Accused gang leader Nick Chan must turn himself in, face new murder trial: Court of Appeal
Panel of three judges overturned lower court's decision to stay murder charge
Alleged gang leader Nick Chan must turn himself in to authorities and will have a new murder trial after the Alberta Court of Appeal overturned a Calgary judge's decision to stay all charges last year.
Last April, Court of Queen's Bench Justice Paul Jeffrey ruled Chan's right to be tried within a reasonable time had been violated. He ordered a stay on all charges, which included first-degree murder, conspiracy to commit murder and instructing a criminal organization.
It was the third time in two years that Chan had beaten organized crime-related charges.
The Crown appealed Jeffrey's decision the day after the stay was ordered.
In its written decision, the panel of three judges agreed unanimously with prosecutor Iwona Kuklicz's argument that the delay was "justified under the complex case exception or under the transitional exception" in allowing the appeal on either ground.
The panel found the trial judge erred in failing to attribute a particular portion of the delay to the defence, which would have reduced the 57-month delay to 35 months "after accounting for the time consumed by discrete events."
Chan has 24 hours to turn himself in to the Calgary Remand Centre.
The case now gets even more complicated; before he directed the stay, Jeffrey ruled that the Crown's key witness would not be allowed to testify.
At that time, the Crown's plan was to call no evidence and invite the jury to acquit Chan before appealing the ruling on the witness in hopes of a favourable Court of Appeal decision which the prosecution hoped would lead to a new trial.
The Crown did not appeal Jeffrey's ruling on the witness, so it will stand, even with a new judge assigned to preside over the trial.
It's unclear if prosecutors will try to appeal that earlier ruling ahead of a new trial or if they will go back to Plan A: to present no evidence and invite the jury to acquit.
SCC's Jordan ruling
Chan was arrested in July 2013 with his trial set to wrap up May 2018.
In its 2016 Jordan decision, the Supreme Court of Canada said an accused person's trial should be wrapped up within 30 months of arrest.
Prosecutors agreed the case had exceeded the Jordan timeline but had argued for more leeway in Chan's case because of its complexity, which involved voluminous disclosure, many witnesses, an "extraordinary number" of pre-trial applications and complicated legal issues.
In his written decision, Jeffrey said the justice system "failed Mr. Chan." The judge placed blame on an underfunded system, backlogged courts and "inadequate planning" by prosecutors.
Defence lawyer Andrea Serink argued Jeffrey's decision was the proper one and should be upheld by the higher court.
Calgary gang war
Chan, said to be the leader of the Fresh Off the Boat (FOB) gang, was charged with first-degree murder for allegedly being behind the death of Kevin Anaya, who was linked to the rival Fresh off the Boat Killers (FK).
Between 2002 and 2009, 25 people in Calgary were killed in the FOB-FK gang war.
A massive police investigation dubbed Operation Desino ended in July 2013 with six people, including Chan, facing numerous murder charges.
As part of that operation, several confessed killers were granted immunity or partial immunity deals in exchange for their testimony.
In March 2016, a jury acquitted Chan of first-degree murder for Calgary's Bolsa Restaurant triple murder in 2009. In December 2017, he was acquitted of several weapons-related charges following a trial.
Until his release last April, Chan had been in custody since his arrest in July 2013.
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