Defence won't find out how Crown moved manslaughter case straight to trial, judge rules

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Garett Johnston, left, and Gordon McMillan, were charged with manslaughter in the death of 59-year-old Mark Baker in 2019. (Roger Cosman/CBC - image credit)
Garett Johnston, left, and Gordon McMillan, were charged with manslaughter in the death of 59-year-old Mark Baker in 2019. (Roger Cosman/CBC - image credit)

The defence has lost its bid to find out how the Crown was able to skip the preliminary hearing in a manslaughter case in Saint John.

Justice Darrell Stephenson dismissed the application for disclosure of the documents behind the direct indictment.

The rarely used legal process essentially sends an accused directly to trial without having a preliminary inquiry. Under the Criminal Code of Canada, such a move requires exceptional circumstances and the approval of the attorney general.

Defence lawyers Brian Munro and Rodney Macdonald had asked the court to see correspondence between the Crown's office in Saint John and the Attorney General's office in Fredericton.

Garrett Edward Johnston, and Gordon Mitchell McMillan — who were both living in Rothesay at the time of the incident — are charged with manslaughter in the death of 59-year-old Mark Baker.

Police found Baker injured and unconscious at the intersection of Waterloo and Union streets in Saint John at about 2:30 a.m. on Oct. 26, 2019.

Mark Baker's obituary described him as a man with a true sense of adventure who loved travelling and mountain biking.
Mark Baker's obituary described him as a man with a true sense of adventure who loved travelling and mountain biking.(Submitted by Brenan's Funeral Homes)

He was taken to hospital in serious condition and died the following day.

Baker, a longtime railway worker, was married with two adult children.

His obituary described him as a man with a true sense of adventure who loved travelling and mountain biking,

Johnston and McMillan were charged with manslaughter on Oct. 29, 2019 and have been free on conditions since a bail hearing on Oct. 31, 2019.

Last September, a date for a preliminary hearing was set for January, but in January, the Crown filed the direct indictment signed by the deputy attorney general, Michael Comeau, on Jan. 7.

That meant the case would proceed directly to trial. A jury trial is currently scheduled to begin on Nov. 15. One month has been set aside.

In the defence application, both lawyers argued that the Attorney General's office "rubber stamped the request, without regard to any exceptional circumstances to justify the significant and consequential decision to deprive the applicants of the evidence-based preliminary inquiry."

The parties will be back in court on April 28 to sort out more legal issues ahead of the trial.