Pubdate: Wed, 09 Jun 2010
Source: Ottawa Citizen (CN ON)
Copyright: 2010 The Ottawa Citizen
Contact: http://www.canada.com/ottawacitizen/letters.html
Website: http://www.canada.com/ottawacitizen/
Details: http://www.mapinc.org/media/326
Author: Andrew Seymour, The Ottawa Citizen

FIVE YEARS TOO LONG TO GET TO TRIAL, JUDGE RULES IN DRUG
CASE

Trio's Charter Rights Violated By Delay, Superior Court Justice
Concludes

An Ottawa judge has thrown out five-year-old drug trafficking and
criminal organization charges against three men after ruling that
Crown prosecutors violated their Charter rights to a trial in a
reasonable amount of time.

"The (Charter) right of applicants to be tried within a reasonable
amount of time has been denied. They have been prejudiced by this
denial. It is in the interest of society as a whole that these charges
be stayed," said Ontario Superior Court Justice Denis Power on Tuesday
before tossing out the charges against Rafei Ebrekdjian, Joseph Chamai
and Nicholas Rabay.

The three men had been jointly accused of conspiring to traffic
cocaine and conspiring to traffic cocaine for a criminal organization
in Ottawa, Toronto and Montreal.

Ebrekdjian had also been facing several firearms-related charges,
while Chamai and Rabay were also accused of similar drug charges
related to the trafficking of cannabis resin. Chamai was also charged
with possession of marijuana for the purpose of trafficking.

A fourth accused, Shant Esrabian, did not take part in the Charter
challenge and will stand trial on his charges in September.

All four were arrested as the part of an investigation into the August
2004 disappearance and murder of 27-year-old Ottawa cocaine dealer
Hussein El-Hajj Hassan. Esrabian was later convicted of first-degree
murder in El-Hajj Hassan's death and is serving a life sentence for
that crime.

In his decision to stay the charges, Power found that the Crown had
failed to justify the unreasonable delay in prosecuting the men.

Power blamed the Crown for a delay of 191/2 months, and said there was
a further nine months of "institutional" delays.

The delay caused by the defence was not significant, Power
ruled.

The lawyer for Rabay, Arthur Cogan, hailed the decision as upholding
an accused's "very sacred right" to a trial within a reasonable amount
of time.

"Where there has been undue or unreasonable delay, the message is the
Crown

has to account for the delay rather than saying it is unexplained. The
courts are not accepting that any longer. The upshot is they are going
to lose their cases. That is the message this judge has delivered loud
and clear," Cogan, who likened the right to a trial in a reasonable
amount of time to other fundamental legal rights, such as the right to
have a lawyer and the presumption of innocence, said out of court.

Federal prosecutor Pam Larmondin said the Crown, which argued that the
defence was responsible for some of the delay, accepted the decision.

"He made a decision, it was a tough call," Larmondin said. "The judge
looked at it and he just thought it was too long." 
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