RSACB99W1105

 

** RSAC FILES ** RSAC DOCUMENT NO.RSACB99W1105   =  RSAC FILE NO. IB99:J29:BPS   =   COURT FILE NO………………………………..

FORM 1 / NOTICE OF APPLICATION

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ONTARIO COURT OF JUSTICE, GENERAL DIVISION

77 WELLINGTON STREET ,  BRANTFORD, ONTARIO ,  CANADA, N3T-2L9

BETWEEN:

HER MAJESTY THE QUEEN   =   RESPONDENT

and

ROBERT SHAWN A. CANTLON   =   APPLICANT

NOTICE OF APPLICATION

(Rules of the Ontario Court of Justice in Criminal Proceedings, Form 1)

TAKE NOTICE, that an application will be brought at …………… am. on the …………… day of June 1999, in Courtroom no. ……, 77 Wellington Street, Brantford, Ontario, Canada before The Honorable Judge of that Court, for an order granting Disclosure, of relevant material pertaining to a Trial scheduled for 03 June 1999, at the Ontario Court of Justice, 44 Queen Street, in the City of Brantford, Ontario, Canada, that is held by the Brantford Police Service and / or its agents, and further held by the Superior Court of Ontario and / or its agents, and that is further applicable / comparable to investigations / complaints held against the Brantford Police Service and / or its Agents related to this Trial 03 June 1999, as noted, as caused by Brantford Police Service Inc. No. 2476-99, the arrest of Robert Shawn Alexander Cantlon, on 26 January 1999, in the City of Brantford, Ontario, Canada.

THE GROUNDS FOR THIS APPLICATION ARE:

1. That, held in Section 650 of the Criminal Code of Canada, by case law, that an accused is entitled to make full answer and defence, and that all information relevant is required whether exculpatory or exculpatory; and

2. That, it is further held in Section 650 of the Criminal Code of Canada, by case law, that the Crown is required to disclose evidence in its "possession" which could rebut evidence of good character ; which could advance the conduct of the defence; and

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3. That, information held by the Crown is relevant to any application under section 7 of The Charter of Rights and Freedoms; and ;

4. That, information held by the Crown is interconnected to the proceedings against the same, which is not only pertinent to those proceedings, but further relevant to any applications that may / could be held under Sections of The Charter of Rights and Freedoms in this matter scheduled to be heard 03 June 99; and ;

5. That, the Applicant’s requests for Disclosure have not been met, and ;

6. That, the Crown attempted to mislead the Applicant in regards to the attendance of the Arresting Officer(s) for Trial, and may have in its "mind" the intention to mislead, as to other witness it intended to call for the prosecution, that may be considered to be motives that violated the fundamental principals underlying the community’s sense of decency and fair play, and thereby caused prejudice to the integrity of the judicial system, and ;

7. That, the Crown only on the service of notice, by the accused, that the accused was aware of the serving of subpoena, did then, the Crown produce a witness list, and ;

8. That, there is reasonable apprehension of bias with respect to the Crown and Crown Counsel, as the accused has made numerous complaints against there conduct to not only Independent Complaint Commissions, but to the RCMP., and ;

9. That, matters in the past have caused the accused to spend exceptional amounts of time and energy to seek out materials in previous matters raised by the Crown against the accused, that has led to repeated Court appearances in an attempt to secure that evidence, that would prove his innocence, in other matters, and that the crown has even upon notification prior to Trial / conviction did not make available or sought out the material that would disprove its case, and has made argument to delay the process, that it was obligated to do in the first place, by causing repeated appearances to Appeal Courts to seek out that required information. Upon learning of evidence, that might prove the innocence of the accused. The Crown Counsel does not make effort to secure the material, and rectify the situation, but causes repeated attempts to seek out that material. The evidence would have been held in the possession of the Crown (Police), at the time. The Crown is obligated not only to prosecute the guilty, but to clear the innocence, and even if conviction has been made out it has a duty to the integrity of the justice system to bring to the attention any information that would clear the accused to the appropriate remedy, and ;

10. That, the Crown Counsel in previous appearances in Court has attempted to Perjure the Court, that sits in the mind of the accused was a delberate attempt to delay the setting of

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Trial, and to cause the accused to spend more time in jail, and to frustrate the accused into an admission of guilt, and ;

11. That, their was error in law by the Honorable Judge G.B. Edward, by his own admission, on 31 May 1999, in discussing matters related to my Court appearance, to hear argument on 31 May 1999, did prior to the hearing of that argument have conversation(s) with the Crown Counsel, Robert L. Kinden, out of ear shot of the accused, concerning matters that are connected to my application on that date of 31 May 1999.

12. That, material held in the possession of the Crown, could establish a like behavioral tendency, by the complainant, that could support testimonial evidence the Defence is in attempt to have brought to the date of trial, by request of a witness, for the defence, that could enhance the direction of the defence. The witness the defence is attempting to have brought to the court is not related to the material required by the defence, in this point, and ;

13. That, The Honorable Judge G.B. Edward of the Ontario Court of Justice erred in law on 31 May 1999, by not meeting the request for all material requested, as outlined by case law.

14. That, due to the time frame allocated by The Honorable Judge G.B. Edward was insufficient to allow the Defence to raise all the issues of disclosure requested that could enhance the Defence and attack the standing of good character of the complainant, Ivan Neumeyer, and ;

15. That, their was error in law, by the Honorable Judge G.B. Edward, in determining the importance of the Transcripts required, for the defence, that could further rebut the good character of the informant, refused to order them to be made available to the Defence / Court for independent testing, and ;

16. That, the Honorable Judge G.B. Edward, further erred in Law, by upon hearing argument that contained in these said Transcripts was attack on the Wittness, by the Crown Counsel, who is now a witness for the Crown, in regards to his memory, and standing within the community did fail to order these said transcripts for independent testing at Trial, that is scheduled for 03 June 1999, that further could be held to be used in establishing the witness for the Crown could and would perjure the court, and ;

17. That, these transcripts in support of documentation of a financial application, by the witness for the defence, could further rebut the good character and credibility of the witness for the Crown, and ;

18. That, further held in the possession of the Crown is material relevant to support the documentation, that the defence has in it’s possession, that attests to the good character of the witness for the Crown, by his fraudulent application for financial assistance, and ;

19. That, the "fruits" of the Police investigation into the fraudulent credit application, by the

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witness for the Crown, are not in the possession of the defence, which could further rebut the good character of the Crown wittness, and ;

20. That, the Honorable Judge G.B. Edward further erred in law, by learning that the accused was a unrepresented accused, that is without financial resources to expedite the said materials, by reason of discovery, failed to protect the rights of the accused, as protected by the Charter / case law, by requesting the material, that could rebut the good character of the witness for the defence, and set a direction for which the defence might be able to follow not only in the rebuting of the good character and credibility of the Crown witness, but any applications that could be held / considered by defence under sections of The Charter, and ;

21. That, the Honorable Judge G.B. Edward erred in law, by stating it would be cheaper to plead guilty to a fine of $50.00, if the accused so wished, than to endure the cost of the transcripts, and ;

22. That, the Honorable Judge G.B. Edward failed to grant the requests of the "fruits" of the investigation(s) by Police, and / or the notes of those said Police officers into matters relevant to supporting the like scenarios of the Crown witness, against the others, and suggested the Defence should call the "person(s)" associated with those like scenarios, to the 03 June 99 trial, even after learning that this witness could be considered to be a hostile witness, by the fact that the accused in this matter assisted the Police in advising the Police, as to the where abouts of that person in question, after charges were filled, as requested by the Police, and ;

23. That, any such further and other grounds as counsel and / or the accused may advise and this Honorable Court may permit

IN SUPPORT OF THIS APPLICATION, THE APPLICANT RELIES UPON THE FOLLOWING:

1.

R. v. Stinchcombe, [1991 ] 3 S.C.R. 326, 68 C.C.C. ( 3d ) 1, 9 C.R( 4th ) 277 ( 7:0 )

Section 650, CC/957 & CC/988 1997 Edition, Martins

At least in the case of indictable offences, the Crown is required to produce to the defence all relevant information whether or not the crown intends to introduce it into evidence and whether it is inculpatory or exculpatory. The Crown does have a discretion to withhold information and as to it timing of the disclosure where necessary to protect the identity of an informer or a continuing investigation. The exercise of this discretion is reviewable by the trial judge who will be guided by the general principal that withholding of information will

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impair the right of the accused to make full answer and defence, unless the non-disclosure is justified by the law of privilege. Even then, the trial judge might conclude that the recognition of an existing privileged does not constitute a reasonable limit on the constitutional right to make full answer and defence and thus require disclosure in spite of the law of privilege. Initial disclosure should occur before the accused is called upon to elect the mode of trial or to plead. the obligation to disclose will be triggered by a request by or on behalf of the accused. in the case of an unrepresented accused, the trial judge should not take a plea unless satisfied that the accused has been informed of his rights to disclosure:

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2.

R. v. Bourget ( 1987 ), 35 C.C.C. ( 3d ) 371, 56 C.R. ( 3d ) 97, 41 D.L.R. ( 4th ) 756

( Sask.C.A. ).

1989, Edition, Martins

Section 7 gives the court broad powers to promote the proper administration of criminal justice

by ordering disclosure and by discovery of material and objects for the purpose of independent testing. Section 7 is not limited to the notion of procedural fairness in court and encompasses the whole process, including discovery and disclosure.

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3.

R. v. Mitchell ( 1989 ), 70 C.R. ( 3d ) 71, 33 O.A.C. 360 ( C.A. )

Section 650, CC/958, 1997 Edition, Martins

Disclosure by Crown counsel is a primary basis upon which defence counsel

must determine how the defence will conduct and, in particular, whether or not the Crown’s case will be made out. While there will always be cases where counsel may be taken by surprise in a criminal trial by some change or variation in the expected evidence, this surprise should not be caused by crown counsel deliberately choosing not to carry out an undertaking to make prior to trial.

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4.

R. v. C. ( M.H. ) ( 1991 ), 63 C.C.C. ( 3d ) 385 ( S.C.C.) ( 5:0 )

Section 650, CC/958, 1997 Edition, Martins

The Crown is under a duty at common law to disclose to the defence all material evidence whether favorable to the accused or not. Failure to disclose may constitute for an appeal where it results in an unfair trial. Thus on a charge of sexual assault, a new trial was

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ordered where the prosecution failed to disclose to the defence the existence of a witness who had questioned the complainant about sexual abuse and, had denied being abused and, had the defence been aware of the statement, it might have been used to support the defence that the evidence of the complainant was fabricated.

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5.

R. v. Hunter ( 1993 ), 86 C.C.C. ( 3d ) 81, 16 O.R. ( 3d ) 81, 16 O.R. ( 3d ) 145, 18 C.R.R. 225 ( C.A. ), leave to appeal to S.C.C. refused 87 C.C.C. ( 3d ) vi, 72 O.A.C. 140n, 20 C.R.R. ( 2d ) 192n.

Section 650, CC/958 – 959, 1997 Edition, Martins

The crown was required to disclose evidence in its possession which could rebut evidence of good character which the accused proposed to call. That evidence could reasonably be used by the accused in advancing a defence and in making a decision which could affect the conduct of the defence, such as whether or not to call evidence.

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6.

R. v J. Fewitt ( 1985 ), 21 C.C.C. ( 3d ) 7, [ 1985 ] @ S.C.R. 128,. 20 D.L.R. ( 4th ) 651.

Section 7, CH/17, 1997 Edition, Martins

A trial court has the power to stay proceedings to prevent the abuse of a court’s process

through oppressive or vextatious proceedings where compelling an accused to stand trial would violate thoase principals of fundimental justice which underlie the community sense of fair play and decency

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7.

R. v. Seaboyer ( 1991 ), 66 C.C.C. ( 3d ) 321, 83 D.L.R. ( 4th ) 193, 4 O.R.

( 3d ) 383 (S.C.C. ) ( 7:2 ).

Section 7, CH/18, 1997 Edition, Martins

A law, which prevents the Trier of fact from getting at the truth by excluding relevant evidence in the absence of a clear ground of policy or law justifying the exclusion, runs afoul of our fundamental conceptions of justice and what

constitutes a fair trial. The fundamental tenant of our system, that the innocent

not be convicted, implies that, before a judge may exclude evidence which is relevant to a defence, the potential prejudice to the trial process must substantially outweigh the value of the evidence.

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8.

R. v. Williams ( 1985 ), 18 C.C.C. ( 3d ) 356, 44 C.R. ( 3d ) 351, 50 O.R. ( 2d ) 321 ( C.A.) 385, [ 1988 ] 1 S.C.R. 670, 64 C.R. ( 3d ) 1.

Section 7, CH/17, 1997 Edition, Martins

A Trial court has a residual discretion to relax in the favor of the accused a strict rule of evidence where it is necessary to prevent a miscarriage of justice and where the danger against which a exclusionary rule aimed to safeguard does not exist.

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9.

R v. Blunden ( 1976 ), 30 C.C.C. ( 2d ) 122 ( Ont.C.A.).

Section 11, CE/15, 1997 Edition, Martins

It is essential that a jury be instructed that those discrepancies between a witness’ previous

statement and his evidence at trial may only be considered to assess the witness’ credibility and not as evidence of the truth of the previous statement

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10.

R. v. Kuldip ( 1960 ), 61 C.C.C. ( 3d ) 385, [ 1990 ] 3 S.C.R. 618, 1 C.R. ( 4th ) 285 ( 4:3 ).

Section 5, CE/07, 1997 Edition, Martins

This section does not prevent cross-examination of an accused on testimony given in an earlier proceeding, notwithstanding an objection under subsect. ( 2 ), wher the purpose of the cross-examination is to impeach the accused’s credibility and not to incriminate him:

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11.

R. v Ullrich ( 1991 ), 68 C.C.C. ( 3d ) 473 ( B.C.C.A.)

Section 10, CE/13, 1997 Edition, Martins

Exceptionally a prior inconsistent statement may be admissible for its truth in favor of the accused where there is some persuasive assurance of trustwothiness of the statement

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12.

R. v. Campbell, ( 1997 ), 38 C.C.C. ( 2d ) 6, 17 ).R. ( 2d ) 673, 1 C.R. ( 3d ) 309 ( C.A. ).

Section 10, CE/14, 1997 Edition, Martins

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A prior statement by a witness, even if sworn, is, if not adopted by the witness, not evidence of the truth of its content but rather is only admissible with respect to the credibility of the witness. Further, the fact that the trial judge requires its production pursuant to this subsection and has it marked as an exhibit does not make the statement evidence of truth of its contents.

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13.

R. v. V. ( W.F. ) ( 1972 ), 72 C.C.C. ( 3d) 97 ( NFLD.C.A.)

The Manner of Disclosure……… The duty rests upon Crown Council to obtain from the Police all material that should be properly disclosed to defence Counsel…..

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14.

R. v. O’Conner ( 1995 ), 103 C.C.C. ( 3d ) 1, 44 C.R. ( 4th ) 1, [ 1996 ] 2 W.W.R. 153

( S.C.C. ) ( 5:3 )

Section 650, CC/959, 1997 Edition, Martins

The Principals of fundamental justice as guaranteed by the Charter reflect and accommodate the nature of the common law doctrine of abuse of process. Issues relating to disclosure by the Crown would normally fall within ss. 7 and 11(d) of the Charter. Therefore, a challenge based on non-disclosure will generally require a showing of actual prejudice to the ability to make full answer and defence. The accused must establish that the impugned non-disclosure has, on the balance of probabilities, prejudiced or had an adverse effect on the accused’s ability to make full answer and defence. Such a determination requires a reasonable inquiry into the material of the non-disclosed information. The propriety of the Crown’s conduct or intention are not necessarily relevant to whether or not the accused’s right to a fair trial has been infringed. Once a violation is made out, the remedy will typically be a disclosure order and an adjournment. There may be some extreme cases, however, where the prejudice to the accused’s ability to make full answer and defence or to the integrity of the justice system is irremediable. In those clearest of cases, a stay of proceedings will be appropriate. Other remedies would include permitting the defence to recall certain witness for examination or cross-examination, adjournments to permit the defence to subpoena additional witness or even, in extreme cases, declaring a mistrial. When considering the appropriate remedy, the court should consider whether the Crown’s breach of its disclosure obligations has violated fundamental principals underlying the community’s sense of decency and fair play, and thereby caused prejudice to the integrity of the judicial system. For these purposes, among the most relevant considerations are the conduct and intention of the Crown. However, a demonstration

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of mala fides on the part of the Crown is not a necessary precondition to a finding of flagrant and intentional Crown misconduct which might lead to a stay of proceedings.

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15. Such further material the applicant, an unrepresented accused may advise and the court may allow.

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THE RELEIF SOUGHT IS :

1. Disclosure of all requested material as not yet received, as indicated in document RSACB99W1096, releif Sought, inclosed ; and

2. Any other material that may be requested at the hearing of this motion and ;

3. The Transcripts of two (2) court appearances where Mr. Neumeyer the complainant displayed memory problems, and / or perjured the Court, as recorded by the dates 24 November 98, and 17 September 98, in the Ontario Court General Division, 70 Wellington Street, Brantford, Ontario, as recorded by Court Reporters D. Lecompte and Andrea Bowden respectfully and / or held in the possession of those said Court Reporters.

1. By service in accordance of any rules of the Court, by the accused R. Shawn A. Cantlon, the unrepresented accused.

Dated at Brantford, Ontario this ……………….. day of May 1999.

……………………………………………………………………….

R. Shawn A. Cantlon

c/o 22-119 Gladstone Avenue

Brantford, Ontario

Canada, N3S-1N9

Tel: 519 – 754 – 4032

generated by completion Tuesday, 01 June, 1999 @ 05:50:37 to file

RSACB99W1105, IB99:J26:BPS, IB99:J29:BPS, 2476-99, 99.227, 24841

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