W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 539(1), (2), (3) or (4) of the Criminal Code shall continue. These sections of the Criminal Code provide:

539(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged; or

(d) if he or she is ordered to stand trial, the trial is ended.

(2) Where an accused is not represented by counsel at a preliminary inquiry, the justice holding the inquiry shall, prior to the commencement of the taking of evidence at the inquiry, inform the accused of his right to make application under subsection (1).

(3) Everyone who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

(4) [Repealed, 2005, c. 32, s. 18(2).] R.S., c. C-34, s. 467; R.S.C., 1985, c. 27 (1st Supp.), s. 97; 2005, c. 32, s. 18.

CITATION: R. v. Rutigliano, 2011 ONCA 797

DATE: 20111215

DOCKET: C54105 and C54106

COURT OF APPEAL FOR ONTARIO

MacPherson, Juriansz and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Rutigliano

Appellants

Scott C. Hutchison and Fredrick Schumann, for the appellant Rutigliano

Richard Peck, Q.C., Scott K. Fenton, Jeff Campbell and Lynda Morgan, for the respondent

Heard and released orally: December 13, 2011

On appeal from the order made by Justice Joseph M. Fragomeni of the Superior Court of Justice dated July 6, 2011 dismissing the application for an order in the nature of a writ of certiorari quashing the order made by Justice I. André on November 15, 2010, which committed the appellants to stand his trial on certain counts in the Information.

ENDORSEMENT

[1] This is an appeal from the decision of Justice Fragomeni of the Superior Court of Justice refusing to quash the appellant’s committal to trial on certain counts. The appellant, a police officer working in court liaison, was charged with breach of trust, obstruction of justice, and conspiracy to obstruct justice. The appellant argues that the evidence presented at the preliminary inquiry establishes only that he attempted to assist Frank D’Angelo, a long-time friend charged with sexual assault, navigate the criminal justice system and is insufficient to establish the essential elements of the offences with which he was charged. The appellant submits that the conduct relied on by the Crown does not make out the offences, but calls for speculation rather than legitimate inference drawing.

[2] We are unable to accept Mr. Hutchison’s characterization of the evidence of the appellant’s advice to Frank D’Angelo, and of his actions and communications with Crown attorneys and court administrators.

[3] For example, Mr. Hutchison submits that appellant’s advice to Mr. D’Angelo amounted to suggesting that he examine what he was saying and ask himself seriously if that is what really happened. While Mr. D’Angleo did put that characterization on the advice, at one point he also said that the appellant advised him to testify that he was attracted to the complainant, but that this was not true. As well, in an intercepted telephone call, the appellant told Mr. D’Angelo that sometimes perception of the truth was better than the truth itself, and that if Mr. D’Angleo testified his own way he would be going to jail.

[4] As Justice Fragomeni pointed out, the appellant isolates some conduct of the appellant and asks the court to assess that conduct on its own, but that the trier of fact is obligated to consider individual pieces of evidence in of the context of all the evidence.

[5] Specifically in relation to the breach of trust charge, the appellant submits that the evidence falls short of establishing that he acted in connection with his duties as a police officer, except for providing Mr. D’Angelo with the ICON printout, which standing alone was not a serious matter. However, it is clear that the appellant’s long career as a police officer provided him with ready access to a number of Crown attorneys and court administrators and he used this access on behalf of his friend. All of these matters considered together are sufficient to justify committal of the appellant to stand trial. Whether they rise to the level of a “serious and marked departure” from the standards expected of an individual in the appellant’s position of public trust is a matter to be determined by the trier of fact at trial on the basis of the totality of the evidence.

[6] All the evidence and the elements of the offences charged were carefully reviewed by Justice Fragomeni who concluded that there was evidence before the committing judge upon which the justice could form the opinion that there was sufficient evidence to put the appellant on trial.

[7] We agree with Justice Fragomeni’s careful and complete reasons.

[8] The appeal is dismissed.

“J.C. MacPherson J.A.”

“R.G. Juriansz J.A.”

“G.J. Epstein J.A.”