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

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