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Keith's Case — Impaired and Over 80 — WithdrawnBetween [1996] O.J. No. 5445 Ontario Court of Justice Charges Withdrawn: 15 October 1996
O'HARA J. (orally): — ¶ 1 MR. KELLY: There are two other trial matters on the docket, the matter of Keith S. and counsel Mr. Penney is here on that matter. ¶ 2 MR. PENNEY: Good morning, Your Honour. ¶ 3 THE COURT: Apparently, they weren't visible on this list when we put B**** in here. ¶ 4 MR. KELLY: It is set for half day; it was set last year. --- other matters before the Court were dealt with --- ¶ 5 THE COURT: Yes Mr. Kelly. How nice to see you again. ¶ 6 MR. PENNEY: The problem is that Mr. Kelly's witnesses are not here. He went upstairs, I believe, to make a phone call. ¶ 7 COURT CLERK: I called the office. He is on the phone, Your Honour. P.C. S**** to Courtroom 105. ¶ 8 THE COURT: Sorry, Mr. Kelly, I don't mean to harass you. You are having a bad day, and it's the Court's fault. ¶ 9 MR. KELLY: That may be coming more and more apparent. Can Constable F**** and John H**** be paged? ¶ 10 THE COURT: Are they on this case? ¶ 11 MR. KELLY: As a matter of fact, theoretically, they are. ¶ 12 THE COURT: Yes, and, theoretically, if they are not here ... ¶ 13 MR. KELLY: Counsel, I am telling you on the record, in order to prove this case, I need Constable F**** ... ¶ 14 THE COURT: Arraign this gentleman. ¶ 15 MR. KELLY: Let me just clarify the record. Constable F**** and a park warden H**** are required to prove this case. We have an 11(b) motion and an application for adjournment before this Court. Do you wish to proceed with that application now? ¶ 16 MR. PENNEY: No, I do not, Your Honour. ¶ 17 MR. KELLY: Well that seems to force my hand Your Honour, with that application withdrawn, let me simply put a few things on the record — up until this summer the Ontario Provincial Police had two Court officers up in our Courts. Part of the reason they were there was to do certain Provincial prosecutions related to traffic matters but a very large part of their assistance involved ensuring that Crown briefs were properly prepared and ... ¶ 18 THE COURT: The right officers were here ... ¶ 19 MR. KELLY: The right officers were here and all of the subpoenas were served and so forth. The — I don't know who is responsible for the decision but a decision was made to stop having O.P.P. officers on a full-time basis within our Court bureau. That has led to some real problems, for example — when we have correspondence from counsel making disclosure requests, the Crown - there is a time lag because the Crown's need to take certain action to get the file, see what is in there, see what our position is. We can't really make any meaningful response without the file in your hands, we don't have the file so we need to get that first. Further trial notifications, if they go out I imagine probably go out to the place where the charge originated, the O.P.P. Aurora in this case, only to find out that the officer in charge has moved to Caledon — I didn't know that and it is not our office that sends out the trial notifications in any event because after each date the file goes back to O.P.P. We have a situation here where the nature of the allegations involved impaired and over 80. While the accused is presumptively innocent, the nature of the allegations is that he was in a motor vehicle with his own two young children with a blood alcohol concentration of 330 - 320 milligrams of alcohol per 100 millilitres of blood. Now, on the record, I wish to stress that Mr. Keith S. has no prior criminal record, there is no motor vehicle accident involved here from these allegations, they are serious from a community point of view, but I have no officers and I don't have a good reason why not. I know that we no longer have this Court bureau, and I know that wreaks havoc with answering disclosure requests, it wreaks havoc with trial notifications. We no longer even have a sign in book for police officers for the O.P.P. on our front desk so we can figure out who is in the building. I could tell you that a number of times this morning I have paged both Constable F**** and a park warden by the name of Mr. John H**** — nobody has responded. There appears to be a subpoena in relation to a John H**** but that alone isn't enough to get me where I need to be. ¶ 20 THE COURT: And you wouldn't have the person here to prove the service? ¶ 21 MR. KELLY: Section four of the Criminal Code permits me to prove service by affidavit so I think I am okay there but if Mr. H**** alone attended, I would still have some problems. Having said this, I am in no position to prove this, my hands are tied, I can't come to the Court with clean hands and say that the system worked the way it should. If I were in a situation to indicate Constable F**** was involved with something right now which led to her inability to be here, I might have a different position, I made phone calls this morning — to be told from O.P.P. Aurora doesn't work here anymore. I need some time to check into that and it is not something that I should be getting at last moment. I checked both my mail, I checked my telephone messages, nothing nothing. I don't know where the officer is, I don't know why the witnesses aren't here. I don't come to this Court with clean hands, unfortunately I am in a position where I must withdraw this charge and certainly apologize to the Court for the inconvenience on having read this material. I must apologize to the public for having half-day matters set in the Courts when the resources are so valuable. Mr. Keith S. has expended certain resources relating to hiring counsel who has obviously come prepared with arguments which — while I contest the merit — he is certainly well within his rights and obligations to bring and I don't take any qualms with that. The system here has failed and I more than anybody am very much displeased. ¶ 22 THE COURT: I don't blame you Mr. Kelly. I read the — I note for the record that I read the first three tabs of the application record with respect to the pre-trial motion. I also read the adjournment and I read my own comments about having to set this thing. I wasn't happy about setting it twelve months away when I had set it twelve months away. Since then there appears to have been a complete failure of disclosure. On the face that I have seen, counsel requested perfectly reasonable material and no effort was made to get it to him. I presume because really there is nobody now — no O.P.P. officers to follow this procedure through and no real effective mechanism for the Court to find out what this was and get it in a timely fashion to the defence. ¶ 23 MR. KELLY: I take some issue with the nature of the disclosure request but I appreciate Your Honour. ¶ 24 THE COURT: There is certainly a strongly arguable point — failure of disclosure and I suspect it is for exactly the same reasons you have told me you have had difficulty getting the officers here. I said at the time on the 19th of October 1995 sitting in Courtroom 200 when I set this matter a year - a year less four days — Mr. D**** was the Crown. I said at that point that I thought it was terrible — terrible doesn't express it fully enough. I find it personally and professionally embarrassing is my comment about having to set a date twelve months from then. That date having been set, this gentleman having been concerned about this charge for that year and half a day of Court time having been reserved for it, thus delaying some other matter for another twelve months or some period of time - there are no police witnesses here. I practiced law for eighteen years in a jurisdiction where police witnesses' non- attendance was unheard of. It might have happened through inadvertence perhaps every two years and each time it happened it was a major scandal, there was a serious investigation and strong measures were taken to ensure that when that happened it never happened again at least with those officers. ¶ 25 I see nothing before me here despite your best efforts to say that the investigating police force cares whether their officers attend. Certainly, they didn't do anything in this case to notify the Crown of the transfer of the officer. Apparently there is nothing to facilitate the Crown's ability to get subpoenas or Court notices to the officer and as a result there has been a complete and utter failure of our system of justice. I am appalled and shocked by this and again both personally and professionally on behalf of this Court. ¶ 26 If you want to get a transcript of those comments and pass them along Mr. Kelly you are welcome to do so. This is shocking. ¶ 27 THE COURT: I agree but there are two things that I wish to follow up on. I know the O.P.P. does care, it is not a matter of not caring but something has gone pretty wrong. With respect to Constable F****, in particular, I have worked with this officer repeatedly. This officer is a diligent officer. ¶ 28 THE COURT: If that officer doesn't know what the Court date is and if the O.P.P. doesn't have a system in place so that she knows the Court date and attend, then her diligence is wasted, and I, again, I am not making any comments that suggest a dereliction of duty of a particular officer. I have no reason to suspect that if that officer had known about the Court date she wouldn't have been here with all her witnesses. It seems to me that no system was in place to get the necessary disclosure in a timely fashion or to get the witnesses here on time for Court. That is absolutely shocking and if re-assignment of officers to the Court bureau is necessary to do that then I cannot — I can't other than highly recommend that. ¶ 29 MR. KELLY: I will certainly pass your comments along. These charges are withdrawn. ¶ 30 THE COURT: Thank you. ¶ 31 MR. PENNEY: Thank you Your Honour. I thank my friend as well. ¶ 32 THE COURT: Would you like your material back counsel? I think we might as well give it back to counsel. |
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