A Nova Scotia Supreme Court judge has reserved decision on whether the Crown’s election to proceed by indictment on an impaired driving charge against a politician was an abuse of process.
Chester-St. Margarets MLA Hugh MacKay, 66, is accused of driving drunk in the Upper Tantallon area Nov. 22, 2018.
RCMP waited 15 months before laying the charge last February. Police have not provided an explanation for the delay.
Because the charge was laid more than six months after the date of the alleged offence, the Crown had to proceed by indictment, unless the defence consented to have the charge dealt with by summary conviction, which is less serious.
MacKay would not give that consent when he was arraigned in Halifax provincial court last March. Lawyer Don Murray entered a not-guilty plea on his behalf and the matter was set down for trial in provincial court this past December.
The trial was adjourned indefinitely after MacKay filed an application in Supreme Court in October seeking a stay of proceedings based on an abuse of process.
Justice Peter Rosinski heard submissions on MacKay’s motion Monday in Halifax.
Murray argued that it’s clear from the words used by a prosecutor in provincial court last March 5 that the Crown only proceeded by indictment because it was “out of time to proceed summarily.”
That was an abuse of process, and the only appropriate remedy is for Rosinski to stay the charge, Murray said.
“You don’t prosecute someone indictably because you’re out of time to prosecute them summarily,” the lawyer said.
“This kind of behaviour is so offside and so clearly wrong.”
The lawyer said the “key factual issue” in the application is “the import of the Crown’s words and actions” in provincial court last March.
He said the Crown has discretion when it comes to electing how to proceed on charges and was not obligated to explain its thought process in court that day, “but it did.”
“No part of this application by Mr. MacKay asks you to go behind the Crown’s words,” Murray said. “It is not asking you to delve into the Crown’s evaluation of evidence that it may feel that it has.
“You have the words of the provincial Crown to a provincial court judge. This application stands or falls based on ... your evaluation of those words.”
The defence application is not complicated, Murray told the court.
“If you understand the Crown’s statement in provincial court as we suggest you should, and if you decide that the election to proceed against Mr. MacKay by indictment was a stratagem to avoid a limitation period, then we urge you to find that that was an abuse of process.”
Kim McOnie, who is representing the Crown, said the defence hasn’t met its burden of establishing that the state’s actions breached MacKay’s rights under the Canadian Charter of Rights and Freedoms.
She said the Crown acted expeditiously upon learning MacKay had been charged, and its election to proceed by indictment was neither unfair nor vexatious.
“The Crown reviewed the file and was prepared to proceed summarily with the consent of the defence,” McOnie said. “I’m not sure what considerations went into that.
“Mr. MacKay had an opportunity to consent to summary proceedings and he chose not to.”
McOnie asked that arguments on the remedy be put off until the judge rules on whether there was an abuse of process. Rosinski agreed with that request before reserving his decision for an undetermined period of time.
“I can’t give you a definite date,” the judge said of his decision. “I’m cognizant of the fact that we’re not the only court involved here. I don’t want to delay it, but I just can’t actually right now give you a fixed time. ... I will diligently be working on it in short order.”
MacKay did not appear in court in person Monday but listened in by phone.
In November 2019, MacKay pleaded guilty to a charge of impaired driving from a traffic stop near his home in Glen Haven the month before. He was fined $2,000 and prohibited from driving for one year.
MacKay was elected to the legislature as a Liberal in 2017. He resigned from the Liberal caucus last February and now sits as an independent.
