In R. v. Fabian, 221 NWTCA 9, October 20, 2021, “the assigned Crown prosecutor arrived at the Yellowknife airport two minutes late and was not allowed to board the airplane to Hay River. The presiding docket court judge in Hay River invited defence counsel to apply for dismissal of all of the charges on the docket for want of prosecution. In the end, 50 charges against 12 accused persons were dismissed… When the Crown prosecutor realized that she had missed the airplane, she called the Hay River Court Registry to ask for the dial-in information so that she could appear by telephone. This request was consistent with the Practice Direction regarding Covid 19, which confirmed that counsel could appear remotely. At least one defence counsel was also appearing by telephone. The clerk, however, advised the Crown prosecutor that the presiding judge had denied her application to appear by telephone” (see paragraphs 1 and 2).
The Crown appealed against the dismissals of the indictable offences to the Northwest Territories Court of Appeal.
The appeals were allowed and the dismissals were set aside
The Court of Appeal indicated that trial judges “undoubtedly have an inherent discretion to control the proceedings before them…They can deal with matters such as the absence of counsel, but they must exercise their discretion in accordance with normal procedural expectations and in a manner consistent with the due administration of justice” (at paragraph 7).
The Court of Appeal concluded that the trial judge committed an “an error of principle” in dismissing the charges “merely to send a message to the Crown prosecutor’s office” (at paragraphs 8 and 9):
The only reason given for the trial judge’s decisions to dismiss for want of prosecution was the repeated instances of Crown counsel missing the airplane to Hay River. Persistent non-attendance is obviously undesirable and unacceptable, but the trial judge’s remedy was disproportionate to the problem.
Ensuring the efficient flow of criminal prosecutions is admittedly important, especially having regard to the busy dockets faced by Canadian trial courts. However, the public has an interest in the due administration of justice, including the prosecution of criminal offences. The matters before the court that morning involved some serious charges, including weapons offences, assaults, death threats, breaches of release orders, impaired driving charges, and unlawfully being in a dwelling house. Some of those charged with impaired driving had prior convictions for that same offence. It was an error of principle to dismiss these serious charges merely to send a message to the Crown prosecutor’s office: R. v Young, 2015 ONCA 926 at para. 6; R. v Siciliano, 2012 ONCA 168 at para. 9; R. v Hendon Justices, ex parte Director of Public Prosecutions,  QB 167 at p. 174 (Div Ct).
In addition, the Court of Appeal concluded that there were a number of “procedural problems with the approach taken” (at paragraphs 11 to 14):
There were also procedural problems with the approach taken. The Crown prosecutor was never given an opportunity to explain why she was late. The record does not disclose whether she knew that some of her colleagues had recently run into the same problem. If she had been allowed to make submissions by telephone, she could have explained the circumstances, and the trial judge could have expressed his displeasure on the record, in open court.
Further, no explanation was given for why the Crown prosecutor was denied the opportunity to appear by telephone. This was authorized by the practice direction, and the Crown prosecutor was under no obligation to fly down and appear in person. Nothing on the docket compelled the personal attendance of counsel. The Crown prosecutor was not given an opportunity to make submissions on the subject. The trial judge never gave reasons for withdrawing the permission, contained in the practice direction, to appear remotely.
In addition, trial judges should not initiate steps in the proceedings, especially those that invite a particular outcome: R. v Simpson, 2017 NWTCA 6 at para. 24,  8 WWR 361. Generally speaking, the parties are the ones who should raise the issues, and the judge’s invitation to apply for dismissal undermined the appearance of the court’s impartiality.
Finally, the Crown was not given a fair opportunity to present its case in response to the applications to dismiss for want of prosecution: R. v Thomas, 2012 ABCA 176 at para. 6. Specifically, the Crown was not able to point out that many of the scheduled appearances were procedural only, that some of the charges were serious, and that the public had a legitimate interest in the prosecution of the charges. No submissions were made on the proper test to be applied or on whether dismissal was a proportionate remedy.