Prosecution of two murders became gong show

Cops and prosecutors can’t win for trying, as the saying goes. When Calgary Police arrested Nick Chan on July 18, 2013, and charged him in connection with two homicides that had occurred respectively four and five years earlier, the poor buggers probably felt pretty good.

The arrests were the product of what the cops called Operation Destino, formed to investigate the lethal war between two rival drug gangs, the FOB (Fresh Off the Boat) and FK (Fresh off the boat Killers), which had been plaguing the city.

Chan, for the record, wasn’t alleged to have been the guy who pulled the trigger, any trigger, but rather alleged to be the FOB mastermind.

During the period from 2001 to 2009, 25 people — including plenty of innocents, some slain while they were simply out for dinner — were killed in that turf war. The Calgary Herald, in that latter year, once ran a page with all the victims’ photographs.

The police were using informants turned co-operating witnesses, which is sometimes the only way to catch those in the modern tight-knit, surveillance-savvy, sophisticated criminal organization.

(I once covered such a murder trial in Toronto, where the key witness was a co-operating witness. Despite his original lies to police and criminal past, and the judge’s explicit warning to jurors that they should be cautious about accepting his evidence, he was a stellar, brave witness, and the accused was convicted.)

Anyway, it was at the height of the carnage that the Calgary detectives found their co-operating witnesses, who obviously turned tail to save themselves and make their own grave charges disappear, and whose identities are now protected by court order.

Chan was charged in the two separate shootings.

One was the killing of Kevin Anaya and the attempted murder of Kevin Bontogon on Aug. 9, 2008. Charged with Chan were his brother, Tim (who is in the wind), and two other men, Dustin Darby and Nathan Zuccherato. The latter was also charged, with another man, in another attempted murder that was part of Project Destino.

The other shooting was a triple homicide that occurred at the Bolsa restaurant on Jan. 1, 2009. Just one victim was an actual rival gang member.

Charged with Chan in the Bolsa slayings were four other men, including Zuccherato.

In other words, even to the layman’s eye, it was plain from the get-go these prosecutions were likely going to be a gong show, with multiple accused people facing multiple charges with multiple lawyers and their busy schedules involved.

And it’s important because, when Chan walked out of court a free man this past Tuesday, it was because the judge ruled that it had taken far too long to bring him to trial, and that his rights to speedy justice had been seriously breached such that the judge ordered a stay of all charges.

Sometimes, in his 24-page analysis (these reasons were or were not, it is hardly clear, originally placed by the judge under an oral publication ban, itself since disappeared), Alberta Court of Queen’s Bench Judge Paul Jeffrey appears to recognize these challenges were unusual if not unique, and that prosecutors had tried their damnedest to work around them.

In the wake of the 2016 R v Jordan decision from the Supreme Court of Canada, everyone in the justice system is under pressure to do better in getting cases to court.

R v Jordan placed a 30-month ceiling on how long it should take — Chan was in custody, as a presumably innocent but charged man, for almost five years — but made exceptions for prosecutors to show that either discrete events (such as a death in a lawyer’s family), inordinate complexity or what’s called a transitional exception (for those cases that were in the system, the clock ticking, before the Jordan decision changed the rules) had delayed things.

For instance, prosecutors asked for, and got, not one “case management judge” (the person who is supposed to keep things moving), but two, because of the vast array of charges, defendants, lawyers and the time-juggling that would require.

There was also a vast amount of disclosure — material such as interviews, wiretaps, phones, etc. which prosecutors must hand over to defence lawyers in a timely way — and two parallel trials to run.

Prosecutors also negotiated plea deals with some of Chan’s co-accused (Zuccherato, for instance, pleaded guilty to the Bolsa shootings and the attempted murder of another man; another pleaded guilty to two counts of manslaughter, so it’s not as though the cops screwed everything up). They fought for two case managers and joint case management meetings for the charges out of Destino, so that one hand would know what the other was doing.

The judge grants all that. And he found that as per the Jordan rules, yes, there were some “discrete events,” and yes, the bloody thing was complex, and yes, much of the time the case was stalled happened before R v Jordan, etc., etc.

And yes, the judge said, prosecutors have a “broader duty,” beyond the welfare of one accused person, and yes, there is an enormous public interest in such serious matters being tried on their merits.

Yet in the end, he assigned much of the delay to, and appeared to blame much of the blame on, his fellow judges (“this court and those who fund it,” meaning Ottawa, as he put it) and on prosecutors, for somehow failing to get the second trial on as quickly as they managed the first.

Er, and wouldn’t that have been because they were getting the other one up and going?