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Judge orders stay of proceedings post-conviction

published February 17, 2017

Following long trial delays, a Vancouver judge has taken the unusual step of ordering a judicial stay for a man who was convicted in connection with a 2014 home invasion, says his counsel, British Columbia criminal lawyer Gary Botting.

Botting, principal of Gary N.A. Botting, Barrister and Solicitor, says it is a unique matter in which two men were convicted of robbery and unlawful confinement in December 2016 and then Judge Reginald Harris of the B.C. Provincial Court ordered a stay of proceedings — and vacated the convictions — a month later.

“The case had taken 26 months to prosecute, which is well beyond the 'reasonable' limit of 18 months set in the Supreme Court of Canada (SCC) case, R. v. Jordan,” he tells AdvocateDaily. “The judge found that most of the delay was institutional; none of the delays was attributable to the defence.”

The July 2016 high court decision establishes new timelines for trials to be completed — 18 months in the provincial court and 30 months before a superior court, unless there is a good reason for the delay; longer delays should result in a stay, says the SCC.

Botting represented one of the two accused in the B.C. matter. Lawyer Valerie Hartney was counsel to the second man, the nephew of the other accused.

The case goes back to Oct. 14, 2014, when both men were arrested after a white Cadillac was seen in the vicinity of a reported home invasion in which two sisters were assaulted and robbed, Botting explains.

“Shortly afterward, a Vancouver police officer pulled up behind a parked white Cadillac driven by a black man,” he says.

Botting says in addition to the delays, there were a number of other Charter issues with the case. Both lawyers argued successfully during the trial that police violated the men's rights.

“We argued that Charter ss. 8, 9 and 10 had been violated: s. 8 because the police conducted an unlawful search of the white Cadillac owned by the nephew; s. 9, because the police conducted an unlawful arrest; and s. 10, because the accused were not accorded access to a lawyer for several hours,” he says. “The remedy Judge Harris granted for those breaches was an exclusion of evidence under s. 24(2) of the Charter.

"That did not end the trial, however, since there was other evidence that was not related to the illegal arrest, search and seizure. The judge found that there was still evidence sufficient to convict both men on Dec. 20, 2016.”

Botting notes that some of his submissions to the judge related to the fact the accused were black and he highlighted the recommendations of the Marshall Inquiry, which dealt with the prejudice of the police in Halifax against minority groups, including black Nova Scotians. Botting wrote about the Marshall recommendations in his book, Wrongful Conviction in Canadian Law.

Prior to the end of the trial, Botting and Hartney gave notice of additional Charter arguments for breaches of s. 7 for police conduct and s. 11 for delay pursuant to Jordan.

“Because we had given timely notice before the conviction, the judge agreed to hear further constitutional arguments," Botting says. "He heard these arguments from Dec. 20 - 23, 2016 — after the conviction,” he says. “They argued that the prosecution was unconstitutional since it violated the recent Jordan guidelines for excessive delay.

“There is a precedent, in which a judge in a youth court proceeding in British Columbia following Jordan, had ordered a judicial stay of proceedings, post-conviction, where there was unreasonable delay. On Jan. 19, Judge Harris followed that precedent and ordered a judicial stay of proceedings under s. 24(1) of the Charter.”