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Thunder Bay judge blasts retired JP

|Written By Viola James

THUNDER BAY - Citing abuse of process, an Ontario Court judge has upheld a stay of proceedings in the prosecution of a Northwestern Ontario company on Occupational Health and Safety Act charges.

But in reasons for judgment, Justice Roderick Clarke has taken the extraordinary step of criticizing the conduct of a retired justice of the peace as well as finding fault with the way the case wound through the court system.

"Based on the totality of the facts, to allow the Crown to continue with this prosecution would be offensive and unfair and would be contrary to the principles of fundamental justice," Clarke said. "[It would also] offend the community's sense of fair play and decency, as well as casting doubt upon the integrity and reputation of the judicial system,"

The judgment, R. v. Nelson Granite Ltd., was released June 6. The case dates to May 9, 2001, when an industrial accident occurred at Vermilion Bay, a hamlet west of the town of Dryden. Following a Ministry of Labour investigation, Nelson Granite was charged in late October with two offences under the Health and Safety Act.

After a series of adjournments, a trial began Oct. 16, 2003 before Justice of the Peace Gordon Buterin. New dates were needed for the defence to present its evidence, but that was postponed twice because the JP's 2004 calendar was not available.

The trial resumed in June and at the conclusion, Buterin asked for written arguments.

In the meantime, counsel ordered transcripts of the proceedings. The materials weren't delivered until late September, at which time Regional Senior Justice of the Peace Bruce Leaman put the matter over to Dec. 23, 2004 to select dates to submit written arguments to Buterin.

However, on Nov. 17, 2004 Buterin advised that he would be retiring as of Dec. 31, 2004. Rather than continue with a new JP, a new trial was set for September 2005. On Feb. 24, 2005, though, counsel for Nelson Granite advised the Crown that he would bring a motion to have the charges against his client stayed as a result of breaches of the Charter and his client's common law rights, such as abuse of process.

The motion commenced before JP Ronald Beck on July 12, 2005 in Thunder Bay's Provincial Offences Court. In the meantime, then-chief justice Brian Lennox ordered a new trial pursuant to the Provincial Offences Act.

Beck continued to hear the application, and on Dec. 2, 2005, he ordered a stay of proceedings. The Crown appealed that ruling.

In his judgment, Clarke noted that Buterin presided for 55 days in the last three months of 2004, and it's unknown why Leaman did not take steps to assign, direct, or otherwise require Buterin to complete the trial and to make an adjudication.

Buterin's conduct in failing to advise Crown, defence counsel, and Leaman at an early stage of his impending retirement was "outrageous," Clarke said.

"Great anxiety, no doubt, has been caused to the officers of Nelson Granite Limited, and great additional cost has had to have been borne by the company. Likewise, the Crown must have incurred tremendous expense in prosecuting this case," he said.

He found Buterin's conduct to be "negligent, incompetent, and unfair to the parties," though he added these remarks are only directed at his failure to perform his duties as a judicial officer.

In upholding Beck's decision to stay proceedings, Clarke said it would be "abusive of the court's process" to allow the Crown's appeal. He reached this conclusion in light of several factors, including:

•    The passage of time which the trial took.

•    The passage of time it took for transcripts to be prepared.

•    The "inappropriate" resignation of Buterin and his failure to advise counsel in a timely manner of his intention to retire.

•    The failure of the regional senior justice of the peace or the regional senior judge to invoke provisions of the Justices of the Peace Act.

•    The lateness of the receipt of the letter from Lennox ordering a new trial.

•    The substantial costs incurred as a result of the proceedings before Buterin, Beck, and this appeal, which was heard in Thunder Bay on Nov. 7, 2006.

•    The failure of Buterin and Leaman to take control of the process, which resulted in an extremely prejudicial fact situation to both the Crown and the defence.

•    The failure of the Provincial Offences Act court to make an objective judicial assessment of the total effect of the proceedings.

"In weighing the public's interest in having the charges in this case determined on their merits and the community's sense of fair play and decency, I find that the unfairness experienced by the respondent/defendant is disproportionate to the public's interest in the effective prosecution of these alleged offences," Clarke wrote.

"I also find that the societal interest in what is fair and just would not permit the prosecution for minor offences to continue after the hardship Nelson Granite Limited has already experienced. Also the preservation of the integrity of the justice system is foremost in my decision for finding an abuse of process.

"No remedy short of a stay of proceedings would be appropriate in this matter as irreparable damage would be caused to the integrity of the justice system if the prosecution were to be continued. Therefore, staying this proceeding for abuse of process is the proper remedy."

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