September 26, 2007
CrimProf Don Stuart Discusses Broken Agreement Between the Crown and Defendants
A decision by the federal Crown to terminate a written agreement with defendants in the Toronto-area alleged terror-plot trial will almost certainly trigger an abuse-of-process motion arguing that charges should be dismissed against some of the accused or that there be an order for the preliminary hearing to resume.
The deputy Attorney-General of Canada issued a direct indictment on Monday against the 14 terrorism suspects, which brought an end to a preliminary hearing that began in June.
A direct indictment is a broad power in the Criminal Code that permits a federal or provincial Attorney-General or deputy Attorney-General to order defendants directly to trial. The direct indictment was issued despite a written agreement negotiated this spring between the Crown and the defence, which was filed in court.
The National Post has obtained a copy of the agreement, which contains concessions by defence lawyers so that the Crown would call certain witnesses at the preliminary hearing. "The taking of evidence will commence on May 28, 2007, and continue until the preliminary hearing is completed," the document states.
While the agreement is not an enforceable contract, the actions of the Crown may bolster the defence in an abuse-of-process motion, said Don Stuart, a criminal law professor at Queen's University in Kingston. "We have a tradition in the criminal justice system that the lawyers get along and trust each other," he explained. He stressed that it is very rare for a court to find the Crown has engaged in an abuse of process and while it is unlikely a judge will dismiss charges against any defendants, a "creative remedy" would be to order the preliminary hearing to resume. Rest of Article. . . [Mark Godsey]
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