Court File No.
ONTARIO COURT OF JUSTICE
HER MAJESTY THE QUEEN
CONTINUED TRIAL PROCEEDINGS
BEFORE THE HONOURABLE MR. JUSTICE F. ROSS
on the 16th day of January, 2007
at Toronto, Ontario
Charges: Impaired Driving
R. COLLINS Counsel for the Crown
T. PAIN, ESQ. Counsel for the accused
TUESDAY, JANUARY 16, 2007
MR. COLLINS: Which brings us to the further evidence of Hugh Kirby.
Mr. Pain is here on that.
MR. PAIN: Good morning.
THE COURT: And is Mr. Kirby here?
MR. PAIN: He’s coming before the court.
MR. COLLINS: Your Honour, I spoke….
THE COURT: Can I see the information?
MR. COLLINS: On the last date, if I recall correctly and I certainly will stand to be corrected, I think Officer Lao was on the stand. My friend was right near the end of his cross-examination of the officer and there was some kind of misunderstanding and the officer left before my friend was able to complete the cross-examination. And the next witness for the Crown would be the breath tech, P.C. Torres. I haven’t been able to get in touch with P.C. Torres today. The weather is pretty bad, but it is now almost ten to or just past ten to 11. I’ve checked my voice mail and I don’t have anything from P.C. Torres. I’ve had a chance to call 21 Division today to get a hold of P.C. Lao and they put me through to his cell phone. I called him on his cell phone. He, unfortunately, is in the middle of a — I guess for lack of a better term, stake out and he can’t come to court today. I know that this matter has gone over a few times now and given what’s arisen in the last day and the lengthy period of time, certainly the Crown finds itself in a difficult position, where it seems somewhat unreasonable to ask for an adjournment, as I can’t even get a hold of the officer today. My indications are from P.C. Lao that he did send a court notification on to the breath tech, P.C. Torres, but I haven’t seen that officer today, so I’m not sure whether we should hold it down for a little longer to see if P.C. Torres shows up. I’m sure my friend will .
THE COURT: Well, we still wouldn’t have Lao here.
MR. COLLINS: No, but Torres would be able to make it later today.
THE COURT: Well, are you going to withdraw the charge then?
MR. COLLINS: Well, since he’s already been arraigned, I can’t formally withdraw it.
THE COURT: Or invite me to….
MR. COLLINS: But I certainly am not in a position….
THE COURT: …dismiss it?
MR. COLLINS: …to do anything right now, so I’ll leave it to Your Honour.
THE COURT: Well, given the ongoing 11(b) concerns, I am inclined to toss it, Mr. Pain, unless you want to argue otherwise.
MR. PAIN: I have nothing to say.
THE COURT: No.
REASONS FOR JUDGMENT
ROSS, J. (Orally):
The accused is fortunate, because I think it was a good case against him there somewhere. But I am going to find him not guilty. So his only penalty, apart from the prejudice suffered by the ongoing delay will be your fees.
MR. PAIN: Thank you, Your Honour.
THE COURT: All right, thank you.
MR. PAIN: I thank my friend, as well.
MR. COLLINS: Thank you, Your Honour.
Click to read H.K.’s testimonial