Court Information

Date: 2016-02-18

Ontario Court of Justice

Between: Her Majesty the Queen — and — Ross Hainsworth

Before: Justice John Ritchie

Heard on: February 16 and 17, 2016

Reasons for Decision released on: February 18, 2016

Counsel

J. Scutt — counsel for the Crown

R. Hainsworth — on his own behalf

Ruling on Application for a Stay of Proceedings

RITCHIE J.:

[1] This is Mr. Hainsworth's application for a stay of proceedings. Essentially, it is an application under section 7 of the Canadian Charter of Rights and Freedoms, and an abuse of process by the prosecuting Crown Attorney is alleged.

[2] I gave my ruling on the motion on February 17, 2016, and I am now providing the written reasons for my decision, as promised.

[3] Mr. Hainsworth formerly practiced as a lawyer, but he is self-represented in this proceeding. I wish to thank Mr. Hainsworth for the evidence he presented on this motion and for the very fulsome submissions he made. I thank Mr. Scutt as well for the authorities he provided and for his submissions.

[4] I allowed this application to proceed on the third ground set out in the defence application. That ground reads as follows:

"The prosecuting Crown Attorney, John Flaherty, committed prosecutorial misconduct by conspiring with a Court Reporter named Aziza Othman to omit a comment made by Crown Attorney E.A. Dermott on the court record on September 19, 2013."

[5] The first question is what did Crown Attorney McDermott say? Mr. Hainsworth submits that the comment in question was omitted from the transcript of September 19, 2013.

[6] Mr. Hainsworth was before me approximately six times in the Fall of 2013. I granted him bail on November 26, 2013. I recall Mr. McDermott's comment. He said that in light of Mr. Hainsworth's pre-trial custody, the Crown would not ask for additional jail time if he were convicted of any offences. I do not know what date Mr. McDermott made that comment, and I do not remember his exact words, but that was the gist of what he said.

[7] The second question is, in what context did Mr. McDermott make the comment? The issue of bail for Mr. Hainsworth was under discussion at the time. Mr. McDermott was providing background information to the Court (and presumably stating it for the record as well). Mr. McDermott summarized the Crown's position very well at pages 13 to 14 of the October 25, 2013 transcript, and I am going to quote it:

"Mr. Hainsworth cannot delay matters, refuse to address his judicial interim release, and then complain that he's been held in custody.

Out of concern that he, in fact, had served so much time, I was prepared to agree to a release on his own signature (since Mr. Hainsworth apparently has no sureties) and, if I could be assured that he wouldn't carry out the threats, which as I pointed out to Your Honour I believe in the past, were very chilling threats.

And that is why I asked for the psychiatric assessment, which Mr. Hainsworth agreed to."

[8] The third question: Is there a legal problem if an accused person serves more pre-trial custody than the Crown ultimately asks for on sentencing. The answer is "no". Sometimes it happens. The Crown is entitled to prosecute charges and seek convictions, regardless of how long an accused person has been in custody. I am not aware of any statute law or case law to the contrary. An accused person cannot avoid a conviction simply by sitting in jail and not having a bail hearing and then saying "I've already served my sentence, so you can't prosecute me".

[9] Perhaps more to the point, it is grossly premature to be talking about what a sentence might be, when no trial has taken place, no evidence has been heard, no submissions have been received, no conviction has been registered and no submissions have been received on sentencing. All I can say at this time, is that the absolute maximum sentence, in the event of three convictions, would be 18 months in jail. I note also that Mr. McDermott fairly advised the Court and Mr. Hainsworth that, in the event of one or more convictions, the Crown would not be asking for additional jail time.

[10] I am turning now to Mr. Flaherty's alleged misconduct. Mr. Hainsworth testified on the motion. Mr. Hainsworth believes that Mr. Flaherty and a court reporter conspired to alter a transcript (and possibly the audio recording of the court proceedings in question). In particular, Mr. Hainsworth believes that they omitted Mr. McDermott's comment, "because it is fatal to the Crown's case". According to Mr. Hainsworth, that was Mr. Flaherty's motive for having the transcript altered.

[11] In my opinion, there is no evidentiary basis whatsoever for drawing an inference that Mr. Flaherty acted improperly. I do not know if there is an omission from the September 19, 2013 transcript but, assuming that there is, there could be many innocent explanations for such an error. Further, as I have already explained, there is simply no motivation for Mr. Flaherty or any other officer of the Crown to suppress Mr. McDermott's comment. Mr. McDermott's comment is not fatal to the Crown's case. It is irrelevant insofar as the Crown's case is concerned. However, if Mr. Hainsworth were to be convicted of any offence, I am sure the Crown will be true to their word and will not ask for more jail time. Further, I wish to note that the Crown does not call the shots on a sentencing. In the event of a conviction, the Crown makes submissions with respect to sentence, as does the defence. However, sentencing is the sole responsibility of the Court, in the final analysis.

[12] In conclusion, I wish to say that Crown Attorney Flaherty never showed or expressed any malice or bias towards Mr. Hainsworth during the proceedings before me. Also, there is no evidence that a comment was deliberately omitted from a transcript, much less that Mr. Flaherty conspired with a court reporter to omit something that Mr. McDermott said from a transcript. Those allegations are totally unsubstantiated, in my opinion.

[13] The evidentiary burden of establishing Crown misconduct in relation to the charges against Mr. Hainsworth has not been met. The application is dismissed, and the trial will proceed on March 29 as scheduled.

Released: February 18, 2016

Signed: Justice J. Ritchie