SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CRIMJ(P) 754/10
DATE: 2013 10 28
RE: HER MAJESTY THE QUEEN v. MIKE LEONARD RUTIGLIANO and BARRY PIERSON
BEFORE: Hill J.
COUNSEL:
R. Peck, Q.C., S. Fenton, E. Gottardi and L. Morgan, for Her Majesty the Queen
S. Hutchison, O. Wigderson and F. Schumann, for Mr. Rutigliano
J. Wilkinson, for Mr. Pierson
E N D O R S E M E N T
[1] The defendants have been before the courts for a considerable length of time since their arrest.
[2] Presiding over Indictment CRIMJ(P) #754/10 as the appointed case management judge pursuant to Part XVIII.1 of the Criminal Code since February of 2012, I have heard a series of pre-trial motions brought by the Applicants.
[3] On January 11, 2013, at the request of the Crown, count #’s 1-3 and 9 to 11 were marked as withdrawn. Mr. Rutigliano remained charged in count #’s 4, 5, 7 and 8 and 12 to 14 and Mr. Pierson in count #’s 4, 6 and 7 to 8.
[4] From late 2012, and into October 2013, a stay-of-proceedings phase of the pre-trial motions has been underway relating to an alleged abuse of process.
[5] During the testimony of OPP Detective Sergeant Gregus, a serious issue arose, and was likely to arise in the evidence of upcoming police witnesses, relating to solicitor-client privilege in particular respecting Crown counsel advice to the OPP which may or may not have been instrumental in the way police mishandled presumptively privileged solicitor calls intercepted during the operation of four Part VI Code orders of this court.
[6] Following argument, the court released its ruling (2013 ONSC 6589) on October 22nd. That ruling ordered produced to the court, for its review, solicitor-client communications relating to identified subject matter. That review, it was anticipated, could lead to disclosure to the defence.
[7] On October 24th, on behalf of the Crown, Mr. Fenton stated:
At this juncture, the Crown is requesting that the Court enter a judicial stay of the proceedings on the Indictment. The Crown’s reasons for making that request are as follows. I will be brief. My comments are made with the greatest respect to the Court.
The Court has made an order, pursuant to the first stage of R. v. McClure, requiring the Crown to disclose to the Court a body of materials that are subject to solicitor-client privilege, including police notes and … relevant privileged file materials of Crown counsel who provided legal advice to the police during the investigation.
The Court made that Order on the basis of its finding that there has been a sufficient evidentiary showing that the relevant solicitor-client communications could, in a material way, establish an abuse of process.
The Court has determined that it will be necessary for the Court to review those privileged materials to determine whether, considering the totality of the evidence, those communications are likely to significantly advance the record as to the intention of the relevant state actors in conducting themselves as they did. As you indicated in para. 169 of your Reasons: “Disclosure of the privileged communications by the Court to the defence will then only be warranted where, after the Court’s review, the Court is satisfied that the communications are likely to substantiate proof of the existence of abuse of process”.
Practically speaking, in order for the Crown to comply with the Court’s order respecting the second stage of the McClure process, the Crown would require a lengthy adjournment. During that adjournment, the Crown would need to review, collect and produce to the Court the relevant privileged police notes of the various officers who received legal advice respecting the Part VI orders. The Crown would also need to obtain access to, review, collect and produce to the Court any relevant privileged Crown files that bore upon the legal advice that was provided to the officers. Leaving aside the issue of whether the Crown would have to develop affidavits for Crown counsel, or whether the Court would need to conduct some kind of ex parte hearing to hear their evidence regarding the advice they provided to the police, the entire process of producing the relevant privileged police and Crown files would take a considerable amount of time and resources.
While the Crown cannot speak to the content, at this time, of any Crown files at this time as none have been reviewed, the Crown has already reviewed and redacted several officer notes that record the legal advice from the Crowns regarding the execution issues pertaining to the Part VI orders that have been identified in the Court’s Ruling. In the Crown’s respectful view, the Court having already determined that those files could, in a material way, establish an abuse of process, it is inevitable that, upon this Court’s review of those notes that record the content of the legal advice from the Crowns, that this Court would conclude that those notes must be disclosed (even if some other included irrelevant material was redacted).
Accordingly, rather than spending considerable prosecutorial resources finding, reviewing and producing all of the privileged information for the second stage review, and then waiting to the precise moment that the Court makes an order disclosing that material to the defence, and then rising at that time to request that the Court impose a judicial stay, the Crown respectfully makes the request now that a judicial stay be entered.
In doing so, the Crown is acting solely to prevent irreparable harm being caused to a legally recognized interest worthy of protection: that is the solicitor-client privilege that existed and exists between the OPP investigators and the Crown counsel who provided them advice during the investigation.
[8] Rather than requesting an adjournment to seek leave to appeal the court’s judgment of October 22nd, or expeditious compliance with that production order, or directing a stay pursuant to s. 579 of the Code, the Attorney General of Ontario requests this court to exercise its discretion to enter a stay of proceedings.
[9] Counsel for Mr. Rutigliano and Mr. Pierson were in agreement that the court make the order requested.
[10] In light of the Attorney General’s request based on what it believes is in the public interest, taken in the context of the protracted character of the ongoing pre-trial motions and the overall delay in this case, the court terminated the proceedings by entering a judicial stay.
[11] All existing orders prohibiting publication, broadcast or transmission of proceedings or rulings are agreed to be at an end.
[12] By agreement, the court continues to retain jurisdiction, upon consultation with the parties, to make such orders as may prove necessary corollary to the stay disposition, for example, relating to the forfeiture/return of seized property, the retention/disposition of materials sealed by the Referee, et cetera.
Hill J.
DATE: October 28, 2013
COURT FILE NO.: CRIMJ(P) 754/10
DATE: 2013 10 28
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN v. MIKE LEONARD RUTIGLIANO and BARRY PIERSON
BEFORE: Hill J.
COUNSEL:
R. Peck, Q.C., S. Fenton,
E. Gottardi and L. Morgan, for Her Majesty the Queen
S. Hutchison, O. Wigderson and F. Schumann, for Mr. Rutigliano
J. Wilkinson, for Mr. Pierson
ENDORSEMENT
Hill J.
DATE: October 25, 2013