Court of Appeal for Ontario

CITATION: R. v. Michelutti, 2010 ONCA 98

DATE: 20100203

DOCKET: C50848

BEFORE: Sharpe, Simmons and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Walter Michelutti

Appellant

COUNSEL:

Michael J. N. Haraschuk, for the appellant

Melissa Adams, for the respondent

HEARD: January 29, 2010

On appeal from the decision of the summary conviction appeal court dated July 3, 2009 by Justice Patricia C. Hennessey of the Superior Court of Justice, allowing the appeal and setting aside the stay entered on August 7, 2008 by Justice G.E. Michel of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1] Despite the very able argument of Mr. Haraschuk, we are not persuaded that there was clear error on the part of the summary conviction appeal judge that would warrant granting leave to appeal.

[2] Whatever systemic problem existed as to production of 911 tapes, it was incumbent upon the trial judge to assess the causes for delay at each stage of the proceedings in the manner described by the jurisprudence. He failed to do so and simply assumed that the entire 15 month delay could be properly attributed to the systemic problem.

[3] We agree with the careful and thorough reasons of the summary conviction appeal judge who did examine the causes for delay at each stage and concluded that at least part of the delay was properly attributed to defence counsel’s failure to respond to Crown requests for clarification as to precisely what further disclosure was required.

[4] According, leave to appeal is denied.