A Yukon judge has dismissed the charges against a Toronto man who had been on trial in Whitehorse after being accused of trafficking fentanyl.

Territorial court Judge Michael Cozens dismissed the case against Jibril Hosh Jibril, 28, on Thursday.

This was after he denied a Crown application to adjourn the three-day trial and allow the Crown to reopen its case at a later date.

Earlier this week, court heard testimony from the ex-manager of the former Greyhound bus depot about a suspicious package a man had sought to have shipped to Lethbridge, Alta.

The RCMP examined the contents and suspected it contained fentanyl pills.

Before making his decision Thursday, Cozens heard arguments from Crown prosecutor Benjamin Eberhard and defence attorney David Chow.

Eberhard explained this application came from a defence objection over entering two fingerprint documents as exhibits. These are fingerprint samples the Whitehorse RCMP received from Saskatoon.

One document is the fingerprint sheet and the second is an enlargement of one of the prints.

The Crown said this remains an unresolved issue.

In its current form, the documents are unauthenticated. Eberhard said the two documents could be authenticated in the future but not that day, but was willing to establish a timeline.

He said this document is important to the Crown’s case. The fingerprint expert, RCMP Reserve Const. Shelley Massey, heavily relied on these prints in her report.

“These documents are essential,” Eberhard said.

He said the case law, set by the Supreme Court of Canada, is that a judge can allow this kind of application at any time before judgement. To do this, the new information needs to be relevant to the case.

Eberhard next addressed potential prejudice. He said the Crown has not heard anything from the defence and felt this means there is no prejudice as there is a serious issue that needs to be resolved.

He added that time and procedural fairness are not part of the test.

Cozens said this is about Jibril being able to answer a defence. He added that Chow was proceeding with a specific idea of the case he had to meet and asked to Crown to explain how granting the application would not impact defence preparedness.

Eberhard said the authentication should have been caught sooner. He did not disagree with Cozens, but pointed out there are remedies available for any defence issues.

He said the Crown would not be able to object to the defence wanting to recall Massey for cross-examination or call its own expert witness.

“There is remedy here,” he said.

He pointed out that Massey had decided to re-evaluate her report. She may submit an amended report, and Eberhard wanted to bring that before the court.

As for authentication of the Saskatoon documents, he was confident that an affidavit could be compiled. The affidavit would be all the Crown would rely on.

Cozens said this was not a situation where new evidence came out at trial that either side could not see coming. He pointed out the Crown had this document and could have got the authentication prior to trial.

Eberhard agreed, and said that would have been ideal, and took responsibility for what happened.

Cozens accepted that but stated that this case has been before the court well before Eberhard joined Whitehorse’s Canadian Prosecution Services office.

Eberhard said he was not filing this application to resuscitate the expert evidence; all he wanted to do was bring forward substantive information.

Chow argued that granting this application would be a violation of legal principles, and added the Crown needed to disclose information to the defence.

He outlined that the side that relies on expert evidence needs to make sure it’s grounded in the foundation of the case.

He added that expert evidence should be independent and felt Massey is looking to rehabilitate herself after the cross-examination. He said there was no other explanation for wanting to bring her back.

Cozens stated the Crown only wanted to bring her back on the one issue. Chow said that is irrelevant as per case law.

He explained the court has to look through the case from the beginning to the end. The defence plans its cross-examinations based on the Crown disclosure. This determines if the defence wants to decide to call its own evidence.

He argued the Crown could not prove the authenticity of the Saskatoon fingerprints.

This means, he said, that Massey’s expert evidence is without value. He felt the defence did not need to call evidence or its own expert as a result.

Chow reminded Cozens that Jibril did not have to call evidence as he has the right to silence.

“We have to look at the big picture,” Chow said.

He said he was clear from the start that the authentication of the Saskatoon document was an issue in this case.

He brought this up during case management conferences before trial and felt no one should be surprised the court found itself in this situation.

Chow next addressed prejudice to his client.

He explained that the cross-examination of all Crown witnesses was completed and he was getting ready for final arguments. This means, he said, the case could be reopened after the defence has already revealed its theory.

He added that Jibril’s right to a fair trial was at risk, as a defendant should not be forced to assist his or her own prosecution.

He argued that the only way the Crown’s case could be re-opened was in a situation where there is an issue “no human ingenuity could have foreseen.”

He felt that did not apply to this case as the issue was already pointed out in case management. He added that Massey, as an expert, should have outlined how she’d reached her conclusions.

Cozens took a short break to consider Eberhard’s application. He came back saying he would deny the application in its entirety, as it did not meet the requirements set out in case law and it is prejudicial.

He asked both sides what to do with the two documents.

Eberhard said they wouldn’t be exhibits in the trial. He explained that since they could not be entered, the case against Jibril did not have a foundation.

Massey’s report cannot hold any weight, and he felt there was no reasonable prospect of conviction.

The Crown recommended dismissing the charges. Cozens felt this was appropriate, given the circumstances.

After court, Chow said the dismissal is the correct decision by law, adding that Jibril is satisfied with the result.

Eberhard did not comment.