) ) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 6853

CITATION : R. v. Rocchetta and Rocchetta, 2013 ONSC 6853 COURT FILE NO.: 7336/12 DATE: 2013-11-06 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – RYAN ROCCHETTA and JORDAN ROCCHETTA Defendants ) ) ) ) ) ) ) ) ) ) ) ) D. Peterson/L. Mehkeri, for the Crown D. Orazietti, Q.C. for Ryan Rocchetta B. Willson for Jordan Rocchetta ) ) HEARD: October 22, 2013 reasons on charter application JUSTICE E.

GAREAU: [ 1 ] The accused, Ryan Rocchetta and Jordan Rocchetta, brought an application dated July 11, 2013 for an order staying the criminal proceedings against them. [ 2 ] The basis of the application is an allegation that the continued prosecution of this matter by the crown amounts to an abuse of process infringing

Section 7 of the Canadian Charter of Rights and Freedoms . [ 3 ] The Charter application was brought by the accused in the middle of the trial of this action and prior to the crown concluding its case. The court ruled that the crown should complete its case prior to the application being heard. The crown closed its case on July 12, 2013 after eight days of evidence. A time table was then set for the Charter application to be heard, including the delivery of facta and case books. Oral submissions on the Charter application were received by the court on October 22, 2013.

The court’s decision was reserved with written Reasons to follow.

Factual Background: [ 4 ] The indictment, dated October 1, 2012, reads as follows: “Ryan Joseph Rocchetta and Jordan Rocchetta stand charged that they on or about the 24 th day of July, 2011 at the Township of MacDonald in the said Region, did wound Jake Doan thereby committing an aggravated assault, contrary to s. 268 of the Criminal Code of Canada ; and Ryan Joseph Rocchetta stands further charged that he on or about the 24 th day of July, 2011 at the Township of MacDonald in the said Region, did commit an assault on Matthew Gauthier, contrary to s. 266 of the Criminal Code of Canada .” [ 5 ] The court heard evidence from six witnesses called by the crown.

The defence has not called any evidence to date pending

the Charter application and the court’s ruling with respect to the application. [6] The allegations that form the basis for the crown’s case against the accused Ryan Rocchetta and Jordan Rocchetta are that astag and doe function was held at the cottage of Vic Fremlin on McCarroll’s Lake on July 24, 2011. The stag and doe was to celebratethe upcoming wedding of Tonya Rydall and Andrew Hatton. On the evidence, it is clear that this party began in the early afternoon andlasted throughout the evening and into the early morning the following day.

It is also clear that numerous young people, being friendsand acquaintances of Tonya Rydall and Andrew Hatton, attended the party and that alcohol was flowing freely at this celebratory party. [7] It is alleged by the crown that while attending at the party, Jake Doan was assaulted in an unprovoked manner by RyanRocchetta and Jordan Rocchetta and as a result of the assault, Jake Doan suffered numerous serious injuries including permanent damageto his right eye and permanent partial loss of vision in that eye. [8] It is further alleged by the crown that while on the deck outside of the cottage owned by Vic Fremlin, Matthew Gauthier waspunched in the face by Ryan Rocchetta and Matthew Gauthier fell to the ground and lost consciousness. [9] The accused, Ryan Rocchetta and Jordan Rocchetta dispute the crown’s allegations and have entered pleas of not guilty toboth counts in the indictment.

THE ISSUES ON THE CHARTER APPLICATION

a) Prosecutorial Discretion: [10]

Section 7 of the Canadian Charter of Rights and Freedoms reads as follows: “Everyone has the right to life, liberty and security of their person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice.” [11] The accused submit that the crown’s continued prosecution in view of the discrepancies between the evidence of the crown’sown witnesses, Jake Doan and Sacha Shaughnessy and Deborah Shaughnessy amounts to an abuse of process and an infringement of s. 7of the Canadian Charter of Rights and Freedoms. [12] As set out in paragraphs 23 and 24 of the accused’s factum, it is suggested by the accused that: “23.

The prosecution of the applicants amounts to a violation of s. 7 of the Canadian Charter of Rights and Freedoms (the Charter) andan abuse of the court’s process because the thrust of the prosecution is the personal vindication of Jake Doan and his version of eventsand not a search for the truth, which must be the focus of the prosecution. 24. The crown has impeached its main witness to the point that the crown cannot ask this court to accept the evidence of Doan.

Tocontinue the prosecution absent a “reasonable likelihood of a conviction” violates the guidelines of the Attorney General of Ontario.” [13] It is suggested by the accused that the impeachment of the evidence of Jake Doan was done by the crown’s own witnesses,Sacha Shaughnessy and Deborah Shaughnessy who contradicted the evidence of Doan that he was not involved in an altercation withRyan Rocchetta on the deck of the Fremlin cottage and incapable of fighting due to a work- related injury that he sustained to hisshoulder.

As stated by the accused in paragraph 34 of their factum: “It is submitted that the crown has now placed itself in the impossible and untenable position of having to ask the court to find that theevidence of the Shaughnessy’s is not worthy of belief so far as it contradicts Doan on material and substantial issues relating to hisevidence, otherwise Doan’s evidence must be rejected.

This dilemma was known to the crown, yet it forged ahead, without challengingitself in its own analysis of the evidence to determine whether Doan’s evidence was credible.” [14] It is the position of the Rocchetta’s that the crown’s failure to stand back and re-assess its case and the merits of a continuedprosecution amount to an abuse of the court’s process and a violation of the rights guaranteed by s. 7 of the Charter. [15] It is clear and settled law that the court should not interfere with prosecutorial discretion absent “flagrant impropriety.” In thecase of R. v. Power, (SCC), [1994] S.C.J.

No. 29, the Supreme Court of Canada adopted the rationale set out in R. v. T.(V.), (SCC), [1992] 1 S.C.R. 749 that the court should not interfere with the prosecutor’s discretion. At paragraph 37 thecourt stated: “A judge must keep out of the arena. He should not have or appear to have any responsibility for the institution of a prosecution. Thefunctions of prosecutors and judges must not be blurred.

If a judge has power to decline a case because he does not think it should bebrought, then it soon may be thought that the cases he allows to proceed are cases brought with his consent or approval.” [16] The principle that the court should not interfere with the exercise of discretion by the crown and the distinct roles between thecrown and the court was stated by the Ontario Court of Appeal in R. v. Gill, 2012 ONSC 5397 , 112 O.R. (3d) 462 whereDoherty, J.A., speaking for the majority of the court, stated at paragraph 75:

“There is no freestanding principle of fundamental justice requiring that the crown justify the exercise of its discretion to the trial court. To the contrary, our legal tradition – the source of the principles of fundamental justice – has long recognized that the independence ofthe prosecutor and the very distinct roles assigned to judges and prosecutors in the criminal process combine to dictate that judges shouldnot oversee trial decisions made in the exercise of prosecutorial discretion except to the extent that they impact on the integrity of theprocess or the fairness of the trial.

To require prosecutors to “justify” decisions to trial judges on a reasonableness standard is to implythat trial judges have some sort of supervisory role over the conduct of the prosecution. They do not. Further, to open all prosecutorialdecisions that impact on an accused’s liberty to a reasonableness review by the trial judge could significantly prolong criminalproceedings and add yet a further layer of motions and applications to what has become an ever more complicated and protractedprocess: see R. v.

Power, (SCC), [1994] 1 S.C.R. 601, at pp. 626-627; Nixon, at para. 52; and Michael Code “JudicialReview of Prosecutorial Decisions: A Short History of Costs and Benefits, in Response to Justice Rosenberg” (2009) 34 Queen’s L.J.863, at pp. 883-885.” [17] This judicial deference to the discretion of the prosecutor is stated clearly in R. v. Sandham, [2009] O.J.

No. 4560 atparagraph 20 of that judgment: “Unless the applicants have established a basis for believing that the crown has exercised its prosecutorial discretion improperly, thecourt shall not embark on an evidentiary hearing and inquire into the reasons for the crown’s decision.” [18] The fact that the crown’s own witness gave contradictory evidence on important issues that the court has to decide does not, inmy view, amount to a “flagrant impropriety” requiring the court to interfere with the crown’s discretion to continue with the prosecutionin this case.

The court will ultimately have to consider the evidence of Jake Doan and of Sacha Shaughnessy and Deborah Shaughnessyand decide how much or how little of the evidence of these witnesses it will accept. This is no different than in any other criminal trialwhere the court, as the trier of fact, has to examine and assess the evidence of witnesses and frequently contradictory evidence given bythe witnesses. This is the role of the court as the trier of fact and it is no different in this case.

It is not unreasonable for the crown toleave these matters for the trier of fact to sort out and to do so does not amount to impropriety on the part of the crown or an abuse of thecrown’s prosecutorial discretion. [19] There is also a suggestion by the defence that the crown was selective in the witnesses that it called to testify. The suggestionis that the crown could have called other people who witnessed the altercation between Jake Doan and Ryan Rocchetta and could havetestified, the defence suggests, that Mr. Doan was not a passive participant in the altercation. I am not persuaded by that argument.

These witnesses are equally available to the crown and the defence and the court should not interfere in the trial process by playing a rolein overseeing what witnesses the crown may or may not call in the prosecution of a case. [20] I accept and adopt the comments of the Supreme Court of Canada in R. v. Cook (SCC), 114 C.C.C., (3d)481, where at paragraph 55, the court observed: “In

summary, I conclude that there is no duty upon the crown to call witnesses nor a more specific duty to call the complainant orvictim. Decisions on how to present the case against an accused must be left to the crown’s discretion absent evidence that thisdiscretion is being abused .” [21] This observation is reinforced at paragraph 65 of the decision where the court states: “As I have stated above, the crown has a complete discretion in deciding which witnesses it will call as part of its case.”

b) Abuse of Process: [22]

Section 7 of the Canadian Charter of Rights and Freedoms subsumes the concept of abuse of process. The common lawprinciples with respect to the doctrine of abuse of process are maintained and codified in

Section 7. The court has the power to stayproceedings on the basis of an abuse of process. As stated at page 14 in the case of R. v.

Jewitt (1985), 12 C.C.C. (3d) 7: “There is a residual discretion in a trial court to stay proceedings where compelling the accused to stand trial would violate thosefundamental principles of justice which underline the community’s sense of fair play and decency and prevent the abuse of the court’sprocess through oppressive proceedings.” [23] It is a principle of law that a stay of proceedings for an abuse of process should only be resorted to by the courts in the“clearest of cases.” This principle was enunciated by the Supreme Court of Canada in R. v. Regan, 2002 SCC 12 , [2002] 1S.C.R. 297.

Speaking for the majority of the court, Lebel, J. stated at paragraph 53: “A stay of proceedings is only one remedy to an abuse of process, but the most drastic one: “that ultimate remedy”, as this court inTobiass, supra, at para. 86, called it. It is ultimate in the sense that it is final. Charges that are stayed may never be prosecuted; analleged victim will never get his or her day in court; society will never have the matter resolved by a trier of fact. For these reasons, astay is reserved for only those cases of abuse where a very high threshold is met: “the threshold for obtaining a stay of proceedings

remains, under the Charter as under the common law doctrine of abuse of process, the “clearest of cases” (O’Connor, supra, at para. 68).” Furthermore, in the case of R. v. Power, (SCC), [1994] S.C.J. No. 29, Justice L’Heureux Dube, writing for the majorityof the court, stated at paragraphs 10, 11 and 12 of her judgment: “10 I added, however, on the same page, that a stay of proceedings for abuse of process will only be granted in the “clearest of cases”. This was reiterated in R. v. Scott, (SCC), [1990] 3 S.C.R. 979, per Cory, J. See also R. v.

Potvin, (SCC), [1993] 2 S.C.R. 880. 11 I, therefore, conclude that, in criminal cases, courts have a residual discretion to remedy an abuse of the court’s process but only in the“clearest of cases”, which, in my view, amounts to conduct which shocks the conscience of the community and is so detrimental to theproper administration of justice that it warrants judicial intervention. 12 To conclude that the situation “is tainted to such a degree” and that it amounts to one of the “clearest of cases”, as the abuse ofprocess has been characterized by the jurisprudence, requires overwhelming evidence that the proceedings under scrutiny are unfair tothe point that they are contrary to the interest of justice.

As will be developed in more detail further in these reasons, the AttorneyGeneral is a member of the executive and as such reflects, through his or her prosecutorial function, the interest of the community to seethat justice is properly done. The Attorney General’s role in this regard is not only to protect the public, but also to honour and expressthe community’s sense of justice. Accordingly, courts should be careful before they attempt to “second-guess” the prosecutor’s motiveswhen he or she makes a decision. Where there is conspicuous evidence of improper motives or of bad faith or of

an act so wrong that itviolates the conscience of the community, such that it would genuinely be unfair and indecent to proceed, then, and only then, shouldcourts intervene to prevent an abuse of process which could bring the administration of justice into disrepute. Cases of this nature will beextremely rare.” [24] The aforementioned paragraphs of the Supreme Court of Canada in R. v. Power, particularly paragraph 12, clearly set out theapplicable principles in considering the exercise of prosecutorial discretion and whether that amounts to an abuse of process whichnecessitates a stay of proceedings.

To repeat part of paragraph 12 of the R. v. Power decision: “Where there is conspicuous evidence of improper motives or of bad faith or of

an act so wrong that it violates the conscience of thecommunity, such that it would genuinely be unfair and indecent to proceed then, and only then, should courts intervene to prevent anabuse of process which could bring the administration of justice into disrepute. Cases of this nature will be extremely rare.” [25] This is a high threshold to meet.

Although there may be difficulties with the case of the crown given the conflicting evidenceof its own witnesses, in particular, some aspects of the evidence of Jake Doan which conflict with some aspects of the evidence of SachaShaughnessy and Deborah Shaughnessy, I cannot conclude that the continued prosecution of Ryan Rocchetta and Jordan Rocchettawould shock or violate the conscience of the community.

I cannot conclude that denying a stay of proceedings would have an ongoingeffect on the accused which would jeopardize the fairness of their trial. [26] It will be up to the court, as the trier of fact, to make determinations with respect to the evidence of Jake Doan and SachaShaughnessy and Deborah Shaughnessy and to adjudicate on apparent conflicts in their evidence. Contrary to what was suggested by thedefence, this is not oppressive, but rather the usual role of the court as the ultimate adjudicator and trier of fact.

I cannot find that if therewere not a stay of proceedings against Ryan Rocchetta and Jordan Rocchetta the community would find this shocking or unconscionableor that it would undermine the community’s confidence in the administration of justice. On the contrary, my view is that given thenature of this case and the injuries alleged to have been sustained by Mr.

Doan, the community would be shocked, and their faith in theadministration of justice shaken, if the court abandoned its responsibility to make findings of fact on all of the evidence presented in thecase, including conflicting evidence, and to adjudicate on the merits of this case. [27] In conclusion, the evidence on this application does not establish an abuse of process under

Section 7 of the Canadian Charterof Rights and Freedoms to justify a stay of proceedings against Ryan Rocchetta and Jordan Rocchetta. Accordingly, the applicationdated July 11, 2013 is dismissed. Justice E. Gareau

Released: November 6, 2013 CITATION : R. v. Rocchetta and Rocchetta, 2013 ONSC 6853 COURT FILE NO.: 7336/12 DATE: 2013-11-06 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – RYAN ROCCHETTA and JORDAN ROCCHETTA Defendants REASONS on charter application Released: November 6, 2013