A lawyer for a man held in custody for more than a year since his arrest for a violent home invasion and armed robbery said he may file a Jordan Application to have the case dismissed.
Trials for Drayden Clinton, 25, were scheduled in North Battleford Provincial Court for June, September and December 2020. They were all adjourned, and the defence may file a Jordan Application to have the case thrown out, Alberta lawyer Tom Stepper told the court on Feb. 10.
“Our intention now is to have justice prevail,” said Stepper. “My client can sit in custody and wait for the Jordan Principle to prevail. We are trying to push this forward.”
The first trial was scheduled in June 2020 and was adjourned at the request of the Crown because of the Covid-19 pandemic.
The second trial was scheduled for September 2020 and North Battleford Prosecutor Suzanne Reid told the court that the Crown was prepared to proceed but the trial was adjourned after Clinton - from the correctional facility - sent a letter to the court with new evidence.
“The adjournment was granted on that basis so the Crown views it was caused by Mr. Clinton’s actions.”
The third trial was set for December but was adjourned due to COVID-19.
“The delays are a result of COVID and Mr. Clinton,” said Prosecutor Reid.
She said delays due to COVID-19 are considered exceptional circumstances under the Jordan Principle.
Stepper, however, said he would be prepared to challenge that.
“COVID may be exceptional circumstances under the Jordan Principle but I would be prepared to challenge that.”
Judge Daniel O’Hanlon said he finds the situation “very troubling.”
He said the court must consider a number of factors, including social distancing and how many are inside the courtroom such as witnesses, counsel, sheriff, clerk and judge.
“It’s a difficult situation,” said Judge O’Hanlon. “I recognize that your client is sitting in custody for over a year and that’s a concern.”
Judge O’Hanlon said the court is in the process of starting to get trial files together to set as soon as the pandemic allows preliminary hearings and trials.
“I will make this my priority for a trial. As soon as we can this will be the first matter,” he said, adding, “On today’s date I’m not prepared to set a trial but I am prepared to set it very early in mid-March. We are not running any prelims or trials until March 26.
“You may well make a (Jordan) application for the delays on this matter and that’s something you have to consider as counsel,” added Judge O’Hanlon.
The COVID-19 pandemic has created delays and a backlog in Saskatchewan’s court system.
In 2016 the Supreme Court of Canada ruled cases must be heard within a certain time frame. Jordan’s Decision stipulates that once charges are laid, provincial cases must be heard within 18 months and superior court cases within 30 months.
In July 2020, Federal Justice Minister David Lametti said the government may be prepared to introduce legislation to keep charges from being dismissed due to court delays caused by pandemic-related disruptions.
In Lametti’s interview with CBC he pointed to the exceptional circumstances clause in the Jordan decision, which says that delays caused by exceptional circumstances which could not have been reasonably been reduced by the Crown or the Justice System, would not count towards the Jordan timeline.
He then went on to say that they continue to monitor the situation on the ground, and would be prepared to consider further measures, including legislative measures, only if they were to arrive at a situation where that became necessary.
"We're prepared to take measures to make sure that the court system doesn't get overwhelmed," he told CBC. "If we get to a situation where we need to legislate, we'll consider it."
Clinton was arrested Jan. 31, 2020, after Unity RCMP executed a search warrant on a home in Macklin. They also arrested Tenielle Heitt, 31, of Unity.
According to Unity and Macklin RCMP, they responded to a violent home invasion in Unity where brass knuckles, a baseball bat and machete were used. Police also responded to reports of residential break-ins in Macklin. RCMP obtained a search warrant and raided Clinton’s home. They say they discovered evidence that supported their investigation.
Heitt was charged with unlawful confinement, break and enter, possession of property obtained by crime, and possession of a weapon for a dangerous purpose.
Heitt’s next court appearance is March 18.
Clinton was charged with break, enter and theft, possession of property obtained by crime, unlawful confinement, uttering threats, carrying a weapon for a dangerous purpose, assault with a weapon, use of a prohibited firearm while committing robbery, wearing a mask in the commission of an offence, possession of ammunition while prohibited, possession of brass knuckles, possession of a controlled substance, and commit bank fraud over $5,000.
Clinton appears next in North Battleford Provincial Court March 18 to set a trial date.
The charges against Heitt and Clinton haven’t been proven in court.
Updated Feb. 16, 4:18 p.m.