Suspects in violent home invasion in northern Ont. go free
In all, four people were charged in connection with the July 15, 2021, incident and lawyers for two of them -- Nicholas Aaron Martin and MacKenzie Doyle – argued successfully that their clients' right to a speedy trial had been violated.
A big issue, ruled Superior Court Justice Gregory Ellies, was the Crown's decision to try all four defendants at the same time, making scheduling too big an obstacle and leading to delay after delay.
Total delay of 52.6 months
The suspects were charged by the Ontario Provincial Police on July 16, 2021, and the trial was scheduled to begin in November of this year and be completed around Dec. 15. That would have been 52.6 months, more than 22 months beyond the maximum of 30 months criminal cases must come to court in Canada.
The Crown argued that it wasn't responsible for much of the delay because of the lingering effects of the COVID-19 pandemic and the difficulty of coordinating schedules for all the defendants.
In addition to Martin and Doyle, Jordan Dustin Cayer and Randy Allen were also charged with the case. All but Martin were eventually freed on bail. Martin has been in custody since he was arrested until the case was dismissed last December.
'His detention was continued following a contested bail hearing held on Oct. 4, 2021, and a bail review held in February 2022,' Ellies wrote in his decision, released earlier this month.
'He remained in custody until I stayed the charges against him on Dec. 20, 2024.'
While the total delay had the case proceeded would have been 52.6 months, any delay caused by the defence or beyond the control of the Crown must be deducted from the total.
That net delay must not exceed 30 months, under what is known as the Jordan principle.
Pandemic contributed to delays
The Crown argued that, in addition to delays caused by the pandemic, delays caused by any of the four defendants should be deducted from the total.
'I am unable to agree,' Ellies wrote.
The decision detailed each delay, often caused by the lawyer of one of the defendants not being available on a certain day, then another lawyer not being available on another day. At one point, one defendant changed lawyers, causing more delays.
While Ellies accepted some of the Crown's arguments regarding delays caused by the defence, he wrote that by Dec. 2, 2022, the complexity of trying all four suspects together had become clear.
By then, the judge said, 'the time had come for the Crown to reconsider proceeding against the accused jointly.'
After a few stops and starts, the preliminary hearing in the case began in April 2023. By then, Rogers' case had been severed from the other three defendants.
'The time had come for the Crown to reconsider proceeding against the accused jointly.'
— Superior Court Justice Gregory Ellies
The hearing resumed in August, but only lasted for 15 minutes. Two of the suspects had not been brought to court on time for the hearing. It started without them present, but only briefly.
'The Crown advised the court that two or three of the police officers she expected to call as witnesses were 'off sick' and that they might not be returning to work at all,' the court decision said.
'She also told the court that another officer was on annual leave. As a result, the Crown was only able to call one witness that day, another police officer whose evidence related only to the continuity of the evidence seized at the time of the arrest of the plaintiffs.'
Criminal cases surged by 46%
The preliminary hearing resumed on Oct. 18, 2023, but two of the officers were still unavailable.
Further delays followed, Ellies wrote, and the situation was complicated by a surge in criminal cases in the region since the pandemic.
'Between 2019 and 2020, there was a drop in the number of new criminal cases in … in the northeast region,' the judge said.
'However, between 2020 and 2023, the number of new criminal cases commenced … in the northeast region increased by approximately 46 per cent.'
While the Crown argued the rise in the number of criminal cases was a circumstance beyond its control, Ellies wrote that 'the Crown (bears) responsibility for the failure to fill a much-needed judicial vacancy in a region suffering from a gradual, but alarming, increase in crime.'
While determining who is responsible for judicial delay 'is not an exact science,' Ellies calculated that the net delay in this case was 37.5 months, well beyond the 30-month limit.
'Therefore, the applications must be allowed and the charges stayed against each of the applicants,' he ruled.
Read the full decision here.
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