A Nova Scotia politician’s trial on his latest charge of impaired driving won’t be going ahead in December as scheduled.
And if Chester-St. Margarets MLA Hugh MacKay has his way, the trial will never happen.
Defence lawyer Don Murray told a Halifax provincial court judge Friday he has been instructed by MacKay to make an abuse-of-process application in Nova Scotia Supreme Court.
The application, which has yet to be filed, will ask that the charge be stayed because of an abuse of process by the Public Prosecution Service that undermines the integrity of the justice system.
MacKay, 65, is alleged to have committed the offence in the Upper Tantallon area Nov. 22, 2018, but RCMP didn’t lay the charge until February of this year – 15 months later.
Police have not offered an explanation for the delay.
Impaired driving charges are usually dealt with by way of a summary conviction. But because this charge was laid outside the six-month limitation period for a summary offence, the Crown had to proceed by indictment, unless the defence consented to have it dealt with summarily.
Murray informed the court in March that MacKay was not prepared to give his consent. Outside court, the lawyer told reporters that the election doesn’t change the penalty for the offence.
“We have other reasons for making an issue of this,” Murray said at the time, but he wouldn’t share those reasons with the media.
Asked if the defence's decision was unusual, Murray replied: “Well, what’s unusual is the Crown after so much time … deciding to prosecute something.”
MacKay’s trial was scheduled for Dec. 7 and 10, but Murray told Judge Ann Marie Simmons on Friday that the trial will have to be adjourned pending the abuse-of-process application.
He said he had hoped to have filed his application in Supreme Court by now but is still waiting for recordings he has requested from provincial court.
“I’m not anticipating that the Supreme Court is going to be able to give me time to argue this perhaps until the new year,” Murray said.
Contacted by The Chronicle Herald later Friday, Murray said it would be premature to discuss details of the application before it is filed with the court. He said he plans to file it as soon as he can.
“I’m waiting for stuff from the provincial court that I’ve asked for,” he said. “These days, sometimes there’s more of a lag than there used to be.”
The case will return to provincial court Dec. 7 for an update on the status of the abuse-of-process application, and possibly the booking of new trial dates.
In November 2019, MacKay pleaded guilty to a charge of impaired driving in connection with a traffic stop near his home in Glen Haven the month before. His breathalyzer readings were .180 and .190, more than twice the legal limit of .08. He was fined $2,000 and prohibited from driving for one year.
MacKay was elected to the legislature as a Liberal in 2017 but now sits as an independent. He resigned the Liberal caucus last February, after the charge from the November 2018 incident became public.
In a statement released in March, MacKay said he is innocent of the charge and continues to “aggressively seek treatment” for his addiction. He said he was saddened to see that his situation was being exploited for political purposes by some opposition members.
In July, MacKay was ordered to stay away from a person who sought an emergency protection order in Supreme Court.
The applicant, whose identity is protected by a publication ban, claimed in court documents that MacKay had contacted them by email six times in less than 24 hours threatening gun violence, self-harm and “possible harm to the applicant.”
The person also claimed MacKay has alcohol issues and a history of verbal and emotional abuse. They said his behaviour posed an “immediate danger” to them.
