Nasma's Case — Over 80 — Dismissed

Between
Her Majesty the Queen, and Nasma G.

[2005] O.J. No. 1785

Ontario Court of Justice
Toronto, Ontario
R. Khawly J.

Charge Dismissed:  15 April 2005
(29 paras.)

¶ 2     MR. INNES:  I went up to M-whatever court, and spoke to the officer who — this was outside of court. But, he is a witness on the stand and expects to be there today, the balance of the day. So, I am — I have no choice but to ask that the matter be adjourned. I appreciate it's opposed. But again, I note it is the first trial date.

¶ 3     THE COURT:  Well, did you find out from the officer when, as Mr. Penney suggested he would want to know, he became aware that he had two court dates on the same day?

¶ 4     MR. INNES:  Well, I asked him and he didn't know the answer to that. But, I think the more realistic answer is that — not that it necessarily advances the Crown's position — as the Court knows, officers are frequently in two courts or even more on a given day. And so, I think they almost never seek to adjourn the matter when they might hope either to be able to give evidence in both matters, or sometimes matters resolve on the day of.

¶ 5     THE COURT:  When that doesn't occur, what happens then?

¶ 6     MR. INNES:  Here we are.

¶ 7     THE COURT:   Exactly. So, in fairness, I am not blaming the officer. I can only blame the Crown. What Mr. Penney has told us here is number one, that he was objecting to the request of an adjournment. Number two was that he was taking the position of what he called negligence is known as a latch. Can you tell me why the Crown is not guilty of a latch? This case is rendered even more difficult, because this is not a normal type of case where the officer is usually just the officer in charge. His evidence may not be that lengthy. In this particular case, he is the officer in charge in this case and he is the main victim in another case, where apparently he started giving his evidence at 11:00 this morning and it is expected to take the balance of the day. So, one would think armed with the knowledge that he is the main victim in a particular case that at the very least the Crown's office would have been advised of that situation. That would have allowed the Crown then to make certain decisions. At the end of the day, when the Crown chooses to delegate how it determines whether its witnesses are available or not on the day of trial by using the police force as their agent, then they are the ones who are ultimately responsible. And in fairness, I think this Court has been rather obliging. This case was transferred to this Court, for the record, when we were told that it was ready to go. It arrived here roughly around 11:00, and then I was told, "Well, the officer may be testifying in a different court." I held the matter down to allow the Crown to go and speak to the officer. In fact, the Crown came back confirming that the officer was about to go and testify. I even had the clerk from our courtroom call that courtroom to advise the officer that he should be speaking with you directly at the lunch break. I do not know what else we can do. Can you tell me on what basis given the three parameters a Court must consider a request for an adjournment, that I should grant one? First one, yes, he is a material witness. No question. Second one, if an adjournment is granted, of course it would be on the next occasion, I would assume. But third, how is the Crown not guilty of a latch? And to be honest, I am getting somewhat tired of the Crown asking for adjournments when they do not consider whether or not they are guilty of a latch.

¶ 8     MR. INNES:  I share the Court's concern. There may be some particular circumstances in this matter militating against what I am about to suggest. Now, I have no current authorization for this, but it might be a situation that might be cured by an Order of Cost.

¶ 9     THE COURT:   I am not in the business of substituting the determination of whether the latch or not with the Crown is guilty of a response that if, in fact, the Crown is guilty of a latch it can be resolved by way of costs. In my view, that is not the analysis that I must undertake in determining whether or not the Crown can satisfy the Court that an adjournment is a proper one.

¶ 10     MR. INNES; Sorry, that can satisfy the Court that ...

¶ 11     THE COURT:   The Court must embark on an analysis of -- I have already gone over the three grounds, one of them being a latch. Now, that is the only analysis. If the Court finds that the Crown is indeed guilty of a latch that is not resolved by the Crown saying, "Well, why don't you apply costs against us?" That is not part of the analysis as I understand it.

¶ 12     MR. INNES:  Well, I haven't pressed the nature of the case on the Court because it is not one of those three grounds, but, I mean, I — this is not a case where it's alleged there's an accident or injury. In which case I would, whether it seemed to fit or not. But, if we had a murder preliminary or something and the Crown made some sort of administrative error, I trust the case wouldn't be — the Crown wouldn't be put in a position of withdrawing.

¶ 13     THE COURT:   Well, then you better hope it would not be in my Court, because in my view, that is not an administrative error. That is a clear decision that the Crown has been making in this jurisdiction ever since I have sat here, almost 14 years ago now. They delegate their responsibility to determine if they are set for trial to an outside agency. If they do not have fail-safe mechanisms in place to make sure that nothing falls through the cracks, then they must deal with the consequences. And whether it is a murder case or a case of this nature, in my view it is of no consequence. The analysis must still be the same.

¶ 14     MR. INNES:  In any event, I don't think I can assist Your Honour, or myself, any further.

¶ 15     THE COURT:   All right. I do not need to hear from you, Mr. Penney. This is an application by the Crown for an adjournment. In my view, the Crown is clearly guilty of a latch. My comments are on the record with the arguments stated with Mr. Innes. Having said that the Crown's request for an adjournment is denied.

¶ 16     MR. PENNEY:  I'm content to have him arraigned if that's what Mr. Innes would like.

¶ 17     MR. INNES:  Yes. It is. Thank you.

¶ 18     MR. PENNEY:  All right. Arraign her, please.

¶ 19     CLERK OF THE COURT:  Can the accused stand up, please.

¶ 20     MR. PENNEY:  Stand up, please, Ms. G. Come forward.

¶ 21     CLERK OF THE COURT:  Ms G., you are charged on or about the second day of October in the year 2004, in the City of Toronto in the Toronto Region, having consumed alcohol in such a quantity that the concentration thereof in her blood exceeded 80 milligrams of alcohol, 100 millilitres of blood did operate a motor vehicle contrary to the Criminal Code. On this charge, on behalf of the provincial Crown, Mr. Innes, how does the Crown elect to proceed?

¶ 22     MR. INNES:  Summarily.

¶ 23     CLERK OF THE COURT:  Ma'am, the Highway Traffic Act provides that upon conviction of this offence with which you are charged, the circumstance indicate ...

¶ 24     MR. PENNEY:  Waive the reading of the caution, please, the Highway Traffic Act caution.

¶ 25     CLERK OF THE COURT:  Yes. Knowing all of that, how do you plead to the charge, ma'am, guilty or not guilty?

¶ 26     NASMA G.:  Not guilty, Your Honour.

¶ 27     MR. INNES:  No evidence to lead.

¶ 28     THE COURT:   Very well. The Crown is calling no evidence. The charge is dismissed accordingly.

¶ 29     MR. PENNEY:  Thank you so much, Your Honour. I thank my friend. Just for the record, I have returned the video. I signed an undertaking with respect to the video. It was returned to my friend today.

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