Two accused drug traffickers must return to court

Appeal court rejects stays over lack of sheriffs

Two accused drug traffickers who were freed in February 2017 because no sheriffs were available at the Victoria courthouse have had their stays set aside by the B.C. Court of Appeal.

The unanimous decision by the appeal court means Richard D’Allesandro and Michael Dubensky must return to court.

At the time, the freeing of two alleged drug dealers in the midst of an overdose crisis ignited a political firestorm. The issue dominated debate in the B.C. legislature.

At first, then attorney general Suzanne Anton dismissed the judges’ concerns, calling the situation “a bit of an anomaly.” In the following days and weeks, the government was forced to acknowledge there was a severe shortage of sheriffs and moved to fix the problem. Anton increased her budget by $2.7 million to train more sheriffs.

The appeal court called the decisions by Justice Robert Johnston and Justice Jacqueline Dorgan to stay the charges against the two accused “procedurally inappropriate and extreme.”

“The judges erred by acting on their own motions without hearing from the parties and by failing to consider other ways to address the unavailability of a sheriff,” says the decision.

D’Allesandro was charged in December 2014 with possession of cocaine for the purpose of trafficking. His trial was set for Feb. 14, 2017. When he did not appear, a warrant was issued for his arrest.

On Feb. 15, 2017, D’Allesandro appeared before Johnston, who was advised that the trial could be completed in half a day. Johnston kept D’Allesandro in custody and put the matter over to the morning of Feb. 17. However, there was no sheriff available on Feb. 17 to bring him from the cells at the courthouse to the courtroom. “Mr. D’Allesandro is in custody in this building, but he is not able to attend because there are no sheriffs to bring him to court. This is completely unacceptable,” Johnston said.

“I will say that more and more frequently in this building, and it is a matter of great distress to not only myself, but my fellow judges, important criminal matters are delayed starting because of lack of staff, whether it’s sheriffs, clerks or otherwise.”

Dubensky was charged with possession of heroin for the purpose of trafficking and possessing bear spray for a dangerous purpose in June 2016. On Feb. 22, 2017, the first day of his trial, no sheriff was available to sit in the courtroom.

“Without sheriffs, this trial cannot proceed,” Dorgan said.

“The law requires that an accused person, Mr. Dubensky in this case, be tried within a reasonable time. These charges stem from allegations committed Sept. 17, 2015. The right to be tried within a reasonable time is very clear in Canadian law … I see no reasonable alternative to entering a judicial stay of proceedings.”

The Crown appealed both decisions, obtaining permission to file one appeal because the cases involved the same issue.

The appeal court found that prosecutions were not stayed solely because sheriffs were not available on the mornings in question, but because the trial judges viewed it as a recurring problem.

“While the judges were right to be concerned — and, it would appear, frustrated — over the unavailability of sheriffs and at the effect a lack of sufficient sheriffs can have on the Supreme Court’s ability to carry out its functions, how they chose to address that problem in dealing with the cases before them was both procedurally inappropriate and extreme.”

The appeal court said Dorgan did not determine if the unavailability of sheriffs on the first morning of Dubensky’s trial prejudiced his right to a fair trial or affected the integrity of the justice system.

“While I accept Mr. Dubensky may have been inconvenienced by reason of the fact his trial could not start as scheduled at 10 a.m., there is nothing to indicate he was prejudiced to the degree sufficient to warrant the charges against him being terminated,” says the decision written by Justice David Frankel.

“In my view, it was incumbent on the trial judge to ask the parties what they wished to do and, if necessary, give them time to consider their positions. If Mr. Dubensky decided to apply for a stay, then arrangements to schedule that application could have been made.”

The appeal court noted that it’s not unusual for a trial to unexpectedly end, thereby freeing up a sheriff.

“It may well have been that Mr. Dubensky’s trial could have started later in the morning,” says the decision.

The appeal court also found Johnston failed to consider other ways to address the unavailability of a sheriff. “That the judge did not wait to see whether the trial could proceed later in the day is, to say the least, surprising, given that when he set the trial date on short notice, he was aware it might not be possible to start first thing in the morning because of other matters on the court’s list.”