Sask. Court of Appeal upholds tossing drug charges

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The province’s top court has agreed with a judge who tossed out 10 drug charges against a man because the wheels of justice moved too slowly.

Arrested in June 2013, Jeremy Mark Lemioer’s trial was set for June of 2017. But in a decision ahead of that trial date, Court of Queen’s Bench Justice Richard Elson determined a four-year delay was unreasonable and directed a stay of proceedings against the then-34-year-old Regina man. The Crown appealed.

But in a recently released decision, the Saskatchewan Court of Appeal rejected the Crown’s argument.

“Although, in my respectful view, the trial judge committed several errors in his analysis, those errors do not affect the bottom line conclusion that ‘the delay involved in this case is simply too long,’ ” Justice Robert Leurer stated in the appeal court’s written decision. It was made unanimous by Justices Lian Schwann and Jerome Tholl.

In its argument before the appeal court, the Crown contended Elson incorrectly applied a Supreme Court decision which altered the landscape of court-based delay issues.

The Supreme Court decision took aim at the justice system for a “culture of complacency” in ensuring an accused’s Charter-protected right to a trial in a reasonable amount of time. Called the Jordan decision, it set charge-to-trial timelines at 18 months in provincial court and 30 months at Queen’s Bench. Minus delays caused or waived by the defence or barring “exceptional circumstances,” cases exceeding the time frames risk being thrown out.

In the Lemioer case, the Crown argued Elson incorrectly applied the Supreme Court decision as it pertained to “transitional” rules, or those dealing with cases already before the court when the Jordan decision came out.

Elson calculated the time between arrest and the conclusion of trial at 48 months and 20 days. The accused had been on bail most of that time. After subtracting two months’ delay caused by the defence when Lemioer switched lawyers early on, Elson said the remaining time was outside the guideline.

At appeal, the Crown argued Elson apportioned too much of the delay to the Crown, including a large segment of time that Lemioer’s co-accused was without a lawyer after his withdrew. While that still would have left the prosecution facing a 33-month delay period, the Crown contended that should be considered justifiable given it was both pre-Jordan and a complex case.

While the Court of Appeal agreed with the Crown a 419-day period should be deducted from the delay calculation given the withdrawal of Lemioer’s co-accused’s counsel was an exceptional circumstance, it disagreed with the Crown on its complexity argument.

The appeal court noted even after the sizeable deduction in delay, the Crown was still above the Jordan ceiling. The court went on to find the Crown hadn’t proven delay was justifiable on the basis of a “transitional exceptional circumstance,” in large part because the Crown hadn’t pressed harder to conclude the case quickly even after Jordan came down.

“Respectfully, the record tends to reflect that the Crown was content to proceed as if Jordan had effected no change in the law at all, that it was ‘business as usual,’ ” Leurer wrote.

Lemioer was one of eight people arrested in June 2013 by the Integrated Organized Crime South Unit, with RCMP and Regina police officers. Dubbed “Project Fabaft,” the investigation included searches at five Regina properties and three in B.C. and resulted in the seizure of 1.5 kilograms of cocaine, 1.1 kilograms of marijuana, about $120,000 cash and numerous guns.

Alleged to have played a key role in the operation, Lemioer was facing charges of conspiracy to traffic, trafficking cocaine, trafficking marijuana, possession of cocaine and marijuana for the purpose of trafficking, possession of property exceeding $5,000 knowing it was obtained by crime, unlawful confinement and weapons offences.

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