Steven's Case — Over 80 — Withdrawn

Between
Her Majesty the Queen, and
Steven K.

Ontario Court of Justice
Toronto, Ontario
Judge Fairgrieve

Charge Withdrawn:  3 April 2006
(16 paras.)

¶ 1     FAIRGRIEVE J. (Orally):  Good Morning.

¶ 2     MR. PENNEY:  Good Morning, Your Honour. If Mr. K. may have a seat, please?

¶ 3     THE COURT:   He can have a seat up here with you if he would like.

¶ 4     MR. PENNEY:  Have a seat. Have a seat here, Mr. K. It's Penney, initial C., for the record, Your Honour. Very good morning to you.

¶ 5     THE COURT:  Good Morning.

¶ 6     MR. PENNEY:  P-E-N-N-E-Y please, Madam Clerk.

¶ 7     MS WEINBERG:  There's a mike right over your head — if that's what you're looking at.

¶ 8     THE COURT:  It just seems very subdued in here.

¶ 9     MS WEINBERG:  Fact that it's raining outside doesn't help. This is Mr. K.

¶ 10     THE COURT:  Yes?

¶ 11     MS WEINBERG:  And I got a call this morning from my colleague, Mr. Brandes. And he had carriage of this matter. The first time it was up in November. And he knows about the 11(b), which I didn't know about, and he knows about all the other motions. And he's been retaining this and he has advised me that there is no reasonable prospect of conviction, and we are requesting the charge be marked withdrawn — the over 80. I don't have the breath tech here at this point, I don't have the brief, and so — I do...

¶ 12     MR. PENNEY:  No, I think...

¶ 13     MS WEINBERG:  ...have the breath tech.

¶ 14     MR. PENNEY:  Yeah, you have — it's the officer.

¶ 15     MS WEINBERG:  I don't have the Officer in Charge here. At this point, I don't have the brief. This is what I'm advised. I am requesting the charge be marked withdrawn.

¶ 16     THE COURT:  It seems to be your lucky day, Mr. Penney. I would have thought, having read the material, which took some time, that not having Mr. Brandes involved in the case might have been an advantage to the Crown. I frankly did not understand the position that was being indicated by Mr. Brandes when the matter was adjourned at the request of the defence, I point out, by Justice Young. I think it is clear from the transcript that Mr. Penney has quite cleverly attempted to avoid a trial of this matter on the merits, and it is unfortunate that he should be rewarded for bringing a spurious Charter application that caused the delay he now purports to complain about. If that is the position of the Crown, however, the charge is marked withdrawn.

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