A lack of notification from Cape Breton Regional Police that an officer was not available to testify has resulted in the dismissal of drinking and driving charges.
Provincial court Judge Diane McGrath declined to grant a Crown request for an adjournment of a scheduled trial because the key Crown witness, a police constable, was not able to attend court having broken an ankle several weeks ago.
Prosecutor Steve Melnick said the officer has been advised to stay off his feet and could not attend the hearing. He said he was only advised of the injury on Thursday, the day of the trial. He said he was told of the situation by another constable.
Defence lawyer Bill Burchell objected to the adjournment request noting the officer’s injury occurred weeks ago and police should have advised of the injury and its consequences long before the morning of the trial.
Melnick said it would be another four to five weeks before the officer would be available to testify.
The judge said the officer was served with a subpoena one-month in advance of the trial so the issue of his attendance should have been raised sooner.
McGrath agreed with Melnick’s suggestion the problem was not that of the investigating officer.
“This is not any one person’s fault but a systemic issue that needs to be addressed so it doesn’t happen in the future,” said McGrath, adding the notification process by police to the Crown is less than satisfactory.
After the court denied the adjournment, Melnick moved to dismiss the charges against Bernard Stephen Blinkhorn, 55, who was charged with impaired driving and driving with a blood/alcohol level exceeding the legal limit.
The offences were alleged to have occurred July 27, 2017 in Westmount.
In addressing the court, Melnick traced the number of adjournments granted in the case noting a six-month delay was credited to the Crown, a 10-month delay to the defence and a one-month delay to the court. A provincial court trial was first scheduled for Dec. 7, 2017. Trial dates in January, April and November, all in 2018, were also adjourned along with a May 30, 2019 date before being scheduled to proceed Nov. 14.
“It would seem to me there must be, and has to be, a better system for notifications,” said McGrath, a former senior prosecutor before her appointment to the bench.
She said all sides involved in a trial spent a lot of time preparing and certain expenditures have also been made. She said civilian witnesses may be required to travel or take time off work.
She said given the number of files being dealt with by the Crown, prosecutors need to know in advance if a trial is going to proceed.
“If not, it creates problems for all concerned,” she said.
A spokesperson for regional police was not immediately available for comment Friday.