anabolic frolic

Lawyers bungle city's rave case
Misdirected appeal likely to increase taxpayers' bill

Jake Rupert
The Ottawa Citizen


Sunday, January 13, 2002

A strange court case involving the prosecution of four people for a noisy rave party got a little odder this week when a judge ruled that the City of Ottawa's lawyers had appealed an earlier ruling to the wrong level of court, a decision that will more than likely increase the taxpayers' bill for the case.

The action was originally estimated to cost Ottawa taxpayers $30,000, but that was before defence lawyers argued the city should pay the costs of their extra time caused by the wrong appeal and a previous trial adjournment.

Undeterred by the new ruling, the prosecution -- lawyers from the Soloway Wright firm acting on behalf of the city -- say they will renew their appeal in Ontario Superior Court after Ontario Court Justice James Fontana ruled their request for him to hear the appeal wasn't possible under the law.

In his ruling, Judge Fontana said the Ontario Court only has the power to hear cases that deal with statutes -- instances where a bylaw or the Criminal Code is broken, for example. His court is not able to rule on a remedy -- in this case, an appeal of an earlier decision.

The ruling is just the latest twist in a case pitting the city against Christoforo and Romana Ferrante who own a building at 125 Willowlea Rd. in Stittsville, and Serge Theriault and Sacha Leclair, two men who organized a rave party in the parking lot of the building the night of Nov. 4/5, 2000.

Two people complained about the noise, and Mr. Theriault, Mr. Leclair and the Ferrantes were handed noise bylaw tickets. The tickets have a maximum $2,000 fine.

Later, all four were cited for breaking zoning bylaws and the building code, infractions that carry a maximum $25,000 fine.

The case had been set for trial on Sept. 5, but on that day defence lawyers Richard Morris and Carey MacLellan said the city's lawyers had only just disclosed key evidence -- that the bylaw officer who issued the tickets recalled the night before the trial that he had seen people going in and out of the building.

Mr. Morris and Mr. MacLellan argued they needed more time to deal with the new evidence, and that their extra costs should be paid by the city's lawyers because they didn't disclose the evidence in a timely manner.

The trial was adjourned until Jan. 23, and the issue of costs was put to a Jan. 10 hearing.

However, the prosecution filed an appeal of the adjournment, and the costs hearing was subsequently adjourned until after the appeal was heard.

On the day of the appeal hearing, last Wednesday, the defence argued that Judge Fontana didn't have the jurisdiction to hear the issue, and he agreed.

The city's lawyers plan to take the appeal to the Ontario Superior Court of Justice will likely only add to the bill to be paid by taxpayers, as Mr. MacLellan and Mr. Morris say they want the cost of that future hearing, along with the lost trial date in September, Wednesday's hearing, and possibly the whole case, to be covered by the prosecution.

Judge Fontana agreed: "This is a curious appeal under the (Provincial Offences Act)," he states in his ruling. "The matter should be dealt with -- if dealt with at all -- either by a court having jurisdiction or on appeal at the conclusion of the trial."

He explained that the Ontario Court only has the powers to rule on cases that deal with statutes -- instances where a bylaw or the Criminal Code is broken, for example. His court is not able to rule on a remedy -- in this case, an appeal of an earlier ruling.

Judge Fontana ruled the appeal must be heard in a court with general jurisdiction.

"This is a curious appeal under the (Provincial Offences Act)," he states in his ruling. "The matter should be dealt with -- if dealt with at all -- either by a court having jurisdiction or on appeal at the conclusion of the trial."

Soloway Wright lawyer Alan Riddell said yesterday the prosecution would likely appeal to the Ontario Superior Court of Justice, which has jurisdiction in the matter. No date has been set for this hearing.

Mr. Riddell said its important to have Justice of the Peace Switzer's ruling for an adjournment set aside because it could have an effect on thousands of cases the city prosecutes.

He said holding prosecutors to a stringent level of disclosure responsibility on minor cases such as this would cost thousands and thousands of taxpayers dollars. (In Canada, prosecutors must disclose to defence lawyers the case they intend to call so the defence can properly represent their clients.)

"We don't believe we had an obligation to disclose anything more than we did," he said. "Holding us the to same level of disclosure as in a murder case would make the cost of prosecuting ridiculous. It would make it so astronomical, it wouldn't make any sense to prosecute any of these cases."

However, the future appeal date will only add to the legal bill to be paid by taxpayers, as Mr. MacLellan and Mr. Morris have indicated they want the cost of that future appeal, along with the lost trial date in September, Wednesday's appeal hearing, and possibly the whole case, to be covered by the prosecution.

© Copyright 2002 The Ottawa Citizen

funshine

i love it

the more that trial ends up costing the city, the happier i'd be.

as if the promoters even did anything wrong...

Sliz

Actually, yah the did do a few things wrong. First, noise exceeded bylaw, zoning issues that and they ran out of water at that party(no running water). And when they got more water, they were those little chubby bottles that got sold for the same cost. I hate to see these guys call it quits on the rave scene cause they brought in some big big names, like DJ Craze, AK-1200, and plenty more. Atleast they're still opperating at the club level, less stress I guess.

PeacE

eLECTRONIC pROGRESSION

shouldn't special events and building inspectors (fire marshalls...) get involved before the event?

or did the promoters keep this a big secret?

we need more cooperation!