Ontario Criminal

Charter of Rights

Fact that Crown’s witness gave contradictory evidence did not amount to “flagrant impropriety”

Accused individuals charged with aggravated assault and assault. Accused individuals applied for stay of proceedings on basis that continued prosecution of matter by Crown amounted to abuse of process. Crown alleged that, at stag and doe, one complainant was assaulted in unprovoked manner by accused individuals, while second complainant was punched in face by accused and fell to ground and lost consciousness. Accused individuals argued that Crown had impeached its main witness to point that it could not ask court to accept his evidence. Accused individuals argued that Crown’s continued prosecution in view of discrepancies between evidence of its own witnesses amounted to abuse of process. Accused individuals argued that continuing prosecution absent reasonable likelihood of conviction violated guidelines of Attorney General of Ontario. Application dismissed. Fact that Crown’s own witness gave contradictory evidence on important issues that court had to decide did not amount to “flagrant impropriety” requiring court to interfere with Crown’s discretion to continue with prosecution. Court ultimately had to consider evidence of Crown witnesses and decide how much or how little of evidence it would accept. It was not unreasonable for Crown to leave matters for trier of fact to sort out, and to do so did not amount to impropriety on part of Crown or abuse of Crown’s prosecutorial discretion. Other witnesses to altercations were equally available to Crown and defence and court should not interfere in trial process by playing role in overseeing what witnesses Crown may or may not call in prosecution of case. Court could not conclude that continued prosecution would have shocked or violate conscience of community, or that denial of stay of proceedings would have jeopardized fairness of trial. Given nature of case and injuries allegedly sustained by complainant, community would have been shocked, and its faith in administration of justice shaken, if court abandoned its responsibility to make findings of fact on all of evidence presented, including conflicting evidence, and to adjudicate on merits of case.

R. v. Rocchetta (Nov. 6, 2013, Ont. S.C.J., E. Gareau J., File No. 7336/12) 110 W.C.B. (2d) 320.

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