DATE: 20060411
DOCKET: M33371 (C34059)
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent/Responding Party) – and – ROBERT STEWART (Appellant/Moving Party)
BEFORE:
GILLESE, BLAIR and LAFORME JJ.A.
COUNSEL:
Robert Stewart
Applicant/appellant appearing in-person
David Finley and Eliott Behar
for the respondent
Joseph Di Luca and Ian Smith
amicus curiae
HEARD:
April 3, 2006
On a motion for directions in the appeal from the convictions entered on February 1, 2000, by Justice David L. McWilliam of the Superior Court of Justice, sitting with a jury.
E N D O R S E M E N T
[1] Robert Stewart is appealing his two convictions for first-degree murder. The appeal has been scheduled to be argued during the week of October 23, 2006. He is self-represented although this court has appointed amicus curiae to assist the court. He brings an application seeking the following:
access to all disclosure made by the Crown to his trial lawyer;
electronic copies of all transcripts from both pre-trial motions and the trial;
a signed acknowledgement from the Crown that he has in his possession those transcripts;
an audible copy of the records made of conversations between him and John Smallwood;
copies of certain trial exhibits;
a package of information that he gave to the OPP in January 1997;
the statement of facts read in at the sentencing of Dr. George Matheson;
transcripts of the applicant’s motion for severance;
a transcript of the testimony given at the recusal motion brought by David Scott;
orders compelling approximately forty persons (lawyers, police officers and a judge) to testify before this court on the appeal
[2] At the oral hearing of the application, counsel for the Crown and the amicus curiae provided the court with a draft order for its consideration. The draft order is attached as Appendix “A” to this endorsement. While the Crown and amicus curiae had agreed on its terms, Mr. Stewart did not consent, largely because it places restrictions on his use of disclosure.
[3] We are satisfied that the draft order should go as sought.[^1] Although counsel for Mr. Stewart has been provided with disclosure in past, as Mr. Stewart now represents himself, he is entitled to disclosure. The method for disclosure provided for in the draft order ensures that Mr. Stewart has direct and reasonable access to the disclosure. This resolves items 1 and 5 in the list of items sought in the application.
[4] In respect of 2, 4, 6, 7, 8 and 9, the Crown has, with the assistance of amicus curiae, made best efforts to obtain those materials for Mr. Stewart. The Crown has undertaken to continue to use all best efforts to ensure that Mr. Stewart receives all of the items he seeks, where possible. In light of those assurances, we find it unnecessary to make an order in respect of these items.
[5] The remaining item on the list is item 10. Mr. Stewart states, as the basis for compelling the attendance of the proposed witnesses, that they have relevant evidence to give in this matter. While Mr. Stewart did not file a factum, the voluminous application record that he filed and his oral submissions make it clear that he wishes to advance the argument, on appeal, that his conviction resulted from a conspiracy. In addition, it appears that he seeks to advance – or, at least, explore – a claim of incompetence of counsel against one or more of his former solicitors.
[6] In our view, the authority of the court to make an order compelling persons to testify must be considered in the context of the proceeding before it, namely, an appeal arising from murder convictions. The order sought is sweeping in magnitude. The role of the court, when it hears the appeal, is not to engage in a re-trial or to conduct a royal commission. The applicant has not discharged the burden of establishing that the proposed witnesses would probably have evidence relevant to the issues raised on appeal. Consequently, we decline to make the order sought in relation to item 10.
[7] Accordingly, the order shall go in the form attached and the balance of the application is dismissed.
“E.E. Gillese J.A.”
“R.A. Blair J.A.”
“H.S. LaForme J.A.”
[^1]: The order of listing of the panel should be corrected.