Jenn Hanna was angry but not entirely surprised.
She was hoping the couple who hosted an out-of-control high school graduation party last June would at least go to trial on charges of permitting drunkenness on their Leitches Creek property.
Her late 17-year-old son Joneil Hanna was among the hundreds of mostly teenagers who attended the party before he left the raucous event on foot in the early morning hours of June 10. About a kilometre away from the property he was struck and killed on Highway 223 by a vehicle driven by a man who had just left the same party.
Kenneth Raymond Wilkie, 52, and Donna Lorraine Wilkie, 49, were facing a single charge each — 95 (a) under the Nova Scotia Liquor Control Act: “permit drunkenness to take place in any house or on any premises of which he is the owner, tenant or occupant.”
Judge Peter Ross dismissed the charges in Sydney provincial court on Wednesday morning.
Hanna was in attendance.
“I have little faith in the justice system and the Cape Breton Regional Police didn’t do a proper investigation into my son’s death,” said Hanna. “It’s really sad in a way but in a way I was expecting this. This is what happens when the police don’t do their job. My son’s death was totally preventable.”
Their cases were supposed to be heard separately with Kenneth Wilkie’s trial scheduled to begin in Sydney provincial court Sept. 9.
Phone call was enough
In the end, Crown attorney John MacDonald said the couple had an insurmountable due diligence defence. He said Cape Breton Regional Police provided evidence that Kenneth had called the police at 1:31 a.m. on June 10 to deal with the mass of people on the couple’s property. The party had been going on for hours by then and police had been at the location. But that one call proved enough of a defence.
“The Crown offered no evidence on the charges,” said MacDonald. “What I indicated to the court was that we assessed on an ongoing basis our realistic prospect of conviction.
“In this case when Mr. and Mrs. Wilkie were faced with a large number of uninvited people, they phoned the police. We can’t rebut that.
“They showed due diligence when they phoned the police to deal with their problem.”
But Wayne MacKay, a Dalhousie University law professor who’s been critical of the police’s investigation into the boy’s death, said he was surprised that the Crown didn’t attempt to challenge the couple’s due diligence defence.
The legal definition of due diligence requires the accused to “take all reasonable steps” to avoid the harm that resulted. The pair were facing a strict liability charge where the onus was on them to prove they demonstrated due diligence to prevent people from becoming intoxicated on their property. MacKay said he isn’t entirely convinced that the Crown couldn’t have successfully challenged that defence in court.
“Whether a judge would make that same conclusion, you don’t know,” said MacKay. “It seems to me that it wouldn’t be an absolute given that the argument could not be countered.
“A call to the police is certainly some evidence of due diligence, whether it’s sufficient due diligence in the total context of the case is not as clear to me.”
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