Crown fights dismissal of charges

Traffic tickets chucked after prosecutor was 71 seconds late

When city prosecutor Gadi Katz brought forward an appeal in an Old City Hall courtroom on Thursday, he lightheartedly told the judge he’d try to be quick. Justice Ramez Khawly blithely quipped: “Justice is not quick, Mr. Katz. I learned that a long time ago.” As it happens, the speed of justice was at the heart of the appeal. Last Dec. 4, in the same downtown courthouse, Justice of the Peace Alfred ‘Bud’ Johnston threw out an entire afternoon’s worth of provincial court offences after waiting 71 seconds for the assigned prosecutor to walk in, according to a court transcript. The move dashed the chance to pump some ticket revenue into municipal coffers and prompted an appeal from the city, which argued Thursday that it was “an error of law” to chuck the 68 cases en masse for Crown tardiness. “It was unreasonable and highhanded,” Katz said. “This goes to the core of the entire judicial function.” According to the one-page transcript of the short court session, Johnston based his decision on a section of the Provincial Offences Act that allows justices to dismiss or adjourn charges if a prosecutor fails to appear in court. In response to a request for comment, a spokesperson for the Office of the Chief Justice said it would be “inappropriate” for either the office or for Johnston to speak to the matter, given that an appeal decision is pending.

Most of the charges Johnston dismissed were for traffic violations. In its appeal, the city focused on four that it wants reinstated to “correct” what it deems was a legal mistake. The city will drop the four charges if Khawly grants the appeal, Katz said.

Khawly’s decision was scheduled for next Wednesday.

In court Thursday, Katz read from the affidavit of Michael Rose, the city prosecutor who failed to appear in Johnston’s courtroom.

Rose was in the hallway checking in defendants who were slated to have their cases heard, according to the affidavit Katz read. Around 1:30 p.m., when court was scheduled to begin, Johnston walked past Rose and “made eye contact,” Katz told the court.

When the session opened at 1:32 p.m., Rose was still outside prepping defendants, said Katz.

An attempt was made to page him over the intercom system, but Rose failed to hear it, said Katz. Moments later, according to the affidavit Katz cited, Johnston passed by Rose a second time and said, “Too late.”

“For most people, their view of how the justice system works is by getting a speeding ticket.” GADI KATZ CITY PROSECUTOR

Katz also cited past cases in Nova Scotia, British Columbia and Newmarket, when the dismissal of charges based on Crown tardiness were overturned. Although these were criminal cases, Katz argued the principle is the same.

“For most people, their view of how the justice system works is by getting a speeding ticket,” Katz said. “They should be treated with the same level of justice as someone in an appeal court, a criminal court or the Supreme Court.”

Vartan Manoukian, a paralegal representing the four people whose dismissed charges were appealed, said he’s particularly concerned about the intercom system at Old City Hall.

According to affidavits Manoukian showed to the Star from people who work at the courthouse, the city asked Old City Hall to check the speaker that Rose failed to hear on Dec. 5. Weeks later, on Jan. 24, the facility manager and courthouse monitor co-ordinator tested the system and found it was “malfunctioning,” according to the affidavit.

A new speaker was ordered on March 6, the document read.

“To this day we don’t know if it’s working,” said Manoukian.

Johnston can only face discipline if the Justices of the Peace Review Council responds to an official complaint it deems worthy of pursuing.

The council would not confirm Thursday whether any complaints had been submitted in this matter. With files from Rachel Mendleson