Accused kidnappers should walk free because of 'mismanaged' case, say lawyers

Article originally appeared in: CBC News
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The fatal shooting of a man thought to be working for a rival drug dealer Lawyers for four men accused of kidnapping, robbery and firearms offences are trying to convince a judge to let their clients walk free after a four-year delay in getting the case to trial.

"The case was clearly mismanaged," said Shamsher Kothari, a defence lawyer for one of the accused.

The arguments are being made as part of a Jordan application — named after a Supreme Court decision that puts hard timelines on what is considered an unreasonable delay for matters to get to trial.

Calgary has 400 cases under review over concern delays will allow accused criminals to walk free

In its July decision, the country's highest court put timelines of 18 months for provincial court matters and 30 months for Superior Court cases.

Delays beyond those time frames are "presumptively unreasonable" and violate an accused's charter right to be tried within a reasonable time, the decision said.

Hasson Wilson, Ivan Willis, Abraham Latife and Jamar Sterling are accused in a string of armed grocery store robberies, including one where a manager was kidnapped.

'Give me my disclosure'

More than 47 months will have passed between the arrests in February 2014 and the trial in January 2018. At least 32 of those months are attributable to the prosecution, said Kothari who represents Wilson.

The Crown argued defence lawyers weren't diligent in requesting disclosure, according to Kothari. But he told Justice Bryan Mahoney that prosecutor Bob Sigurdson was asked "over and over and over again" for the materials.

The trial, originally set for Oct. 3, 2016, was rescheduled in September and delayed a further 15 months at defence lawyers' request because of missing disclosure.

Latife's lawyer, Joan Blumer, said the key part of the missing disclosure was a statement from a witness taken in February 2016 that had a serious impact on her client's case.

"The withheld disclosure ultimately revealed that one of the people in the car said that my client had absolutely nothing to do with any conspiracy, any criminal activity," said Blumer.

Kothari said some of the disclosure — including information used by police in order to get a wiretap order from a judge and debriefing notes from an interview with an informant — took two years to get into the hands of defence lawyers.

Operation Volcom

Seven written requests, two court orders and two charter notices were made to remind prosecutors to hand over evidence related to the Crown's case, Kothari told Justice Bryan Mahoney.

"Do I go [to the Crown's office] with all counsel and bang on the bulletproof glass on the third floor and say give me my disclosure?" asked Kothari.

After a five-month investigation, dubbed Operation Volcom, the men were charged in a number of take-over style robberies where armed men would go into a store at closing time, order employees to the ground and then force one to open the safe inside.

In one of the cases, the manager of one of the grocery stores was kidnapped before the store was robbed.

The men are also charged with conspiracy because they are accused of planning a number of other robberies.

'Everyone did something wrong'

Crown lawyer James Pickard, from Edmonton's specialized prosecution branch, argued the late disclosure at the centre of the 15-month delay in rescheduling the trial could have been dealt with in other ways.

"It's an adjournment with a twist," said Pickard. "It's an adjournment on steroids."

"No one in this case is walking in with a halo — everyone did something wrong."

Pickard asked the judge to attribute some of the final 15 month delay to defence and argued that the bulk of the disclosure referred to in Monday's argument was insignificant to the accused's case.

Jordan applications are also at the centre of some other long-delayed cases. Two murder cases in Calgary are at risk of being tossed out after defence lawyers notified the judges involved that they plan to apply.

The Crown's early case resolution team is reviewing an estimated 400 cases in Calgary to determine if they're at risk of facing Jordan applications. They are prioritizing cases that must go to trial and flagging others that can be stayed or resolved with guilty pleas.

Mahoney will make his decision on the stay application next month.