Crown appeals dismissal of dozens of cases in Hay River

Dozens of charges thrown out by a Hay River judge last month could be getting a second chance in court.

Blair MacPherson, general counsel with the Yellowknife office of the Public Prosecution Service of Canada, said the Crown has filed appeals with the N.W.T. Supreme Court and the Court of Appeal for some, not all, of the cases dismissed on Nov 9.

On that day, Justice Donovan Molloy dismissed 53 charges against 14 people on the docket for "want of prosecution," because a Crown prosecutor missed her flight.

• Dozens of criminal charges dismissed in Hay River after prosecutor misses flight

The charges include cases of impaired driving, assault and breach of a restraining order.

The Crown is looking to quash Justice Molloy's decision to dismiss some of those cases. If itwins, that means the cases will come backbefore the courts.

Justice 'erred in law' when dismissing cases

One notice of appeal, filed to the N.W.T. Supreme Court, says Justice Molloy "erred in law" when dismissing the charges because he did not apply the abuse of process test, set out by R v. Babos ina 2014 Supreme Court of Canada decision.

In that case, the abuse of process test requires judges toconsider whether the state is either compromising the fairness or the integrity of the legal process before dismissing cases.

Once that's been decided, the judge has to make sure there is no other way to guarantee a fair trial, and determine the public benefit of having the case heard, before dismissing it.

The judge also "fail[ed] to exercise his authority in a judicious and reasonable manner," the appeal reads.

MacPherson could not say which cases are being appealedbecause the Crown is still deciding whether some cases should be challenged. MacPherson said the department should know which cases will be part of the appeal in January.

After that, a court date will be set.

Crown not pushing for review into Justice's conduct

On the morning of Nov. 9, Crown prosecutor Mina Connelly got to the Yellowknife Airport a few minutes late, missing the mandatory 45-minute cutoff time for her half-hour flight to Hay River.

"I had to be on that flight, and I wasn't," she told CBC at the time.

Connelly immediately emailed the court, letting them know that she would have to appear by phone. She found out a few minutes later that Justice Molloy refused her request, but wasn't told why.

"I was not in direct contact with the judge and so I was not made aware of the reason why exactly," Connelly said.

The Crown is not looking for a review of Justice Molloy's conduct on that day in court, MacPherson said.

Two Crown prosecutors missed flights to Hay River in the month of October. In both cases, they were able to appear in court by phone.

At the time, defence lawyer Michael Hanson told CBC the Crown should consider whether any policy decisions should be made so prosecutors do not miss future flights.

The Crown refused to comment on whether any policy changes are in the works with the Public Prosecution Service of Canadain response to the missed flights to Hay River.