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Justice
Tłı̨chǫ

Behchokǫ̀ man walks free as judge calls prosecution ‘a joke’

Last modified: April 29, 2022 at 9:18am


A Behchokǫ̀ man accused of a beating that left another man with broken bones and steel plates in his legs was found not guilty after what the judge called “a shameful effort” to prosecute the case.

Territorial Court Judge Donovan Molloy told Crown prosecutor Trevor Johnson on April 14: “This is a joke. You should be embarrassed and I do not care what anybody says. This is a joke.”

Addressing Johnson at Behchokǫ̀’s recreation centre, which had been turned into a courtroom, Molloy said the prosecutor’s effort “for a crime this serious” amounted to “a negligent prosecution.”

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The incident was the latest in a series of clashes between Molloy and the Public Prosecution Service of Canada’s NWT office.

Since his appointment to the Territorial Court in February 2019, Molloy – a former director of public prosecutions and assistant deputy minister of criminal operations in Newfoundland – has been outspoken in his criticism of joint sentencing recommendations he felt were too lenient and prosecutors showing up to court unprepared.

He has been particularly watchful of the handling of domestic violence cases.

In the Behchokǫ̀ matter, a two-day trial resulted in the accused being found not guilty of aggravated assault.

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The 28-year-old allegedly attacked in the December 2021 incident said he was beaten with a metal bat for 30 minutes, choked, and left with stab wounds to his hand and leg.

He subsequently required 13 days in an Edmonton hospital, must return to Yellowknife for medical visits once a month, and will have lifelong mobility issues.

Not ‘a shred’ of medical evidence given

After defence lawyer Kim Arial finished cross-examining the 28-year-old, Molloy asked the prosecutor to call his next witness. There were none, as an RCMP officer expected to testify was not asked to return for the trial’s unexpected second day and was not on duty.

“Do you really believe that, based on the evidence you are planning to call, there is a reasonable prospect of conviction here?” Molloy asked the prosecutor.

Johnson admitted there were “certain frailties in details and admitted inconsistencies” in the victim’s testimony, but he was “largely consistent on the core allegations.”

Molloy disagreed, characterizing the victim’s credibility as being “non-existent.”

While there was no doubt the victim suffered terrible injuries at the hands of someone, stated the judge, the evidence presented by the Crown failed to convict the accused.

“I have no idea why the Crown did not attempt to call any of the other eyewitnesses. I have no idea why the Crown did not introduce medical records,” said the judge. “I have no idea why the Crown did not introduce any of the evidence … that is normally introduced in these types of cases.

“You did not introduce a shred of medical evidence, which is mind-boggling.”

Turning to the accused, Molloy stated: “I suspect you did beat [the 28-year-old], but that is not the test. The Crown is required to prove your guilt beyond a reasonable doubt and it is a shameful effort that they put forward today, sir. You are thereby entitled to be found not guilty. Shameful.”

NWT Chief Prosecutor Alex Godfrey defended Johnson.

“I have carefully reviewed the transcript of this case,” Godfrey said, responding to questions from Cabin Radio,

“I have also reviewed the investigative file, to which the trial judge does not have access.

“The trial Crown conducted himself with professionalism, integrity and fairness. The Crown called the evidence available and made submissions aimed at assisting the court in its deliberations.”

Godfrey said guidelines for federal prosecutors prevent him from “offering an opinion on the appropriateness of comments made by the trial judge.”

A series of disputes

Molloy recently acquitted an accused impaired motorcyclist – found in a dazed state by passing motorists on Highway 3, and who later led police through the streets of Yellowknife – on a technicality.

During a preliminary hearing in mid-March, it was discovered the arresting officer could not verify the originality of a breathalyzer certificate as he was testifying by video from his current post in Délı̨nę. It was a mistake made by an inexperienced prosecutor.

Godfrey confirmed to Cabin Radio his office has filed a notice of appeal in that case.

On April 8, a man waiting to stand trial for murder saw unrelated robbery charges from 2020 evaporate after the Crown failed to subpoena the store clerk on duty at the time, who had since moved to Alberta.

Without authenticating testimony from the clerk, Molloy ruled, video evidence from security cameras at the store – showing a robbery at knifepoint from different angles – was inadmissible. He also found the testimony of a reluctant witness to be unreliable.

In November 2020, 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. Molloy noted prosecutors had missed flights previously.

The Crown appealed many of those dismissals, arguing they were unreasonable. Appeals courts agreed, quashing the dismissal of charges in 11 cases and sending them back to Territorial Court.

The Crown’s office subsequently implemented a travel policy that requires prosecutors to arrive at the airport one hour and 15 minutes before departure time.

During a routine hearing on Monday, Molloy told lawyers he will shortly go on leave for an unspecified period of time. The judge also took a period of leave last summer, thought to be for medical reasons.

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