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Appeal court says dismissal of three Hay River cases ‘unreasonable’

Last modified: October 21, 2021 at 10:15am


The NWT Court of Appeal says a territorial court judge’s decision to throw out criminal charges against three people in Hay River last year was “unreasonable.”

This is the second decision related to the same set of events in a matter of days. Appeals in eight cases involving summary offences were recently heard in NWT Supreme Court, but three appeals involving indictable – more serious – offences were handled by the appeal court. 

All of the appeals stemmed from November 9, 2020, when Judge Donovan Molloy dismissed 50 charges against 12 people “for want of prosecution” after a Crown prosecutor assigned to the Hay River court circuit missed her flight.

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The prosecutor had arrived at Yellowknife’s airport two minutes late. Molloy denied her request to appear in court by phone. 

In dismissing the cases, Molloy noted Crown prosecutors had also missed flights on October 5 and 19 that year. 

The Crown appealed many of those dismissals, arguing they were unreasonable as Molloy stopped the Crown participating in proceedings and “spearheaded” the applications for dismissal.

In a written ruling on Wednesday, the NWT appeal court quashed the dismissal of charges against three people, sending them back to territorial court. The decision affects charges including the pointing of a firearm, careless use of a firearm, and uttering threats.

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“It was an error of principle to dismiss these serious charges merely to send a message to the Crown prosecutor’s office,” the decision from the three-judge panel stated.

The panel said trial judges should not initiate proceedings – like applying to dismiss charges – and ruled the Crown was not given a fair opportunity to respond.

The decision noted the Crown prosecutor was never given an opportunity to explain why she was late or if she was aware other prosecutors had recently missed flights. 

Finally, the decision stated Molloy did not give a reason for denying the prosecutor’s request to appear by phone, something that has become common practice during the pandemic. In other cases where prosecutors missed flights, they were allowed to attend by phone and “there is no indication that missing the flights had any impact on the administration of justice,” the decision read.

The outcome is identical to the NWT Supreme Court ruling last week in which Justice Louise Charbonneau quashed Molloy’s dismissal of summary offences in another eight cases.

Charbonneau ruled that while Molloy’s concerns were “understandable,” his decision was not reasonable as “he became overly focused on the issue of prosecutors missing planes, at the exclusion of all other considerations.”

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.

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