NORTH BATTLEFORD – A judge who ruled a man’s right to a speedy trial wasn’t violated said he might have ruled differently if he knew a witness wasn’t going to be called.
Judge Daniel O’Hanlon had previously ruled against Calgary lawyer Tom Stepper’s Jordan application claiming 26-year-old Drayden Clinton’s rights were violated due to unreasonable delays.
“The way this trial has unfolded during the pandemic, the number of charges against Mr. Clinton, and the time that it has taken to have these matters fully adjudicated is quite frankly bordering on reprehensible,” said Judge Daniel O’Hanlon.
Clinton’s trial was scheduled and delayed three times. Two delays were the result of the COVID-19 pandemic and one was due to an alleged letter given to the court claiming to have new evidence.
“Mr. Clinton has been in custody since Jan. 31 of 2020,” said Judge O’Hanlon.
In 2016 the Supreme Court ruled that court cases must be heard within 18 months in provincial court and 30 months in superior court. If they aren’t, the case could be thrown out of court.
On Sept. 29 the Crown prosecutor and defence gave their closing arguments in North Battleford Provincial Court.
On Aug. 30 Judge O’Hanlon had ruled that Clinton’s right to a speedy trial wasn’t violated.
The Crown rested its case against Clinton on Sept. 1 without calling witnesses they had originally planned to call. The Crown was going to call Daphne Casey and Dwight St. Germain but didn’t. Casey wasn’t called because she was in Quebec, the court heard. But Stepper said he had information that Casey wasn’t in Quebec and could have attended court.
Since she wasn’t available to testify the matter had to be adjourned.
“The Crown then decided not to call Ms. Casey as a witness, which came only after the delay argument (Jordan application) was made and I rendered my decision,” said Judge O’Hanlon, adding that defence needed the ability to cross examine her on the stand on whether she was in Quebec or in Alberta.
“That witness isn’t being called by the Crown now, which is a detriment to the defence and is also a detriment to my decision, or adversely affects my ability to have made that decision. I may well have ruled otherwise,” said Judge O’Hanlon. “I can’t say at this point but I had no knowledge of the fact that she wouldn’t be called as a witness.”
Defence had intended to only call one witness, Kyle St. Germain, but he was unable to physically attend court after he rolled his work gravel truck and suffered significant injuries, the court heard.
The Crown didn’t call St. Germain when they had the opportunity before his accident and when he had showed up in court to testify.
Since St. Germain couldn’t now physically attend court, defence asked the court to allow St. Germain's testimony from Clinton’s co-accused Tyler Weinkauf’s trial last year, and an affidavit into evidence. The Crown opposed both defence requests.
“The Crown closed its case and the defence is in a position to call the one witness that the Crown was going to call but decided not to, and the Crown, if the evidence is allowed to go in, says they wish to cross examine (St. Germain), which would require a further adjournment and a further delay, which is of concern,” said Judge O’Hanlon.
“Mr. St. Germain testified at Tyler Weinkauf’s trial, Weinkauf was a co-accused on this matter and the charges were stayed,” said Judge O’Hanlon.
“He (St. Germain) was there at the time of the charge that Mr. Clinton faces on the assault. The Crown can choose not to call that evidence but then to make the argument that since he isn’t here the Crown doesn’t get to cross examine him, I find that somewhat troubling. That witness should have been here by the Crown. He was there at the time of the offence. He testified at the co-accused’s trial. His evidence didn’t support the Crown but there was no Section 9 application under the Canada Evidence Act made to show him to be an adverse witness.”
Judge O’Hanlon pointed to the 2000 Supreme Court of Canada ruling in R. v. Jolivet referencing the Crown's failure to call witnesses.
“The Supreme Court said it is clear that it will rarely be appropriate for the trial judge to comment on the failure of the Crown to call a particular witness, and even more rare to do so with respect to the defence.
“It may be rare but I am going to comment and I’m going to make comments with regard to several of the witnesses that were going to be called by the Crown and have not been called,” said Judge O’Hanlon.
“I recognize full well that it’s up to the Crown to make a decision on which witnesses they call, however, when I get information before me in the fashion that it’s come in this trial I do feel it necessary to comment.”
The Crown waived its right to cross-examine St. Germain. Judge O’Hanlon allowed St. Germain’s testimony from Tyler Weinkauf's trial last year into evidence at Clinton’s trial. He also allowed St. Germain’s August 2021 affidavit into the court as evidence.
Clinton faces multiple charges after an alleged home invasion in Macklin where Rick Heitt was allegedly beaten with brass knuckles, a baseball bat and threatened with a machete.
Clinton is charged with unlawful confinement, assault with a weapon, uttering threats, carrying a weapon for a dangerous purpose, wearing a mask in the commission of an offence, uttering death threats, possessing ammunition while prohibited, possessing brass knuckles while prohibited, and possessing Mace while prohibited.
He is also charged with possession of property obtained by crime, break and enter and commit robbery, commit bank card fraud over $5,000 and two counts of possession of a controlled substance.
Tenielle Heitt, 31, of Unity, was also arrested. She is Rick Heitt’s wife and was living with Clinton at the time of the alleged assault against Rick Heitt. She is charged with unlawful confinement, break and enter, possession of property obtained by crime, uttering threats, and possession of a weapon for a dangerous purpose.
Her trial is scheduled for Oct. 25 in North Battleford Provincial Court.
Judge O’Hanlon reserved his verdict on Clinton until Oct. 15.
