The grieving father of 18-year-old Caledon teen Milo Yekmalian says he is furious and bewildered over the “catastrophic mistake” that will now leave his family without a chance at justice.
“The ball has been dropped,” by prosecutors and the Caledon OPP for failing to rectify an apparent administrative error that caused the case against the driver who allegedly killed Milo to collapse suddenly earlier this year, father Alen Yekmalian said.
Milo, a former Robert F. Hall Catholic Secondary School student and basketball player, was killed on May 17, 2022, while he was driving on Charleston Sideroad near Shaw’s Creek Road. At the time, Caledon OPP said he was hit head-on by another driver, and Tomislav Roki, 67, of Toronto, was later charged with careless driving causing death, a provincial offence under the Highway Traffic Act.
Speaking to the Star, Alen Yekmalian said he happened to be driving along the same stretch of roadway that night when he came upon the crash. He said he watch helplessly in dismay as his son died.
However, according to court proceedings, officers never signed a key document swearing to the charges against Roki; Ontario Court justice of the peace Neil Burgess ruled last month the case could not continue.
“Looking through the statement itself, the officer’s name never even appears on it,” Burgess said in court on Feb. 1. “The statement has never been signed by the officer … there’s nothing here from (the) officer as to swearing to the information to be true,” he said.
“I am not happy having been put in the position that I need to say that this is a nullity,” the justice of the peace concluded, apologizing in court to Milo’s family.
“A signature? A signature, your honour?” Yekmalian said in court as the case fell apart, according to the court documents. “That’s what my son’s life is worth, a signature?”
“I’m sorry, sir, about that. I truly am sorry,” Burgess responded.
“Shame on the police,” replied Yekmalian.
Asked about the police role in the collapse of the case, OPP spokesperson Bill Dickson told the Star: “We lay the charge but if there’s an allegation or claim that a paperwork issue arose, I would say that it’s probably the Crown that would have to comment on it.”
He added that if the mistake was the officers’, “we would definitely review the matter and see what actually happened.”
A statement from the Ministry of the Attorney General meanwhile pointed back to police. “The investigation and laying of charges is a function of police services and is independent of the attorney general,” it read.
“Any questions regarding charges laid in this matter should be directed to the police service that conducted the investigation.”
Burgess noted that under pre-pandemic protocols, the police officer would be required to appear in person before the justice of the peace, but did not in this case.
Burgess said he was surprised to discover the charging document had been made out to allow the officer to swear remotely, “but the officer does need at least to sign the statement indicating that he’s swearing the facts contained to be true.”
The justice of the added that while COVID-19 had forced the system to adapt over a two-year period, “we’ve moved out of the pandemic.”
The answer is not to say, “no matter what mistake we make, we should be able to try these people,” Burgess said. “The answer to it all is, let’s do it right, let’s do what the (law) says.”
In court, Crown attorney Liana Marcon argued the case against Roki should have been heard. Courts have been clear that provincial offences, such as Highway Traffic Act cases, “should be dealt with on their merits, and that any defects on their face should be corrected or amended,” she said.
Paralegal Pavan Bassi, who represented Roki, argued that without the signature, there was “no jurisdiction to proceed.” And because it wasn’t until a January appearance that court official discovered what Bassi called the “fatal error,” too much time had passed for the charge to be re-laid, he said.
Bassi told the Star that the protocol changes during the pandemic saw police develop a habit of not attending court personally and instead dropping off documents in a basket at the courts for the justice of the peace to review and sign.
That “bad habit,” he argued, proved to be costly and “reflects negatively on the administration of justice.”
Speaking to the Star, Alen Yekmalian said he had scheduled a meeting with the OPP and Crown’s office to discuss what happened.
“Who steps up and takes responsibility for the fact that a catastrophic mistake was made?”
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