Judge says underfunded justice system 'failed' accused gang leader Nick Chan, who walked free this week

Meghan Grant | CBC News | Posted: April 19, 2018 4:24 PM | Last Updated: April 20, 2018

Calgary judge issued stay before alleged gang leader Nick Chan's murder trial could begin

Image | Nick Chan

Caption: Nick Chan leaves the Calgary Court Centre Tuesday after being acquitted on charges of murder, conspiracy to commit murder and instructing a criminal organization. (Meghan Grant/CBC)

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In staying all charges against accused murderer and gang leader Nick Chan, a Calgary judge has placed blame on an underfunded justice system, backlogged courts and "inadequate planning" by prosecutors.

"The criminal justice system failed Mr. Chan, and thereby failed society also in not seeing him prosecuted," wrote Justice Paul Jeffrey in his newly released decision.

Chan was supposed to go on trial on Monday on charges of first-degree murder, conspiracy to commit murder and instructing a criminal organization. But the charges were stayed on Tuesday after the judge issued a so-called Jordan ruling, finding Chan's right to a timely trial was violated.

"The institutions must shoulder far more of the blame, that is, this court and those who fund it," wrote Jeffrey.

In his decision, Jeffrey also outlines a complicated 58-month timeline that details who was responsible for each month of delay.

Inherent delay (time to retain counsel, review disclosure, trial prep): 13 months.
Institutional delay (time between when parties ready for trial but court can't accommodate): 20 months.
Crown delay: 6 months.
Defence delay: 11 months.
Neutral delay (caused by co-accused): 8 months.

Initially, Jeffrey had indicated his reasons for the decision would be protected by a publication ban but on Thursday morning, the Court of Queen's Bench clarified that only the identities of some witnesses were protected.

Chan was arrested in July 2013 with his trial set to wrap up May 18, 2018. Because of the stay, the timeline was cut down from 58 to 57 months.

The judge wrote that the Crown "had a duty to be more proactive" and should have planned "to ensure these very serious charges would be prosecuted in a timely or manner."

Jeffrey said prosecutors were responsible for a delay in getting disclosure to defence that didn't affect the trial but did "reveal inadequate planning of the Crown not proceeding as diligently as it ought, especially considering that Mr. Chan was charged in 2013 for events in 2008."

Gang war

From 2002 to 2009, Chan is believed to have been the leader of the FOB gang that, in a street war with its rivals the FK gang, was responsible for 25 killings.

Police and prosecutors have never suggested Chan carried out the killings, but as the alleged gang leader, he was accused of directing others to carry out his orders and paying up to $10,000 for every dead FK member.

Chan has been tried three times since his arrest:

In 2016, a jury acquitted him of murder in connection with the Bolsa Restaurant triple homicide.

In 2017, he was found not guilty of weapons offences.

And Tuesday, Jeffrey found Chan's Charter rights were violated when it took 57 months to get him to trial.

'Notorious systemic' delays in Alberta courts

Chan was to go before a jury this week in the killing of Kevin Anaya.

Anaya, who was linked to the rival FK gang, was shot and killed in 2008 while walking to a friend's house for a barbecue in Calgary's Marlborough neighbourhood.

In March, counsel for both sides argued over the delay, with Chan's lawyer making a Jordan application based on a 2016 Supreme Court of Canada decision that put a 30-month hard timeline on matters getting to trial after an arrest.

Prosecutors Steven Johnston and Ryan Persad agreed with the timeline but argued there should be more leeway in Chan's case because of its complexity based on voluminous disclosure, the number of witnesses, an "extraordinary number" of pre-trial applications and complicated legal issues

But Jeffrey noted the Bolsa triple murder trial — for which Chan was acquitted — was completed within 33 months and involved many of the same issues stemming from the same operation.

The judge said that timeline supported his conclusion that the Anaya trial did not proceed within a reasonable time.

The Crown also argued the case should fall under transitional exception, which considers which delays occurred before the Jordan decision was issued.

"It is not for me to speculate on the cause or causes behind these delays, be they inadequate resourcing by either level of government or by insufficient resource allocation by court decision-makers," wrote Jeffrey.

"[Chan's] Charter right to be tried within a reasonable time cannot be sacrificed to any persisting disregard of the notorious systemic curial delays in Alberta or the persistent inability to remedy them."

The Crown has appealed Jeffrey's decision, asking for a new trial.

Here is a timeline outlining Chan's court appearances from the time of his arrest to Tuesday when the judge stayed all charges.

TIMELINE

July 18, 2013 —Nick Chan arrested.
July 23, 2013 — First appearance.

* adjourned several times awaiting disclosure.

Sept. 4, 2013 — Initial disclosure package to Chan.
Dec. 11, 2013 — Crown signed a direct indictment on Anaya case.
Jan 24, 2014 — First appearance in Court of Queen's Bench on Anaya indictment.
Feb. 21, 2014 — Anaya trial booked for Sept. 15, 2015. *First scheduled trial.*
May 2, 2014 — First bail hearing.
Sept. 3, 2014 — Bail denied.
November 2014 — Case management judge assigned.
Jan. 8, 2015 — Crown hands over additional disclosure.
March 5, 2015 — O'Connor application brought by defence lawyer Dick Cairns (defence seeks 3rd party records — wants Correctional Service of Canada (CSC) documents on a key witness who got immunity deal). "There appears to be no delay by Mr. Cairns in bringing that application and the Crown fairly does not suggest there was," wrote Jeffrey.
April 8, 2015 — O'Connor application adjourned.
May 19, 2015 — To speak to O'Connor application.
June 22, 2015 — Case management meeting for three trials (two involving Chan). Crown wanted pre-trial applications (O'Connor) to proceed together with other prosecutions that came out of Desino. Cairns objected since it meant having to co-ordinate schedules with many lawyers. Court disagreed, sided with Crown. On this day Cairns also met with CSC counsel to try to narrow request.
Sept. 10, 11, 14, 2015 — O'Connor application hearing set for three prosecutions involving six accused.
July 13, 2015 — Judge orders release of CSC documents to lawyers for the three informants.
Aug 12, 2015 — Cairns and Crown meet with case management judge (CMJ). CMJ says trial dates aren't feasible. Cairns said too many counsels "jammed up" the matter, blame shouldn't be placed on either side. Crown wants to proceed.
Aug. 18, 2015 — Trial officially adjourned, jury selection cancelled.
Sept 14, 2015 — CMJ adjourned the setting of new trial dates to Jan. 7, 2016.
Oct. 8, 2015 — Chan's pre-trial applications on Bolsa.
Sept. to Dec. 2015 — Third party records received, reviewed, redacted, released.
Nov. to Dec. 2015 — Bolsa pre-trial applications heard.
December 2015 — Dustin Darby, Real Honario plead guilty. Chan the only one left to be prosecuted on Anaya file.
Jan 7, 2016 — Setting date for new Anaya trial adjourned.
Jan. 15, 2016 — Dates set for second scheduled Anaya trial: Pre-trial motions Sept. 5-25, 2017 with trial dates Oct. 2 to Nov. 10, 2017. Cairns had a "lengthy trial commitment in 2016" so couldn't do it earlier. Court and Crown were available January 2017.
Feb. to March 2016 — Bolsa trial, Chan acquitted.
Sept. 8-15, 2016 — Chan's second bail hearing.
Oct. 28, 2016 — Chan can't pay Cairns, he withdraws as counsel.
Nov. 21, 2016 — Bail denied a second time.
November 2016 — Crown has more disclosure, which surfaced in another trial (police notes re. one of the key witnesses).
March 24, 2017 — Fisher application: Chan asks government to pay for Cairns arguing he was the only one with experience comparable to Crown counsel. Crown said Chan failed to prove Cairns uniquely suited to provide a defence.
April 19, 2017 — Fisher application denied.
June 1, 2017 — Andrea Serink on record as Chan's lawyer on the condition trial dates be pushed back to 2018. Court and Crown accommodated, Chan waived delay.
March 5 to May 18 — pre-trial motions + new trial dates (Third scheduled trial).
Sept. 25-27, 2017 — Weapons trial.
Dec. 7, 2017 — Chan acquitted of weapons offences.
March 5 to April 13 — Pre-trial motions on Anaya.
April 16 — Chan released on bail.
April 17 — Judge stays charges.