Author Information
DOC-X VOLUME 1: APPLICATION RECORD FOR APPLICATION FOR CONSTITUTIONAL QUESTION 1.) NEW EVIDENCE
Folder Contents
Information Nos.: C51190
court of appeal for ontario
B E T W E E N:
HER MAJESTY THE QUEEN Respondent
- and -
WAYNE FERRON Applicant
DOC-X
VOLUME 1
APPLICATION RECORD FOR APPLICATION
FOR CONSTITUTIONAL QUESTION
1.) NEW EVIDENCE
1.) NEW EVIDENCE:
NEW EVIDENCE PREMISE:
There exist evidence to fulfill the four conditions in Palmer v. The Queen for fresh evidence.
5) the APPLICANT’S AFFIDAVIT (Wayne FERRON). The respective Crown’s actively has been avoiding the Applicant’s Affidavit;
6) the RECOGNIZANCE OF BAIL for information 07-02500
On the 28th of March 2007 the accused was released under Form 32.1(a) for 07-02500 on his own RECOGNIZANCE for a Surety of $1000.00 and DCst Broughton as the acting Probation Officer;
7) DRUG TEST
to enter the accuses urine analysis screening test (drug test) as “hearsay evidence” given that it was indirectly inferred to be acceptable evidence to the contrary by the Court at the bond hearing and the Court at the pretrial hearing in the honest and truthful belief of the Applicant.
On the 28th of March 2007, immediately after the Bond Hearing, the Applicant went to YORK MEDICAL CLINIC, 11-1111 Davis Drive Newmarket, L3Y 7V1, 905-853-0404 at the 404 Plaza, had a checkup and gave a urine sample in DR. A. Dworak presence. Appellant’s urine sample was sent to CML Health Care at 6560 Kennedy Rd., Mississauga. At the said location a urine analysis (drug screening test) was performed on the sample;
8) On the 29th of March 2007 at 10:41 AM, the Applicant’s wife (Amanda Ferron) picked up the York Regional Police Vehicle Impound Form (YRP 150( 02/05)) from 3D HQ for vehicle 1D4GP21R77B138672, from officer Mapley (Badge# 687). The Appellant’s vehicle was released to his wife on the said date at 11:55 AM at 20440 Hwy 11, King Township, ON. A copy of the YRP Impound form was given upon request; On the other side of the copy was a copy of page 21 of 38 of a online C.C.; Inappropriate material mainly concerning bestiality. For example, “bestiality in presence of or by child”. The thing which is troubling to the Applicant is; the lack of common decency to guard against distribute of material of this nature to his wife, a mother of four young girls.
9) FOUR PHOTOGRAPHS OF INJURY
The Trial Judge looked at all the pictures, but only one was used in the cross examination of Officer Monk and entered into evidence by the trial justice. All the photographs in question was taken at the same time; after the Applicant went to the Doctor for the drug test which was after the Bond Hearing on March 28, 2007. This event was during the Cr-ex of Officer J. Monk on July 23, 2008 at about page 105-108.
10) A certified Transcription of EXHIBIT 2 for Information 07-02559 for GO 07-70285.
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11) A certified Transcription or Written Description of events contained in EXHIBIT 6B for Information 07-02559 for GO 07-70285.
APPLICATION TRANSCRIPTS
12) January 12, 2009, Application Transcript:
APPLICATION FOR STAY OF DRIVING PROHIBITION, PURSUANT TO S. 261 OF THE CRIMINAL CODE OF CANADA(07-02559).
13) April 06, 2009, Application Transcript:
STAY OF PROHIBITION APPLICATION FOR SUBJECTIVE DRUGS/ALCOHOL TESTING AND PSYCHOLOGICAL EVALUATION(07-02559)
14) May 04, 2009, Application Transcript:
MOTION FOR DIRECTIONS APPLICATION(07-02559)
15) June 01, 2009, Application Transcript (Initial Hearing);
The Application Hearing Appeal was adjourned to June 29, 2009!
16) June 29, 2009, Application Transcript;
The Application Hearing Appeal was adjourned to July 27, 2009!
17) July 20, 2009, Application Transcript;
APPLICATION TO FIX DATE FOR HEARING OF APPEAL(07-02559)
pursuant to Rule 8, Rule 19 and section 819.
18) REQUISITION FOR INMATE APPEAL (07-02559), filed and served on July 20, 2009 at 10:05 a.m. in the Crown’s Office.
19) July 27, 2009, Application Transcript;
APPLICATION TO ADMIT EVIDENCE FOR INMATE APPEAL(07-02559)
20) Pursuant to Justice Bryant’s orders, the Applicant filed and served APPLICANT’S DISCLOSURE FOR INMATE APPEAL (07-02559), on July 21, 2009 in accordance with Rule 46. I respectfully ask that the said document be apart of the APPEAL BOOK (C51190).
21) Pursuant to Justice Boswell’s orders, the Applicant filed and served APPLICANT’S DISCLOSURE TWO FOR INMATE APPEAL (07-02559), on July 24, 2009 to the Crown’s Office, and on July 25, 2009 to the Court Registrar in accordance with Rule 46. The Applicant respectfully ask that the said document be apart of the APPEAL BOOK (C51190)
22) SUPPLEMENTARY MATERIALS FOR APPEAL HEARING FOR INMATE APPEAL (07-02559) BOOK ONE, on May 15, 2009 to the Crown’s Office
23) SUPPLEMENTARY MATERIALS FOR APPEAL HEARING FOR INMATE APPEAL (07-02559) BOOK TWO, on May 15, 2009 to the Crown’s Office
24) MARTIN REPORT
25) PRACTICE MEMORANDUM
To Counsel, Criminal Law Division ( Date: June 11, 2009, Subject: DISCLOSURE )
26) ALL Officers Notes TRANSCRIBED AND CERTIFIED
27) Probation and Parole file
APPEARANCE HEARING TRANSCRIPTS
28) March 28, 2007, Hearing Transcript;
29) March 30, 2007, Hearing Transcript;
30) April 13, 2007, Hearing Transcript;
31) May 11, 2007, Hearing Transcript;
32) June 01, 2007, Hearing Transcript;
33) June 29, 2007, Hearing Transcript;
34) July 13, 2007, Hearing Transcript;
35) August 03, 2007, Hearing Transcript;
APPEARANCE TRANSCRIPTS FOR APPEAL HEARINGS
36) November 03, 2008, Appeal Transcript;
37) November 10, 2008, Appeal Transcript;
38) December 01, 2008, Appeal Transcript;
39) December 15, 2008, Appeal Transcript;
40) September 14, 2009, Appeal Transcript;
The Applicant is asking for further disclosure denied him and owed to him by the Crown in the ONTARIO COURT OF JUSTICE and SUPERIOR COURT OF JUSTICE, mainly;
41) Officer X name, badge number and notes for GO 07-70285?
It would be useful to define the unidentified young female Officer as Officer X at this point from unknown location, with unknown number of years experience. Officer X can be identified through the day 56 3D HQ security tape at 00:30 hours, which is material evidence for aforementioned tortious actions. The said tape is an exhibit for information# 07-02500/07-02559. The Applicant has a strong reasonable honest belief, that Officer X is P.C. Lenore.
42) Officer Y name, badge number and notes for GO 07-70285?
It would be useful to define the unidentified female officer at the court house; who referred to herself a counselor, as “Officer Y” at this point; from a unknown location, with unknown number of years experience. “Officer Y” can be identified through the Day 56 Newmarket Cell Courthouse security tape, which is evidence for aforementioned actions. The said tape is a nondisclosure item repetitively requested by the Applicant for evidence for information no. 07-02500/07-02559.
43) The name, badge number and notes of the informant for Information 07-02500 for GO 07-70285. In short the said informant’s hidden articulated personal knowledge of reasonable belief concerning the matter before the Ontario Appeal Court?
44) The name, badge number and notes of the informant for Information 07-02559 or for GO 07-70285. In short the said informant’s hidden articulated personal knowledge of reasonable belief concerning the matter before the Ontario Appeal Court?
45) I require articulated reason of what action or none action is to be taken, concerning the mislabeled exhibit and the missing exhibit?
46) The Applicant require the dialogue or communication between Officer Monk(#1399) and the YRP dispatch for Information 07-02559 or for GO 07-70285.
47) The Applicant is respectfully asking for the documentation which was prepared after the warrantless search i.e. Warrantless Search Report or the Warrantless Search documentation of the Applicant’s vehicle which was indicated and pointed to in Officer Monk’s Testimony. If there is no such documentation, then written articulated reason why there is none?
48. Such further and other relief as this Honourable Court deems just.
REASONS FOR NEW EVIDENCE:
[145] Pursuant to the CROWN’S RESPONSE AND POSITION on TRANSCRIPTS and FURTHER DISCLOSURE, in-which it’s questions and concerns articulated in their 22 page document after about nine months of investigation was addressed in the Applicant’s 107 page response, RESPONSE TO CROWN’S RESPONSE REGARDING TRANSCRIPTS AND DISCLOSURE (M38706) and MOTION FOR DIRECTION for FURTHER DISCLOSURE AND TRANSCRIPTS (M38706). This was again looked at in a 34 page response to the Crown’s Authored Appeal Book called, APPLICANT’S RESPONSE TO THE crown authored appeal book(M38706)/initial version, in which key evidence was purposely left out of this important document, even evidence which the Crown assured the Applicant would be contained in the APPEAL BOOK. Evidence which the Crown denied existed and the Applicant proved existed.
Please see pages 28 to 189 under the sub title TRANSCRIPTS REAL EVIDENCE AS WITNESSED BY THE COURTS in APPLICATION FOR APPLICATION APPEARANCE TRANSCRIPTS AND FURTHER DISCLOSURE AND DENIAL OF NATURAL JUSTICE (C51190).
[146] The information requested by the Applicant and the disclosure owed to him is needed, so he has a fair and equal opportunity to know is case and plea is cause in a meaningful way in open court, in the spirit of open persuasion in front of a fair and impartial Tribunal, and then be judge within the constraints of the Charter on a balance of probability.
This is the reason the Applicant Appealed is case to the ONTARIO COURT OF APPEAL, so that he could have the fairness and equity denied him at the lower Courts.
RIGHT TO MAKE FULL ANSWER AND DEFENCE:
[147]
“General Crown Obligation to Disclose Information
The rationale behind the Crown's disclosure obligation stems from s. 7
of the Charter reflecting, as this Court stated in R. v. Stinchcombe, supra, at p. 336:
. . . the overriding concern that failure to disclose impedes the ability
of the accused to make full answer and defence. This common law right has acquired new vigour by virtue of its inclusion in s. 7 of the
Canadian Charter of Rights and Freedoms as one of the principles of
fundamental justice. . . . The right to make full answer and defence is
one of the pillars of criminal justice on which we heavily depend to
ensure that the innocent are not convicted.
This underlying principle shapes the limits of disclosure.
This Court has clearly established that the Crown is under a general
duty to disclose all information, whether inculpatory or exculpatory, except
evidence that is beyond the control of the prosecution, clearly irrelevant, or
privileged: R. v. Stinchcombe, supra, at p. 339; R. v. Egger, [1993] 2 S.C.R. 451.
The Crown obligation to disclose all relevant and non-privileged evidence, whether favourable or unfavourable, to the accused requires that the Crown exercise the utmost good faith in determining which information must be disclosed and in providing ongoing disclosure. Failure to comply with this initial and continuing obligation to disclose relevant and non-privileged evidence may result in a stay of proceedings or other redress against the Crown, and may constitute a serious breach of ethical standards. With respect to the latter, of necessity, great reliance must be placed on the integrity of the police and prosecution bar to act in the utmost good faith. It is for this reason that departures from this onerous obligation are treated as very serious breaches of professional ethics.
When the Crown alleges that it has discharged its obligation to disclose,
an issue may arise as to whether disclosure is complete in two situations:
(1) the defence contends that material that has been identified and is in existence ought to have been produced; or
(2) the defence contends that that material whose existence is in
dispute ought to have been produced. “
(R. v. Chaplin, [1995] 1 S.C.R. 727, page 16)
[148] Pursuant to R. v. Chaplin, “ (1) the defence contends that material that has been identified and is in existence ought to have been produced”
Please see details or supporting facts under sub heading APPLICATION FOR APPLICATION APPEARANCE TRANSCRIPTS AND FURTHER DISCLOSURE AND DENIAL OF NATURAL JUSTICE under 7.) CROWNS OBLIGATION TO MAKE TIMELY DISCLOSURE TO DEFENCE, in APPLICATION RECORD FOR APPLICATION FOR CONSTITUTIONAL QUESTION (C51190).
[149] Pursuant to R. v. Chaplin, “ (2) the defence contends that that material whose existence is in dispute ought to have been produced. “
[150] Pursuant to R v. La, [1997] 2 S.C.R. 680, “ Where the existence of certain information has been identified, the Crown must justify non-disclosure by demonstrating either that the information sought is beyond its control, or that it is clearly irrelevant or privileged.”
[151] The Crown has only been stating arbitrarily, that the nondisclosure is irrelevant to the issues in the matter before the Court. Their has never been any demonstration of irrelevance in the contested disclosure issues, in a meaningful way.
“Rule 4
Relationship To The Administration Of Justice
Duty as Prosecutor
4.01(3) When acting as a prosecutor, a lawyer shall act for the public and the administration of justice resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect.
Commentary
When engaged as a prosecutor, the lawyer's prime duty is not to seek to convict but to see that justice is done through a fair trial on the merits. The prosecutor exercises a public function involving much discretion and power and must act fairly and dispassionately. The prosecutor should not do anything that might prevent the accused from being represented by counselor communicating with counsel and, to the extent required by law and accepted practice, should make timely disclosure to defence counselor directly to an unrepresented accused of all relevant and known facts and witnesses, whether tending to show guilt or innocence.
See also Richard v. R. (1960), 126 c.c.c. 255 at 280, Bridges l.A.: R. v. Lalonde (1972), 5 C.c.c. (2d) 168; and Martin, "Preparation for Trial", Law Soc. U.c. Special Lectures (1969),211 at 235 ff.
8. COMMENTARY
The fruits of investigation which are in possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done.
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Crown discretion is reviewable by the trial judge. The Crown must justify nondisclosure. A voir dire would be used. Defence counsel should draw the trial judge's attention to problems at the earliest opportunity. Failure to do so will be an important factor in determining on appeal whether a new trial should be ordered. Section 482 provides a proper platform for passing disclosure rules. The obligations may apply to summary conviction appeals with less vigour.”
(ANNOTATED ONTARIO RULES OF CRIMINAL PRACTICE, 2004, page 82, 18.7)
[152] Pursuant to R v. Laporte (1993), 108 Sask. R. 87 (Q.B) “ ...the Crown should produce a written, itemized inventory of the information in its possession, identifying those times which it intends to disclose and those which it does not and containing, in respect of the latter items, a statement in each case as the basis upon which the Crown proposes to withhold disclosure.”
[153] This has never been done, the Crown refused to disclose some discloser on what seem to be an arbitrary basis. Furthermore, even after agreeing to disclose or being directed by the presiding Justice to disclose, the Crown recanted on it’s agreement in open Court and chose not to disclose agreed upon items. Their has never been an itemized inventory of information in the Crown’s possession, disclosed! Never!!
[154] FRESH EVIDENCE TEST, Palmer v. The Queen:
“[13] As the disagreement between the majority and the dissent in the Court of Appeal demonstrates, it is debatable whether this omission in the judge’s direction was sufficiently serious in the context of this trial so as to require appellate intervention. However, the new evidence, in our view, makes it clear that a new trial is necessary.
[14] Mr. Hurley seeks to adduce new evidence that comes from additional RCMP forensic testing and DNA analysis, submitted for testing by the Crown after the Court of Appeal ordered a new trial. The well-known criteria applicable to this issue were stated in Palmer v. The Queen,
[1980] 1 S.C.R. 759, at p. 775, and reaffirmed in R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307, at para. 74:
(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases . . . .
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
(3) The evidence must be credible in the sense that it is reasonably capable of belief, and
(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[15] There is no contest that the first three requirements are met. The parties disagree about the application of the fourth Palmer factor. The issue is whether the new evidence could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. For the reasons that follow, we would answer this question in the affirmative.”
( R. v. Hurley, 2010 SCC 18, [2010] 1 S.C.R. 637, page 6)
[154] The well-known criteria applicable to this issue were stated in Palmer v. The Queen and reaffirmed in R. v. Taillefer, “ (1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial”
[155] Please see, APPLICATION FOR APPLICATION/APPEARANCE TRANSCRIPTS AND FURTHER DISCLOSURE AND DENIAL OF NATURAL JUSTICE (C51190), AFFIDAVIT of APPLICANT, numerous letters to the Crown and complaints filed at the FREEDOM OF INFORMATION AND PRIVACY should be enough to show due-diligence. Besides, the overwhelming majority of requested outstanding disclosure was already directed by the Trial Judge to be disclosed. This is why the information at issue can be easily pointed to through citation of real evidence. The disclosure in question was just never disclosed or the incorrect information was substituted for it. Therefore, the requirement for the first condition in Palmer v. The Queen is fulfilled.
[156] The well-known criteria applicable to this issue were stated in Palmer v. The Queen and reaffirmed in R. v. Taillefer, “ (2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial”
The evidence at issue is supporting documentation for the Charter issue. The evidence at issue will go a far-way in resolving many of the contested fact. Furthermore, the evidence at issue was promised from the lower Courts and would help in restoring the Crown’s integrity and foster or grow public confidence for the outstanding action of disclosing outstanding disclosure in good faith. Therefore, the requirement for the second condition in Palmer v. The Queen is fulfilled.
[157] The well-known criteria applicable to this issue were stated in Palmer v. The Queen and reaffirmed in R. v. Taillefer, “ (3) The evidence must be credible in the sense that it is reasonably capable of belief”
The evidence is credible, since it is public property under the protection and stewardship of the Crown or its Public Agents. The Crown Prosecutors are members or key elements of the Administration of Justice, hence the Court does not have issues excepting evidence disclosed by the Crown. Therefore, the requirement for the third condition in Palmer v. The Queen is fulfilled.
[158] The well-known criteria applicable to this issue were stated in Palmer v. The Queen and reaffirmed in R. v. Taillefer, “ (4) ...if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.”
The new evidence when taken with the other evidence adduced at trial would be be expected to have affected the result of the trial, for example the Warrantless search report along with the dialogue between Officer Monk and the Dispatch could help to reveal the state of mind of the arresting Officer, the Officers reasons for their wanton disregard for the Applicant’s reasonable expectation of privacy. The state of mine of an arresting Officer which may or may not be acting in good faith in contravention of his duty and violation of the Supreme Law of Canada would affect the result or direction of the trial. Furthermore, the said Officer is allege to have been assaulting the accuse and trying to defeat the course of justice byway of misleading or misinforming the Court in his given evidence.
[159] “Officer Y’s” testimony could not only, corroborate the Applicant’s story and restore some of his stolen credibility. But, the said evidence would go a long way in helping to show that the process was prejudice against the Applicant in a similar manner that other matters similar to the Applicant’s has been prejudice; for 9 years Justices has been warning the York Regional Police Services about the untimely destruction of evidence prejudicing accuse matters and threatening to bring the Administration of justice into disrepute.
“In R. v. Lok, unreported April 30, 2007, Shaw J. wrote at page 6, line 25:
In R. v. Singh reported at [2005] O.J. 5754, my colleague Justice
Armstrong held that the integrity of the justice system has been prejudiced and there has been a systemic disregard for the prosecution’s obligation to preserve relevant evidence in similar circumstances dealing with this arbitrary retention period. Since 1999 this Court has directed that this policy be discontinued yet it persists. As a result, time and time again, as evidenced by the numerous cases cited to this Court by the defence, charges have been stayed due to breaches of the Applicant’s rights as guaranteed under the Charter. The fact that this policy remains despite strongly worded judicial guidance amounts, I find, to a systemic disregard for the prosecution’s obligations of disclosure.”
(R. v. Yu, 2008 ONCJ 153, page# 10[41], COURT FILE No.: Newmarket Info #07-01755)
[160] The Applicant was processed by the same system, with similar problems. It would also be evidence to the contrary against the Officers Crack Cocaine Theory and supporting evidence for the quiet action of self incrimination during the Probation and Parole rehabilitation process.
[161] Evidence concerning the Informations would go a far way in showing if the jurat in the information is defective. If it is the case that both Jurat for their respective informations were defective , this would render the information defective and incurable. The information is what gives the trial judge Jurisdiction over the accused and over the allege charges in the said information. The Trial Judge being seized and bound by the informations which were void and irreparably defective, lost jurisdiction after the Applicant was arraigned. Hence there was no accuse before the Trial Court, because the Trial Judge lost Jurisdiction over the allege Charges against the Applicant. The given evidence of the Informants would show that the Trial Judge was wanting of Jurisdiction, for having lost jurisdiction with the absence of a valid Information.
[162] The requested Application Transcript, would reveal the background, the foundation, the atmosphere, and the context in-which Justice Healey made her decision. They are an account in the format of real evidence as witness by the Courts, of the dealings of the contented issues, repeated denial of natural justice and the biasing of the process or lack there of issues that are important to the perfecting of the Appeal. The Appeal at the COURT OF APPEAL FOR ONTARIO is against Justice Healey’s Orders and Ruling. So how can the real evidence given by the Application Transcripts not be important or significant to contested issues of the Appellate process? How is it possible to understand the context of Justice Healey’s ruling. Unless context is considered irrelevant.
[163] They are contended issues and issues of fact which the real evidence as witnessed by the courts in the form of Appearance Transcripts dispel or at the minimum shed light on the matter before this Honourable Court. The question in essence is, does all parties concerned want to be enlighten by the real evidence or do they want to continue to walk in darkness? For example, the Crown has continually taken the position that the Applicant was not in Court on March 28, 2008. What else would be better proof than the Application Transcript for March 28, 2008 (07-02500); unless the crown is actively hiding something like the facts surrounding EXHIBIT 2, the facts concerning the Informations, and the contents of EXHIBIT 6B?
[164] Consequently, the Appearance Transcripts is what made it possible to unravel all the confusion surrounding the dual-active informations. Does all parties concern want to travel in darkness or does all parties want to be enlighten by the real evidence as witness by the Courts? Or is the Applicant being prepared for a manufactured or engineered defeat under the guise of apparent fairness as opposed to open and fair persuasion under the rule of law? Less all forget, there is pending constitutional issues and the life, liberty and pursuit of happiness of the Applicant hangs in the balance, not to mention his four beloved children who use to depend on their stolen father? Is the four years already stolen from is four baby girls, not enough?
SUPREME LAW OF CANADA AND EVIDENCE:
[165] Pursuant to R v. O’Conor (1995), 103 C.C.C (3d) 1, “ Depending on the circumstances, different Charter guarantees may be engaged as embodied on the in ss. 7 and 11(d). Issues relating to disclosure by the Crown would normally fall within this category and thus a challenge based on non-disclosure will generally require a showing of of actual prejudice to the accused’s ability to make full answer and defence.”
[166] The combination of the Crown’s abusive conduct and denial of relevant evidence has coloured and prejudice the respective justices for example, the untimely destruction of NEWMARKET COURT HOUSE VIDEO TAPE EVIDENCE, SYSTEMIC RACISM, POST OFFENCE EVIDENCE, “SELF INCRIMINATION MINING” , Officer’s CRACK COCAIN THEORY, and the Officer’s spreading of disinformation concerning the accuse to defeat or change the course of Justice.
See the APPLICATION RECORD FOR APPLICATION FOR CONSTITUTIONAL QUESTION and APPLICANT’S FACTUM FOR APPLICATION FOR CONSTITUTIONAL QUESTION.
“PRINCIPLES
Crown counsel must make disclosure according to law. Proper disclosure to the defence, of information in the Crown’s possession, is one of the underpinnings of the fair trial process. The law also provides, however, for limited or delayed disclosure in order to protect privileges and other interests (for example, protection of witnesses). Thus, tensions can arise between the duty to disclose and the co-existing duty to protect those other interests.
Crown counsel should consult about difficult decisions: Disclosure decisions can Have permanent impacts upon trials of accused persons and rights of third parties. Improper disclosure may result in mistrials, retrials, stays of proceedings and lawsuits. Many areas of the law of disclosure continue to develop. Where Crown counsel propose to give, withhold or delay disclosure for reasons which are not recognized by current caselaw or statute, they must have the approval of their Crown Attorney, who, in turn, should consult with the Regional Director of Crown Operations.”
(DISCLOSURE, PROVINCE OF ONTARIO MINISTRY OF THE ATTORNEY GENERAL CROWN POLICY MANUAL, March 21, 2005 )
[172]
“It often requires repeating that a fundamental pillar of our democracy is the requirement that Canadians be provided with a means by which they can resolve their disputes peacefully and in a timely manner before an independent and impartial decision maker and that this process is accessible to all Canadians both in terms of cost and complexity.
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CONCLUSION
There is one overwhelming reality that I have learned since my call to the bar in 1958, and it is that the challenges facing the administration of justice in Ontario have grown hugely in the subsequent years. The increasing challenges simply reflect an ever increasing complex society.
I repeat that I believe that the citizens of Ontario are very well served by the hundreds of men and women who discharge their daily responsibilities as judges with impartiality and fairness. At the same time all judges recognize that we must continue to strive to earn that confidence. Issues related to access to justice in a timely and affordable fashion will continue to demand the collective attention of the bar, government and the judiciary.”
(Chief Justice R. Roy McMurtry, 2007 Report of the Court of Appeal for Ontario http://www.ontariocourts.on.ca/coa/en/archives/ocs/2007.htm)
[173] Pursuant to Mackay v. Manitoba, [1989] 2 S.C.R. 357, “ Charter decision should not and must not be made in a factual vacuum.”
“Charter decisions should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Charter and inevitably result in ill-considered opinions. The presentation of facts is not, as stated by the respondent, a mere technicality; rather, it is essential to a proper consideration of Charter issues. A respondent cannot, by simply consenting to dispense with the factual background, require or expect a court to deal with an issue such as this in a factual void. Charter decisions cannot be based upon the unsupported hypotheses of enthusiastic counsel. “
(MacKay v. Manitoba, [1989] 2 S.C.R. 357 , page 7)
RELATIONSHIP OF TRUST WITH THE ADMINISTRATION OF JUSTICE:
[174] It is the Applicant’s humble opinion that no one articulates the accuse relationship of trust with the Administration of Justice better than the following Honourable Justice. Pursuant to Justice Rosalie Silberman Abella, Court of Appeal for Ontario;
“We cannot keep telling the public that this increasingly incomprehensible, complicated process is in their interests and for their benefit, because they are not buying it any more. If our defensive arguments make no sense to the public, how much sense can they be said to make, period. The public does not believe it should take years to decide where their children should live, whether their employer should have fired them, or whether their accident was compensable. Maybe for a constitutional case, but decidedly not for the resolution of a dispute between two private parties.
We cannot talk seriously about access to justice without getting serious about how inaccessible the result, not the system, is for most people. The public knows we are the only group who can change the process.
They are very interested in, but less understanding of, our explanations as to why we resist streamlining the system from the inside. When we say, "It can't be done," and the public asks, "Why not," they want a better reason than "Because we've always done it this way."
Our monopoly puts us in a fiduciary relationship with the public. We are the gatekeepers and groundskeepers of the fields of the law. As such, we should be on the front line for reform, taking on outmoded systems, and being seen to be putting the public before our pockets or our prestige. Process is the map, lawyers are the drivers, law is the highway, and justice is the destination. Lawyers are supposed to be experienced about the best, safest, and fastest way to get there. If, much of the time, they are unable to get there because the maps are too complicated, then, as Gertrude Stein said, "There's no there, there." And if there's no "there, there," there's no point in having a whole system to get to where almost no one can afford to go.
I know this has been a difficult time for the legal profession. Through it all, most lawyers carry on with pride and professionalism, and with more than a touch of frustration at their seeming inability to synchronize their professional reputations with fluctuating public expectations. There remains, however, one public expectation that does not fluctuate. It is the expectation that the profession will always, no matter the times or their permutations, behave professionally. It is an expectation to which the profession has always expressed a deep commitment, and it is an expectation to which most lawyers remain deeply committed.
The legal system represents the ideals of the public, and because as lawyers we are the interpreters and translators of those ideals, it is therefore a system that deserves our idealism, courageously and optimistically.
Having set the cluttered stage, what can be done to reinstate a commitment to professionalism as the lawyer's - and the public's perception of the lawyer's - transcendent vision? And, more particularly, what can be done by the Law Society?
The Law Society has two constituencies: lawyers and the public. These are utterly compatible and indispensably linked. The Law Society should be seen to be the profession's best professional voice and the public's best ear. Unfortunately, it is not seen at all, or, when it is seen, it is seen by lawyers when it announces a restrictive or expensive measure, and it is seen by the public when it announces the consequences of professional misconduct. These sightings may be unavoidable and, at times, even salutary, but they are not happy messages. Not that the Law Society needs to keep everyone happy. It can't. But if these anxiety-producing pronouncements are all we see, can we be faulted for wondering if there isn't a more positive message the Law Society could be seen to feel responsible for.
According to the Earnscliffe Report, the Law Society's Nielsen ratings ranged from "never watch" through "hardly watch" to "hate to watch." In other words, somewhere between irrelevant and obstructive.
This is troubling to someone like me who sees the Law Society theoretically as crucially relevant as the guardians both of our independence and of the public's confidence in our right to be independent. I see the report, therefore, as a wake-up call and a wonderful millennial opportunity for the Law Society to reformulate its relationship to its professional and general publics, and to redefine its functions accordingly.
It will undoubtedly be a difficult task, but as Isaiah Berlin observed, there's no pearl without some irritation to the oyster. “
(Rosalie Silberman Abella Justice, Court of Appeal for Ontario, The Law Society of Upper Canada Professionalism Revisited, Opening Address Benchers', Retreathttp://www.ontariocourts.on.ca/coa/en/ps/speeches/professionalism.htm)
APPLICANT’S DUE DILIGENCE:
[175] The Applicant has serve and filed many document to bring his issues forward to no avail. The Applicant has filed complaints with the Freedom of Information and Privacy commission. The Applicant has sent the Crown many letters in the form of request for disclosure and further disclosure. The Applicant has repetitively made outstanding disclosure an issue before respective Justices. The Applicant has file a constitutional Application with disclosure as an issue. In the Applicant’s humble opinion, it seems like the Crown has shed the virgin cloth of it public duty and is venturing towards suppression of evidence and a denial of evidence; if this is the case, then this would induce a denial to access justice within the meaning and constraints of the Charter. Which would render an opposition to the interest of justice. Is this an example of the law being used in an oppressive way, like the MARTIN REPORT is speaking about?
BREACH OF CONFIDENCE:
[176]
“A person’s words is their bond and the precious treasures of intentions they where proudly around their neck. The quality and integrity of a person depends on one fulfilling ones promises. Ones honour is encapsulated by his words. A person in high public office carries the reputation of the said office. The said public office builds and binds public confidence in the integrity and equity of the implementation of the Criminal Code.”
(Wayne Ferron, Applicant)
It is the Applicant’s humble opinion that the MARTIN REPORT is the best articulation of of the judicial system with in the context of public confidence. Pursuant to MARTIN REPORT;
[177]
“...the Attorney General "institutes prosecutions on the sovereign's behalf and in his name, his concomitant discretion to do so springing from the Royal Prerogative of Justice and its enforcement in maintaining the King's Peace.”64 Given the intimate connection between a criminal prosecution and the well-being of the community, it is important for those exercising prosecutorial discretion to consider the need to maintain public confidence in the administration of justice and the effect of the incident or prosecution on public order. This important aspect of prosecutorial discretion was emphasized in Sir Hartley Shawcross' famous speech in the House of Commons when he stated:
The true doctrine is that it is the duty of the Attorney General, in deciding
whether or not to authorise the prosecution, to acquaint himself with all the
relevant facts, including, for instance, the effect which the prosecution,
successful or unsuccessful as the case may be, would have upon public morale and order.. ..65
The Committee is of the view that while the principle stated by Sir Hartley Shawcross is an important one, the phrase "public morale" does not lend as much assistance in applying the principle as does the phrase "the need to maintain public confidence in the administration of justice and the effect of the incident or prosecution on public order”.
12. The Committee therefore recommends that, in determining whether a prosecution is in the public interest, the agent of the Attorney General should consider the need to maintain public confidence in the administration of justice, and the effect of the incident or prosecution on public order. “
(Martin Report, Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions, page 92-93)
[178]
“Encouraging Respect for the Administration of Justice
4.06 (1) A lawyer shall encourage public respect for and try to improve the administration of justice.
Commentary
The obligation outlined in the rule is not restricted to the lawyer's professional activities but is a general responsibility resulting from the lawyer's position in the community. A lawyer's responsibilities are greater than those of a private citizen. A lawyer should take care not to weaken or destroy public confidence in legal institutions or authorities by irresponsible allegations. The lawyer in public life should be particularly careful in this regard because the mere fact of being a lawyer will lend weight and credibility to public statements. Yet for the same reason, a lawyer should not hesitate to speak out against an injustice. The admission to and continuance in the practice of law implies on the part of a lawyer a basic commitment to the concept of equal justice for all within an open, ordered, and impartial system. However, judicial institutions will not function effectively unless they command the respect of the public, and because of changes in human affairs and imperfections in human institutions, constant efforts must be made to improve the administration of justice and thereby maintain public respect for it.”
(Rule 4, Rules of Professional Conduct, page 60)
[179]
“Implementing Disclosure
42. The Committee recommends that the Solicitor General co-ordinate with federal authorities and that both issue such directives as are necessary, to require all police forces operating within the province of Ontario to be aware of and comply with the Attorney General's directive on disclosure in their relations with Crown prosecutors. These directives should also make clear that the police and other investigators:
(a) are bound to exercise reasonable skill and diligence in discovering all relevant information, even though such information may be favourable to the accused;
(b) are under a duty to report to the officer in charge or to Crown counsel all relevant information of which they are aware, including information favourable to an accused, in order that Crown counsel may discharge the duty to make full disclosure; and that
(c) a failure to disclose all relevant information as required is a disciplinary offence.
{...}
2. PROVINCE OF ONTARIO DIRECTIVE
As of January 15th, 1994, the Ministry's new Crown Policy Manual became effective, updating and replacing the guidelines and directives previously in effect for Crown Counsel acting as agents for the Attorney General for Ontario.
DISCLOSURE
1. The purpose of Disclosure is to assist in guaranteeing the accused's common law and constitutional rights to a fair trial and to make full answer and defence.
2. Timely and full Disclosure by Crown counsel, when diligently utilized by the defence, benefits both the accused and the administration of justice as a whole. Among these benefits are: ....”
(ANNOTATED ONTARIO RULES OF CRIMINAL PRACTICE, TOMSON CARSWELL, 2004, page 57)
[180]
“... There are, therefore, a number of concerns about the early stages of the process are the only stages most lay participants ever encounter.
First and foremost is the concern that the dispositions meted out early in the criminal process be fundamentally fair, and represent an acceptable reconciliation of the interests of the accused and the community. High standards of fairness must be scrupulously preserved and vigorously perpetuated.”
(Matin Report, REORT OF THE ATTORNEY GENERAL’S ADVISORY COMMITTEE ON CHARGE SCREENING DISCLOSURE, AND RESOLUTION DISCUSSIONS, page 17)
UNREASONABLE DELAY AT EACH LEVEL OF COURTS
COURT OF APPEAL FOR ONTARIO:
[181] Within the context of the PRACTICE DIRECTIONS at the COURT OF APPEAL FOR ONTARIO. The Applicant’s Appeal qualifies as an Appeal that should have been expedited. The Applicant filed and served his NOTICE OF APPEAL(C51190) on the 2nd November 2009. The Applicant filed his NOTICE OF MOTION FOR DIRECTION (M38387) on 27th of January 2010. The Applicant filed his MOTION FOR FURTHER DISCLOSURE(M38706) on 14th May 2010, which was adjourned indefinitely and is still outstanding. The Applicant has tried many times to reconvene this motion to no avail, even though the Court order said the the new hearing date is to be set by the Registrar.
[182] Pursuant to Ms. Joanne Stuart, the Crown assigned her carriage and control of the Applicant’s matter (C51190) around the beginning of May 2010. This she stated orally to the Applicant.
[183] Pursuant to Ms. Joanne Stuart, in a letter she emailed the Applicant on the 14th May 2010, the Crown assigned her carriage and control of the Applicant’s matter (C51190). Thus she was advising me of that fact and informing me of how to get in contact with her concerning the matter before this court. The order dates on the disclosed Transcripts , infers that this is the day the Crown officially started work on the Applicant’s matter(C51190). Furthermore, on the 14th May 2010, is when the Applicant witness the Crown having in her possession a large amount of documents she appears to have received from the Newmarket Court Crown Office. The Applicant is not sure on his point, but it appears to be the case. Again, the order dates on the Transcripts coincide with this date. The Newmarket Court house is where the Transcripts would be ordered from.
[184] On the 15th October 2010, after 9 months of receiving Justice Gillese’s orders and about 11 months after the filing of the NOTICE OF APPEAL(C51190); the Crown the results of it 9 month investigation in the form of a 22 page response to NOTICE OF MOTION FOR DIRECTION (M38387) and MOTION FOR FURTHER DISCLOSURE(M38706). A summary conviction offense took 9 months to investigate.
[185] It is now the year 2011 and 360 days has long passed.
“it is reasonable and consistent with the Criminal Appeal Rules to direct that, except in unusual cases, all appeals should be heard within 360 days from the date of the filing of the initial notice of appeal by the appellant or solicitor.”
(R. Roy McMurtry, Chief Justice of Ontario Court of Appeal for Ontario, Practice Direction Concerning Timely Hearing of Criminal Appeals)
[186]
“ The following appeals shall be expedited:
{...}
(d) appeals where the hearing of the appeal is delaying the progress of an ongoing action;”
[187]
“R. v. Ferron, Wayne - M38706 (C51190)
Laskin J.A.
May 14, 2010
Mr. Ferron's requests to file a long factum and to obtain the Crown's consent to a fresh evidence application are premature. The factum Mr. Ferron proposes to file is not before me. Moreover, he has not yet prepared and filed a fresh evidence application. Mr. Ferron also seeks transcripts of the set date appearances and appearance before the summary conviction appeal court leading up the hearing of the appeal.
Ms. Stuart, counsel for the Crown, has agreed to investigate whether these additional transcripts are necessary. However, it should be pointed out that what is pending before this court is a motion for leave to appeal from the decision of the summary conviction appeal court.
Further, Mr. Ferron seeks additional disclosure of items that he does not have. Again, Ms. Stuart has agreed to look into these matters.
Once Ms. Stuart has made these investigations, she will communicate to Mr. Ferron the Crown's position in writing. Mr. Ferron must understand that in the light of what he has asked for these investigations will take some time.
Pending these investigations, and report to Mr. Ferron, this motion is adjourned to a date to be fixed by the Registrar.”
(Laskin J.A., May 14, 2010, Typed version of handwritten endorsement, R. v. Wayne Ferron - M38387(C51190))
SUPERIOR COURT OF JUSTICE:
At the Appellate Court, the NOTICE OF APPEAL (07-02559) was filed on 23rd of October 2008.
[188] January 12, 2009, Application Transcript:
APPLICATION FOR STAY OF DRIVING PROHIBITION, PURSUANT TO S. 261 OF THE CRIMINAL CODE OF CANADA(07-02559).
The said Application for stay of proceedings was filed and served on December 22, 2008 and spoken to on January 12, 2009. Application was granted and Appeal Hearing set for June 01, 2009.
[189] April 06, 2009, Application Transcript:
STAY OF PROHIBITION APPLICATION FOR SUBJECTIVE DRUGS/ALCOHOL TESTING AND PSYCHOLOGICAL EVALUATION(07-02559)
The said Application for stay of proceedings was filed and served on April 01, 2009 and returnable on April 6, 2009 at 9:30 AM. Included was an Affidavit of (Wayne Ferron) starting on page 6, it was not cross examined. Application dismissed with out any cross examination or acknowledgment of the said Affidavit!
[190] May 04, 2009, Application Transcript:
MOTION FOR DIRECTIONS APPLICATION(07-02559)
The said Application for direction in perfecting the appeal was filed and served on April 27, 2009 and returnable on May 4, 2009 at 9:30 AM. Included was an Affidavit of (Wayne Ferron) under tab 5 in the NOTICE OF APPEAL FOR INMATE APPEAL, it was not cross examined. THE APPLICATION IS STILL OUTSTANDING!
[191] June 01, 2009, Application Transcript (Initial Hearing);
The Application Hearing Appeal was adjourned to June 29, 2009!
[192] June 03, 2009 is when the Crown ordered the April 28, 2008 Application Transcript;
[193] June 29, 2009, Application Transcript;
The Application Hearing Appeal was adjourned to June 27, 2009!
[194] July 20, 2009, Application Transcript;
APPLICATION TO FIX DATE FOR HEARING OF APPEAL(07-02559)
pursuant to Rule 8, Rule 19 and section 819.
The said Application to fix appeal hearing date was filed and served on July 03, 2009 and returnable on July 20, 2009 at 9:30 AM. Included was an Affidavit of (Wayne Ferron) under TAB 5 in the NOTICE OF APPEAL FOR INMATE APPEAL, it was not cross examined. THE APPLICATION IS STILL OUTSTANDING!
[195] The Honourable Justice Bryant ordered the Applicant to attend the Crown’s Office and see Mr Westgate (Crown Attorney). The Applicant went the next day to the Crown’s Office and to see Mr Westgate who disclosed to him the April 28, 2008 Application Transcript; the very same Transcript he accused the Applicant of using to hold up the Appeal Hearing the day before (July 20, 2008), the very same Transcript he was advising the Applicant to photo copy and distribute, in violation of the law the day before (July 20, 2008).
[196] Mr Westgate chose to disclose the April 28, 2008 Application Transcript at his office, outside of open Court and off the record. “Under the radar” so to speak. This is suspect? This is proof for the mens rea part of a criminal offence and infers conspiracy.
TAKE NOTICE: The Applicant incurred a warning from the Honourable Justice Bryant, for stating the the Court’s order for him to attend the Crown’s Office, was unreasonable. The Applicant doesn't approve of doing Court business off the record and outside of open court with no witnesses. He never have and hopefully , never will.
[197] July 02, 2009 is when the Crown was notify of the completion of the April 28, 2008 Application Transcript;
[198] July 03, 2009 is when the Crown Office received the April 28, 2008 Application Transcript;
[199] July 21, 2009 is when the Applicant went to the Crowns Office and filed and served APPLICANT’S DISCLOSURE FOR INMATE APPEAL (07-02559), which contained a full photocopy of the April 28, 2008 Application Transcript, and March 28, 2007 Appearance Transcript (SHOW CAUSE HEARING), pursuant to Justice Bryant July 20, 2009 court order. The Applicant does not like to do anything off the record, he has been forsaken too many times in this manner;
[200] July 27, 2009, Application Transcript;
APPLICATION TO ADMIT EVIDENCE FOR INMATE APPEAL(07-02559)
[201] Pursuant to Justice Bryant’s orders, the Applicant filed and served APPLICANT’S DISCLOSURE FOR INMATE APPEAL (07-02559), on July 21, 2009 in accordance with Rule 46.
[202] Pursuant to Justice Boswell’s orders, the Applicant filed and served APPLICANT’S DISCLOSURE TWO FOR INMATE APPEAL (07-02559), on July 24, 2009 to the Crown’s Office, and on July 25, 2009 to the Court Registrar in accordance with Rule 46.
[203] Appeal Hearing..............................5th of October, 2009 to 14th of October, 2009
ONTARIO COURT OF JUSTICE:
[204] Arrested on 28th of March 2007, at 00:13.
[205] Information (07-02500) was filed against Wayne FERRON in the Ontario Court of Justice on 28th of March 2007, by Police Officer B. BHIRD or BALTAL.
[206] On the 28th of March 2007 the accused was released under Form 32.1(a) for 07-02500 on his own RECOGNIZANCE for a Surety of $1000.00 and DCst Broughton as the acting Probation Officer, with the condition to attend Court when required, and give notification of change of address.
[207] On the 29th of March 2007, DCst Broughton filed REQUEST FOR RECORDED VOICE COMMUNICATIONS G0# 2007-70285 for:YRP222; ASAP; investigation for the purpose of laying charges; type of incident impaired.
[208] Asper the Typed Officer’s Notes; page 1, 07March28 at 00:20. Or Officer Beattie (#1583) Notes; page 1 at 00:20. Officer Beattie states;
“Assist with suspect, attempt to contact witness Farby...”
[209] Asper Summer of Witness Account; page 3, bullet 7. The complainant states;
“At 2:10 AM on March, 28th and officer called me at home and asked me to be available to prove a statement and recall what took place.”
[210] Asper GO 2007-70285 FOLLOW UP REPORT# 2, on 07March28 at 13:57; Officer Stribbell (#529) states;
“task D/C Needler (#523) and D/C Willmets (#974) to get a hold of witness and take statement”
[211] Asper GO 07-70285 FOLLOW UP REPORT# 3, on 07March28 at 21:02; Wihce, Robert John (#87 );
“contacted -witness, Geoffrey Fardy via phone - he has already prepared a written statement - copy e-mailed to Wiche and copy to alpha file - signed copy to be picked up by uniform”
[212] Asper GO 07-70285 FOLLOW UP REPORT# 5, on 07March29 at 07:12;
“prosecution Summary updated to add a charge of Dangerous Operation. Replacement information and copy of civilian witness statement sent to court. ”
[213] Information (07-02559) was filed against Wayne Ferron on 29th of March 2007 in the Ontario Court of Justice, Police Officer JOE WILLMETS (974).
[214] This resulted in a double charge for two of the exact allege crimes; impaired operation by drugs and obstructing a public peace officer. Which cause a lot of confusion in the court, social damage and stigmatization. The two informations are 07-02559 and 07-02500. Dangerous driving was added to the second information (07-2559), but not the first information (07-02500). Does a new charge on a replacement information, which in essence renders the said information a new information, need to go through the checks and balance of the original information? The checks and balances for informations or charges was put in place by the legislature for good reasons.
[215] On the 30th of March 2007, The Applicant, gave the result of his drug test to Mr. Neziol (Newmarket Courthouse Duty Counsel). Who intern faxed it to all concerned parties and informed the accuse wife verbally on the said date that the drug charges would be withdrawn.
[216] On the 13th of April 2007;
The Crown disclosed Initial Disclosure to the Applicant. The cover page of the said document is titled “CHARGE SCREENING FORM
NEWMARKET CROWN ATTORNEY’S OFFICE - JUDICIAL DISTRICT OF YORK”. On the said cover page is indicated;
• the name of the accused, Wayne Ferron;
• the type of court, adult court;
• the charges, resist arrest and dangerous driving;
• “the Crown will withdraw the following charge(s)”, impaired driving;
• their is no indication for “the Crown will proceed on the charges as laid”;
• their is no indication for “the Crown will recommend to the police that the following charge(s) be considered:”;
• the document is dated 13th of April 2007;
TAKE NOTICE: The DUTY COUNSEL, wrote and initialed the “CHARGE SCREENING FORM NEWMARKET CROWN ATTORNEY’S OFFICE - JUDICIAL DISTRICT OF YORK” (Initial Disclosure), on the right hand side of the cover page the following; “Crown will take a plea to careless driving for $300 fine”
The DUTY COUNSEL probable did this at the pre-trial hearing with Justice Minard presiding.
[217] On page 56 of APPEAL BOOK(C51190), at the lower left corner of the copy of the information is written “ count (1)” and stamped “WITHDRAWN REQUEST OF THE CROWN”, “APR 13 2007”, “JAN 18 2008”. Take note that “APR 13 2007” is crossed out.
[218] On the July 13th 2008, a pre-trial hearing was held off the record. Justice Minard asked the Applicant to obtain a note from the doctor explaining the Drug Test.
[219] On the 3rd of August 2007 , the Applicant disclosed to the Crown on record, his drug test again with the requested doctors note by Justice Minard, explaining the said test. On the said day is when the the Applicant was Officially notified of the new information (07-02559) with a new charge added and it was read out load in open court. There was no summons to appear for the identification of a criminal act issued.
[220] On the 7th of December 2007;
• the plaintiff disclosed to the Crown a copy of CML Drug test determination via the Crown’s Office.
• plaintiff requested further disclosure from the Crown.
• there was no response from the Crown in regards to further disclosure.
[221] On the 18th of December 2007;
• plaintiff requested further disclosure from the Crown.
• there was no response from the Crown in regards to further disclosure.
[222] The Appellant was arraigned on 18th of January 2008 in the afternoon, on count 2 and count 3 for Information No. 07-02559; with a plea of not guilty.
[223] The Crown chose to withdraw Information No. 07-02500, and elected to proceed by summary conviction on Information No. 07-02559, with the Impaired by a Drug charge (count 1), contrary to section 253 of C.C. withdrawn.
[224] On the 11th of April 2008;
• plaintiff requested further disclosure from the Crown.
• on the 28th of April 2008, the Crown brought an Application Hearing for disclosure before the courts on behalf of the defence.
[225] On the 18th of April 2008;
• The plaintiff sent a hand written letter to the prosecutor via the Crown’s Office; requesting to change the 28th of April 2008 Application date.
• there was no response from the Crown.
[226] On the 22nd of April 2008;
• the plaintiff sent a typed letter to the prosecutor via express mail (LT340772160 ca); requesting to change the 28th of April 2008, application date.
• there was no response from the crown.
[227] On 17th June 2008, The Application Hearing for ABUSE OF PROCESS; mainly because the IMPAIRED DRIVING CHARGED was still active in the YORK REGIONAL POLICE SERVICES data base. In short the YRP failed to dispose of the charges against the Applicant for Impaired driving by drugs, despite the Crown repetitive assertions that the said charges had been withdrawn.
[228] A judgement of guilty on all counts (count 1, count 2) was rendered on the 26th of September 2008.
BROKEN PROMISES:
[229] The Applicant was assured that a certified Transcription of EXHIBIT 2 for Information 07-02559 for GO 07-70285, would be placed in the APPEAL BOOK (C51190) at the COURT OF APPEAL FOR ONTARIO. This has never been done by the Crown!
[230] The Applicant was assured that a certified Transcription of EXHIBIT 2 for Information 07-02559 for GO 07-70285, would be disclosed to him at the COURT OF APPEAL FOR ONTARIO. This has never been done by the Crown!
[231] The Applicant was assured that audio/video electronic equipment would be made available by the Crown at the Hearing for the Appeal at the Appellate Court for the reviewing of EXHIBIT 2 and EXHIBIT 6B. This was never done at the Appellate Court!
[232] The Applicant was assured the audio dialogue or communication between Officer Monk(#1399) and the YRP dispatch would be disclosed in the lower Courts. This has never been done by the Crown, the Crown just recently refuse to disclose the important disclosure!
[233] The Applicant made a formal requisition for a certified copy of EXHIBIT 2, in his REQUISITION FOR INMATE APPEAL(07-02559), page 2;
“I REQUIRE one certified copy of EXHIBIT 2 GO 07-70285 for Information NO: 07-02559 and Information NO: 07-02500; Moreover, a copy of the 9-1-1 CD:”
The requisition was never completed by the Crown or the Court at the lower Courts!
[234] The Applicant was assured that a copy of EXHIBIT 2 for Information 07-02559 for GO 07-70285, would be disclosed to him at the SUPERIOR COURT OF ONTARIO. This has never been done by the Crown!
[235] The Applicant was assured that the information from the Newmarket Courthouse records to identify Officer Y (name, badge number, and notes) for GO 07-70285 would be disclosed; so that she could be called to give evidence. This has never been done by the Crown!
[236] The Applicant was expecting the Warrantless Search Report or the Warrantless Search documentation for GO 07-70285 would be disclosed; when he requested information concerning the warrantless search of the Applicant’s vehicle which was indicated and pointed to in Officer Monk’s Testimony. This information has never been disclosed by the by the Crown, and it’s disclosure was recently refused by the Crown!
DRUG TEST:
[237] The Applicant was given the impression that, the his urine analysis screening test (drug test) would be entered as “hearsay evidence”; given that it was indirectly inferred to be acceptable evidence to the contrary by the court at the bond hearing and the court at the pretrial hearing in the honest and truthful belief of the Applicant. EVERYONE NEW ABOUT THE APPLICANT’S INTENTIONS AND THE CROWN CHOSE NOT TO ASK FOR AN INDEPENDENT SAMPLE!
On the 28th of March 2007, immediately after the Bond Hearing, the Applicant went to YORK MEDICAL CLINIC, 11-1111 Davis Drive Newmarket, L3Y 7V1, 905-853-0404 at the 404 Plaza, had a checkup and gave a urine sample in DR. A. Dworak presence. The Applicant feels that he has been mislead on this issue! He wonders what the Courts and the Crown would have done if the said test proved positive?
WANT OF OPENNESS AND FORTHCOMING:
[238]
“To summarize, then, the Committee views the focus of its attention, the early stages of the criminal process, as of superordinate importance for a number of reasons. First, these stages are an important part of the criminal law, which itself is deeply necessary to an organized and peaceful society. Second, the criminal law is a social instrument to be used sparingly because it is costly, blunt, and potentially oppressive. Any concern that a social process be resorted to sparingly, inevitably focuses concern on the early stages where in the that process is invoked, and wherein it gathers momentum. Third, the early stages of the criminal process have perhaps the broadest impact of any stage in that process. And fourth, the early stages represent the entirety of the criminal process for very many of its lay participants. This in turn places a premium on the fairness, openness, accountability, and cost-effectiveness of the system in its early stages.”
(Matin Report, REORT OF THE ATTORNEY GENERAL’S ADVISORY COMMITTEE ON CHARGE SCREENING DISCLOSURE, AND RESOLUTION DISCUSSIONS, page 19)
[239]
Recommendation 13:
“The State party should review the Canada Evidence Act so as to guarantee the right of all persons to a fair trial, and in particular, to ensure that individuals cannot be condemned on the basis of evidence to which they, or those representing them, do not have full access. The State party, bearing in mind the Committee’s general comment No. 29 (2001) on states of emergency, should in no case invoke exceptional circumstances as justification for deviating from fundamental principles of fair trial.”
(The International Covenant on Civil and Political Rights, Interim Report in follow-up to the review of Canada’s Fifth Report November 2006)
Recall that the Applicant has repeatedly requested for further disclosure from the Crown.
Please see under the heading REQUEST FOR FURTHER DISCLOSURE, in APPLICATION FOR APPLICATION/APPEARANCE TRANSCRIPTS AND FURTHER DISCLOSURE AND DENIAL OF NATURAL JUSTICE.
[240] The said outstanding disclosure are not arbitrary, but has been identified, they have been cited and pointed to in the real evidence. The said outstanding disclosures are not unusually or protected by privilege, but are disclosable disclosure directed by the Attorney General’s Directive and the Federal Prosecution DeskBook to be disclosed. The said disclosure is suggested or encouraged by the MARTIN REPORT to be disclosed.
[241] Yet the Crown’s actions of non-disclosing of relevant disclosure can only be described as suppression of evidence, an affront to openness and the truth seeking process. This is a blatant disregard for fairness and transparency in the process and a slap in the face of the Canadian democratic system of governance.
DENIAL OF NATURAL JUSTICE USED TO
REMIDY UNREASONABLE DELAY:
[242]
“In their reflection of these principles, the courts have also indicated frequently that they are more concerned with the appearance of bias than with the actual existence of bias. Two justifications are generally advanced for this posture. First, the courts recognize the difficulty of determining in any satisfactory manner whether a person is actually biased in the sense of being unable to put any potentially illegitimate interests out of her or his conscious or subconscious mind. Second, the aphorism that it is as equally important that justice be seen to be done as that justice actually be done has been adopted specifically as a governing policy in is domain. The reputation of the justice system for integrity and impartiality is diminished in a way that is contrary to the public interest if the participants and the public generally have grounds for believing that an adjudicator may be subject to illegitimate influences or predisposition .”
(ADMINISTRATIVE LAW; David J. Mullan. David Mullan, 2001, page 322, para 1)
[243]
“...it is not enough that justice be done,
it must appear to be done. It is also a well established principle that audi alteram partem is a rule of natural justice so firmly adopted by the common law that it applies to all those who fulfill judicial functions and it is not excluded by inference. See: L’Alliance des Professeurs Catholiques de Montréal v. Labour Relations Board [1953] 2 S.C.R. 140, per Rinfret C.J. at p. 154:
[TRANSLATION] The rule that no one should be convicted or
deprived of his rights without a hearing, and especially without even
being informed that his rights would be in question, is a universal rule
of equity, and the silence of a statute should not be relied on as a basis
for ignoring it. In my opinion, there would have to be nothing less
than an express statement by the legislator for this rule to be
superseded: it applies to all courts and to all bodies required to make
a decision that might have the effect of destroying a right enjoyed by
an individual. “
(Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; page 67)
[244] The Applicant came to the Court of Appeal for one and only one reason; for a fair and equitable process to the ends of an unprejudiced hearing before an impartial tribunal.
[245] The Applicant is required to show merits to obtain leave for Appeal. The panel requires the Applicant to show the panel merits for leave.
[246] The Applicant is dependent on his outstanding evidence, which is identified and pointed to in the real evidence to demonstrate the required merits.
[247] The said relevant outstanding disclosure or evidence has been denied by the Crown. The Information and Privacy Commission affirms the Crown’s position on requested information byway of section 65(2.5).
[248] The Justice has dismissed the need for the requested evidence with a determination void of a balance of probabilities and an adjudication without a fair and impartial hearing.
[249] How is it possible to show merits? The accused has been defeated from the start of the battle, by the blocking or denial of relevant evidence to show merits.
[250] The Crown took four months to assign counsel to the Applicant’s matter and over 9 months to investigate a summary conviction matter and articulate their findings in a written response on October 15, 2011. The NOTICE OF APPEAL WAS FILED ON November 2, 2009. This was done despite the fact that their is an action at the Brampton SUPERIOR COURT OF JUSTICE which depends on the Criminal matter. The Crown should have known are aught to have known that a practice directions exists at the COURT OF APPEAL FOR ONTARIO, expediting matters like the Applicant’s.
[251] For this the Applicant’s right to a fair hearings in-front of a single judge to adjudicate on a balance of probabilities contended issues has been successfully circumvented. Which has resulted in the impedance and denial of necessary evidence and outstanding disclosure to show merits for leave. The accused has been prepared for defeat!
[252] It is now well pass 360 days for the perfection of the Appeal. The Applicant was continually told to be patient towards the Crown in the conducting of its assigned duties. But now the Applicant’s Rights and Freedoms must be trampled on to effect the leave to Appeal.
SUMMARY:
[253] After all that been said above, which is only a portion of the history of the matter before the Court. How can the Applicant reasonable trust the Crown? How can the Applicant trust the Duty Counsel. The Applicant respectfully summit that the Administration of Justice is in breach of its Fiduciary relationship with the accuse.
[254] The Applicant respectfully submits that:
The requested outstanding disclosure and real evidence are not privileged information.
[255] Pursuant to R. v. Chaplin, “ (1) the defence contends that material that has been identified and is in existence ought to have been produced”
[256] Pursuant to R. v. Chaplin, “ (2) the defence contends that that material whose existence is in dispute ought to have been produced. “
[257] Pursuant to R v. La, [1997] 2 S.C.R. 680, “ Where the existence of certain information has been identified, the Crown must justify non-disclosure by demonstrating either that the information sought is beyond its control, or that it is clearly irrelevant or privileged.”
[258] Pursuant to R v. Laporte (1993), 108 Sask. R. 87 (Q.B) “ ...the Crown should produce a written, itemized inventory of the information in its possession, identifying those times which it intends to disclose and those which it does not and containing, in respect of the latter items, a statement in each case as the basis upon which the Crown proposes to withhold disclosure.”
[259] Pursuant to R v. O’Conor (1995), 103 C.C.C (3d) 1, “ Depending on the circumstances, different Charter guarantees may be engaged as embodied on the in ss. 7 and 11(d). Issues relating to disclosure by the Crown would normally fall within this category and thus a challenge based on non-disclosure will generally require a showing of of actual prejudice to the accused’s ability to make full answer and defence.”
[260] Pursuant to Palmer v. The Queen, and reaffirmed in R. v. Taillefer the following four conditions has been satisfied;
“(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial
provided that this general principle will not be applied as strictly in a criminal case as in civil cases . . . .
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
(3) The evidence must be credible in the sense that it is reasonably capable of belief, and
(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
( R. v. Hurley, 2010 SCC 18, [2010] 1 S.C.R. 637, page 6)
[261] Regardless of the Crown’s position of the contended issues on disclosure and evidence, Mackay v. Manitoba must be adhere to for the Applicant’s pending constitutional question Application.
[262] Pursuant to Mackay v. Manitoba, [1989] 2 S.C.R. 357, “ Charter decision should not and must not be made in a factual vacuum.”
[263] The Crown’s Denial of outstanding disclosure, disclosure owed to the Applicant from the lower Courts. In short this action is a suppression of evidence and an impedance to accessing justice. It serve to colour justice against the accuse, hold his restitution hostage and prejudice the process against him.
[264] This is an injection of unnecessary cost and a wanton wast of scarce judicial resources while inflicting harm upon the health and well being of the collective, this damage to the natural function and evolution of our beloved society.
“. . . the overriding concern that failure to disclose impedes the ability of the accused to make full answer and defence.
{...}
The right to make full answer and defence is one of the pillars of criminal justice on which we heavily depend to ensure that the innocent are not convicted.
{...}
Failure to comply with this initial and continuing obligation to disclose relevant and non-privileged evidence may result in a stay of proceedings or other redress against the Crown, and may constitute a serious breach of ethical standards. With respect to the latter, of necessity, great reliance must be placed on the integrity of the police and prosecution bar to act in the utmost good faith. It is for this reason that departures from this onerous obligation are treated as very serious breaches of professional ethics.“
(R. v. Chaplin, [1995] 1 S.C.R. 727, page 16)
NEW EVIDENCE CONCLUSION:
Therefore, there exist evidence to fulfill the four conditions in Palmer v. The Queen for fresh evidence.
Information Nos.: C51190
court of appeal for ontario
B E T W E E N:
HER MAJESTY THE QUEEN Respondent
- and -
WAYNE FERRON Applicant
CITATION - VOLUME I
APPLICATION RECORD FOR APPLICATION
FOR CONSTITUTIONAL QUESTION
1.) NEW EVIDENCE
WORK CITED
1) R. v. Chaplin, [1995] 1 S.C.R. 727
2) R v. La, [1997] 2 S.C.R. 680
3) R v. Laporte (1993), 108 Sask. R. 87 (Q.B)
4) R. v. Hurley, 2010 SCC 18, [2010] 1 S.C.R. 637
5) R. v. Yu, 2008 ONCJ 153, page# 10[41], COURT FILE No.: Newmarket Info #07-01755)
6) R v. O’Conor (1995), 103 C.C.C (3d) 1
7) DISCLOSURE, PROVINCE OF ONTARIO MINISTRY OF THE ATTORNEY GENERAL CROWN POLICY MANUAL, March 21, 2005
8) Chief Justice R. Roy McMurtry, 2007 Report of the Court of Appeal for Ontario http://www.ontariocourts.on.ca/coa/en/archives/ocs/2007.htm
9) MacKay v. Manitoba, [1989] 2 S.C.R. 357
10) Rosalie Silberman Abella Justice, Court of Appeal for Ontario, The Law Society of Upper Canada Professionalism Revisited, Opening Address Benchers', Retreathttp://www.ontariocourts.on.ca/coa/en/ps/speeches/professionalism.htm)
11) Martin Report, Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions
12) Rule 4, Rules of Professional Conduct
13) ANNOTATED ONTARIO RULES OF CRIMINAL PRACTICE, TOMSON CARSWELL, 200
14) Matin Report, REORT OF THE ATTORNEY GENERAL’S ADVISORY COMMITTEE ON CHARGE SCREENING DISCLOSURE, AND RESOLUTION DISCUSSIONS
15) R. Roy McMurtry, Chief Justice of Ontario Court of Appeal for Ontario, Practice Direction Concerning Timely Hearing of Criminal Appeals
17) Laskin J.A., May 14, 2010, Typed version of handwritten endorsement, R. v. Wayne Ferron - M38387(C51190)
18) Matin Report, REORT OF THE ATTORNEY GENERAL’S ADVISORY COMMITTEE ON CHARGE SCREENING DISCLOSURE, AND RESOLUTION DISCUSSIONS
19) ADMINISTRATIVE LAW; David J. Mullan
20) The International Covenant on Civil and Political Rights, Interim Report in follow-up to the review of Canada’s Fifth Report November 2006
21) Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177;
22) R. v. Hurley, 2010 SCC 18, [2010] 1 S.C.R. 637
23) R. v. Chaplin, [1995] 1 S.C.R. 727
All of which is respectfully submitted.
Date:..
_________________________
Wayne Ferron
Email: ferronwayne@gmail.com
TO: The Clerk of the Court--Registrar
Osgoode Hall
130 Queen Street West
Toronto, Ontario, M5H 2N5
Tel: 416 327 5020
Fax: 416 327 6032
AND TO
The Attorney General of Ontario
Constitutional Law Branch
4th floor
720 Bay Street
Toronto, Ontario M5G 2K1
fax: 416 326 4015
AND TO:
The Attorney General of Canada
Constitutional Law Branch
Suite 3400, Exchange Tower
Box 36, First Canadian Place
Toronto, Ontario M5X 1K6
fax: 416 973 3004
court of appeal for ontario
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R -versus- Wayne Ferron |
Court file no.: C51190 |
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COURT OF APPEAL FOR ONTARIO
PROCEEDING COMMENCED AT Osgoode Hall 130 Queen Street West Toronto, Ontario, M5H 2N5
DOC-X VOLUME I APPLICATION RECORD FOR APPLICATION FOR CONSTITUTIONAL QUESTION 1.) NEW EVIDENCE
Wayne Ferron
Email: ferronwayne@gmail.com
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