BY KEITH LACEY
Sudbury?s Crown attorney?s office wants a jury to hear evidence to determine if a truck driver was negligent in causing the death of a young mother and her twin boys more than three years ago.
In March, Justice Wayne Cohen ruled following a lengthy preliminary hearing there was not sufficient evidence for three counts of criminal negligence causing death to proceed against transport truck driver Michael Hickey.
Hickey was charged following a lengthy investigation in relation to the death of Kelly Henderson, 43, and her twin 12-year-old sons following a horrific accident on Hwy. 69 at the Killarney turnoff on Aug. 7, 2003.
Assistant Crown attorney Len Walker and Hickey?s lawyer Louis Sola presented arguments during a special application forwarded by the Crown. The Crown suggests Cohen made errors in law and should reconsider his decision.
Justice Robert Del Frate of the Ontario Superior Court of Justice wanted time to consider his decision and will render his decision at a later date.
Walker argued there was more than sufficient evidence presented at the preliminary hearing for Cohen to have ruled all three charges should have proceeded to trial.
Cohen made rulings on key pieces of evidence that should have been considered by a judge and jury at trial and not by a judicial official overseeing a preliminary hearing, said Walker.
In his reasons for judgment, Cohen ruled there was no evidence Hickey lost control of the truck or was driving at an excessive speed. The record shows there were numerous witnesses who provided testimony to the contrary, said Walker.
Other witnesses testified they saw the tractor-trailer being operated by Hickey swerve just before the collision, and this was ignored by Cohen in his reasons for judgment, said Walker.
The Crown can prove the driver lost control of the vehicle, crossed three lanes of traffic, was engaged in a collision without any evasive action, and and three lives were lost, yet Cohen ruled there was not sufficient evidence for the matter to proceed to trial, said Walker.
Cohen?s role was to determine if a jury, properly instructed, could find the accused guilty based on all the evidence, not to make rulings of fact on certain evidence at the preliminary hearing, and he failed to properly perform his duties, said Walker.
Sola argued many of Walker?s interpretations of the evidence at the preliminary hearing were arbitrary and he doesn?t agree with the assessments.
It was Cohen?s job at the preliminary hearing to determine, based on all the evidence, if the three counts of criminal negligence causing death should
proceed to trial and the Crown?s application shouldn?t proceed simply because they don?t agree with Cohen?s ruling, said Sola.
If Del Frate rules in favour of the Crown, Cohen will be presented all the information released in court Tuesday and will have an opportunity to reconsider his decision.
Walker or Sola also have the opportunity to ask the Ontario Court of Appeal to rule on the matter depending on what Del Frate rules in his pending