Hearing without accused a miscarriage of justice: Yukon Supreme Court

A Yukon judge’s decision to go ahead with a trial without the accused present was a “miscarriage of justice,” the Yukon Supreme Court ruled.

A Yukon judge’s decision to go ahead with a trial without the accused present was a “miscarriage of justice,” the Yukon Supreme Court ruled.

In a written decision released on Nov. 24, Justice Leigh Gower found that judge Donald Luther showed a “lack of any consideration of the fairness and propriety of proceeding ex parte,” or proceeding without the accused present.

Gower ordered a new trial for James Stephens who was charged with impaired driving in 2015.

A first trial was set for December, but later adjourned to March 2016 so Stephens could find a lawyer.

When he didn’t show up for the trial, Luther went ahead and heard evidence from an RCMP constable.

Luther convicted Stephens and sentenced him to four months in prison, and gave him a three-year driving prohibition.

While courts have the power to go ahead without the accused present, there are a number of conditions that need to be met, Gower noted.

First, Stephens seemed to be suffering from either cognitive or mental health issues.

“The appelant’s explanation of why he waited until the day before (the trial) to speak with Legal Aid is rambling, non-responsive and virtually incomprehensible,” Gower wrote.

In that exchange with Luther, Stephens talks about going to law school, being accused of bringing a Russian traditional weapon to court and having the words “amicus curiae” tattooed on himself.

Stephens had failed to show up to court a number of times for his case, resulting in several warrants issued against him.

But he also had a history of “reappearing in court within or day or two of the nonappearance,” Gower noted.

Unlike in other cases where trial judges proceeded without the accused, the case here wasn’t “overly dated” Gower said.

And the Crown only had one witness left to testify, an RCMP officer, meaning it would be less inconvenient for him to come to court than a civilian.

The trial judge also knew Stephens faced jail time, Gower wrote.

Proceeding without him meant Stephens couldn’t cross-examine the RCMP officer.

That cross-examination could have been significant to the defence’s case, Gower said.

Yukon courts have thrown out impaired driving cases where the police couldn’t prove they had reasonable grounds to ask for a breath sample.

“Not only did the trial judge fail to give any consideration to these or any other factors, with respect, his immediate agreement that the Crown could proceed ex parte without any rationale given at all is almost tantamount to a delegation of the Court’s discretion to the Crown,” Gower wrote.

“It is in that sense that I find the discretion was exercised arbitrarily and unreasonably.”

Had Luther provided a reasoning for his decision, the court would have had to look at his decision with more deference, Gower wrote.

“However, since I do not know why the trial judge made this decision, I am unable to say that he exercised his discretion judicially.”

Contact Pierre Chauvin at pierre.chauvin@yukon-news.com

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Children’s performer Claire Ness poses for a photo for the upcoming annual Pivot Festival. “Claire Ness Morning” will be a kid-friendly performance streamed on the morning of Jan. 30. (Photo courtesy Erik Pinkerton Photography)
Pivot Festival provides ‘delight and light’ to a pandemic January

The festival runs Jan. 20 to 30 with virtual and physically distant events

The Boulevard of Hope was launched by the Yukon T1D Support Network and will be lit up throughout January. It is aimed at raising awareness about Yukoners living with Type 1 diabetes. (Stephanie Waddell/Yukon News)
Boulevard of Hope sheds light on Type 1 diabetes

Organizers hope to make it an annual event

City of Whitehorse city council meeting in Whitehorse on Oct. 5, 2020. An updated council procedures bylaw was proposed at Whitehorse city council’s Jan. 18 meeting that would see a few changes to council meetings and how council handles certain matters like civil emergencies. (Crystal Schick/Yukon News file)
Whitehorse procedures bylaw comes forward

New measures proposed for how council could deal with emergencies

A Yukon survey querying transportation between communities has already seen hundreds of participants and is the latest review highlighting the territory’s gap in accessibility. (Crystal Schick/Yukon News file)
Multiple reports, survey decry lack of transportation between Yukon communities

A Community Travel survey is the latest in a slew of initiatives pointing to poor accessibility

Mobile vaccine team Team Balto practises vaccine clinic set-up and teardown at Vanier Catholic Secondary School. Mobile vaccine teams are heading out this week to the communities in order to begin Moderna vaccinations. (Haley Ritchie/Yukon News)
Mobile vaccine teams begin community vaccinations

“It’s an all-of-government approach”

A file photo of grizzly bear along the highway outside Dawson City. Yukon conservation officers euthanized a grizzly bear Jan. 15 that was originally sighted near Braeburn. (Alistair Maitland/Yukon News file)
Male grizzly euthanized near Braeburn

Yukon conservation officers have euthanized a grizzly bear that was originally sighted… Continue reading

Mayor Dan Curtis listens to a councillor on the phone during a city council meeting in Whitehorse on April 14, 2020. Curtis announced Jan. 14 that he intends to seek nomination to be the Yukon Liberal candidate for Whitehorse Centre in the 2021 territorial election. (Crystal Schick/Yukon News)
Whitehorse mayor seeking nomination for territorial election

Whitehorse mayor Dan Curtis is preparing for a run in the upcoming… Continue reading

Gerard Redinger was charged under the <em>Civil Emergency Measures Act</em> with failing to self-isolate and failing to transit through the Yukon in under 24 hours. (Joel Krahn/Yukon News file)
Man ticketed $1,150 at Wolf Creek campground for failing to self-isolate

Gerard Redinger signed a 24-hour transit declaration, ticketed 13 days later

Yukon Energy, Solvest Inc. and Chu Níikwän Development Corporation are calling on the city for a meeting to look at possibilities for separate tax rates or incentives for renewable energy projects. (Crystal Schick/Yukon News file)
Tax changes sought for Whitehorse energy projects

Delegates call for separate property tax category for renewable energy projects

Yukon University has added seven members to its board of governors in recent months. (Crystal Schick/Yukon News file)
New members named to Yukon U’s board of governors

Required number of board members now up to 17

Yukonomist Keith Halliday
Yukonomist: Your Northern regulatory adventure awaits!

“Your Northern adventure awaits!” blared the headline on a recent YESAB assessment… Continue reading

Yukoner Shirley Chua-Tan is taking on the role of vice-chair of the social inclusion working group with the Canadian Academy of Health Sciences’ oversight panel and working groups for the autism assessment. (Submitted)
Canadian Academy of Health Sciences names Yukoner to panel

Shirley Chua-Tan is well-known for a number of roles she plays in… Continue reading

Most Read