Appeals have been launched as a result of the dismissals of 53 charges in Hay River Territorial Court on Nov. 9.
A judge tossed out the cases when a Crown attorney missed a flight from Yellowknife and was refused the opportunity to appear by telephone, as two other prosecutors had previously been allowed to do.
Blair MacPherson, a counsel with the Yellowknife office of the Public Prosecution Service of Canada, confirmed that appeals have been initiated with respect to the matters dismissed on Nov. 9.
“We’re still in the process of deciding which ones to appeal,” he said, noting he cannot estimate how many cases that will be. “We’re going to be appealing the majority.”
MacPherson could not say what types of cases might be appealed.
“There are a number of factors that we’re taking into consideration at this point,” he said.
The dismissed cases included such charges as impaired driving, assault, mischief and breaches.
Notices of appeal were filed earlier this month in the Supreme Court of the NWT and the Court of Appeal for the NWT.
“We had to file a notice with respect to the matters that we intend to appeal, and the grounds of appeal are articulated on those notices,” said MacPherson.
The grounds for the appeals claim that the Territorial Court judge “erred in law” by dismissing the charges because he did not apply the abuse of process test as set out in R. versus Babos, which was a 2014 case before the Supreme Court of Canada, and that he also erred by failing to exercise his authority in a judicious and reasonable manner.
The Babos case established that, for a stay of proceedings to be considered an appropriate remedy for abuse of process, there must be prejudice to the accused’s right to a fair trial or to the integrity of the justice system; there must be no alternative remedy capable of redressing the prejudice; and a court must balance the interests of the accused and the societal interest in having the case heard.
As for why the appeals were filed in both the Supreme Court and the Court of Appeal, MacPherson explained, “It’s a matter of where in the proceedings each of the matters was at when they were dismissed.”
It is unknown when the courts may hear the appeals.
On Nov. 9, Judge Donovan Molloy dismissed 53 charges against 14 people “for want of prosecution.”
During the court proceedings, Molloy noted it was the third time in about a month that a Crown prosecutor from Yellowknife had failed to make it to Hay River on time for court.
Aside from Nov. 9, other Crown prosecutors had also missed flights to Hay River from Yellowknife on Oct. 5 and Oct. 19.
In the previous two instances, the Crown attorneys were allowed to appear by telephone.
However, Molloy, who was presiding for the first time in Hay River, rejected a request from prosecutor Mina Connelly to be allowed to appear by telephone on Nov. 9.
In comments to The Hub in November, Connelly said she had missed – by a few minutes – checking in with the airline the required 45 minutes before departure, and was not allowed on the plane.
“The facts are simple,” she said. “I was supposed to be on that flight, and I wasn’t.”