Right court­house, wrong floor

De­ci­sion re­served on whether as­sault charge will pro­ceed against North Syd­ney man

Cape Breton Post - - Cape Breton - BY CAPE BRETON POST STAFF news@cb­post.com

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.

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