Michael Ford (post until Oct. 31/19)

Case collapse underscores shortcomings of Crown screening

Two men have been cleared of firearms and threatening charges after they were vindicated by a video that the Crown had in its possession for 24 months, says Toronto criminal lawyer Jordana Goldlist

The collapse of the case underscores the shortcomings in how the Crown’s office screens evidence, says Goldlist, principal of JHG Criminal Law in Toronto, who represented the men.

"I think there needs to be a screening process that includes not just a quantitative analysis of the evidence, but also a review of the quality of the Crown's evidence to weed out those cases that are ultimately going nowhere,” says Goldlist. 

Luckily, in this instance, the Newmarket prosecutor who handled the preliminary hearing in January appreciated the weakness of the complainant’s story, which was contradicted by the video, Goldlist says. 

After watching Goldlist's cross-examination of the complainant, the Crown invited Ontario Court Justice Peter Tetley to discharge the two accused. 

“She did the right thing,” Goldlist says. “Sadly, in my opinion, it’s something that should have been done two years earlier based on the evidence that was in the Crown brief.” 

Before the two accused walked away free, they agreed to enter into peace bonds requiring them to stay away from the complainant and to not possess any firearms without a licence.

Goldlist was able to secure bail for the men in November 2014, despite Crown opposition — otherwise they might have been in custody for months before the Crown’s office came to grips with the weakness of its case against them, she says.

If this particular prosecutor at the preliminary hearing had not been so fair minded, the case would likely have continued to trial, taking another year and costing the two defendants substantial legal fees before they were discharged, Goldlist says. 

The defendants, both self-employed York Region men in their 30s with no criminal records, were charged with criminal harassment, pointing a firearm and uttering threats.

The complainant alleged one of the men approached his car window as he sat parked in Thornhill, threatened death, pointed a gun at him and used the firearm to smash his vehicle. The complainant claimed the gunman then entered another car, driven by the second accused, and sped away, Goldlist explains. 

The complainant chased the car at high speeds onto Highway 407 while filming it on a cellphone. Meanwhile, he used another cellphone to call his girlfriend — who was the ex-girlfriend of the other driver — to complain that he had been attacked. He never called police, she says. 

“He has cellphone video that shows him driving a car at upwards of 200 km/h chasing another car, yelling hysterically that the car he’s chasing is trying to kill him,” Goldlist says. “If you look at the video, the person who he claims is attacking him has nothing but a cellphone in his hand.”

There were no other witnesses, no damage was found on the complainant’s car and no gun was located. “It happened in the middle of the afternoon on a Sunday. No one came forward about guns, threats, fights, nothing. Nothing was corroborated,” Goldlist says.

At a judicial pretrial four months after her clients were charged, Goldlist urged the Crown to watch the video to see how it contradicted the complainant. But the case continued, she says. 

"There was no vertical file management as evidence by a different Crown appeared at each stage of the proceedings,” she says. 

Goldlist says she has handled many cases in recent months that, if properly screened by prosecutors at an earlier stage, would have saved many days of court time.

“You can’t just read a police synopsis and think that you know the case,” she says. “It’s really unfortunate that most of the time the Crown is not going to assess the quality of their evidence until the matter is set for trial or a preliminary hearing.”

That’s why Goldlist says she tries to secure preliminary hearing or trial dates as quickly as possible for her clients.

She does not blame any specific prosecutor or office for that matter; this is an issue on cases throughout her practice in Newmarket, Toronto and Hamilton, she says.

"The Crown's offices are swamped and cases are generally not assigned until a prelim. or trial is set. Unless the charges are murder, I find myself dealing with a new Crown at every stage," she says. 

The 2016 Supreme Court of Canada decision in R. v. Jordan, putting an 18-month time limit for cases to proceed through provincial courts and a 30-month limit for superior courts, will likely exacerbate the problem as Crowns try to push cases through the system even faster to meet the new caps, she says. 

"The justice system is like a factory. If Crowns don't push the product out fast enough, they risk have the product (their cases) thrown out," she says.

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