Court File and Parties

Date: 2016-07-05

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Ross Hainsworth

Before: Justice John Ritchie

Heard on: March 29, 30; May 4 and July 4, 2016

Reasons for Decision released on: July 5, 2016

Counsel

J. Flaherty ................................................................................................................. for the Crown

R. Hainsworth ...................................................................................................... on his own behalf

J. Glick and E. Wagner ……………………………..……………… for the Honourable David Onley

Ruling on Motion to be Released from Subpoena

RITCHIE J.:

[1] The Honourable David Onley, a former Lieutenant Governor of Ontario, is applying under subsection 700(2) of the Criminal Code to be excused from attending these proceedings as required by his subpoena. The subpoena was obtained by the defendant, Mr. Hainsworth. The defendant contends that "Mr. Onley originated the criminal charges against me" and "he has extremely relevant evidence to give at this trial".

[2] The trial and the motion were conducted on a blended basis, and three witnesses testified for the Crown. Mr. Hainsworth testified on the motion as well.

[3] All parties were agreed that the materiality of Mr. Onley's proposed testimony is the test and that the onus of showing materiality rests on the party wishing to call the witness. The Ontario Court of Appeal succinctly stated the law in R. v. Elliott, [2003] O.J. No. 4694, at paragraph 119 as follows: "Where the subpoena or the right to call a witness is challenged, a mere allegation that the proposed witness has material evidence to give is not sufficient. The party must establish that the witness can give material evidence."

[4] I will deal first with the Crown's evidence. Elaine Stone is a complaint investigator with the Ontario College of Physicians and Surgeons. Ms. Stone testified that she found the two letters in question (Exhibits 3 and 4) in her mail when she returned from vacation on January 3, 2013. She was concerned that the content of the letters was of a threatening nature. After consulting with her supervisors, Ms. Stone called the police. She provided copies of the letters to the police on the same day, January 3, 2013.

[5] Constable James McKrell of the Toronto Police testified that he met with Ms. Stone and seized the two "original" letters from her on January 4, 2013.

[6] Detective Sergeant Paul Rinkoff of the Toronto Police testified that he conducted an investigation into the letters, primarily for the purpose of confirming the identity of the writer. The Detective Sergeant concluded that he had reasonable grounds to believe that Mr. Hainsworth had committed three offences of "threatening bodily harm" contrary to clause 264.1(1)(a) of the Criminal Code. The Detective Sergeant made a decision to have Mr. Hainsworth arrested and charged with those offences.

[7] All three Crown witnesses gave clear and straightforward testimony regarding their involvement in this matter. All three said that they had had no communication whatsoever with former Lieutenant Governor Onley. These three witnesses were unshaken on cross-examination.

[8] Mr. Hainsworth testified, for the purposes of the motion only. As I have indicated, Mr. Hainsworth believes that the former Lieutenant Governor (Mr. Onley) gave instructions for him to be arrested and charged. Mr. Hainsworth said that the charges against him are politically motivated and that he was "set up" by Mr. Onley or his staff. Mr. Hainsworth stated that Mr. Onley has a motive, in that Mr. Hainsworth had criticized Mr. Onley in correspondence. According to Mr. Hainsworth, Mr. Onley wanted "to get revenge for my accusation that he failed to defend the Queen's interest in justice in the Michael Bryant case". Mr. Hainsworth submitted that his testimony, supported by contemporaneous letters he had written, meet the onus and amount to compelling factual evidence of materiality.

[9] I do not agree. In my view, Mr. Hainsworth's evidence amounts to mere speculation, personal opinion and allegations that are not founded on evidence. The comments of the Ontario Court of Appeal in R. v. Harris, [1994] O.J. No. 1875, at paragraph 7, are applicable: "The respondent is speculating that Murphy may have material evidence and, in doing so, he falls short of the test of likelihood. He proposes to go on a fishing expedition with the hope of turning up something useful. This is inappropriate and would only have the effect of disrupting the trial process."

[10] In my opinion, Mr. Hainsworth's assertions are entirely speculative and unsupported. Further, his assertions are flatly contradicted by the highly credible evidence of the three Crown witnesses, which I accept.

[11] Mr. Onley has no relevant or material evidence to contribute in this proceeding. His only involvement is the fact that his name shows as one of the many "carbon copies" on the letters. According to the evidence on this motion, that is the entire extent of Mr. Onley's involvement in this matter.

[12] In light of my ruling, it is unnecessary to address the additional arguments respecting abuse of process and Crown immunity that were raised by Counsel for Mr. Onley.

[13] The application is granted. Mr. Onley is excused from attending court in accordance with his subpoena.

Released: July 5, 2016

Signed: "Justice John Ritchie"