Right courthouse, wrong floor
Decision reserved on whether assault charge will proceed against North Sydney man
A provincial court judge has reserved decision until next week on whether a North Sydney man will proceed to trial on a charge of assault causing bodily harm.
Judge Peter Ross reserved his decision after hearing arguments Wednesday from prosecutor John MacDonald and defence lawyer Darlene MacRury.
Jonas Lee MacDonald, 29, was charged May 2016 with committing the offence against Joe Yorke, who suffered extensive facial injuries after he was allegedly struck in the face by MacDonald.
The accused entered a not guilty plea and a trial was set for February. When neither the accused or the victim was present in the courtroom when the case was called, the Crown requested and was granted a dismissal of the case.
However, both MacDonald and Yorke were present inside the Sydney Justice Centre. Both were waiting outside a courtroom on the second floor of the building but the trial was being held on the first floor.
The Crown had also petitioned the Supreme Court to allow the case to continue but the application was rejected in a decision released last week.
Justice Robin Gogan heard the appeal.
“I am not persuaded that any reasonable interpretation of the various provisions of the Criminal Code impose a jurisdictional requirement on a summary conviction court that the accused be physically present in the court room at the time of trial unless leave of the court is granted,” said Gogan.
“I find that the trial judge had jurisdiction to proceed in the absence of the accused. I further find that there was no error committed in dismissing the information upon the Crown offering no evidence,” said Gogan.
In presenting his argument Wednesday, John MacDonald said because the accused was not present in the courtroom when the charge was dismissed, the case was not dismissed on its merits and the dismissal decision can be reversed.
MacRury argued the Crown had other options rather than dismissal such as asking for an adjournment or even a recess to see if they could locate the accused and the victim.
She said once the dismissal is granted, the Crown cannot return to the court asking to have the case proceed again. She said the case needs to be referred to a higher court and that was done and the court rejected the Crown argument.
Ross said he will deliver his decision Aug. 8.