offence and the background of the offender. This may require an emphasis on restorative and remedial measures, such as specialized treatment options, supervisory programs or community justice programs, as alternatives to prosecution. To the extent consistent with public safety, and in appropriate circumstances, offenders with mental disorders, and those who are developmentally delayed, should be given access to alternatives to prosecution.
Protection of the public, including the victim, if any, is the paramount consideration in the assessment of whether alternatives to prosecution are appropriate. No single factor will be determinative; however Crown counsel should consider the seriousness of the offence, public safety, and whether the consequences of prosecution would be unduly harsh, among other factors.
It is respectfully submitted that this policy sets the standard against which the seemingly dreadful Crown conduct is to be measured and conduct that does not fall within policy is prima facie improper.
Province Of Ontario Ministry Of Attorney General, Crown Policy Manual, Mentally Disordered/Developmentally Disabled Offenders (March 21, 2005)
R. v. R.N.M., [2006] O.J. No. 3875 (S.C.J.) at para. 13
54 Where the impugned deeds threatens the fairness of the proceedings in issue and the administration of justice at large, the improper conduct itself, it is submitted, necessitates a remedy. As Justice Hornblower noted in R. v. Bressette,
When considering the manner in which the prosecution is conducted, there need not be a finding of flagrant or intentional misconduct nor demonstration of mala fides on the part of the Crown. Such a requirement would unduly restrict the operation of the doctrine of abuse of process. Those factors are among the many factors that the Court must consider in determining whether the Crown’s conduct in prosecuting a case amounts to an abuse of process.
…
In order to constitute an abuse of process, the actions of the Crown must be such that to allow the prosecution to continue would undermine the integrity of the judicial system.
R. v. Bressette, [2001] O.J. No. 3514 (C.J.) at para. 12 & 14
55. Similarly, in R. v. Taker, ibid Justice Bigelow had occasion to consider a decision by the Crown Attorney in Ottawa repudiating an agreement to withdraw charges and the laying of additional charges following resolution discussions with counsel. He concluded that the conduct in question gave rise to an abuse of process in the absence of any finding of bad faith or improper motive on the part of the Crown involved. He stated articulate his opinion as follows:
In my opinion the way that this case has been dealt with by the Crown does in fact constitute an abuse of process, in that a reasonable member of the public would find that the prosecution has been conducted in such a manner as to connote unfairness. In making this finding I note that no one action of the Crown would have necessarily constituted an abuse of process but taken as a whole the conduct of the case by the Crown does connote unfairness in the prosecution.
…
I note that this situation is not like many situations where the accused has given something up in return for the Crown agreeing not to proceed. This was in my view much closer to the situation which was described in R. v. Crneck et al by Krever J. as a ‘unilateral’ decision by the Crown.
Ultimately, Justice Bigelow stayed the new Information that was sworn but allowed the original Information that was to be withdrawn to proceed concluding that the remedy was appropriate as the repudiation of the agreement to withdraw that charge was done in compliance with Recommendation 53 of the Martin Report and in accordance with the Crown Policy Manual.
R. v. Taker [1996] O.J. No. 3276 (C.J.) at para. 34 & 37
R. v. M.M., [2001] O.J. No. 2844 (C.J.) at para. 20
R. v. White, [2006] O.J. No. 3400 (C.J.) at para. 24
R v. Agozzino, [1970] 1 C.C.C. 380 (Ont. C.A.)
R. v. Crneck, Bradley and Shelly (1980), 55 C.C.C. (2d) 1 (H.C.J.)
R. v. Goodwin (1981) 43 N.S.R. (2d) 106 (N.S.C.A.)
R. v. D.(E.) (1990), 73 O.R. (2d) 758 (Ont. C.A.)
R.(W.A.) (June 4, 1993), 20 W.C.B. (2d) 391 (B.C.S.C.)
R. v. Mandate Erector and Welding Ltd., [1999] N.B.J. No. 519 (N.B.C.A.)
R. v. Rowe, [2006] O.J. No. 3203 (S.C.J.) at para. 19
56. The traditional requirement that an accused establish “bad faith” or “oblique motive” before the exercise of prosecutorial discretion could be reviewed has been clarified and circumscribed in recent jurisprudence. In Krieger v. Law Society of Alberta, the Supreme Court of Canada recognized that not all decisions made by the Crown will be insulated from review in the same way signaling a more relaxed standard of review for the myriad of decisions that prosecutors make in the course of prosecution on the standard of fairness and objectivity rather than flagrant impropriety. Moreover, any decision by a Crown prosecutor that is made in the exercise of a legal duty, rather than an exercise of discretion is reviewable by the courts on a correctness standard.
Krieger v. Law Society of Alberta (2002), 168 C.C.C. (3d) 97 (S.C.C.)
57. Accordingly, while a finding of flagrant impropriety will no doubt inevitably lead to the conclusion that the conduct of the Crown amounts to an abuse of process, it is not a necessary finding. In Regan, supra in concluding that the trial judge had erred in finding that the conduct in question amounted to an abuse, Justice LeBel noted that “the cumulative effect of these actions, while troubling in some respects, does not rise to the level of abuse of process which is egregious, vexatious, oppressive or which would offend the community’s sense of decency and fair play.” Non-egregious, non-vexatious, non-oppressive conduct which nonetheless offends the community’s sense of decency and fair play can give rise to an abuse of process. The dissenting judgment (not on this issue) of Binnie J. also confirms (at paragraph 202) that “a finding of mala fides or bad faith is not, of course, a condition precedent to finding an abuse of process”.
R. v. Keywoski (1988), 40 C.C.C. (3d) 481
R. v. Regan, supra
58. In considering whether conduct of the Crown in repudiating an agreement will amount to an abuse of process, other courts have concluded that there is no requirement that the conduct be “flagrant” or “conspicuously” improper to give rise to an abuse. In fact, other courts have concluded that where the repudiation or other Crown conduct threatens the fairness of the proceedings in issue and the administration of justice at large, the improper conduct itself can give rise to an abuse of process warranting a remedy. As Justice Hornblower noted in R. v. Bressette at paragraphs
12 and 14
When considering the manner in which the prosecution is conducted, there need not be a finding of flagrant or intentional misconduct nor demonstration of mala fides on the part of the Crown. Such a requirement would unduly restrict the operation of the doctrine of abuse of process. Those factors are among the many factors that the Court must consider in determining whether the Crown’s conduct in prosecuting a case amounts to an abuse of process.
…
In order to constitute an abuse of process, the actions of the Crown must be such that to allow the prosecution to continue would undermine the integrity of the judicial system.
R. v. Bressette [2001] O.J. No. 3514 (C.J.)
59. Similarly, in R. v. Taker, ibid Justice Bigelow had occasion to consider a decision by the Crown Attorney in Ottawa repudiating an agreement to withdraw charges and the laying of additional charges following resolution discussions with counsel. He concluded that the conduct in question gave rise to an abuse of process in the absence of any finding of bad faith or improper motive on the part of the Crown involved. He noted as follows at paragraph 34 and 37:
In my opinion the way that this case has been dealt with by the Crown does in fact constitute an abuse of process, in that a reasonable member of the public would find that the prosecution has been conducted in such a manner as to connote unfairness. In making this finding I note that no one action of the Crown would have necessarily constituted an abuse of process but taken as a whole the conduct of the case by the Crown does connote an unfairness in the prosecution.
…
I note that this situation is not like many situations where the accused has given something up in return for the Crown agreeing not to proceed. This was in my view much closer to the situation which was described in R. v. Crneck et al by Krever J. as a ‘unilateral’ decision by the Crown.
Ultimately, Justice Bigelow stayed the new Information that was sworn but allowed the original Information that was to be withdrawn to proceed concluding that the remedy was appropriate as the repudiation of the agreement to withdraw that charge was done in compliance with Recommendation 53 of the Martin Report and in accordance with the Crown Policy Manual.
R. v. Taker [1996] O.J. No. 3276 (C.J.)
60. In R. v. M.M., ibid Justice Cohen had occasion to consider whether Crown conduct in repudiating an agreement could give rise to an abuse of process. Although she considered the issue in a different context, her summary of the applicable authorities and her ultimate conclusion in that case that the conduct gave rise to an abuse of process make it clear that an abuse of process can arise from a repudiation of an agreement or undertaking even in the absence of “flagrant” or “conspicuous” impropriety. She noted as follows at paragraph 20 and following:
Does the failure of the Crown to honour its undertaking "connote such unfairness" that it contravenes fundamental notions of justice? It has long been recognized that "it is absolutely vital that undertakings by Crown law officers and lawyers be adhered to." (R. v. Wolf and Doyle (1978), 15 C.R. (3d) 398 (Ont. Cty.Ct.). There is ample authority for the proposition that the Crown's failure to honour an agreement with the accused can amount to an abuse of process: Regina v. Crneck, Bradley and Shelly (1980), 55 C.C.C. (2d) 1 (Ont.H.C.); R. v. Goodwin (1981) 43 N.S.R. (2d) 106 N.S.C.A.); R. v. Mandate Erector and Welding Ltd., [1999] N.B.J. No. 519 (N.B.C.A.); R. v. D.(E.) 73 O.R. (2d) 758 (Ont. C.A.).
In the case of R. v. Betesh (1975), 30 C.C.C. (2d) 233 (Ont. Cty. Ct.), the court granted a stay of proceedings on the grounds that they constituted an abuse of the process of the court. In coming to that conclusion, Mr. Justice Graburn stated that:
The abuse lies in the Crown reneging on an agreement made and presented to a Court. To renege on such an agreement constitutes an abuse of the process of the Court. The Crown is expected to honour the agreements it has made in relation to prosecutions.
To this I would add that the Crown is expected to honour such agreements whether presented to the Court or otherwise ...
With respect to the issue of an undertaking by one Crown being countermanded by another crown, the Court had this to say:
I am clearly bound by the judgments of the Ontario Court of Appeal in Agozzino and Brown, and I am impressed by the comments of D.R.H. Heather in an annotation to the Agozzino decision (6 C.R.N.S.) at p. 149, where he writes:
The judgment of the Ontario Court of Appeal in the Agozzino case, ante, gives at least some authority for the proposition which heretofore was enshrined only in common sense, that the Crown is one and indivisible and must display a consistency in its agents.'
It is clear, in my respectful view, that in the realm of provincial prosecuting authority, an agreement made by a prosecutor at trial may not be repudiated by another prosecutor on appeal. (p. 250-251)
…
In the case before me the Crown has failed to honour its undertaking made at the pre-trial conference. The agreement was not one which would bring the administration of justice into disrepute and thus does not present one of those rare occasions when the Crown might be justified in repudiating its undertaking.
R. v. M.M. (2001) 46 C.R. (5th) 173
R. v. Betesh (1975), 30 C.C.C. (2d) 233
R. v. Wolf and Doyle (1978), 15 C.R. (3d) 398 (Ont. Cty.Ct.)
Regina v. Crneck, Bradley and Shelly (1980), 55 C.C.C. (2d) 1 (Ont.H.C.)
R. v. Goodwin (1981) 43 N.S.R. (2d) 106 N.S.C.A.)
R. v. Mandate Erector and Welding Ltd. [1999] N.B.J. No. 519 (N.B.C.A.)
R. v. D.(E.) (1990), 73 O.R. (2d) 758 (Ont. C.A.)
R. v. Agozzino [1970] 1 C.C.C. 380 (Ont. C.A.)
(3) Prejudice
61. Similarly, it is respectfully submitted that there is no requirement that an accused be “prejudiced” as a pre-condition to concluding the conduct of the Crown in repudiating an agreement will amount to an abuse of process. In fact, the Supreme Court of Canada expressly recognized in R. v. Regan, supra that abuse of process may exist in a small category of cases even in the absence of prejudice to an individual accused’s rights. Where the abuse of process being alleged by the accused falls within the “residual category” of case and the impugned conduct threatens the integrity of the administration of justice at large, there is no requirement that the accused demonstrate case specific prejudice. As Justice LeBel noted for the majority in R. v. Regan, supra at paragraph 50:
L'Heureux-Dubé J. thus held that now, when the courts are asked to consider whether the judicial process has been abused, the analysis under the common law and the Charter will dovetail (see O'Connor, at para. 71). In this manner, while it acknowledged that the focus of the Charter had traditionally been the protection of individual right, the O'Connor decision reflected and accommodated the earlier concepts of abuse of process, described at common law as proceedings "unfair to the point that they are contrary to the interest of justice" (R v. Power , [1994] 1 S.C.R. 601 at p. 616, 89 C.C.C. (3d) 1), and [page121] as "oppressive treatment" (R. v. Conway, [1989] 1 S.C.R. 1659 at p. 1667, 49 C.C.C. (3d) 289). In an earlier judgment, McLachlin J. (as she then was) expressed it this way:
. . . abuse of process may be established where: (1) the proceedings are oppressive or vexatious; and, (2) violate the fundamental principles of justice underlying the community's sense of fair play and decency. The concepts of oppressiveness and vexatiousness underline the interest of the accused in a fair trial. But the doctrine evokes as well the public interest in a fair and just trial process and the proper administration of justice. I add that I would read these criteria cumulatively. [R. v. Scott, [1990] 3 S.C.R. 979 at p. 1007, 61 C.C.C. (3d) 300.]
Where considering the abuse within the residual category, the absence of case specific prejudice is largely irrelevant as it is the prejudice to the administration and integrity of justice that is of import.
62. In R. v. Loblaw Properties Inc., ibid Justice Greco had occasion to consider the residual category of abuse arising from an express undertaking given by the Crown’s representative with respect to prosecution of the charges. He ultimately concluded that there was no prejudice to the accused in terms of their fair trial interests arising from the breach, but that the abuse in question was one that threatened the fairness of the proceedings and undermined the integrity of the administration of justice. At paragraphs 21 and 22 Justice Greco concluded (in upholding the trial justice’s decision) that:
After much consideration, I find that the abuse complained of here does fall squarely within the residual category referred to by the Supreme Court of Canada in Regan. As well, given the nature of the abuse, it going to the very heart of the judicial process as it does, that is to say, the institution of legal proceedings by the laying of charges against the respondents and then proceeding to trial, I find that it, the abuse that is, undermines, and seriously at that, the concept of fundamental justice. This is a concept which the courts and all agents of the Crown are expected to uphold. It is not a hollow concept. Given the nature of the charges here and the statute under which they were brought, failing to grant the stay granted by the learned Justice of the Peace, would, in my opinion at least, throw the administration of justice into disrepute, and seriously, at that. It is my belief that the dispassionate person in our society, the person who has full knowledge of the facts of this case, would be most concerned, if these respondents were not granted the stay granted by the learned Justice of the Peace. I feel assured that such a person would conclude that there was something seriously wrong with the administration of justice, if the court were to permit the trial to proceed.
I have already considered the interest that would be served by granting the stay, that is to say, the reputation of the administration of justice as opposed to any interest specific to the respondents. I have considered that interest against the interest that society has in having a final decision in this particular case, based on the merits. I find that in this case, the balance weighs heavily in favour of the societal interest that the administration of justice not be thrown into disrepute; that that interest far outweighs the societal interest in seeing to the final adjudication of this case. I hasten to point out that my decision might have been different here, if the charges brought against the respondents and the facts surrounding their commission of the offences alleged were more serious than they are, even if, perhaps, they were not akin to those alleged in Regan. The facts, more often than not, will make the law. The law will not make the facts.
R. v. Loblaw Properties Inc. [2002] O.J. No. 4324 (Prov. Div.)
(4) Stay of proceedings
63. It is axiomatic that a stay of proceedings is reserved for the “clearest of cases” and that any remedy short of a stay should be considered even where there is a finding of abuse. In R. v. Leduc, ibid the Court of Appeal for Ontario recently confirmed at paragraph 142:
Prosecutorial misconduct, such as wilful non-disclosure, standing alone does not warrant a stay. To justify a stay, the misconduct must either prevent a fair trial or undermine the integrity of our justice system. Most cases where a stay is ordered fall into the former category. A small number of cases -- "exceptional" or "relatively very rare" cases -- fall into the latter or "residual" category, where trial fairness can be preserved by a remedy short of a stay, but the integrity of the justice system cannot. In either category of case,
. . . a stay of proceedings will only be appropriate when two criteria are met:
(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcomes; and
(2) no other remedy is reasonably capable of removing the prejudice . . .
Where uncertainty persists about whether the abuse is sufficient to warrant the drastic remedy of the stay . . . a third criterion is considered. This is the stage where a traditional balancing of interests is done: "it will be appropriate to balance the interest that would be served by the granting of a stay of proceedings against the interest that society has in having the final decision on the merits." See R. v. Regan, at para. 57, pp. 122-23 C.C.C., citing Canada (Minister of Citizenship & Immigration) v. Tobiass, [1997] 3 S.C.R. 391.
R. v. Leduc (2003), 176 C.C.C. (3d) 321 (Ont. C.A.)
64. The prejudice to the administration of justice arises not only from the Crown decision but from the failure of the Court to grant a remedy for the abuse. It is in allowing the prosecution to continue that the prejudice is manifested, perpetuated or aggravated because it is that which signals the message, within the larger administration of justice, that the Crown will not be held accountable. The analysis of prejudice in the context of the residual abuse category is akin to assessing whether non-conscriptive evidence should be excluded within the context of s.24(2) of the Charter. The real issue is whether the integrity of administration of justice and the fairness of the proceedings will be brought into further disrepute by allowing the trial to proceed. Failing to stay the proceedings in this context amounts to judicial condonation of unacceptable Crown conduct. It is for this reason that the only appropriate remedy if an abuse is found is to stay the proceedings.
65. It is alternatively submitted that the prejudice to the Applicant in actual fact is fully set out in the s. 11(b) of the Charter timeline chart.
PART IV: ORDER SOUGHT
66. It is therefore respectfully submitted that the charges against the applicant be stayed pursuant to s. 24 of the Canadian Charter of Rights and Freedoms.
ALL OF WHICH is respectfully submitted this 16th day of August, 2007.
__________________________
DANIEL J. BRODSKY
Barrister & Solicitor
11 Prince Arthur Ave.,
Toronto, Ontario
M5R 1B2
Tel: (416) 964-9664
Fax: (416) 964-8305
DBrodsky@Daniel-Brodsky.com
Counsel for the Applicant
Tony...and others, are victims of one of the CIA's most secretive and horrific experimental programs. Tony's wife and daughter truly were replaced as he claimed all along, by look- alikes.
These programs originated after WW II when large numbers of Nazi scientists and doctors were
imported to Canada and the US from Germany.
Tony is, or was, quite sane.
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