R. v. Ghozerash, 2013 BCCA 272

In September 2009, Azad Yousefi Ghozerash was charged with importing and possessing opium for the purpose of trafficking. His case was initially set for trial in December 2010, but adjourned due to the unavailability of a Crown witness. The trial was then rescheduled for October 2011, at which time counsel for the accused made an application for a judicial stay of proceedings on account of unreasonable delay.

Although the defence application was initially refused, the trial took longer than expected, and by March 2012, the trial judge came to the conclusion that the Mr. Ghozerash’s right to be tried within a reasonable time had been violated.

In considering the Crown’s appeal, the BC Court of Appeal found that unreasonable delay had occurred even by October 2011, and that the trial judge had erred in refusing the defence application for a stay of proceedings at the outset of the trial.

The Court of Appeal’s conclusion hinged on the fact that even in the face of a Crown adjournment, it took an additional ten months for the trial to be heard:

[46] It is apparent that once the Crown and defence were in a position to fix a date, the wait-time for a five-day trial for a non-custody case in Port Coquitlam was close to one year. I say this because it was 11 months from the first fix-date hearing until the first trial date and 10 1/2 months from the second fix-date hearing until the second trial date. What this indicates is that a case which had been set for trial but was adjourned was treated the same as a case for which a trial date was being fixed for the first time.

[49] The failure to accord Mr. Ghozerash’s case any priority resulted in a breach of his constitutional right to be tried within a reasonable time. When the first trial date was adjourned on December 1, 2010, the Court was advised that the Crown witness whose unavailability necessitated the adjournment would be available in four months. However, regardless of how long any case had been in the system, the Court’s first available date for a five-day trial was some six and one-half months after that.

This is a strong message from the Court of Appeal that lower courts must take an accused person’s Section 11(b) rights into account when scheduling a new trial date after an adjournment.

Decided by the BC Court of Appeal on June 10, 2013.
Click here for the full text of the decision.

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Filed under Section 11(b): Trial Within Reasonable Time, Section 11: Legal Rights

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