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 Daily Courier - - FRONT PAGE - By AN­DREA PEA­COCK

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.”

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