R. v. Piotrowski, 2011 ONCJ 561

Citation: R. v. Piotrowski , 2011 ONCJ 561 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — Adam Michael Piotrowski ____________________________________________________________________ Before Justice David M. Paciocco Written Reasons for the Order Excluding the Accused from the Trial Released October 18, 2011 Mr. Paul Attia …......…………………………………………………………......for the Crown Mr. Michael Davies ……………………………….for the Accused, Adam Michael Piotrowski PACIOCCO, J.: [ 1 ] Mr. Adam Michael Piotrowski is charged with a number of offences, including assaulting Chantal Dumoulin, contrary to

section 266 of the Criminal Code , and threatening to cause her death, contrary to

section 264.1(2) of the Criminal Code . Mr. Piotrowoski lived, at the material time, at 278 Bronson Avenue, immediately adjacent to an apartment building owned by Ms. Dumoulin’s fiancé. She had seen Mr. Piotrowski before but did not know him. While this did not feature in the issues in the case, it was made clear to me that Mr. Piotrowski suffers from mental illness. The allegation involved muttering and ranting followed by threats against Ms. Dumoulin and others made in her presence or to her knowledge. Some of the threats are alleged to have consisted of misogynistic ranting. Mr.

Piotrowski is also alleged to have charged at Ms. Dumoulin while threatening to kill her. Ms. Dumoulin testified to being petrified of Mr. Piotrowski. [ 2 ] During the Crown case –specifically during the evidence of the complainant Chantal Dumoulin - I ordered Mr. Piotrowski to be removed from the courtroom pursuant to section 650(2) (

a) of the Criminal Code of Canada as a result of his misconduct, described below. He was excluded from the body of the court for the conclusion of her evidence in-chief and for her cross-examination, but was present for the balance of the evidence in the case and the submissions. [ 3 ] I made this highly unusual order mindful that Mr. Piotrowski has not only a prima facie statutory right to be present during his trial, but also a constitutional right to be present.

The presence of an accused person during all matters that accused persons have a vital interest in is jealously guarded so that accused persons can hear the case against them, and have the opportunity to acquire sufficient familiarity with the case to be able to instruct counsel or otherwise answer the charges. Section 650(2)(

a) permits a judge to exercise the discretion to remove an accused person solely where the accused misconducts themselves by interrupting the proceedings so that to continue the proceedings in his presence is not feasible. Mere difficulty in continuing the proceeding is not enough. The misconduct of the accused must be such that continuation in the presence of the accused is not feasible. Consistent with any limitation on a constitutional right, exclusion should occur only when it is necessary hence the feasibility requirement.

It should also occur solely where exclusion is a rational response to the misconduct in question because it is that conduct which interrupts the trial. Finally, it should be ordered solely where it is a proportionate response. This requires that exclusion be the least impairing manner of keeping the trial progressing. [ 4 ] Having said this, it is important to note that what the

section conferring the discretion to exclude the accused guards against is interruptions in the proceedings. Trial time is a precious commodity. Courts certainly have the discretion to adjourn cases in the hope that accused persons who have mis-conducted themselves might behave better on a return date, but there is no requirement to do so. In a real sense, accused persons who misconduct themselves by disrupting proceedings forfeit their right to be present and cannot then complain that a judge has chosen to continue in their absence. The least intrusive measure obligation relates to the least intrusive way of

keeping a trial, then underway, continuing underway. [ 5 ] In this case, the continuation of the trial was not feasible other than by excluding Mr. Piotrowski while Ms. Dumoulin was testifying. Mr. Piotrowski, who seemed able to control his outbursts throughout the balance of the trial, did not seem to be able to do so during her testimony. In addition to disrupting the proceedings by making comments from the prisoner’s box, he twice directed threatening comments at her.

He said words to the effect of “If I see her again that is it” and “I’m going to smash this bitch.” The first time I admonished him to remain silent. The second time, after objection by the Crown, I asked his counsel, Mr. Davies, to make submissions on whether Mr. Piotrowski should be removed. I observed the demeanour of the complainant at the relevant times. Not surprisingly she was clearly shaken and upset. After submissions I nonetheless agreed that an order excluding Mr. Piotrowski should only be made as a last resort.

I tried to make arrangements to have the case moved to a courtroom equipped with facilities that would have allowed Ms. Dumoulin to give her testimony by video link pursuant to

section 486.6(2) of the Criminal Code where she could be insulated from hearing any comments Mr. Piotrowski might make. We delayed the proceedings for close to 40 minutes while trying to make the necessary arrangements but the move was not immediately feasible without interrupting another trial. I therefore chose to proceed by having Ms. Dumoulin, who was on crutches from an unrelated injury, testify from the witness box across the court from the prisoner’s box. I conducted a voir dire in this manner to gauge Ms. Dumoulin’s ability to continue. I had her ushered to the witness box before Mr.

Piotrowski was brought to court so that she would not have to pass by the prisoner’s box while he was sitting only a few feet away. After listening to her evidence on the voir dire I satisfied myself that it would be worth trying to continue with her testifying from across the room and with Mr. Piotrowski present, as he had remained under control during the voir dire and she seemed able to continue. [ 6 ] To ensure that she could continue, notwithstanding her evident apprehension, I also made an order pursuant to

section 486.1(2) for a support person to be present – her fiancé, Mr. Stephen Francispillai. I considered the fact that he was a witness in the case who had already testified and concluded that he would nonetheless by an appropriate person to fulfil this role – it was necessary in the proper administration of justice given that short of making this order, there was a material risk that Ms. Dumoulin would not have been able to give her evidence effectively and the alternative was to exclude Mr. Piotrowski entirely. [ 7 ] In spite of these measures, several minutes after the case reopened Mr.

Piotrowski became extremely agitated and began to disrupt the proceedings again by yelling out in an aggressive manner. After considering (1) that Ms. Dumoulin was the complainant in an assault and threatening case in which the allegations involved misogynistic rants directed at young women generally and Ms.

Dumoulin in particular, (2) the repeated and aggressive nature of the threats, (3) after observing her reaction, and (4) after considering that the feasibility of continuing includes ensuring that the trial process is one in which witnesses can feel safe and be protected from abuse or threatening behaviour, I concluded that the proceedings could not be continued without interruption without removing Mr. Piotrowski from the courtroom while she was testifying. [ 8 ] The exclusion was time limited. Upon the completion of her evidence, he returned. Mr.

Davies, his counsel, was afforded the opportunity to meet with him to apprise him of what transpired and to obtain instructions. The trial resumed and Mr. Piotrowski remained present without incident for the closing of the Crown case, the defence election not to call evidence, and the final submissions. [ 9 ] I recount my reasons for the ruling to complete the record. I have not taken anything I have witnessed in court into account in coming to my decision on the merits of the case, as the Crown relied solely on the evidence presented.

I make no ruling or offer no opinion on whether the events during the trial would have constituted admissible evidence on any of the substantive charges as after-the- fact conduct. Released: October 18, 2011 ___________________________________ The Honourable Justice David M. Paciocco