An NWT court has quashed a judge’s ruling to dismiss indictable charges against the majority of 14 people because a prosecutor missed her flight.
On Nov. 9, 2020, Crown prosecutor Mina Connelly didn’t make it on board her early-morning flight to Hay River. She called ahead to inform justice officials that she’d missed the flight to Hay River and to arrange to represent the Crown over the phone.
Gunn received an email shortly afterwards advising that the judge refused her request.
When court opened, NWT court judge Donovan Molloy asked whether there was anyone appearing on behalf of the Crown.
An RCMP constable responded: “No, your honour. I was advised I’m representing the Crown today.”
“Really,” the judge responded.
The officer continued, “As they were not able to make it on time.”
“Can I see your designation from the attorney general,” the judge asked.
The officer replied: “Sir I do not — I’m a constable here.”
“Well, step back then, sir,” Molloy said.
The officer thanked the court and stepped back.
“So, for the record, the Crown attorney that was supposed to be here today missed the plane,” the judge said.
He went on to list other, recent instances where Crown prosecutors failed to appear in court when scheduled because they missed their flight: once on On Oct. 5, once on Oct. 19, and the fourth on same day as Connelly, Nov. 9.
Molloy dismissed the charges against those accused that day for want of prosecution — there was no on present in the court who could legitimately represent the Crown.
The Crown appealed the rulings and on Oct. 15 justice Louise Charbonneau ruled to allow the appeal.
Charbonneau concluded the decision to dismiss the matters for want of prosecution could not stand and quashed the dismissals, according to her written decision, filed Oct. 15.
She called the decision to exclude the prosecutors without offering a chance for them to state their circumstances for the record, “problematic.”
“He clearly wanted to send a strong message to the Crown’s office,” it reads, referring to Molloy.
It would appear they got the message: since Molloy dismissed the cases, the Crown’s office implemented a policy requiring prosecutors to be at the airport no later than 75 minutes before their flights.
Charbonneau stated that Molloy appeared not to have considered any factors beyond the inconvenience the string of missed flights caused the court. She listed the interests of complainants, public safety and overall public interest as other considerations Molloy should have weighed.
She tempered her ruling by noting that she doesn’t take the missed appearances lightly and said it was puzzling how it happened on three occasions before this action was taken.
“My conclusions should not be taken as making light of the fact that several prosecutors missed flights in a short time span,” her decision reads.
She added that is normal to make mistakes but it’s in learning from them that we improve.