By Keith Lacey
A superior court judge has quashed the stay of charges against a Sudbury police constable and he now faces a trial in relation to an alleged assault outside a bar in 1999.
Justice Patricia Hennessy granted North Bay assistant Crown attorney Paul Larsh's appeal of a ruling made by another judge last May in which a charge of assault causing bodily harm was stayed by Justice Bruce Payne because a police videotape which showed Kingsley and the complainant in a police booking area was inadvertently taped over.
Payne had ruled the missing videotape would seriously jeopardized Const. Dan Kingsley's chance to a fair trial and full answer in defence.
Kingsley was charged Feb. 1, 2000 following an incident outside the former Scooter's bar on Lasalle Boulevard which took place Oct. 16, 1999.
Kingsley arrested a drunk patron, who was later charged with assault, resisting arrest, obstructing justice and public intoxication. The man alleged Kingsley used excessive force during the arrest and hit him with a police flashlight. Kingsley was charged following an investigation by another police service.
Hennessy ruled "the trial judge erred in principle granting a stay. This is not one of the clearest cases in which a stay is necessary for the interests of justice. Both the community and the accused are entitled to a fair trial.
"Accordingly, the appeal is allowed, the order staying the proceedings is quashed and the matter is remitted for a new trial."
No new date has been set for Kingsley's trial.
The trial judge erred in finding prejudice to the right to make full answer in defence and the missing videotape should have been considered with all other evidence which would have been presented at trial, said Hennessy.
"Actual prejudice occurs when the accused is unable to put forward his or her defence due to the lost evidence and not simply that the loss of the evidence makes putting forward the position more difficult," she said.
Without proceeding to trial and hearing all the evidence, including evidence from eyewitnesses, the judge had no way of testing the assumptions of the defence that the videotape would have provided essential information about the complainant's demeanour or any physical discomfort, said Hennessy.
"In this case, I do not see how prejudice to the accused could be assessed without hearing all the evidence in the context of a trial," she said.
Kingsley was charged two weeks after this incident, on Oct. 30, 1999, with a separate count of assault causing bodily harm for an incident outside the Wahnapitae Tavern. That charge was withdrawn by the Crown in open court several months ago.
Sgt. Loretta Ronchin of the Greater Sudbury Police Service told Northern Life the police service won't make any decision on whether Kingsley will have to face a Police Services Act tribunal in relation to the Oct. 30 charges until he?s finished completely with the criminal courts on the Oct. 16 charges.