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CONSTITUTIONAL ISSUES - Legal rights - Trial within a reasonable time

Thursday, March 28, 2019 @ 8:38 AM  

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Appeal by the Crown from the trial judge’s decision granting a stay of proceedings to the respondent. The respondent was charged with murder, conspiracy to commit murder and directing others to commit murder for the benefit of a criminal organization in 2013 for offences that allegedly occurred in 2008. The charges arose from an investigation of multiple gang-related homicides that resulted in multiple prosecutions, multiple overlapping accused, several overlapping counsel and witnesses, case management proceedings, and multiple pretrial applications. When the respondent applied for the stay in 2018, 58 months had passed, his trial had not yet started, and he had been in custody since his arrest.

HELD: Appeal allowed; new trial ordered. The trial judge did not reverse engineer his reasons for precluding the appellant from appealing an earlier, unfavourable ruling. The trial judge erred by declining to attribute to the defence a five-month delay when the trial was adjourned, as the delay was requested by the respondent’s counsel. Had the trial judge properly accounted for defence delay, the overall delay after accounting for the time consumed by discrete events would have been 35 months. The trial judge wrongly discounted the complexity and seriousness of the case because the proceedings had become more streamlined over time. He wrongly took pre-charge delay into account and overstated the impact on the respondent’s ability to make full answer and defence. Taking those errors into account, the delay was justified under the complex case exception or under the transitional exception.

R. v. Chan, [2019] A.J. No. 259, Alberta Court of Appeal, P.A. Rowbotham, B.K. O'Ferrall and M.G. Crighton JJ.A., March 5, 2019. Digest No. TLD-March252019008