Court upholds conviction after Nanaimo man claims 42-month wait for verdict unreasonable

William Michael Curry drug case among the first to respond to a new Supreme Court 30-month ceiling on trial delays

A 42-month delay in getting to trial will not affect the drug trafficking conviction of a Nanaimo man.

But his case could have an impact on how courts will rule on what constitutes a reasonable delay in the future.

On Aug. 2, Supreme Court Justice Heather Holmes rejected William Michael Curry’s request for a stay of proceedings based on his Charter of Rights and Freedoms right to be tried within a reasonable time.

Curry’s lawyer argued the Crown failed to take obvious measures to move the matter ahead in a timely fashion. But Holmes ruled exceptional circumstances contributed to the delay in the trial’s conclusion, including the revelation that Curry’s co-accused, Brandy Lawrence, was expected to deliver a baby during a scheduled trial date in April.

On July 8 Holmes had convicted Curry of possession of crack cocaine for the purpose of trafficking as well as charges of simple possession of methamphetamine and heroin.

The case was noteworthy because Holmes convicted Curry on the same day a Supreme Court of Canada ruling known as R. v. Jordan set the reasonable ceiling for provincial court cases at 18 months and superior court cases at 30 months, except when caused by the defence, or when exceptional circumstances apply.

Curry was first arrested on Jan. 10, 2013, but proceedings were stayed in April of that year, then revised charges were laid in August. The Crown argued that a four-month period between the stay and the new charges should not count as part of the delay, but the judge disagreed because charges were not withdrawn during that period.

“There is no reason to conclude that the stay of proceedings put an end to the “stress, anxiety, and stigma” flowing from the charges,” she wrote.

Crown also argued that any delays caused by a co-accused must also be accounted for because of a risk the parties could conspire to use the new ceiling as a means to have their procedures stayed.

But Holmes concluded there was no evidence of collusion in the Lawrence-caused delays — which the Crown calculated as 8 1/2 months in total — and since they were not caused by Curry’s defence, they should not be subtracted from his total delay.

However, she did conclude the delay was mitigated due to exceptional circumstances, including the extension of a separate case that made the judge unavailable for one scheduled trial date, a misunderstanding between Lawrence and her counsel tied to her mode of trial, and the revelation that Lawrence was pregnant and due to deliver during another scheduled date.

Couple that with the Supreme Court ruling making allowances for a transitional period between the previous standard and the one established by the Jordan case, and Holmes decided the delays in Curry’s case were acceptable given the circumstances detailed above and what was then the standard of law.

“Taking into account what I view as reasonable reliance on the state of the law at the time, I cannot view the delay in concluding Mr. Curry’s trial as unreasonable.”

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