



W
    A R N I N G

The President of the panel hearing this appeal directs that
    the following should be attached to the file:


An order restricting publication in this
    proceeding under ss. 539(1), (2), (3) or (4) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

539(1)
Prior to the commencement of the taking of evidence at a
    preliminary inquiry, the justice holding the inquiry

(a)

may,
    if application therefor is made by the prosecutor, and

(b)

shall, if application
    therefor is made by any of the accused, make an order directing that the
    evidence taken at the inquiry shall not be published in any document or
    broadcast or transmitted in any way before such time as, in respect of each of
    the accused,

(c)

he
    or she is discharged; or

(d)

if
    he or she is ordered to stand trial, the trial is ended.

(2)

Where
    an accused is not represented by counsel at a preliminary inquiry, the justice
    holding the inquiry shall, prior to the commencement of the taking of evidence
    at the inquiry, inform the accused of his right to make application under
    subsection (1).

(3)

Everyone
    who fails to comply with an order made pursuant to subsection (1) is guilty of
    an offence punishable on summary conviction.

(4)

[
Repealed
, 2005, c. 32, s. 18(2).] R.S., c. C-34, s. 467;
    R.S.C., 1985, c. 27 (1st Supp.), s. 97; 2005, c. 32, s. 18.






CITATION:
R. v. Rutigliano, 2011 ONCA 797



DATE: 20111215



DOCKET: C54105 and C54106



COURT OF APPEAL FOR ONTARIO



MacPherson, Juriansz and Epstein JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Michael Rutigliano



Appellants



Scott C. Hutchison and Fredrick Schumann, for the appellant
          Rutigliano



Richard Peck, Q.C., Scott K. Fenton, Jeff Campbell and Lynda
          Morgan, for the respondent



Heard and released orally:
December 13, 2011



On appeal from the order made by Justice Joseph M. Fragomeni
          of the Superior Court of Justice dated July 6, 2011 dismissing the application
          for an order in the nature of a writ of
certiorari
quashing the order
          made by Justice I. André on November 15, 2010, which committed the appellants
          to stand his trial on certain counts in the Information.



ENDORSEMENT




[1]

This is an appeal from the decision of Justice Fragomeni of the Superior
    Court of Justice refusing to quash the appellants committal to trial on
    certain counts.  The appellant, a police officer working in court liaison, was
    charged with breach of trust, obstruction of justice, and conspiracy to
    obstruct justice.  The appellant argues that the evidence presented at the
    preliminary inquiry establishes only that he attempted to assist Frank
    DAngelo, a long-time friend charged with sexual assault, navigate the criminal
    justice system and is insufficient to establish the essential elements of the
    offences with which he was charged.  The appellant submits that the conduct
    relied on by the Crown does not make out the offences, but calls for
    speculation rather than legitimate inference drawing.

[2]

We are unable to accept Mr. Hutchisons characterization of the evidence
    of the appellants advice to Frank DAngelo, and of his actions and
    communications with Crown attorneys and court administrators.

[3]

For example, Mr. Hutchison submits that appellants [a portion of this paragraph has been edited to comply with the non publication order of Justice I. André].

[4]

As Justice Fragomeni pointed out, the appellant isolates some conduct of
    the appellant and asks the court to assess that conduct on its own, but that
    the trier of fact is obligated to consider individual pieces of evidence in of
    the context of all the evidence.

[5]

Specifically in relation to the breach of trust charge, the appellant
    submits that the evidence falls short of establishing that [a portion of this paragraph has been edited to comply with the non publication order of Justice I. André].  All of these
    matters considered together are sufficient to justify committal of the
    appellant to stand trial.  Whether they rise to the level of a serious and
    marked departure from the standards expected of an individual in the
    appellants position of public trust is a matter to be determined by the trier
    of fact at trial on the basis of the totality of the evidence.

[6]

All the evidence and the elements of the offences charged were carefully
    reviewed by Justice Fragomeni who concluded that there was evidence before the
    committing judge upon which the justice could form the opinion that there was
    sufficient evidence to put the appellant on trial.

[7]

We agree with Justice Fragomenis careful and complete reasons.

[8]

The appeal is dismissed.

J.C. MacPherson J.A.

R.G. Juriansz J.A.

G.J. Epstein
    J.A.


