Is the Crown Obstructing justice?
December 10, 2023
The Honourable Calum U.C. MacLeod
Regional Senior Judge for the East Region
Ontario Superior Court of Justice (East Region)
Court House 161 Elgin St. 5th Floor
Ottawa ON; K2P 2K1
BY E-MAIL
Re R v Randall A Hillier
Regional Senior Judge MacLeod
On December 5th 2023 Assistant Crown Attorney Tim Wightman wrote to you outlining issues in this case which he thought were necessary to communicate. Thank you for the opportunity to present my comments on his letter, to provide you with a balanced perspective.
Mr. Wightman’s letter contains important matters but also has significant omissions and some factual inaccuracies to which I must object.
The following items are also important and ought to be considered:
APPOINTMENT OF CASE MANAGEMENT JUDGE
I have not objected to the appointment of a case management judge; indeed, I am in favour of having a case management judge assigned – as this will accelerate the process. This is something I greatly desire due to the dark cloud over me, that has already been prolonged for a lengthy period of time. It is my desire to have the trial as soon as possible.
The charges affect not just me. The Freedom Convoy was one of the most consequential events in the history of Ottawa, attracting national and international attention.
The scope of the issues affects not just me, but thousands of Canadians – and the Court should be expediting the matter, within its calendar, to ensure that the issues are given a prompt and fair hearing.
APPROPRIATE LENGTH OF TRIAL
As Mr. Wightman noted in paragraph 4 of his letter. The Crown and the Defense estimated 29 days for trial. Justice Parfett in her role as the case management judge has scheduled a 20-day trial over my noted objections. If, as expected, the trial extends beyond 20 days, such interruption would be in the middle of the presentation of the defence, while the Crown would have the opportunity to present the prosecution case without interruption.
This could work to the prejudice of the defence and provide an unfair advantage to the Crown, which already enjoys an advantage in resources.
APPOINTMENT OF SECTION 486.3 COUNSEL AND AMICUS
In paragraph 6 Mr. Wightman stated that the Crown is seeking the appointment of amicus curiae and the appointment of section 486.3 counsel. Mr. Wightman has now informed the court that he is unsure if he will seek the 486.3 appointment as he has not spoken with the alleged victims as of yet or canvassed their views on being cross examined by the accused. On December 7th during the JPT both Justice Parfett and Crown attorney Wightman indicated that these appointments would be undertaken by the court without regard for the concerns or concurrence of the defense. It ought to be evident that if these appointments are to be undertaken in order to ensure a fair and efficient trial that both these appointments must be at a minimum be people from a criminal defense practice background and not from a prosecutorial practice. Otherwise, any appearance of fairness or impartiality will be at risk.
Further – and of great significance – both the amicus and the Section 486.3 counsel should not be drawn from the pool of Group 1 individuals, as described in the attached summary. A doctrinaire individual would be unable and/or unwilling to (a) consider the evidence and (b) engage in the critical thinking to be applied to such evidence. In fairness to the Crown, the individuals should not be drawn from a pool of individuals from Group 4.
RIGHT TO SUBMIT CHARTER APPLICATIONS
Paragraph 8, Mr. Wightman raises the point that I have reserved the right to file Charter applications. However, he fails to note that even after 20 months since my arrest such basic disclosure as my interview with Ottawa Police Detective A Geller, has not been delivered. Further, I am also awaiting material and relevant evidence in the possession of the Ottawa police and identified in my email to Mr. Wightman on December 6th 2023
EFFICIENCY OF PROCESS & AVOIDANCE OF UNNECESSARY FORMALITIES
It is also Important to note that Mr. Wightman has requested 4.5 days for the Crowns pretrial motions to be heard, but due to his schedule these will not be heard until September 2024, although the Court could have made time available in June. Given the resources of the Crown office, other Crown personnel could have been available for a June date.
CONSEQUENCES OF DELAY
Such unnecessary delay needs to be viewed within the following context and the continued good faith approach that I have adopted:
- Mr. Wightman refuses to discuss or communicate with the accused to resolve outstanding issues outside of the courtroom. This adds significant delays and wastes the court’s time and resources. It would be easy to reach a formal agreement whereby any discussions between us would be (a) without prejudice and (b) confidential.
- Significant disclosure remains outstanding but I have agreed with all proposed dates to my own disadvantage.
- Mr. Wightman refuses to discuss or negotiate an agreed upon enhanced Jury screening process in compliance with the ruling of Justice London-Weinstein, dated September 27th 2023. Such non-agreement (notwithstanding the assurances given by the Crown to Justice London-Weinstein) will require a pretrial motion to be filed.
- Mr. Wightman refuses to acknowledge or comment on the admissibility of expert evidence for the defense which once again requires a pretrial motion to be filed and more court resources scheduled and wasted.
- I informed the court on November 30th of my Hearing loss disability and requested an accommodation to record the audio for my personal notes. In addition, I made a request to have an individual assist me in the court. Both these requests were denied which is not only prejudicial to my defense but may potentially lead to delays in the future as I will require transcripts procured. Such delays are avoidable by making this simple accommodation to my hearing issues. I am 65 years old and it’s a simple fact that my hearing loss is age-related.
- Currently my bail conditions prohibit me from interviewing material witnesses, or collecting evidence from the alleged crime scene. In addition, each time I attend the Ottawa courtroom, I am technically breaching my bail conditions as I am prohibited from being in the Downtown area without counsel. These undue (and unnecessary) restrictions have the potential to be unnecessarily prejudicial to the defense. My requests to obtain the Crown’s consent on these variations (requested on November 17th 2023) remain outstanding – even though they could be dealt with by the Crown within a matter of minutes.
- It is also important to note that the proposed trial dates in 2025 fall short of what the Crown and the defense have requested – such a time frame does not meet the criteria for access to a speedy trial.
I trust this letter and the information it contains helps inform and illuminate your honors’ understanding and accuracy of this case and that these elements which the Crowns are using to deflect responsibility be remedied so that access to justice is neither delayed nor denied.
I look forward to hearing back from you on these urgent matters and concerns.
Respectfully,
Randy Hillier
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