R. v. Hainsworth, 2016 ONCJ 425

CITATION: R. v. Hainsworth, 2016 ONCJ 425 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 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 CriminalCode 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 relevantevidence 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. Hainsworthtestified 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 showingmateriality rests on the party wishing to call the witness. The Ontario Court of Appeal succinctly stated the law in R. v. Elliott, (ON CA), [2003] O.J.

No. 4694, at paragraph 119 as follows: “Where the subpoena or the right to call a witness ischallenged, a mere allegation that the proposed witness has material evidence to give is not sufficient. The party must establish that thewitness 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 Physiciansand Surgeons. Ms. Stone testified that she found the two letters in question (Exhibits 3 and 4) in her mail when she returned fromvacation on January 3, 2013.

She was concerned that the content of the letters was of a threatening nature. After consulting with hersupervisors, 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 fromher on January 4, 2013. [6] Detective Sergeant Paul Rinkoff of the Toronto Police testified that he conducted an investigation into the letters, primarilyfor the purpose of confirming the identity of the writer.

The Detective Sergeant concluded that he had reasonable grounds to believe thatMr. Hainsworth had committed three offences of “threatening bodily harm” contrary to clause 264.1(1)(

a) of the Criminal Code. TheDetective 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 saidthat they had had no communication whatsoever with former Lieutenant Governor Onley. These three witnesses were unshaken oncross-examination. [8] Mr. Hainsworth testified, for the purposes of the motion only. As I have indicated, Mr. Hainsworth believes that the formerLieutenant Governor (Mr. Onley) gave instructions for him to be arrested and charged. Mr.

Hainsworth said that the charges against himare politically motivated and that he was “set up” by Mr. Onley or his staff. Mr. Hainsworth stated that Mr. Onley has a motive, in thatMr. 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 histestimony, 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 thatare not founded on evidence. The comments of the Ontario Court of Appeal in R. v.

Harris, (ON CA), [1994] O.J.No. 1875, at paragraph 7, are applicable: “The respondent is speculating that Murphy may have material evidence and, in doing so, hefalls short of the test of likelihood. He proposes to go on a fishing expedition with the hope of turning up something useful. This isinappropriate 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 flatlycontradicted 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 nameshows 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 immunitythat 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”