The comings and goings of gangsters associated to the 2011 killing of Jonathan Bacon and emerging technology affected Crown counsel’s case against the three accused gunmen, and that’s why it took so long to get the matter to court.
That information was made public earlier this week, when Justice Allan Betton released a 26-page written decision on the application to dismiss the first degree murder case against Jason McBride, Michael Jones and Jujhar Khun-Khun. He’d reached the conclusion in June.
The basis for the application to stay the case was a breach of McBride, Jones and Khun-Khun’s collective right to be tried within a reasonable time as guaranteed by the Canadian Charter of Rights and Freedoms.
“The applicants submit that the primary cause of this lengthy delay was the Crown’s failure to make timely disclosure, coupled with a significant shift in the evidentiary basis upon which it intends to rely in proving its case against them,” reads the decision from Justice Betton, who notes that approximately 58 months will have elapsed from the laying of charges to the anticipated conclusion of the accused’s trial.
That application was, of course, opposed by Crown that argued the delay can be justified on the basis of unforeseen, overlapping events that have compounded the delay.
One of those factors is how the evidence came together.
Manjinder Hairan, a gangster that has been named repeatedly throughout the trial, gave three statements to police in 2011 and 2012 detailing his role in the shooting, as well as that of the three applicants and a number of Mr. Hairan’s associates.
Hairan, however, was shot to death in January 2013, leaving the Crown to try to get his statements admitted as evidence at the trial.
That strategy changed when others close to Hairan and the accused men agreed to testify, Betton wrote in his decision.
Another stumbling block was accessing some of the evidence that was collected.
For example, a search warrant to examine a BlackBerry was executed in July 2012, but the RCMP unit involved in accessing the data on the device could not defeat the encryption technology until April 2014, until new tools became available.
In June 2014, 13,346 email messages were recovered spanning the period June 10 to August 21, 2011. The PDF version of the resulting report was 27,466 pages in length.
“I have no difficulty concluding that this is a particularly complex case,” reads the decision from Betton.
“The emergence of the witnesses and the challenges and issues related to disclosure of information connected to those witnesses were at least unavoidable if not also unforeseeable.
“These challenges and issues with disclosure were not a specific result of the Crown’s transition from Plan A to Plan B. A meaningful portion, but by no means all, of those challenges was connected to reasonable requests and applications by the defence. Certainly, the scope of the disclosure issues, including the Crown’s unchallenged justification for delaying or withholding disclosure, added substantially to the complexity of the case.”
The trial is on a break right now, to continue in Kelowna in the coming weeks.