by Gary McHale - The Regional
September 30, 2009
On Sept. 22 Crown Attorney Brent Bentham took over prosecution of the charge against me. Judge Zabel said to him, "I see you drew the short straw" to which Mr. Bentham stated, "You are not the first person to say that to me today." Mr. Bentham is one of the best Crown attorneys around, however, the day didn't end the way Mr. Bentham thought it would.
Most lawyers are unaware they can file a Writ of Certiorari while court proceedings are ongoing. However, during the lunch break I filed this rarely used Writ in Superior Court and served the Crown and Judge Zabel as court resumed.
Judge Zabel calmly asked the Crown what he thought about the document. The Crown stated it was of little concern because it didn't involve current witnesses before the court. It was almost as if Judge Zabel was toying with the Crown as this conversation continued and the Crown repeated their request that I be required to call my next witness. The Crown finally admitted they had not seen this Writ served during proceedings.
Judge Zabel stated he had only been served one before and declared he was functus which means the court had no authority to proceed.
CANACE members were the first in Canada to successfully use an Order of Mandamus to overturn the Crown's interference in private prosecutions. We have now won three case law rulings using a Mandamus and have firmly established the rights of Canadians to lay criminal charges.
The first time Judge Zabel was served a Certiorari was in Sept. 2007 resulting in a ruling in March 2008 by the Ontario Appeals Court that Certiorari should be rarely, if ever, used during a Preliminary hearing.
A Writ of Certiorari is found in the same sections of the Criminal Code as the Order of Mandamus. While a Mandamus has a wide application against any government official, a Certiorari is only used against a judge's ruling. Normally a Certiorari is used after a preliminary hearing when a judge has ordered the accused to stand trial and a lawyer wants a higher court to overturn the ruling.
My case is unique for various reasons.
The only piece of evidence the Crown has that even suggests I committed a crime is found in a 14 second video clip that is part of a larger 45 minute video taken by Turtle Island News. For the video to be entered into evidence the Crown must establish the video has not been tampered with. Normally this means calling the photographer and the computer technician who testify the video the court has is unedited.
If there is a question about the credibility of video evidence the court holds a Voir Dire - meaning a separate hearing within the hearing to determine the credibility of the video. At the end the judge rules whether the video is admissible. In my case the judge ruled the video was admissible.
Now comes the problem. The Crown failed, in fact refused, to provide me with disclosure that suggests the video was tampered with by Lynda Powless and/or James Powless her son. Several months after the video was ruled admissible the Crown finally handed me recorded police interviews of Lynda and James Powless from Dec. 2007.
Why did the Crown withhold this evidence when they are required by law to disclose it is a question they have failed to answer. However, I immediately filed a motion to re-open the Voir Dire to demonstrate that the video had been tampered with.
Although the Crown consented to re-opening the Voir Dire, Judge Zabel ruled against it. Thus, a Writ of Certiorari was issued which states:
"TAKE NOTICE that an application on behalf of the accused, Gary McHale, will be brought to set a date... in the Superior Court of Justice, for an order issuing and granting a Writ of Certiorari to Quash the Ruling(s) of His Honour Judge B. Zabel pronounced on September 22, 2009, in the Ontario Court of Justice at Hamilton, Ontario, whereby the learned Preliminary Inquiry Judge failed to observe a mandatory provision of the Criminal Code, to wit, s.540(1)(a) and s.540(7) of the Criminal Code of Canada, and thereby denied the rights of the defence to make full answer and defence."
In plain English it states my rights have been violated by the court refusing to re-open the Voir Dire based on the new evidence.
The Writ states the following:
"The video evidence is the sole evidence against the accused and the Crown willfully withheld key disclosure evidence until after the admission of the video evidence. This new disclosure raises serious questions as to the credibility of the video...
"An O.P.P. interview on Dec. 2, 2007 of Lynda Powless, owner of Turtle Island News, demonstrates that the video was not simply stored at the office but was being used. Furthermore, Lynda Powless states she will have her son, James Powless, work with the video that afternoon...
"Although James Powless was subpoenaed by the Crown to appear at the preliminary hearing, he failed to show for each of the six days in April of 2009..."
The Crown told me that both Lynda and James Powless 'refused to accept the subpoenas' issued by the Crown two weeks ago which is not lawful.
The real question of law that needs to be addressed is whether the OPP/Crown are permitted to hide evidence that doesn't support their case until after the preliminary hearing is over? Should I, as an accused, not be allowed to have full disclosure prior to a Judge ruling the charge against me should be sent to trial?
I believe the Supreme Court has made it clear the Police/Crown have a duty to give proper disclosure prior to a preliminary hearing. The OPP/Crown cannot control the evidence in such a way so as to control the outcome of the preliminary hearing.
Just to remind everyone, my trial actually started last year on Nov. 20, 2008. On Nov. 21 the Crown realized it made a serious error by mis-reading the criminal code with regards to my charge - not surprising since the pre-trial Judge, the Crown and the two lead OPP investigators have all stated in court they have never heard of someone being charged with Counseling Mischief not Committed.
Justice can only be served when a judge is permitted to review all the evidence, whether that be evidence that supports the charge or not.
By my serving the court a Certiorari it will force the issue before a Superior Court Judge.
The OPP/Crown believed I would roll over and play dead when they cooked up this charge against me. They believed that the high cost of lawyers would force me to plead guilty in order to make a deal.
Unfortunately for them I refused to plead guilty to a crime that did not happen.
Fortunately for the public the tactics of the OPP/Crown are being exposed so hopefully others do not have to experience what I have had to go through in the past two years.
Maybe the Certiorari will finally cause the Crown to wake up and end this miscarriage of justice.