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It's up to Crown to justify delay, says Zachary lawyer

Former Essar Centre manager argues four-year wait is too long; asks judge to grant stay
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The Sault Ste. Marie Courthouse is pictured in this file photo. Michael Purvis/SooToday

The time it has taken Trevor Zachary's fraud-related charges to go to trial "vastly exceeds" the ceiling established last year by a Supreme Court of Canada precedent-setting ruling, his lawyer Bruce Willson argued Tuesday.

The more than four-year delay has violated the former city of Sault Ste. Marie employee's right, under the Canadian Charter of Rights and Freedoms, to have a trial within a reasonable time, he said, urging the judge to stay the criminal proceedings.

Zachary, 43, was charged on Sept. 16, 2013 with offences, stemming from his job as the Essar Centre's marketing and events manager, that are alleged to have occurred between 2008 and 2013.

His trial on 18 charges — eight counts each of forgery and uttering forged documents and two counts of fraud — is slated to begin Sept. 11 at the local courthouse.

The Supreme Court's July 2016 decision imposed a 30-month ceiling timeline for a court case to be completed in the Superior Court of Justice, where Zachary's case will be heard next month.

The ruling upholds an accused's Charter right to a timely trial.

In his argument before Superior Court Justice James A.S. Wilcox of North Bay, Willson attributed the majority of the delay to the Crown.

The total delay from the time his client was charged to the anticipated end of his trial is four years, 85 days, he said.

He conceded that about three months of the delay could be attributed to the defence.

Willson said that delay included a two-week period when Zachary changed lawyers,  28 days when the defence wasn't available for pre-trial conferences, and 14 days for late filing of court documents.

Zachary was committed to stand trial on March 2, 2016, following a lengthy preliminary hearing conducted in the Ontario Court of Justice over a period of 25 days in the previous year.

On April 6, the defence filed a certiorari application opposing commital on some counts. It was heard on Aug. 22 and 23, 2016 and dismissed on Sept. 1.

There was nothing in the presiding judge's decision to suggest this application, which wasn't heard for five months, was frivolous, Willson said.

The total applicable delay is 48 months and nine days, making it presumptively unreasonable and "vastly in excess"of the ceiling of 30 months, Willson suggested, maintaining the onus is on the Crown to justify the delay and rebut that Zachary's constitutional rights have been violated. 

Even if the court decides that this five months is a defence delay, it brings the number down to about 42 months, which is about the same amount in the Jordan case, he said, and "vastly exceeds the presumptive ceiling."

The Crown, the defence said, puts the delay at 38 months, which he described "as significant" and a "breach of the ceiling."

"It's not on the cusp," Willson said. "It's eight months beyond the 30-month ceiling. "

The trial date was set on Oct. 26, with the Crown estimating it would take three months and the defence three to four weeks.

He suggested that the Crown can't claim exceptional circumstances in this case, and to characterize it "as particularly complex is a gross exaggeration."

If the Crown argues the case is complicated, it must show it attempted to manage the complexity, but it had no concrete plan to minimize the delay, Willson said.

Throughout the proceedings, there always was tension between the Crown and defence, as the defence tried to abbreviate things while the prosecution seemed to have no interest in shortening matters, he maintained.

There was a constant struggle, with the Crown in "a complacency situation" and the defence "trying to bend over backwards to get this thing abbreviated" and to protect the rights of the accused, Willson told the court.

The Crown will make its arguments Friday.

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About the Author: Linda Richardson

Linda Richardson is a freelance journalist who has been covering Sault Ste. Marie's courts and other local news for more than 45 years.
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