A man convicted of sexually assaulting and murdering a 13-year-old Burnaby girl in July 2017 has applied to have the conviction thrown out because of court delays, but the application is taking longer than expected.
A B.C. Supreme Court jury found Ibrahim Ali, 33, guilty of first degree murder on Dec. 8 for the death of the girl, whose body was found in Burnaby's Central Park on July 18, 2017.
Defence lawyer Timothy Russell appeared on behalf of Ali Monday, Jan. 11, to say the defence was "making good progress" preparing to order transcripts of all the proceedings to determine who was responsible for the delays in the case.
Ali's case has gone far beyond the Supreme Court of Canada's 30-month ceiling for cases to be tried in superior courts, from charges being laid to the end of the trial.
(He was charged in September 2018, and his trial didn't end until last month.)
Canada's Charter of Rights and Freedoms guarantees the right to a trial within a reasonable time.
If a delay is judged unreasonable, the court must stay the charges.
The first step in determining whether a delay has been unreasonable is to subtract "defence delays."
Russell said the defence would be "in a good position" by the first week of February to say when the transcripts showing who caused he delays might be ready.
But Justice Lance Bernard expressed surprise they hadn't already been ordered.
"I'm concerned it's taking so long to get there," Bernard said.
He also suggested ordering transcripts of everything that happened in the case wasn't a "typical approach" to a delay application.
"Unless it's ambiguous in some way, a very limited portion of the proceedings might need to be ordered," he said.
Russell said it was the Crown that had told defence lawyer Kevin McCullough that "all of the transcripts were necessary."
"I agree with you," Russell told the judge. "You don’t need weeks of evidence that have nothing to do with the delay application."
Crown prosecutor Daniel Porte acknowledged he had told McCullough in an email in early December that defence was responsible for ordering all of the transcripts, which would include pretrial conferences, case management conferences and pretrial applications.
Porte agreed Monday that not all the transcripts are needed.
"I guess I was not as clear as I ought to have been," Porte said Monday.
He said the Crown was doing its own work deciding which proceedings it might need to order transcripts for.
"What I'm hearing is that there isn't much communication between counsel on this matter, and I think that needs to improve," Bernard said.
Bernard said he was "in limbo" as to when the delay application might proceed.
"All I'm hearing about is ordering of transcripts of significant volume, which of course has the potential to delay the start of this matter significantly, and I assume the potential to make it a very lengthy application," he said. "Both of those are troubling to me."
A date was set for next week for an update on the transcripts.
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