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Murder case came close to being tossed over delay

Judge argues extenuating circumstances overrule Supreme Court order

<p>A judge has ruled that the manslaughter trials of two youth accused will proceed in spite of a 43-month wait.</p>

JOHN WOODS / WINNIPEG FREE PRESS FILES

A judge has ruled that the manslaughter trials of two youth accused will proceed in spite of a 43-month wait.

A Manitoba murder case came perilously close to being dismissed due to judicial delay after a judge found it breached tough new timelines established by the Supreme Court.

But in a written decision released recently, Court of Queen’s Bench Justice Chris Martin refused to throw out what he called a "transitional case" — that occurred before the high court ruling — on the grounds it fell just short of meeting the required criteria due to a series of extenuating circumstances.

<p>Murder victim Wayne Bradford Wood.</p>

WINNIPEG FREE PRESS FILES

Murder victim Wayne Bradford Wood.

However, the judgment serves as a warning shot across the bow of justice officials in the province, who are scrambling to deal with nearly 60 criminal case delay motions. There have been a handful of examples in other provinces in which defence lawyers successfully argued for judicial stays in homicide cases.

The details of this case are somewhat unusual. Martin made his decision just before the trial was to begin, but just released his reasons for doing so. Between his decision and the release, the trial began and the Crown ended up staying charges against the two teen accused on the third day, after the co-accused testified and claimed to have little memory of the deadly attack.

So, while the result is that both went free, that doesn’t change the principle of the issue involved or what it means for the future.

Wayne Bradford Wood, 28, was swarmed and beaten in St. Theresa Point on Sept. 25, 2013. Police arrested and charged five youths with second-degree murder. None can be identified under the Youth Criminal Justice Act. Three of the accused pleaded guilty to manslaughter and were sentenced. The remaining pair were set to begin their trial April 24 — 43 months after their arrest.

That’s well beyond the 30-month limit set out last year by the country’s highest court for how long a case should take from arrest to completion. Similar guidelines of 18 months were established for cases in provincial court.

Cases that take longer are presumed to have violated the accused’s right to a trial in a reasonable amount of time, unless the Crown can prove exceptional circumstances.

Lawyers for the two accused youth filed a delay motion just before the trial was set to begin. In his written decision, Martin has now concluded the true delay in this case is somewhere between 37 and 39 months, once time is removed for delay that can be attributed to defence lawyers and the accused.

"In terms of balancing all the factors that I must, with due respect to contrary opinion, I cannot fathom a circumstance where a murder charge should be judicially stayed or dropped for a delay of 37 to 40 months — even for a youth, in a transitional case without some demonstrated prejudice respecting legal or evidentiary issues potentially impacting the trial," Martin wrote in his decision.

"To stay a case such as this, with its unique background, would trivialize the underlying basis of the right to a trial within a reasonable time itself, reducing it to a point-in-time math exercise. It would tend to emphasize form over function."

Defence lawyers argued the 30-month timeline is intended for adult cases and there should be an expectation that youth cases move more quickly, with a maximum of perhaps 24 months.

Martin didn’t disagree, but said this wasn’t the case to move the proverbial goalposts even closer together.

"I decline to set a specific presumptive ceiling for youth matters. That should await another day and another case with a more fulsome record. Having said that, I recognize that generally youth matters should not be vetted against the same presumptive ceiling as adult matters," he said.

Martin cited several factors here in reaching his decision, including the fact both accused didn’t demonstrate they were the victim of any prejudice as a result of delay.

They were both out on bail. As well, the large number of co-accused added to the complexity, along with the youth’s decision to have a preliminary hearing prior to originally choosing what was going to be a jury trial in Court of Queens Bench. They later re-elected to a judge-only trial.

"Moving on to systemic issues in Manitoba, this case is of moderate complexity because of the initial number of co-accused and the nature of the evidence and witnesses. And, while I would not categorize Manitoba’s past typical delay in these types of transitional cases as notorious, such delay nonetheless clearly demonstrated systemic strain. This resulted in the type of expectations and conduct demonstrated by all players here," he said.

Martin said this was an important matter for the justice system to consider and applauded defence lawyers for bringing it forward, even if it didn’t succeed.

"I would be remiss if I did not make it clear that defence counsel acted in the best interests of their clients by advancing these applications. Their conduct was appropriate and responsible, particularly considering judicial stays granted in various transitional cases across Canada based on (the Supreme Court) principles, including in several murder cases," he said.

Manitoba justice officials have been scrambling for ways to try and improve efficiency in the system in the wake of the Supreme Court ruling.

The province’s top judges have proposed a four-year pilot project which would see preliminary hearings eliminated. A pitch is currently being considered by federal Justice Minister Jody Wilson-Raybould, with the blessing of Manitoba Justice Minister Heather Stefanson.

Their idea has come under fire, particularly from members of the defence bar who weren’t consulted. As well, an anonymous ethics complaint was filed against the top judges of the Canadian Judicial Council, accusing them of improper conduct and "backroom political lobbying."

As the Free Press reported exclusively last week, that complaint has now been dismissed.

In his decision, Martin made note of several improvements that have been made in recent months, including revamping the case management conference system, streamlining the transfer of a case from provincial court to Court of Queen’s Bench and setting trial dates more quickly, which was not done in this specific case.

"The culture of complacency, such as it was, has been challenged and is being stripped away," Martin concluded.

mike.mcintyre@freepress.mb.ca

Twitter: @mikeoncrime

Read more by Mike McIntyre.

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