Dismissed Hay River cases 'problematic,' sent back to court by N.W.T. Supreme Court judge

A judge's decision to dismiss dozens of criminal charges because a Crown prosecutor missed her flight was "problematic" for a number of reasons, according to a Supreme Court judge's ruling. 

Justice Donovan Molloy, a territorial court judge, dismissed 53 charges against 14 people on the docket in Hay River on Nov. 9 last year for want of a prosecutor. He said it was the third time in the span of a month a Crown prosecutor had missed their flight to the community.

Most — but not all — of those dismissals were appealed, Crown prosecutor Blair MacPherson told CBC News. Three of those cases are being heard by the N.W.T.'s court of appeal on Tuesday, he said. 

Eight other dismissals were quashed and sent back to territorial court by Supreme Court Justice Louise Charbonneau in a written decision dated Friday.

"The territorial court judge's concerns about the pattern of prosecutors missing flights was completely understandable," she said. "Unfortunately, those concerns appear to have entirely overtaken the exercise of his discretion." 

Request to appear by phone denied

Mina Connelly, the Crown prosecutor headed to Hay River that day, previously told CBC News she mismanaged her time and missed the 45 minute cut-off for her flight. 

It was missed by two minutes, Charbonneau pointed out. 

Connelly made arrangements to appear in court by phone instead, received call-in information from the court's clerk, and was then told that Molloy had refused her request to appear by phone. 

When the hearing began in Connelly's absence, Molloy said he had the right to dismiss matters before him for want of prosecution and — pointing to missed flights on Oct. 5 and 19 — that the Crown was "guilty of laches [a lack of diligence] and negligence and failing now for the third time inside of a month to send a prosecutor."  

The Crown has argued that Molloy didn't have the jurisdiction to dismiss the matters, that he "spearheaded" the applications for dismissal by not allowing Connelly to participate in proceedings, and that his decisions were unreasonable.

Unreasonable decision, says supreme court judge

Charbonneau concluded that Molloy's decision not to let Connelly appear by phone, and to dismiss the matters for want of prosecution, were within his scope of authority. 

But they were also not reasonable, she said. 

"Appearing by telephone is not an absolute right of counsel, but it is a common occurrence in this jurisdiction, even more so since the start of the COVID-19 pandemic," she said. 

Charbonneau said it was "problematic" Molloy didn't give Connelly a chance to explain her situation on the record. She also said it was problematic he didn't explain why he hadn't let Connelly appear by phone.

"Excluding a party from court proceedings is a significant step for a judge to take," she said. "Where a judge decides to do so, reasons should be provided." 

Charbonneau said Molloy did give explanations for why he was dismissing the matters for want of prosecution, but they were "brief and ambiguous." 

"It was clear that the two earlier incidents, when prosecutors had missed Hay River flights were at the forefront of the territorial court judge's mind," she said. However, she noted, he was not the presiding judge over either of those cases. 

"He may have been under the impression that there had been no prosecutor at all in Hay River on those two earlier occasions, as was the case on Nov. 9."

But, she said, the earlier incidents were different. 

"Two prosecutors were assigned to each of these circuits. On both occasions, one of them missed the flight but the other was present in court."

In those cases, she said, the present prosecutor apologized and the proceeding moved forward. 

Travel policy implemented

Since the cases were dismissed, Charbonneau said a travel policy was implemented that requires prosecutors to arrive at the airport 75 minutes before their flight departs. 

"It is puzzling that it took three incidents of missed flights before this happened," she said. "It's also most unfortunate that the need for such a policy even arose." 

However, in her closing, she said it's human to make mistakes, and the key to improvement was to draw lessons from it.