R v Fahmy

R. v. Fahmy

2019 ONCJ 464
Ontario Court of Justice — Justice of the Peace Donald Dudar | June 27, 2019

Background

Ahmed Fahmy was charged with careless driving under section 130 of the Highway Traffic Act following a major four-vehicle collision on March 15, 2018. The prosecution didn't lay charges until September 12, 2018 — just days before the six-month limitation period expired under section 76(1) of the Provincial Offences Act. The case went through multiple appearances, two judicial pre-trials, and disclosure issues that weren't resolved until March 2019.

When the prosecution set the trial date for June 27, 2019, they told the defence they would call four witnesses: two police officers and two civilians. The matter was scheduled for a full day trial. But when the trial date arrived, the prosecution showed up with a surprise: they now wanted to call only one police officer and one civilian witness — and that civilian witness was nowhere to be found.

Issues

1. Should the court grant the prosecution's last-minute adjournment request when they failed to secure their witness?
2. What standard of reasonable effort must the prosecution meet to compel witness attendance?

The Adjournment Test

Justice Dudar applied the test from Mississauga (City) v. Malik, which requires courts to consider six key factors: the time delay, scheduling of a new date, whether it's the first trial date, whether the request is bona fide, prejudice to the other party, and the impact of refusing the adjournment. The prosecution argued this was their first trial date, they made reasonable efforts to contact the witness, and dismissing the charges would prevent adjudication on the merits of a serious collision case.

But Justice Dudar wasn't buying it. The investigating officer testified he was only notified about the trial three weeks beforehand and made "several attempts" to contact the witness at one phone number that went to voicemail. That was it — no other contact methods, no request for a judicial summons, no backup plan. The prosecution knew about the trial date since May 10 (six weeks earlier) but did virtually nothing until the last minute.

Prosecution's Duty and Fair Play

The judge delivered a sharp rebuke about prosecutorial standards. He noted that the prosecutor serves as the "local Minister of Justice" and must ensure matters are properly put before the court. Once the prosecution promises to call four witnesses, they can't secretly decide to call only two and then rely on the defence to summons the missing witnesses themselves. The prosecution's failure to even attempt basic steps like obtaining a witness summons "belies the proposition that the matter is that important."

Justice Dudar also criticized the prosecution for making an oral motion on the trial date instead of following proper notice procedures under Rule 200. Even if a formal motion wasn't possible, basic courtesy required a phone call to warn the defence about the witness problem.

Key Takeaway

The prosecution can't promise witnesses, fail to secure them through reasonable efforts, then expect the court to bail them out with an adjournment.

This case shows that courts will hold the prosecution to high standards of trial preparation, especially when the defence has invested significant time and resources preparing for trial based on prosecutorial representations.