Charges of impaired driving causing death have been stayed against a Mississauga businessman after a judge ruled it took too long for his case to come to trial.
Advertisement 2
Article content
“This case just took far too long,” said Justice Robert Gee in a written decision released just before Christmas.
Article content
“This will, no doubt, be an unsatisfactory result for all.”
Shabbir Habib Dossa, who owns properties in Brantford, Paris and Simcoe, was first charged in December 2021 with dangerous driving causing death and bodily harm but, after his blood samples were seized, was additionally charged with the more serious offenses of impaired driving causing death and impaired driving causing bodily harm.
The charges related to a Highway 24 crash between two SUVs on Dec. 18, 2021 when Brantford’s Norm Tate, Jr., a father of two, was killed and Tate’s fiance, Kavita Nandall, significantly injured.
Dossa argued his charter rights were breached by how police were able to obtain samples of his blood, drawn at the hospital that night, and based on the time it took to obtain disclosure and set a trial.
Advertisement 3
Article content
“There has now not been any judicial scrutiny of the police conduct that was, based on the evidence heard on the Charter Application, warranted,” said Gee.
“As well, there will not be a hearing on the merits of the case itself. The family and friends of Mr. Tate and Ms. Nandall deserved better, as does the community as a whole.”
Dossa’s defense lawyer, Michael Lacy, said if the judge had not stayed the charges, he had been prepared to pursue pre-trial motions accusing the OPP of a series of improprieties.
“Among other things, we had discovered deliberate misstatements by senior police officers, improper presumptions of guilt, investigative incompetence and other significant issues including whether there was any reliable basis to conclude that Mr. Dossa caused the tragic accident,” Lacy alleged in an email to the Expositor.
Advertisement 4
Article content
The lawyer also alleged a reconstructionist report was “fundamentally flawed”.
“Had the charges not been stayed, we were confident that we would have had success on the motions and that, in any event, the Crown would not have proven Mr. Dossa’s guilt beyond a reasonable doubt.”
A spokesperson for the Brant OPP said the provincial police are aware of the court’s ruling and the agency is “reviewing the decision.”
Dossa was first charged on Feb. 22, 2022 and, due to various delays, his trial was most recently set to take place Feb. 28, 2024.
The Supreme Court of Canada has said an uncomplicated case has to be completed within 18 months unless it’s the defendant causing or approving the delays.
Gee said this case wouldn’t end until six months and 17 days past that deadline, with none of the delays Dossa’s fault, although assistant Crown attorneys argued that point.
Advertisement 5
Article content
The Crown pointed out that Dossa’s lawyer kept requesting new disclosure and then with Drew as Dossa’s lawyer in case he had to testify for the defendant, slowing the process. The judge didn’t buy that argument.
“The real reason for the delay in this matter is much more straightforward,” said Gee in his written decision.
“It simply took far too long for the Crown to make meaningful disclosure to the accused. Mr. Dossa’s right to a trial within a reasonable time has been breached and the charges will be stayed.”
A stayed charge gives the criminal justice system an opportunity to revisit the offenses within a year but it is not often done.
In analyzing the case, the judge said Dossa and his lawyer had to keep requesting information they needed to decide how to proceed.
Advertisement 6
Article content
“Disclosure is a Charter-protected right of the accused, not a gift from the Crown that an accused has to beg for,” Gee wrote, saying it shouldn’t take another court appearance for a defendant to say they still don’t have disclosure.
“This is exactly the culture of complacency that the Supreme Court.. said had to end.”
But the judge also placed blame on the OPP which took 10 months to produce an accident reconstructionist report.
An officer testified that report took 100 hours to prepare and then had to be peer reviewed. The critical report was turned over to the defense on the day the Crown received it, but significantly delayed the defense in making decisions about how to proceed.
“Had the disclosure, including the accident reconstructionist report … been provided in a timely manner, by Mr. Dossa’s first appearance or shortly thereafter in March or April 2022,” said Gee, “all the issues in this case would have been heard, argued and litigated to finality long before the 18-month ceiling.
@EXPSGamble
Article content