R. v. Collin Fitzgerald
TUESDAY, MAY 31, 2016
THE COURT: Mr. Collins, good morning.
MR. COLLINS: Good morning, Your Honour. Your Honour, if I can address the first three matters on the docket, Mr. Fitzgerald.
THE COURT: Yes.
MR. COLLINS: I just have some comments to make and it won’t take very long. On July the 31st, just to provide Your Honour with some background, these charges date back to 2014, the South Dundas Fire Department was dispatched to a house fire located at 22 Caldwell Drive in the Town of Iroquois. The OPP were also notified of the fire shortly thereafter and attended the scene.
At the time of note Mr. Fitzgerald was bound to comply with two court orders, one was a probation order and the other was a recognizance. The probation order stemmed from a domestic related conviction a few years prior where Mr. Fitzgerald had called a family member and advised that he was filling the house with natural gas and was going to blow it sky high. The threat required a significant police response, including the evacuation of the neighbourhood and an eventual armed standoff between Mr. Fitzgerald and the police.
As a result of that Mr. Fitzgerald was convicted of a series of charges and the sentence included a three year probation term to keep the peace and
1.be of good behaviour, not to associate, contact or hold any communication directly or indirectly with Mrs. Fitzgerald and not to attend within 500 metres of her place of residence.
In regard to the recognizance Mr. Fitzgerald had entered into, one before a justice of the peace, in relation to some outstanding charges at the time involving a charge of theft of a truck and some breaches. That information is before the court and we’ll address in a short while. The conditions of that release included when he was to reside with his surety, he was not to be away from the residence unless he was in the presence of his surety or his mother, Mrs. Arlene Fitzgerald, or an adult so designated by his surety.
Coming back to July 31st, the night of, the neighbours advised that they observed Mr. Fitzgerald in the vicinity of the home, Mrs. Stacey’s Fitzgerald’s home, shortly after the Fire Department had attended to deal with the fire. These people had been Mr. Fitzgerald’s neighbours for a number of years and was certain that it was him that they had observed. Mr. Fitzgerald was therefore charged with the charges that you see on the docket today.
On August the 19th of 2014 Mr. Fitzgerald himself sent an alibi notice to the Crown indicating that he was on the phone at his parents’ residence at the relevant time. He indicated that he was speaking and/or texting a female alibi witness. On August the 28th, 2014 Mr. Fitzgerald advised the Crown by letter that he would be providing an affidavit from this main defence alibi witness. To date the Crown has not received this affidavit from the defence.
On September the 18th of 2014 police spoke to the witness by phone. This female indicated that they were talking and texting, they being Mr. Fitzgerald and her, on the night in question, that she had asked Bell for her phone records and that she was willing to provide a statement to the police regarding her conversation and that’s back in September of 2014. Since then there have been many efforts made by the police following this contact to obtain a formal statement from this main defence alibi witness. The witness did not respond to the follow-up by the police and nor did she forward any documentation.
On Thursday, May the 12th of 2016 the Crown sent correspondence to Mr. Fitzgerald’s then counsel at the time, Ms. Neha Chugh, confirming the difficulties that the police were having in obtaining a formal statement from this witness and that she was being uncooperative. On Monday, May the 16th, 2016 the defence alibi witness called the police and finally provided an audio statement to the investigating officer. Along with the statement she produced copies of screenshots from her phone of text messages.
Obviously we received this new information. As part of our ongoing obligation when screening a file, and Your Honour may be aware of that, that there are two things that go into that ongoing obligation to screen a file, the first is a reasonable prospect of conviction analysis, and the second is an analysis of whether it is in the public interest to continue with the prosecution.
Concerning a reasonable prospect of conviction, following our review of the material we received, we are of the opinion that there is still a reasonable prospect of conviction. In our opinion the weight of the alibi evidence would be an issue at trial given the lateness of the statement and the supporting documents which were received some two years after the events. However, although we have determined that there’s still a reasonable prospect of conviction, the information does weaken the strength of the Crown’s case.
Concerning the public interest, there are a number of factors that come into play in this consideration, which include but are not limited to the strength of the Crown’s case and the staleness of the alleged offences and the expense of a trial when considered in the relation to the seriousness of the offences.
In light of the following, 1) the effect on the strength of the Crown’s case given the formal audio taped statement from the alibi witness received on May 16th, 2016 and the supporting copies of the screenshots that lend to credence to Mr. Fitzgerald having a conversation with this witness; 2) the passage of time or two years; 3) Mr. Fitzgerald’s significant efforts and progress in relation to his mental health; and 4) Mr. Fitzgerald’s adherence to strict conditions of release since 2014, the Crown has therefore determined that it is no longer in the public interest to proceed with the charges on today’s docket from July 31st, 2014 and I’ll invite Your Honour to withdraw those charges please.
THE COURT: Any comment from the defence?
MR. ELLACOTT: Yes, Your Honour, and I’m put in a slightly – I had spoke to Ms. Burke yesterday, the Crown Attorney who had made the decision in this matter....
THE COURT: Well perhaps I’ll just get your name for the record, sir.
MR. ELLACOTT: Oh I’m sorry, Your Honour, I had handed it up earlier, but it’s Ellacott, first initial S.
THE COURT: Thank you.
MR. ELLACOTT: The defence absolutely agrees that withdrawing this charge is the right – these charges, is the right decision. My friend has read in a sort of lengthy grounding for the withdrawal of those charges. I didn't want to litigate a withdrawal, Your Honour, that would be a first. On the other hand, I wouldn't also want to be seen as agreeing with that characterization of where the case stood in terms of a reasonable prospect of conviction. I think it’s – it wouldn't in my submission, Your Honour, have anything to do with credibility of an alibi witness. That witness that – it makes it look to the court and to the public, as this is a public courtroom and the people are watching these matters, as though this person was unheard of during this two year period, the alibi witness.
But there are – and I’ve only been on this matter for a few days, Your Honour, but it only takes one read of the OIC notes in this matter to note that on September 18th of 2014 the OIC spoke to, according to the time in those notes, close to an hour with the alibi witness, disclosed at that time, who gave her phone number that she was phoning from with Mr. Fitzgerald, his phone number that she was phoning to, she gave detail about the conversation about the fact that it sounded like he was in his home because he was talking to his mother occasionally and referring to a pet. This is all two years ago, or close to two years ago.
That the production order that was produced as a result of that conversation where she voluntarily gave her phone number and Mr. Fitzgerald’s number, produced phone records that substantiate everything that she had said. There were two phone calls that basically make it almost impossible on the laws of physics for him to have been in both places at the same time or very very close, unless they were next door neighbours to the residence he was supposed be staying at. There is cell phone tower evidence. It would be rare to find a breach with more evidence showing that the person wasn’t breaching, in my submissions, Your Honour, and certainly in my experience.
And so I agree it should be withdrawn but much was said about Mr. Fitzgerald’s prior charges going back three years ago in withdrawing this charge. I just want the record to be clear that we don’t agree that there was no reasonable prospect of conviction, but thank you, Your Honour, I’m sorry for taking up your time with that.
THE COURT: All right. And so ultimately then the paperwork before me will be marked as withdrawn to the request of the Crown.
MR. COLLINS: That just leaves one information, Your Honour, it’s the addition information 15-M – I think it’s 110. These charges are currently set for trial in December of this year for two days here in Morrisburg and there are some ongoing resolution discussions in rela(sic) – I think – I say charges but I think there’s just one left? Yes, thank you, Mr. Clerk. There’s some ongoing resolution discussions. I would ask, I have spoken to Mr. Ellacott, I would ask that that be adjourned to the remand appearance here in July, I think it’s July 5th, am I correct on the 5th?
CLERK OF THE COURT: M’hmm.
MR. COLLINS: Okay, July 5th, please.
THE COURT: All right, the remaining count will return July the 5th with communications to continue between counsel.
MR. ELLACOTT: Thank you, Your Honour.
THE COURT: All right, thank you both.
* * * * * * * * * *
1.Certification
Certificate of Transcript
Evidence Act, Subsection 5(2)
I, Elaine Paquette, certify that this document is a true and accurate transcript of the recording of May 31, 2016, in the Ontario Court of Justice held at 6 Fifth Street West, Morrisburg, Ontario taken from Recording 3921-M01-20160531-094052-6-GIAMBEFwhich has been certified in Form 1 by Nancy Wood.
June 4, 2016 ______
Date Elaine Paquette
Authorized Court Transcriptionist
Information No. 3921-998-15-M109-00
3921-998-15-M110-00
T A B L E O F C O N T E N T SONTARIO COURT OF JUSTICE
HER MAJESTY THE QUEEN
V.
COLLIN FITZGERALD
P R O C E E D I N G S
BEFORE THE HONOURABLE MR. JUSTICE GIAMBERARDINO
On May 31, 2016, at MORRISBURG, Ontario
APPEARANCES:
M. CollinsCounsel for the Crown
S. EllacottCounsel for Collin Fitzgerald
(i)
Table of Contents
T A B L E O F C O N T E N T SONTARIO COURT OF JUSTICE
T A B L E O F C O N T E N T S
Transcript Ordered: May 31, 2016
Transcript Completed: June 04, 2016
Ordering Party Notified: June 04, 2016