Dozens of cases were dismissed in Hay River territorial court on Nov. 9 after a Crown prosecutor failed to show up after missing a flight from Yellowknife.
Judge Donovan Molloy dismissed 53 charges against 14 people “for want of prosecution.”
Defence lawyers had to make an application for dismissal as each case appeared before the judge.
“This 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,” said Molloy in response to the first application for dismissal, according to the official transcript of the proceedings. “So on that basis I am exercising my discretion to dismiss the matter for want of prosecution.”
As court was commencing on Nov. 9, Molloy had noted that the Crown attorney missed a flight that day, and 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 rejected a request from prosecutor Mina Connelly to proceed that way on Nov. 9.
“What happened that morning is I simply mismanaged my timelines to check in 45 minutes before the departure, which is the requirement of the airline, and I missed it by a few minutes and I was not allowed on the plane,” Connelly told The Hub.
“The facts are simple,” she added. “I was supposed to be on that flight, and I wasn’t. And now our office is trying to find a solution.’
An appeal of Molloy’s decisions is possible.
“The Crown could decide to appeal it,” said Connelly. “That’s an option.”
She noted that the dismissed cases included such charges as impaired driving, assault, mischief and breaches.
There were no trials set for Nov. 9.
Defence attorney Michael Hansen, who was in the courtroom that day, said it’s very unusual for charges to be dismissed for want of prosecution.
“I can’t recall ever seeing it in my career, or at least being in court when it happened, simply because it’s extremely rare for the Crown not to be present in court,” he said. “It was a unique experience, the one and only time in my career, and I imagine that there are very, very few lawyers that could say that they’ve had the same experience.”
Hansen was serving as Legal Aid duty counsel on Nov. 9.
Another defence lawyer from Edmonton made the first application for dismissal for want of prosecution, he noted. “She was actually the first because she was in attendance by telephone from Edmonton. It’s a bit ironic, I suppose, that someone might view it that way. However, she had arranged ahead of time for her attendance (by telephone). It wasn’t something that was done on an emergency basis.”
While noting that all criminal charges are serious, Hansen said the dismissed cases would not qualify as major crimes, noting none involved sexual assault or crimes against children.
“These were typical docket offences, typical things that appear on the docket each circuit,” he said. “What we might consider major crimes are rarer to show up on the docket. There were no so-called major crimes on the docket that day.”
Not all cases were dismissed on Nov. 9. Some individuals failed to appear in court, and warrants were issued or the matters were put over to a future court sitting. Another case was adjourned over an issue of which judge should hear the matter.
Hansen feels for the Crown attorneys who have missed flights from Yellowknife to Hay River.
“This is something they all took seriously,” he said. “It’s the thing that gives you nightmares as a lawyer is missing a flight for a court circuit. It’s just extremely unfortunate that it happened three times so close together.”
Hansen noted that Connelly showed up for court on Nov. 10. She also apologized to him for missing court the previous day.
The Crown attorney noted she had never before missed a flight.