Public Health Act charges stayed over lengthy delay

Four property owners faced 27 counts related to issues like mould, cockroaches

A provincial court judge has stayed proceedings against a group of Edmonton property owners because of delays in bringing the case to trial.

The case dealt with dozens of alleged defects at a home owned or controlled by four individuals and an Alberta numbered company. Lawyers for Alberta Health Services alleged the group was responsible for a number of “deficiencies” over four to five months, including evidence of mould, mouse feces, cockroaches, a leaky dishwasher and water on the ceiling tiles.

The defendants faced 27 counts under the Public Health Act. The initial charges were sworn in September 2016, with trial dates set for this past Feb. 28 to March 2.

But earlier this year, Judge L.G. Anderson granted a stay because it took longer than 18 months to bring to trial.

“The court finds that the time it has taken to bring this matter to trial is not reasonable and constitutes a breach of ... the Charter,” a written copy of the Jan. 12 decision reads. “The prosecution is therefore judicially stayed.”

The defendants in the case are Shairose Esmail, Badrudin Esmail, Sarah Fassman and Abdullah Shah. Shah is also known as Gohar Pervez or Carmen Pervez, a wellknown Edmonton landlord who pleaded guilty to mortgage fraud in 2008 and spent time in jail.

The defendants applied for a stay based on “a breach of the right to a trial within a reasonable time,” the written decision states.

The Supreme Court of Canada in 2016 ruled that delays of more than 18 months between a person being charged and a case going to

By all accounts, the defence was ready to defend the case based on the disclosure provided, until a large amount of disclosure was provided just before the trial.

trial is unreasonable in provincial court cases.

The ruling, known as the Jordan decision, has placed pressure on courts across Canada to resolve cases within the time frame.

Paul Moreau, counsel for the property owners, argued the 18-month time frame applies equally to criminal and non-criminal prosecutions, and that all of the delay “lies at the feet of the prosecution.”

Moreau also argued his clients “have done everything they could reasonably do to move this matter along expeditiously, including accepting a new date for trial one week inside 18 months,” the written decision reads.

AHS lawyers argued the matter qualified as a complex case, which can factor into whether a case should be dismissed for going past 18 months.

Anderson did not agree.

“The criminal division of the provincial court in Edmonton dealt with over 35,000 criminal cases during the last fiscal year,” the judge wrote, “cases involving over 85,000 charges ranging from summary offences to homicides and drug conspiracies.

“From a bird’s-eye view, this case is near the bottom of the complexity spectrum.”

The prosecution’s decision to disclose a large quantity of new evidence to the defence just before the trial was the main cause of the delay, the judge wrote.

“By all accounts, the defence was ready to defend the case based on the disclosure provided, until a large amount of disclosure was provided just before the trial.”

According to the written decision, five other cases involving five other properties owned or controlled by some or all of the same defendants are winding their way through the courts.

One of the prosecutions was withdrawn on the first day of a weeklong trial.

The second matter had to be adjourned due to disclosure being provided to the defence at the “11th hour.”

In the third case, charges were stayed on the day of the trial when another party “entered a guilty plea to something.”

The fourth matter was adjourned partway through trial when the Crown attempted to cross-examine on documents that had not been disclosed. The court had not received any information on the fifth case.

A spokeswoman for Alberta Justice and Solicitor General said the ministry could not comment because an appeal is underway.

The decision did not list the location of the property.

Court records show lawyers for AHS are appealing the stay before the Court of Queen’s Bench May 18.