Judge slams prosecution, declares 'abuse of process'

Lack of competence and ineptitude of police officers, policing styles and methods. In other words, what could be adequately explained by stupidity, should not be attributed to malice.

Judge slams prosecution, declares 'abuse of process'

Postby Thomas » Sun Jan 12, 2020 5:06 pm

Judge slams prosecution, declares 'abuse of process' in major drug case

In an unusual court decision, a judge has ruled there will be no drug trafficking trial for the former local head of Crime Stoppers, charged by the Ontario Provincial Police in 2016 following a massive marijuana grow-op bust in Leamington.

Instead, Jon-Paul Fuller will be permitted to plead guilty to a lesser charge, and it’s anticipated he’ll be made to serve a much more lenient sentence than what senior prosecution had been seeking.

Superior Court Justice Renee Pomerance, in a 25-page ruling read out in Windsor on Friday, had strong words for how the police and the Crown had handled the case, saying their conduct amounted to an “abuse of process” that had “deprived the accused of the right to a fair trial.”

However, in her response to a defence application for a stay of proceedings, the judge said it would not serve the interests of justice to have the criminal case against Fuller dropped.

Two issues of concern were highlighted by Pomerance.

First, on the same day last October that a regional senior justice, at a closed-door pre-trial session, approved a proposed resolution to the case via a guilty plea, a senior counsel with the Public Prosecution Service of Canada rejected the agreed-upon sentence.

Fuller was to have served a 90-day intermittent sentence and pay a $25,000 fine. A supervising Crown counsel agent with the PPSC, however, instructed the local prosecutor handling the case to repudiate the deal, arguing that a more “acceptable range” of jail sentence was 18 to 36 months.

Pomerance said the Crown has the discretion to repudiate such plea agreements but it is a “rare and exceptional event,” and she said the Crown offered “a paucity of evidence” for why this one should be rejected. She described the prosecution’s position, combined with a second issue, as an abuse of process by the state.

The second concern came after an OPP officer involved in the case, after hearing of the deal between the Crown and the defence at the pre-trial stage, informed trial witnesses of the guilty plea arrangement. One of those prospective Crown witnesses shared the news on his personal Facebook account.

Once the genie is out of the bottle … there is no putting it back

Spreading that information would have tainted witnesses, said the judge, and made it difficult to conduct a fair trial after the plea agreement was repudiated.

“There is a very real risk that disclosure of the plea will influence the perception of witnesses and the testimony that they offer,” said Pomerance. “Once the genie is out of the bottle, as in this case, there is no putting it back.”

Pomerance rejected the defence’s application for a stay of proceedings, saying that, despite the actions of the Crown and police, there was an “absence of bad faith or deliberate misconduct by the prosecution.”

The judge has set a sentencing hearing for Jan. 30 at which time she said the “remedy” would be to allow Fuller to plead guilty as per the plea agreement initially approved in October.

Fuller’s lawyer Andrew Bradie, speaking later to reporters, said it was “hard to quarrel with” Pomerance’s decision. Defence and local Crown had “entered into an agreement, and they reneged on that agreement,” he said.

The plea arrangement had his client pleading guilty to being a “party to cultivation,” said Bradie, which had Fuller avoid the more serious trafficking charges.

Fuller declined speaking to media after Friday’s hearing. Bradie said his client was disappointed that the case wasn’t tossed and that it has been an “emotional roller-coaster for him.”

In a Sept. 21, 2016, police raid on a Leamington farm property whose greenhouses were allegedly controlled by Fuller, the OPP seized 2,900 marijuana plants authorities valued at $2.9 million and 41 kilograms of harvested pot police valued at $180,000. Also seized were 20 bundles of cash ranging in value from $100 to $22,000.

https://windsorstar.com/news/local-news ... -drug-case
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