Delays in Bacon trial justified, says judge
B.C. Supreme Court judge releases reasons for rejecting dismissal of charges against 3 men accused in 2011 killing of gangster in Kelowna
The emergence of co-operating gangster witnesses led to significant delays in the murder trial of the three men accused of killing Jonathan Bacon outside Kelowna’s Delta Grand hotel, B.C. Supreme Court Justice Allan Betton has ruled.
Jason McBride, Michael Jones and Jujhar Khun-Khun are charged with first-degree murder in the death of Bacon, the attempted murder of several others and various firearms offences in relation to the August 2011 shooting.
The trial, which began May 15 this year, is not scheduled to be completed until January, about 58 months after charges were laid.
The accused applied for the charges to be dropped on the basis of their right to be tried within a reasonable time as guaranteed by the Canadian Charter of Rights and Freedoms.
Defence lawyers for the accused cited a July 2016 Supreme Court of Canada ruling that serious criminal cases should be concluded within 30 months of charges being laid unless there are exceptional circumstances.
On June 5, Betton dismissed the application to have the charges dropped, stating he would release his written reasons at a later date. Those reasons were posted on Sept. 8.
Manjinder Hairan, a gangster connected to the case, gave three statements to police in 2011 and 2012 detailing his role in the shooting, as well as that of the three accused and a number of Hairan’s associates.
Hairan was shot and killed in January 2013, so the Crown sought to have his statements admitted as evidence.
However, from 2014 to 2016, four people who had formerly denied any involvement in or knowledge of the shooting gave statements and agreed to testify for the Crown.
This caused the Crown to change its approach to proving its case, said Betton.
“Unavoidable disclosure and third-party records issues related to those witnesses were the primary drivers of the adjournments of the two previous trial dates, and thus ultimately the delay in this case,” said Betton, adding those issues were unavoidable and unforeseeable.
Accessing emails on an encrypted BlackBerry device also caused delays in the trial.
In August 2011, gangster Amir Eghtesad was arrested in a separate investigation.
Police seized an encrypted BlackBerry from him, and in June 2014, 13,346 emails were recovered spanning the period between June 10, 2011, and August 21, 2011.
A criminal analyst was needed to decode the messages, and a final report was prepared in January 2015.
“I have no difficulty concluding that this is a particularly complex case,” said Betton.
The delay of 58 months to the anticipated conclusion of the trial cannot be justified under a strict analysis, he said.
“However, where the transitional exceptional circumstance is considered, I am satisfied that the delay is justified and thus the application of the accused must be dismissed.”