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Trial judge’s ‘remedy was disproportionate to the problem’ when Crown missed flight, court rules

Wednesday, December 08, 2021 @ 9:40 AM | By Amanda Jerome

LexisNexis® Research Solutions

The Court of Appeal for the Northwest Territories has set aside orders dismissing multiple charges after a lower court judge invited defence counsel to apply for dismissal “for want of prosecution” after the Crown missed their flight and couldn’t appear in court.

In R v. Fabian 2021 NWTCA 9, the court heard that on Nov. 9, 2020, the “assigned Crown prosecutor arrived at the Yellowknife airport two minutes late and was not allowed to board the airplane to Hay River.”

According to court documents, Justice Donovan Molloy, the presiding docket court judge in Hay River, “invited defence counsel to apply for dismissal of all of the charges on the docket for want of prosecution,” which resulted in “50 charges against 12 accused persons” being dismissed.

According to court documents, “[W]hen the Crown prosecutor realized that she had missed the airplane, she called the Hay River Court Registry to ask for the dial-in information so that she could appear by telephone.”

The court noted that this “request was consistent with the Practice Direction regarding Covid 19, which confirmed that counsel could appear remotely” and at “least one defence counsel was also appearing by telephone.”

However, the court added, the clerk told the Crown prosecutor that Justice Molloy had “denied her application to appear by telephone.”

According to court documents, several matters were on the docket that day, including reasons for: “adjournment to set a sentencing date, for plea, for Crown election, to set a trial date, to schedule a sentencing date, for a first appearance, etc.”

Justice Molloy “addressed the absence of Crown counsel” when court opened by stating: “So for the record, the Crown attorney that was supposed to be here today called the court this morning to advise that she had missed the plane. I note that on October 5 Crown [#1] missed the plane for the October the 5th appearance here. And October the 19th Crown [#2] missed the plane for the October the 19th appearance. And on November 9th, today’s date Crown [#3] missed the flight for today’s circuit.”

“So while we are going to call the individual matters, it is up to defence counsel as to whether or not they are going to seek any dismissal for want of prosecution, and if they do, then I will have to exercise my discretion accordingly,” Justice Molloy added.

The “invitation to apply for a dismissal for want of prosecution” was taken by a number of defendants, the court noted.

For example, defence counsel accepted the invitation to apply for dismissal for a summary conviction matter that was “scheduled for plea on November 9th.” According to court documents, the charges in this matter included “pointing a firearm, careless use of a firearm, and uttering threats.”

In addressing this matter, Justice Molloy said: “Of course, whether or not to grant a dismissal for want of prosecution requires the court to still exercise its discretion judicially.”

He also noted that “[T]his is a case here where the Crown is guilty of laches and negligence and failing now for the third time inside of a month to send a prosecutor or to have a prosecutor attend in Hay River for the circuit. So on that basis I am exercising my discretion to dismiss this matter for want of prosecution.”

According to court documents, Justice Molloy “generally applied this reasoning to all of the matters he dismissed that day.”

“Later in the morning,” the court added, Justice Molloy acknowledged “Crown counsel’s request to appear by telephone, and that she ‘... was not granted permission to do so.’ ”

The court noted that “Crown counsel arrived in Hay River that afternoon” and she “apologized to the Court and the community” the next morning.

“The Crown prosecutor’s office has since issued a directive requiring Crown counsel to attend at the airport well in advance of the boarding deadline,” the court added.

The Crown appealed the dismissals of indictable offences respecting three accused (Shayne Gene Fabian, Blake Anthony Nessel and Kevin Leroy Wheaton) and appealed “some summary conviction matters [that] were allowed.”

According to court documents, “fresh evidence tendered on appeal by the Crown discloses that on October 5 and 19th, the Crown prosecutor who missed the airplane had attended by telephone, and a second Crown prosecutor was in attendance in the courtroom.”

“There is no indication that missing the flights had any impact on the administration of justice,” the court noted.

Justices Jack Watson, Frans Slatter and Brian O’Ferrall, writing for the Court of Appeal, noted that the “only reason given” for Justice Molloy’s “decisions to dismiss for want of prosecution was the repeated instances of Crown counsel missing the airplane to Hay River.”

“Persistent nonattendance is obviously undesirable and unacceptable, but the trial judge’s remedy was disproportionate to the problem,” the judges stressed.

The judges acknowledged that “[E]nsuring the efficient flow of criminal prosecutions is admittedly important, especially having regard to the busy dockets faced by Canadian trial courts.”

“However,” they added, “the public has an interest in the due administration of justice, including the prosecution of criminal offences.”

The judges emphasized that the “matters before the court that morning involved some serious charges, including weapons offences, assaults, death threats, breaches of release orders, impaired driving charges, and unlawfully being in a dwelling house.”

“Some of those charged with impaired driving had prior convictions for that same offence,” they added, noting it was “an error of principle to dismiss these serious charges merely to send a message to the Crown prosecutor’s office.”

The court also noted that the Criminal Code “contains some specific provisions about dismissal for want of prosecution: s. 485, 799, and 803(4).” However, the “failure of the Crown prosecutor to attend on indictable matters, or at pre-trial proceedings in summary conviction matters, is not included.”

“It is not necessary to decide whether the court has a necessary incidental statutory jurisdiction to dismiss for want of prosecution in the circumstances, but it is clear that, even if so, this would be a remedy reserved for serious abuses of process related to the particular case,” the judges stressed.

The court also determined there were “procedural problems with the approach taken” by Justice Molloy.

“The Crown prosecutor was never given an opportunity to explain why she was late. The record does not disclose whether she knew that some of her colleagues had recently run into the same problem. If she had been allowed to make submissions by telephone, she could have explained the circumstances, and the trial judge could have expressed his displeasure on the record, in open court,” the judges explained.

“Further,” the court added, “no explanation was given for why the Crown prosecutor was denied the opportunity to appear by telephone.”

Appearing by telephone, the court noted, was “authorized by the practice direction, and the Crown prosecutor was under no obligation to fly down and appear in person.”

“Nothing on the docket compelled the personal attendance of counsel. The Crown prosecutor was not given an opportunity to make submissions on the subject. The trial judge never gave reasons for withdrawing the permission, contained in the practice direction, to appear remotely,” the judges emphasized.

The judges also noted that “[G]enerally speaking, the parties are the ones who should raise the issues, and the judge’s invitation to apply for dismissal undermined the appearance of the court’s impartiality.”

“Finally,” the court added, “the Crown was not given a fair opportunity to present its case in response to the applications to dismiss for want of prosecution.”

In a unanimous decision, released Oct. 20, the court determined that Justice Molly’s “decisions to dismiss the various charges for want of prosecution were unreasonable in the circumstances.”

The court granted the applications to introduce fresh evidence (“apart from the criminal records”) and allowed the appeals. The court set aside the orders dismissing the charges and directed the respondents to reappear in the Territorial Court.

Counsel for the appellant, Blair MacPherson, of the Public Prosecution Service of Canada (PPSC), said “our prosecutors and managers stay informed of jurisprudence that affects our practice, including jurisprudence from the NWT Court of Appeal. This jurisprudence informs and guides the positions we advance in court. It also, sometimes, guides the development of PPSC policy.”

Counsel for the respondents did not respond to request for comment.

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