Criminal lawyer Adam Weisberg said the defence could argue there was an abuse of process or that starting over would affect their client’s right to a timely trial.
The federal Crown’s decision to stay charges against two men whose fentanyl-trafficking trial was underway in Saskatoon provincial court — and restart the trial in a higher court — is something Adam Weisberg has never encountered.
“This would definitely be what I would consider a rare move,” said Weisberg, a criminal lawyer and director of the Criminal Lawyers’ Association for the Toronto area.
Shervin Dass Beeharry and Japmanjot Grewal are accused of selling fentanyl-laced cocaine connected with seven overdoses in Saskatoon last March. Their high-profile provincial court trial heard charter applications in April and had been scheduled to resume Wednesday.
In a decision the mens’ lawyers said took them by surprise, the federal Crown stayed the drug charges on Wednesday and filed a direct indictment on similar charges. When the Crown directs an indictment, they have received permission, either from the deputy attorney general or attorney general, to proceed directly to trial at the superior Queen’s Bench level without having a preliminary hearing.
Direct indictments can be requested for several reasons, depending on the nature of the evidence. They often occur in situations with multiple co-accused, where the Crown is concerned with running into delay issues, Weisberg said.
He said the federal Crown’s reasoning appears to be lawful. The Crown said that new evidence led to a direct indictment against a third man whose charges were initially withdrawn, and that directing an indictment against Grewal and Beeharry was the most efficient way to try the men together.
What’s rare is that it was done after a provincial court trial began, Weisberg said.
He pointed to two cases out of British Columbia. One judge determined a direct indictment could be sought as long as a verdict had not been rendered, while the judge in the other case said he was not persuaded that it could happen once a trial has commenced.
“On my reading of the Criminal Code, the Crown has a strong argument that they would be permitted to direct an indictment prior to a verdict being rendered,” Weisberg said.
He said the defence would have an argument if they could prove there was an abuse of process or that starting over would affect their client’s right to a timely trial.
“If (the Crown) had known this information for awhile, and sat on it and then decided to prefer an indictment last-minute, that would be something that would count against the prosecution if they didn’t make decisions in a timely way to respect the accused person’s right to a trial without unreasonable delay,” Weisberg said.
In an interview on Tuesday, Beeharry’s lawyer Brian Pfefferle said the once-rare direct indictment is becoming more “commonplace.” Weisberg said he’s noticed an increase ever since the Jordan decision ruled that Queen’s Bench matters must conclude within 30 months of charges being laid.
More direct indictments mean less preliminary hearings. Weisberg said this becomes problematic when cases that could have been resolved through a preliminary hearing proceed to trial instead.