Many criminal charges dismissed by a territorial judge in Hay River last year will be heading back to court.
Judge Donovan Molloy dismissed 53 charges against 14 people on November 9, 2020, the CBC reported, for “want of prosecution” after the Crown prosecutor assigned to the Hay River court circuit missed her flight. Molloy denied her request to appear by phone.
Crown prosecutor Blair McPherson, however, recently told Cabin Radio that nearly 50 charges against a total of 12 people were dismissed by Molloy.
The Crown then appealed those dismissals. Eight cases were recently heard by the NWT Supreme Court. Three additional cases have yet to be heard by the NWT Court of Appeal.
In NWT Supreme Court, the Crown argued the dismissals should be overturned as Molloy stopped the Crown participating in proceedings, “spearheaded” the applications for dismissal, and made unreasonable decisions beyond his powers.
In a written decision released on Friday night, Justice Louise Charbonneau said Molloy’s concerns were “understandable” and he did have the power to dismiss the cases. She agreed, however, that his decision to do so was not reasonable as “he became overly focused on the issue of prosecutors missing planes, at the exclusion of all other considerations.”
At the time, Molloy said Crown prosecutors had also missed flights on October 5 and October 19 that year.
Charbonneau said several prosecutors missing flights in a short time span should not be taken lightly. She agreed the missed flights raised serious concerns about the reputation of the territory’s justice system and the Crown’s office.
“In this jurisdiction, taking planes to work is an integral part of the day-to-day life of those who work within the criminal justice system,” she wrote. “All court participants, and the public at large, are entitled to expect that those representing the director of the Public Prosecution Service of Canada will take all reasonable steps to appear before the courts when they are required to.”
The Crown’s office has since implemented a travel policy that requires prosecutors to arrive at the airport one hour and 15 minutes before departure time.
“It is puzzling that it took three incidents of missed flights before this happened. It is also most unfortunate that the need for such a policy even arose,” Charbonneau commented.
Dismissals for want of prosecution in the eight cases are now considered quashed and the cases sent back to NWT Territorial Court.
Correction: October 18, 2021 – 10:38 MT. This article initially stated all dismissals for want of prosecution are being sent back to court. In fact, eight of the cases are being sent back to court. Appeals in three additional cases have yet to be heard by the NWT Supreme Court.