Trial almost thrown out

Photo: File photo

RCMP Gang Enforcement officers have been keeping an eye on the Kelowna courthouse during the Bacon murder trial.

A judge's reasons for denying a dismissal application by Jonathan Bacon's accused murderers reveal just how close the case was to being thrown out.

After several delays, the high-profile Bacon murder trial began on May 15, 2017, with an application by the three accused to have the entire case thrown out, due to the length of time it took to get to trial.

On June 5, Justice Allan Betton dismissed the application, and the trial moved forward. The trial is currently on a break this week, but Betton's reasons for dismissing the application have been released.

Jujhar Khun-Khun, Jason McBride and Michael Jones were charged in February 2013 with the 2011 shooting outside Kelowna's Delta Grand Hotel that left gangster Jonathan Bacon dead and three others injured.

The accused claimed their Charter right to be tried within a reasonable time was breached.

In a summer 2016 decision, the Supreme Court of Canada ruled that Supreme Court cases must conclude within 30 months of charges being laid, barring delays attributed to the defence and “exceptional circumstances.” The trial for the three accused is expected to concluded 58 months after their charges were laid.

The Crown argued that while the defence is not to blame for the majority of the delay, the case has been particularly complex, and the length of delay is justified on the basis of exceptional circumstances, stemming from several unforeseen events.

At the outset of the Crown's case, their only direct evidence was from three statements Manjinder "Manny" Hairan gave to police in 2011 and 2012, “detailing his role in the shooting, as well as that of the three applicants,” according to Betton. Hairan was shot and killed in January 2013.

In September 2015, the Crown changed its strategy, after four people who had previously denied any involvement or knowledge of the shooting, agreed to become co-operating Crown witnesses.

As part of these new witnesses' “limited immunity agreements,” police had to corroborate their statements and delve into their extensive criminal history to determine their credibility, which took time.

In addition to the delays from the new witnesses, in 2014, 13,346 emails were decrypted from a Blackberry cellphone that had been seized in 2011. After years of attempts, police finally broke into the encrypted phone, and combed through the 27,466 pages of emails, finding evidence relating to the accused.

This delay in cracking the phone's encryption caused further delay in the Crown's disclosure of evidence.

In his decision, Betton agreed the case is complex, but said the Crown's reasons fall short of justifying the “lengthy delay” under the Supreme Court framework.

“The evidence of the response is not sufficient to persuade me that all of the complexities or exceptional circumstances could not have been reasonably remedied by the Crown in a more timely way,” Betton said.

Because the Supreme Court decision is relatively recent, the court ruled there would be leniency for cases that were “already in the system,” or in “transition."

“When the 'transitional exceptional circumstance' is considered, I am satisfied that the delay is justified and thus the application of the accused must be dismissed,” Betton ruled.

The trial is scheduled to pick up again Sept. 18.