R. v. Petrolo, 2020 ONCJ 36

minicounsel

Ontario Court of Justice

Date: January 17, 2020

Court File No.: Newmarket, Central East 18 - 09311

Between:

Her Majesty the Queen

— and —

Caterina Petrolo

Before: Justice D.A. Harris

Heard on: November 19, 20, 21, 22, 26, 27, 28 and 29, and December 9, 2019

Reasons for Judgment released on: January 17, 2020

Counsel:

Peter Scrutton and Mabel Lai, for the Crown
Alan D. Gold and Alex I. Palamarek, for the defendant Caterina Petrolo

D.A. HARRIS J.:

Introduction

1Caterina Petrolo has been charged with one count of breach of trust by a public officer, contrary to section 122 of the Criminal Code, and one count of attempt to obstruct, pervert, or defeat the course of justice, contrary to section 139(2) of the Criminal Code. Both offences were alleged to have occurred at the City of Markham between May 25 and October 9, 2018.

2These are indictable offences. Ms. Petrolo elected trial in the Ontario Court of Justice. She pled not guilty and the trial began.

3The charges against Ms. Petrolo stem from her employment as a York Region paralegal regional prosecutor, and her involvement in Provincial Offences Act prosecutions. It is alleged that she used her position to improperly influence the outcome of provincial offences matters.

4She only came to be investigated by York Regional Police after tangentially becoming a person of interest in a multi-jurisdictional investigation into police corruption. Police officer Richard Senior was its originating and primary target. York Regional Police obtained judicial authorizations which led to them intercepting communications between Ms. Petrolo and Mr. Senior wherein dispositions in Provincial Offences Act matters of individuals known to him were discussed.

5These communications were then summarized, along with other information, within a Substantive Event Summary (SES) by Detective Constable Leahy of York Regional Police.

6A copy of the SES was sent to the York Region Regional Solicitor who passed it on to York Region Senior Counsel for Prosecutions, Chris Bendick.

7Mr. Bendick used the SES to pull court records and internal prosecution records to ascertain whether what was said in the intercepted communications was what Ms. Petrolo followed through on. He then provided those records to police to use in their criminal case against her.

8Ms. Petrolo had applied for an order that the charges be stayed pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms on the basis that Ms. Petrolo's rights as guaranteed by sections 7, 8 and 11(d) of the Charter had been infringed. Alternatively, she asked me to exclude all intercepted communications and all documents gathered by Mr. Bendick.

9I dismissed that application.[1]

10Following her arrest, Ms. Petrolo was interviewed by York Regional Police.

11Ms. Petrolo also applied for an order excluding her statement pursuant to section 24(2) of the Charter on the basis that the police had breached her right to counsel as guaranteed by section 10(b) of the Charter. She further argued that her section 8 rights were also breached.

12I allowed this application and excluded the statement.[2]

13Five witnesses were called by the Crown during the trial. These were Carlton Wills, Rafi Kaltakin, Shaun Israel, Nicholas Guarino, Alessandro de Marchi and Chris Bendick. An Exhibit Book containing a number of documents and a DVD containing two intercepted communications were also introduced into evidence on consent.[3]

14No witnesses were called by the defence. A number of documents were introduced into evidence on consent. Also, I was advised of further agreed facts.

15Counsel for Ms. Petrolo argued that these documents and agreed facts establish that Ms. Petrolo is innocent of the charges against her. Accordingly, the principles in [R. v. W (D)][4] are applicable.

16If I find that this evidence negates any essential element of an alleged offence, I must find her not guilty of that offence.

17Even if the evidence leaves me with a reasonable doubt regarding any essential element of an alleged offence, I must find her not guilty of that offence.

18Finally, even if this evidence does not leave me with a reasonable doubt about her guilt, if after considering all the evidence that I do accept, I am not satisfied beyond a reasonable doubt of her guilt, I must acquit.

19In determining this, I must keep in mind that Ms. Petrolo, like every other person charged with a crime, is presumed to be innocent, unless and until the Crown has proven her guilt beyond a reasonable doubt. She does not have to present evidence or prove anything. It is not enough for me to believe that she is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Conversely it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However, I must remember that "the reasonable doubt standard ... falls much closer to absolute certainty than to proof on a balance of probabilities".[5]

20This is a tough standard and it is so tough for very good reason. As Cory J said in R. v Lifchus:

The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt ... is one of the principal safeguards which seeks to ensure that no innocent person is convicted.[6]

21I will next address the elements of the alleged offences.

Breach of Trust

22 Section 122 of the Criminal Code provides that:

Every official who, in connection with the duties of his office, commits fraud or a breach of trust is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years, whether or not the fraud or breach of trust would be an offence if it were committed in relation to a private person.

23In R. v. Boulanger, [2006] S.C.J. No. 32 the Supreme Court of Canada stated that this offence will be established where the Crown proves beyond a reasonable doubt the following elements:

The accused is an official;
The accused was acting in connection with the duties of her office;
The accused breached the standard of responsibility and conduct demanded of her by the nature of the office;
The conduct of the accused represented a serious and marked departure from the standards expected of an individual in the accused's position of public trust; and
The accused acted with the intention to use her public office for a purpose other than the public good, for example, for a dishonest, partial, corrupt, or oppressive purpose.[7]

24There is no issue that Ms. Petrolo is an official and that she was acting in connection with the duties of her office. The remaining elements are all in issue here.

25Crown counsel's theory of the case is that Ms. Petrolo intervened in Provincial Offences Act prosecutions and arranged for favourable dispositions because of the defendants' relationship to Richard Senior and Mr. Senior's relationship with Ms. Petrolo. Her actions were motivated by partiality or favouritism.

26It was an agreed fact that before and during the relevant time, Ms. Petrolo had a romantic, sexual relationship with Richard Senior, who was married.

27The court in R. v. Boulanger, supra, referred to "the level of culpability traditionally required by the common law for the offence of breach of trust -- for example, whether he acted for a dishonest, partial, corrupt or oppressive purpose."[8]

28In that case, as in ours, dishonesty, corruption and oppression were clearly not made out.

29With respect to partiality, McLachlin C.J. wrote that "Partiality" denotes an "unfair bias in favour of one thing ... compared with another".[9]

30Counsel for Ms. Petrolo countered that partiality and favouritism played no part in anything that Ms. Petrolo did. Any disposition of charges arranged by her were consistent with what she, or any other prosecutor, might do for any defendant.

Attempt to Obstruct Justice

31 Section 139(2) of the Criminal Code provides that:

(2) Every person who intentionally attempts in any manner other than a manner described in subsection (1) to obstruct, pervert or defeat the course of justice is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.

32Subsections 139(1) and (3) are not applicable in this case.

33In R. v. Yarlasky, the Ontario Court of Appeal stated that the essential elements for a conviction on a charge of obstruction are:

(1) that the accused must have done enough for there to be a risk, without any further action by her, that injustice will result, and

(2) the attempt by the accused to obstruct justice must have been wilful.[10]

34Both counsel also referred to the Supreme Court of Canada decision in R. v. Beaudry.[11]

35Beaudry, a police officer, was charged with obstructing justice for deliberately failing to gather the evidence needed to lay criminal charges against Plourde, another police officer, who he had reasonable grounds to believe had been operating a motor vehicle while intoxicated. At trial, Beaudry contended that his decision was a proper exercise of police discretion. The trial judge concluded that Beaudry had not exercised his discretion when he had deliberately failed to take breath samples, but that he had instead granted preferential treatment to Plourde. The judge accordingly convicted him. The majority of the Court of Appeal upheld the conviction. The Supreme Court of Canada also upheld the conviction.

36Ms. Petrolo also contends that her actions constituted a proper exercise of discretion.

37The following comments by the Supreme Court are therefore applicable here.

38An accused cannot be convicted of the offence provided for in section 139(2) solely because she has exercised her discretion improperly.[12]

39Where a discretionary power is relied upon, the analysis of the actus reus of the offence must be carried out in two stages. First, it must be determined whether the conduct in issue can be regarded as a proper exercise of police discretion. If so, there is no need to go any further. If, beyond a reasonable doubt, the conduct in issue cannot constitute a proper exercise of police discretion, the analysis must be pursued further.[13]

40Second, the actus reus of the offence will be established only if the act tended to defeat or obstruct the course of justice.[14]

41With respect to mens rea, this is a specific intent offence. The prosecution must prove beyond a reasonable doubt that the accused did in fact intend to act in a way tending to obstruct, pervert or defeat the course of justice. A simple error of judgment will not be enough. An accused who acted in good faith, but whose conduct cannot be characterized as a legitimate exercise of the discretion, has not committed the criminal offence of obstructing justice.[15]

42The Supreme Court upheld the conviction stating, amongst other things:

I agree with the majority of the Court of Appeal that it was reasonable for the trial judge to find that the accused had breached his duty by giving preferential treatment to Mr. Plourde because he was a peace officer.[16]

43As with the breach of trust charge, Crown counsel's theory of the case is that Ms. Petrolo intervened in Provincial Offences Act prosecutions and arranged for favourable dispositions because of the defendant's relationship to Richard Senior and Mr. Senior's relationship with Ms. Petrolo. She gave the defendants preferential treatment because of those relationships.

44Counsel for Ms. Petrolo again countered that partiality and favouritism played no part in anything that Ms. Petrolo did. Any disposition of charges arranged by her was consistent with what she, and any other prosecutor, might do for any defendant.

45Further the Crown has failed to prove beyond a reasonable doubt that she took positive steps to influence the outcome of these cases, and that she did so wilfully, and that there was a risk of injustice.

46I will now apply these legal principles to the facts alleged before me.

Facts of the Alleged Offences

47Ms. Petrolo is charged with one count for each of the alleged offences.

48However, Crown counsel is relying on four separate "events". The Carlton Wills event can be broken down further into two separate sub-events. Each of these events or sub-events could have been the basis for a separate charge. Instead, Crown counsel is simply asking me to convict Ms. Petrolo of the two counts before me if I am satisfied beyond a reasonable doubt that any one, or more, of the events constituted an offence.

49I am satisfied that I must look at each of these "events" separately.

50Crown counsel did not bring a similar act/discreditable conduct application in this case. When questioned by me, he made it clear he was asking me to rely on evidence relating to all events in my assessment of all events. He argued that he did not need to bring a formal application.

51I disagree.

52I heard final submissions from both counsel on December 10. Subsequently, I became aware that the Ontario Court of Appeal had released its judgment in [R. v. Nolan][17] that very day. In that decision, Gillese J.A. noted that Zarnett J.A. had thoroughly reviewed the legal principles relating to the use of evidence across counts in [R. v. Tsigirlash][18].

53Gillese J.A. provided the following summary of those principles.

54The general rule is one of presumptive inadmissibility. Evidence of an accused's discreditable conduct is inadmissible, unless that conduct is the subject-matter of the charge in question. In multi-count indictments, already admissible evidence can be used only on the count to which it relates. Before that evidence can be used to prove guilt on another count, the Crown should bring an application and the trial judge conduct an admissibility inquiry. In this way, the defence has a meaningful opportunity to respond to the use of the evidence across counts and no prejudice will have occurred.[19]

55However, while it is an error for a trial judge to rely on cross-count prior discreditable conduct in the absence of a Crown application, that error is not necessarily fatal.[20]

56None of this is particularly new, but I found the review of the existing law to be timely.

57Taking a principled approach, I see no reason to distinguish between using evidence across counts and using evidence across events.

58In the event that I am incorrect in deciding that Crown counsel should have made a formal application here, I have taken note of the following.

59The Supreme Court of Canada reviewed the law with respect to evidence of prior discreditable conduct or of similar acts in R. v. Handy.[21] In that decision, Binnie J. wrote:

The starting point ... is that the similar fact evidence is presumptively inadmissible. It is for the Crown to establish on a balance of probabilities that the likely probative value will outweigh the potential prejudice.[22]

60That then requires an assessment of the probative value and the potential prejudice arising from the proposed evidence. I will deal with the latter point first.

61With respect to potential prejudice, it is necessary to evaluate both moral prejudice (i.e., the potential stigma of "bad personhood") and reasoning prejudice (including potential confusion and distraction of the jury from the actual charge against the respondent).[23]

62As I have stated in other cases, the potential for prejudice is not as significant in judge alone trials such as this one. I should be capable of recognizing the risk of either moral prejudice or reasoning prejudice. I should be equally capable of avoiding both types of prejudice.

63I note however that while numerous appeal courts have drawn such a distinction between jury trials and judge alone trials, I have yet to find a decision stating that I can find that there is no potential prejudice simply because of the absence of a jury.

64The issue of probative value is more complex.

65The evidence must be relevant and material before it may be admitted. The Ontario Court of Appeal said in R. v. L.B. that evidence is relevant:

where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence.[24]

66The evidence is material if it is directed at a matter in issue in the case.

67To determine that, I must understand the purpose for which the evidence is being proffered. It is therefore necessary for Crown counsel to identify the issues in question. Then, if I admit the evidence, I will be able to use it in relation to those issues only.

68Crown counsel has proposed that the evidence of other discreditable conduct be admitted because of the "objective improbability of coincidence".

69I must however keep in mind that it is not enough for Crown counsel to simply propose that the evidence be introduced for the previously enumerated purpose.

70In R. v. Handy, supra, Binnie J. stressed that the "issues in question" are not categories of admissibility. Their identification is simply an element of the admissibility analysis which, as stated, turns on weighing probative value against prejudice.[25]

71I must therefore consider the strength of the proposed evidence.

72There is no suggestion that the proposed similar fact evidence is tainted by collusion.

73The proposed evidence consists of intercepted communications and court documents. Both qualify as reliable evidence.

74Binnie J. set out a number of factors connecting the similar facts to the circumstances set out in the charge:

(1) proximity in time of the similar acts;

(2) extent to which the other acts are similar in detail to the charged conduct;

(3) number of occurrences of the similar acts;

(4) circumstances surrounding or relating to the similar acts;

(5) any distinctive feature(s) unifying the incidents;

(6) intervening events;

(7) any other factor which would tend to support or rebut the underlying unity of the similar acts.[26]

75I have applied all of the above legal principles separately to each of the individual events below.

Carlton Wills

76Mr. Carlton Wills is the father of Fabian Wills. Richard Senior grew up with Fabian. Their friendship spanned 30 years. Carlton Wills testified that Mr. Senior was like a son to him and called him "Pop". Carlton Wills did not know Ms. Petrolo. Fabian Wills did know her.

77Carlton Wills received two traffic tickets on separate days. One was for the offence of disobey sign. This occurred in Markham in the Region of York. The second ticket was for failing to wear a seat belt. This occurred in the City of Toronto.

78I will deal with each of these two tickets separately.

79After receiving the York Region ticket, Mr. Wills spoke to Richard Senior and asked what he, Mr. Wills could do about it.

80Mr. Senior told him to set a court date. Mr. Wills did this himself. He did not hire anyone to help him or to act for him.

81Mr. Wills received a letter telling him when the date was. A week to ten days before that date, he received a call telling him not to attend.

82A transcript of proceedings on June 1, 2018 in the Provincial Offences Court at Richmond Hill lists Mr. Wills as appearing in person. The transcript also shows that Municipal Prosecutor Ms. B. Hammond stated to the court "I ask that that matter be marked withdrawn". It was withdrawn.

83There are no court documents connecting Ms. Petrolo to this. The Crown relies instead on intercepted communications to implicate her.

84The following is a summary of an intercepted WhatsApp chat dated June 1, 2018 involving Ms. Petrolo (CP), Fabian Wills (FW), and Richard Senior (RS). The chat occurs between 11:51 a.m. and 11:59 a.m.:

CP: Hello!!!

FW: Lmao

CP: Fabian .. your father's disobey sign ticket's gone bye [emoji]

FW: Well hello

CP: I'm still sweating [emoji]

FW: Omg. You are too good to me and my pops

FW: He wants to meet you

CP: Lol he owes me a drink

FW: No. He owes you a full bottle.

RS: [photo of a document]

RS: Since everyone is in a good mood

RS: You remember Miles Drake

RS: From La fitness

CP: Yes I remember

RS: young black kid

CP: I know him

RS: Don't forget to breathe as you sweat

CP: Lol

RS: I am officially shutting down the CP lets make a deal office after this

CP: Rich ur tab is getting big

RS: Lol

FW: I am sure CP will assist where she can with Myles. But this chat group is solely Wills and their traffic stupidity

CP: Yes I agree Fabian

RS: Then the name should reflect that

CP: Lmao

RS: Wills ticket specialist

FW: What you and her do in your spare time is not my business [emoji]

FW; Lmao

FW: Haha

FW: Rich. Knock on wood I have been clean for 4 years b4 the speedy Gonzales move. Be somewhat proud of your boy. And clean since.

RS: Lol…amazed. I am amazed. Speed is in your blood.

FW: Lol

85Following this, Ms. Petrolo changed the subject of the chat to "Wills ticket specialist". After that, the following chat took place between 1:15 p.m. and 2:17 p.m.:

CP: Drum roll pls ….

CP: Fabian .. pls tell ur dad his seatbelt ticket was withdrawn

CP: Total saving of 4 points and $350

CP: Lucky man

FW: Fml

FW: I am feeling jealous

CP: Lol

CP: Now he needs to keep that record squeaky clean

CP: And pls make sure that he doesn't attend that June court date

86Counsel for Ms. Petrolo argued that these communications do not support a finding of guilt. He repeatedly described Ms. Petrolo's comments as "bravado" and argued that these comments clearly show her trying to ingratiate herself, make herself more important to Mr. Senior, the man with whom she had a relationship.

87What she had done for Carlton Wills was simply what she or any other prosecutor would have done for any defendant in any other similar case. Her intercepted communications with Fabian Wills and Mr. Senior were an attempt to make it appear to be something more.

88I disagree.

89There is no direct evidence before me to support the suggestion that this was an attempt to ingratiate herself with Mr. Senior. Ms. Petrolo did not testify. I am aware of the fact that she did not have to testify but I can, and do, note that she did not tell me what she meant by her comments contained in the intercepted communications.

90I also note that there is no evidence before me that she needed to ingratiate herself with Mr. Senior in this manner or that her actions did ingratiate her with him.

91There is also no basis for me to conclude that what she had done for Carlton Wills was simply what she would have done for any defendant in any other similar case.

92The evidence before me makes it clear that the dockets in Provincial Offences Court are outrageously long and that there is no way the court could accommodate even a small percentage of cases going to trial. Guilty pleas are essential. People plead guilty when offered deals. As a result, all prosecutors agree to deals so regularly that they have become the norm rather than the exception.

93But Mr. Wills got the ultimate deal.

94The charge against him was withdrawn.

95He paid no fine. He acquired no demerit points. He ended up with no blemish on his driving record. He did not have to hire and pay anyone to accomplish all of this. All he had to do was speak to his friend Richard Senior who then apparently spoke to his friend Ms. Petrolo.

96That is where Ms. Petrolo should have communicated to Mr. Wills and Fabian that they should hire a paralegal agent or appear in person and talk to another prosecutor who would likely agree to some sort of deal, but that she could not agree to any such deal with him because of their personal relationship.

97Another possibility, albeit a less preferable one, would have been for her to ask a colleague to look at the case. "I cannot deal with this. Could you take a look at it and see what would be an appropriate disposition?" This would of course require care on the part of Ms. Petrolo to ensure that this would not be taken by the colleague as a request for a particular disposition to be agreed to simply as a favour to Ms. Petrolo.

98Whichever way she proceeded, the outcome for Mr. Wills should have been the same if what Ms. Petrolo had done for him was simply what she or any other prosecutor would have done for any defendant in any other similar case.

99But Ms. Petrolo did not choose to proceed in either fashion.

100Instead she arranged for the charge to be withdrawn. She was "still sweating" as she reported the result she had brought about. She told Fabian "he owes me". I do not take this to mean that he owed her anything in a material sense. I do take it to mean that he owed her his gratitude because she had done a favour for him.

101Why was he so fortunate?

102There is no evidence to suggest that there was no reasonable prospect of conviction. There is no evidence that prosecution was not in the public interest. There is no evidence of any compassionate grounds for special treatment. There is no evidence of any legitimate reason for the charge to be withdrawn.

103There is compelling evidence, in the form of the intercepted communication, that the charge was withdrawn as a favour to the friend of her friend.

104Ms. Petrolo's comments to Mr. Senior were not bravado taking credit for something that she would have done for anyone. Ms. Petrolo did plenty for Mr. Wills and her comments to Mr. Senior were her legitimate claim to credit for her illegitimate acts.

105After considering all of the above, I am satisfied beyond a reasonable doubt that Ms. Petrolo:

(1) breached the standard of responsibility and conduct demanded of her by the nature of her office; and that

(2) her conduct represented a serious and marked departure from the standards expected of an individual in her position of public trust; and that

(3) she acted with the intention to use her public office for a partial purpose.

106I am therefore satisfied beyond a reasonable doubt that she committed the offence of breach of trust contrary to section 122 of the Criminal Code.

107I am also satisfied beyond a reasonable doubt that:

(1) Ms. Petrolo breached her duty by giving preferential treatment to Mr. Wills because he was a friend; and

(2) This was not a proper exercise of prosecutorial discretion; and

(3) Her acts tended to defeat or obstruct the course of justice; and

(4) She intended to act in a way tending to obstruct, pervert or defeat the course of justice.

108I am therefore satisfied beyond a reasonable doubt that she committed the offence of attempt to obstruct justice contrary to section 139(2) of the Criminal Code.

109I point out here that I reached these conclusions without considering any of the other events. I also did not consider the facts surrounding the Toronto charge or the portion of the intercepted communication where the resolution of that charge was discussed. I found it unnecessary to consider anything beyond the facts surrounding this specific event.

110With regard to the traffic ticket in Toronto, Mr. Wills did much the same things as before. He went to court and set a trial date. Again, he was notified not to attend. He was told that the ticket had been taken care of. He did not attend. He did nothing to bring this about. He did not retain an agent to act for him.

111A transcript of the proceedings in Provincial Offences Court in Toronto on May 31, 2018 lists an agent appearing for Mr. Wills. The Municipal Prosecutor is shown to state: "Court's indulgence. 11941, still no response, 1:58. Ask that this matter be withdrawn. Lack of evidence".

112Crown counsel agreed that Ms. Petrolo was not connected in any way with the prosecutor's office in Toronto. She had no authority in the Provincial Offences Court in that city.

113Crown counsel asked me to infer that she was involved in this event based on her involvement in the other events.

114I am not prepared to do this for a number of reasons.

115Firstly, as I stated earlier, I am satisfied that Crown counsel should have brought a formal application to introduce similar act evidence. They did not do this and that should be the end of this.

116If I am wrong, and I should have allowed counsel to make an informal application, I am not satisfied that the probative value of such evidence would have outweighed even its limited prejudicial effect.

117There are only three similar events that Crown counsel wants me to rely upon.

118An alleged pattern of conduct may gain strength if it emerges from a number of similar instances. The likelihood of coincidence diminishes.[28]

119In R. v. J.M., Watt J.A. wrote that:

The cogency of evidence of similar acts may arise from the repetitive and predictable nature of an accused's conduct in closely defined circumstances. What becomes necessary in such cases is a persuasive degree of connection between the events of alleged similar acts and the offence charged in order to be capable of raising the necessary inferences.[29]

120At least all of the events occurred within a short period of time. The two Wills events were very proximate to each other. All events occurred within a five-month period.

121There are similarities in both of the Wills events:

(1) Carlton Wills was charged with a provincial offence;

(2) He spoke to Richard Senior about them;

(3) The charges were withdrawn without Carlton Wills having to retain an agent or attend court himself; and

(4) Ms. Petrolo informed the son, Fabian Wills of this and asked him to tell his father.

122There are however significant differences.

123The one charge arose in Markham where Ms. Petrolo was a prosecutor who had the ability to have charges withdrawn. The other charge arose in Toronto where she had no such status. Further there was no evidence even suggesting that she was connected in any way with anyone who did have that ability. There was no evidence that she had done anything to have the charge withdrawn.

124Finally, she took credit during the chat for having the Markham ticket withdrawn. There was nothing like "I'm still sweating" or "he owes me" with respect to the Toronto charge.

125The differences between the Toronto event and the other events are even greater while the similarities are fewer and less significant.

126The fact that Ms. Petrolo knew what had happened in Toronto and that she reported that outcome in a "chat group [that] is solely Wills and their traffic stupidity" makes me suspicious that she was more involved but that is not enough.

127I was not satisfied that the probative value of the proffered evidence exceeded even the limited prejudicial effect and I would not have admitted it as similar fact evidence.

128In any event, even if I had admitted it as similar fact evidence, I would still have had a reasonable doubt as to Ms. Petrolo's involvement in this event and she gets the benefit of that doubt.

Nicholas Guarino

129Mr. Guarino was originally charged with careless driving. He spoke to a friend, Roman, to inquire if Roman knew anyone who could help Mr. Guarino deal with that. Roman said he would try to speak to someone.

130Eventually, Mr. Guarino attended court where he pled guilty to a charge of disobey lane light. The fine was substantially lower than that for careless driving and there were no demerit points whereas a conviction for careless driving would result in six demerit points.

131Ms. Petrolo was not the prosecutor that day. Mr. Guarino never spoke to Ms. Petrolo about the ticket. The only evidence linking her to this transaction is found in the following intercepted communications between Ms. Petrolo and Richard Senior:

PETROLO: And I called you because I worked some magic with uh Roman's ticket

SENIOR: Oh Roman's buddy's ticket yeah

(voices overlap)

PETROLO: His buddy's ticket

SENIOR: Yeah

PETROLO: Okay so I offered him zero (0) points like a lane light it doesn't even apply does not sit I squeezed it out

SENIOR: Yeah

PETROLO: Uhm it should've been like a fail to tum out left to (unintelligible) (voices overlap)

SENIOR: Yeah yeah

PETROLO: (mouth noise) Tell him he better not know me he better not fucking squawk cause if he squawks they'll look at the deal right

SENIOR: Yeah yeah yeah a hundred (100) percent

PETROLO: So tell him tell him to take fuckin' deal and shut up and not question it

(voices overlap)

SENIOR: Alright okay I gotta go I'll call you back

(voices overlap)

PETROLO: Please

SENIOR: Gotta go I'll call back

132He did call back and the following was said:

PETROLO: Well you gimme a headache too sometimes so we're even

SENIOR: Okay 'sup

PETROLO: Uhm that's it. I was telling you about the ticket

SENIOR: Oh okay

PETROLO: Make sure he doesn't squawk (ph) hey

SENIOR: Yeah yeah I'll forward you what I wrote im sent him

PETROLO: Because as soon as he says is there anything better they're gonna be like this doesn't even apply

SENIOR: Yeah

PETROLO: So (unintelligible) take it 'n be quiet

133Counsel for Ms. Petrolo argued that these communications also do not support a finding of guilt. He again described Ms. Petrolo's comments as "bravado" and an attempt to ingratiate herself with Mr. Senior. The comments are not an admission that she had done anything to bring about the result obtained by Mr. Guarino. Alternatively, what was done for Mr. Guarino was simply what she or any other prosecutor would have done for any defendant in any other similar case. Her intercepted communications with Mr. Senior were an attempt to make it appear to be something more.

134Again, I disagree.

135Again, there is no direct evidence before me to support the suggestion that this was an attempt to ingratiate herself with Mr. Senior. Ms. Petrolo did not testify. I am well aware of the fact that she did not have to testify but I can, and do, note that she did not tell me what she meant by her comments contained in the intercepted communications.

136I again note that there is no evidence before me that she needed to ingratiate herself with Mr. Senior in this manner or that her actions did ingratiate her with him.

137There is also no basis for me to conclude that what was done for Mr. Guarino was simply what she or any other prosecutor would have done for any defendant in any other similar case.

138The evidence is clear that prosecutors in York Region regularly agreed to accept guilty pleas to a charge of disobey lane light where the defendant had originally been charged with careless driving. In fact, there were nine such pleas on the same day in the courtroom where Mr. Guarino entered his guilty plea. Counsel for Ms. Petrolo asks me to conclude from this that such a plea always applies, contrary to what Ms. Petrolo said in the above intercepted communication.

139I disagree.

140I can only infer that such a plea sometimes applies. The converse would then also be true. Such pleas sometimes do not apply. Ms. Petrolo's statement to Mr. Senior during the intercepted communication was that this was one of those times when the plea was not appropriate.

141So why did she arrange for Mr. Guarino to be allowed to enter such a plea? I am satisfied that she did it as a favour to Mr. Senior and to the friend of his friend.

142I am satisfied that her comments to Mr. Senior were not bravado taking credit for something that she would have done for anyone. Ms. Petrolo had "worked some magic" for Mr. Guarino and she wanted Mr. Senior to know that.

143After considering all of the above, I am satisfied beyond a reasonable doubt that Ms. Petrolo:

(1) breached the standard of responsibility and conduct demanded of her by the nature of her office; and that

(2) her conduct represented a serious and marked departure from the standards expected of an individual in her position of public trust; and that

(3) she acted with the intention to use her public office for a partial purpose.

144I am therefore satisfied beyond a reasonable doubt that she committed the offence of breach of trust contrary to section 122 of the Criminal Code.

145I am also satisfied beyond a reasonable doubt that:

(1) Ms. Petrolo breached her duty by giving preferential treatment to Mr. Guarino because he was a friend of a friend; and

(2) This was not a proper exercise of prosecutorial discretion; and

(3) Her acts tended to defeat or obstruct the course of justice; and

(4) She intended to act in a way tending to obstruct, pervert or defeat the course of justice.

146I am therefore satisfied beyond a reasonable doubt that she committed the offence of attempt to obstruct justice contrary to section 139(2) of the Criminal Code.

147I again point out here that I reached these conclusions without considering any of the other events. I found it unnecessary to consider anything beyond the facts surrounding this specific event.

Alessandro de Marchi

148Mr. de Marchi received a ticket for making an improper right turn, failing to stop at a red light.

149He showed the ticket to his friend and coworker Shane at the Luxy nightclub in Vaughan. He was present to see Shane show the ticket to Richard Senior. Mr. de Marchi asked them what he could do about the ticket.

150Shane subsequently told him to go to the courthouse to meet with someone there. He spoke to a secretary who introduced him to Ms. Petrolo. He did not know her.

151They discussed the circumstances briefly. She told him that it would be looked into. It would be revised and reduced or possibly eliminated.

152He later learned that the charge had been dismissed.

153The following exchange between Richard Senior and Ms. Petrolo using WhatsApp was intercepted by York Regional Police:

8:56 Media file

8:56 Media file

8:56 This is for Big Shane from Luxy, one of his guys. I told you about it a while back.

9:54 You kill me

9:54 Media File

9:56 Come say hi!! and bring me coffee lol

10:09 I will see what I can do with the request…its on your tab mister

10:10 You have no idea how many requests I get

10:10 I know ☹

10:10 That's why I hate asking

10:11 But its not for me??

10:18 But its from you … on behalf of ur friends!!!

10:18 Ur tab is ginormous

10:19 I will see what I can do

10:19 #start paying up [emojis]

10:23 I'd love a latte from Tim's lol. No sugar as I'm sweet enough

11:12 I am stuck doing training

11:13 Wtf!!! What kind of training

11:13 This cannabis training

11:13 Eww

11:13 Yup

11:14 All day?

11:33 Feels like it

11:35 Lmao

11:36 Have buddy come see me at court here… give him my work numb so I can figure out a day to help him

154Under different circumstances that would likely have been enough for me to find Ms. Petrolo guilty with respect to this event. However, I was also given a transcript of the court proceedings where the charge against Mr. de Marchi was withdrawn by a prosecutor other than Ms. Petrolo.

155That prosecutor, Ms. Hammond, informed the presiding Justice of the Peace that:

There's an add-on for Alessandro De Marchi, on line 68. Your Worship, I consulted with my team lead on this where the notes and the in-car camera footage were not the same situation. I'm going to ask that the matter be marked withdrawn, please.

156There is a possibility that Ms. Hammond was simply giving effect to a decision made by Ms. Petrolo. That however is not the only possibility or even the most likely one. Ms. Hammond's words to the court clearly suggested that she looked into this case herself, consulted with her team leader, and then she decided to withdraw the charge. From that I can infer that Ms. Petrolo may have done something that I suggested that she do in the first Wills event. She may have asked her colleague to look at the case and said, "I cannot deal with this. Could you take a look at it and see what would be an appropriate disposition?"

157In that the latter interpretation could reasonably apply, I must give Ms. Petrolo the benefit of the doubt.

158That would be a significant difference between this event and the Wills and Guarino events. Another significant difference is that in both the Wills and the Guarino events, the intercepted communications show her taking credit for having done something to bring about the result. In the de Marchi event, she is complaining beforehand that she did not want to be involved yet again "on behalf of ur friends !!!". Further, Mr. de Marchi was required to have an early resolution meeting with Ms. Petrolo and discuss the case with her. He was also required to show up personally in court for the charge to be dealt with. Finally, Ms. Hammond stated in court the reason why she was withdrawing the charge.

159Counsel for Ms. Petrolo also asked me to note the discrepancy between the amount of the fine on the ticket given to Mr. de Marchi and the amount of the fine on the notice of trial that was sent to him.

160This was not a case where I could be satisfied that the only reason Mr. de Marchi received the disposition that he did was the involvement of Mr. Senior and Ms. Petrolo. There were other explanations that were reasonably possible.

161For these reasons, I would not have allowed a similar act application with regard to this event, and even if I had, I would still have had a reasonable doubt as to what Ms. Petrolo did here.

Shaun Israel

162Shaun Israel received a speeding ticket (86 km/hr in 50 km/hr zone). He was frantic about losing any more demerit points, which would lead to his licence being suspended which, would cost him his job and possibly his girlfriend. He discussed all of this with his employer Rafi Kaltakin. Richard Senior was a customer at their business and overheard this. He offered to help if he could. Mr. Kaltakin took a photo of the ticket using his phone and sent that to Mr. Senior.

163Mr. Israel went to the court office to dispute the ticket. He later received a Notice of Trial. He subsequently received something telling him to attend court on an earlier date. He went to court where Ms. Petrolo withdrew the charge. She stated only "Exercising discretion, asking the charge be marked withdrawn".

164There is no evidence before me showing that Mr. Senior spoke with Ms. Petrolo with respect to this event. Nor is there any evidence that she knew that Mr. Senior was interested in the outcome of this case. Crown counsel wants me to infer her involvement based on similarities with what happened in the Wills and Guarino and de Marchi events.

165Again, I am not prepared to do this for much the same reasons as I expressed earlier, but I will repeat them.

166Crown counsel should have brought a formal application to introduce similar act evidence. They did not do this.

167Even if they had, I am not satisfied that the probative value of such evidence would have outweighed even its limited prejudicial effect.

168There are only four similar events that Crown counsel wants me to rely upon. An alleged pattern of conduct may gain strength if it emerges from a number of similar instances. The likelihood of coincidence diminishes. I am not satisfied that much of a pattern emerged in this case.

169They all occurred within a short period of time. All five events occurred within a five-month period.

170There are some similarities. In all of the events:

(1) The defendant was charged with a provincial offence;

(2) Richard Senior somehow became involved;

(3) The charges were withdrawn or some other favourable disposition occurred.

171The most significant difference is that there are no relevant intercepted communications between Mr. Senior and Ms. Petrolo, either before or after the charge was withdrawn. There is nothing to indicate that she was aware of Mr. Senior's interest in the case or that she had anything to do with bringing the case forward or anything else. There is nothing to indicate one way or the other whether the disposition of the charge was reasonable or not.

172The fact that Ms. Petrolo was the prosecutor who withdrew a charge that Mr. Senior was interested in does make me suspicious, but again that is not the standard the Crown has to meet.

173Again, I would not have allowed a similar fact application, and even if I had I would have had a reasonable doubt as to what Ms. Petrolo did here and she is entitled to the benefit of that doubt.

Conclusion

174Based on my findings with respect to the Guarino event and the first Wills event, I am satisfied beyond a reasonable doubt that Ms. Petrolo committed both offences and I find her guilty of both.

Released: January 17, 2020

Signed: Justice D.A. Harris