Saturday, March 19, 2011

Appeal Successful in Children's Aid Society Of Ottawa Charges Case

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On December 1st, 2010, Corporations Act charges against the Ottawa CAS and its executive Director Barbara MacKinnon were dismissed by a Justice of the Peace after the defendants counsel properly asked the court to dismiss the charges because the private citizen prosecutor, John Dunn was not present in the court room at the commencement of the trial which was scheduled to begin at 9:00am.

Dunn was in the building at the time, however had mistakenly thought the time of trial was at 9:30am. He and two interested citizens were sitting in the cafeteria of the building until 9:20am when Dunn approached the court room to see if anyone else was arriving to observe, when he noticed the defendants and their counsel leaving the court house.

As they passed Dunn in the hall way, their counsel gave Dunn back his original request for a list of their members and the $10.00 fee telling him the case was dismissed.

Dunn then went into the court room where they had proceeded to deal with another matter. The prosecutor turned around, saw Dunn at the door and said, "Mr. Dunn is here" to which Dunn appologized for interrupting and backed out.

Due to being late, the charges were dismissed by the Justice of the Peace.

Dunn then filed an appeal of the Justice's decision after reading case law which demonstrated the possibility of success based on the fact that the Justice of the Peace did not at least put out a page to see if Dunn was in the building, which is a common practice.

Although a Justice of the Peace, or a Judge has the right to exercise their discretion in certain circumstances, they also have an obligation to ensure that they do so in a "Judicial Manner" which has been established in case law.

The Judge sternly warned Dunn of how critical it is to be organized and on time, and not to waste the time of parties involved, instructing him to write an apology letter to the CAS and to Barbara MacKinnon for wasting their time on that day.

Dunn agreed to write a formal apology as instructed and the order was made to set aside the dismissal of the charges, and the matter was sent back to the Provincial Offences Court for March 24, 2011 at 1:30pm in Court Room 102, at 100 Constellation simply to set a new date for trial of the original charges.

In addition to the Society's externally retained legal council, the Society's internal senior counsel (Engleking) also attended the court hearing. 
After the hearing was completed, and the Judge had left the room, in front of the clerks who were still at their desks, Engleking sternly reminded Dunn of what the judge had said about the defendants (Society and MacKinnon) having not done anything wrong on the day of the December 1st trial when they asked for the matter to be dismissed, and that I should not blog that they had. 
Dunn calmly turned and assured her that he would not and that he only blogs the truth. Dunn recalls Engleking stating something to the effect that she begs to differ, to which Dunn offered to discuss any of his blog posts with them. She then turned and walked away with her counsel.
Dunn states that he has always observed Engleking over the years to be very professional in her communications with him in the past, both in person and via e-mail, but that her tone and body language on this day were very shocking to him. 
Dunn notes that Engleking had mentioned feeling very sick during the day and he attributes her unusual display of emotion to her condition.

The apology letter 

Barbara Mackinnon and the Children's Aid Society of Ottawa

Date: March 19, 2011

As you are aware, on December 1st, 2010, as a private citizen prosecutor, I was mistaken as to the start time of the trial against Barbara MacKinnon and the Children's Aid Society of Ottawa which resulted in my being twenty minutes late and your legal counsel requesting that the charges be dismissed.

During the subsequent and successful appeal of the dismissal of the charges, the The Honourable Justice Rommel G. Masse (if I found the correct full name) suggested that I apologize to the defendants for being late on that date.

Fully in support of apologizing for my error as to the time of trial I agreed whole-heartedly to do so.

Therefore, I, John Dunn, while acting as a private citizen prosecutor in charges against the Children's Aid Society of Ottawa and Barbara MacKinnon, whole-heartedly apologize for being late for trial on the date of December 1st, 2010.

In addition to writing this apology letter to Barbara MacKinnon and to the Society, I am posting it to my public blog as a deterrent to other members of the public who may be put in the position of having to press charges against any Children's Aid Society or their staff for any illegal conduct, so that they do not make a similar mistake of being late for trial.

Also, as instructed by the Society's legal counsel Ms. Engelking immediately after The Honourable Justice Rommel G. Masse, I am clarifying that the Society did not do anything wrong on December 1st, 2010 when they requested that the charges be dismissed because I was late for the trial.

John Dunn
Executive Director
The Foster Care Council of Canada

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