Judge says underfunded justice system 'failed' accused gang leader Nick Chan, who walked free this week

In staying all charges against accused murderer and gang leader Nick Chan, a Calgary judge has placed blame on an underfunded justice system, backlogged courts and "inadequate planning" by prosecutors.

"The criminal justice system failed Mr. Chan, and thereby failed society also in not seeing him prosecuted," wrote Justice Paul Jeffrey in his newly released decision.

Chan was supposed to go on trial on Monday on charges of first-degree murder, conspiracy to commit murder and instructing a criminal organization. But the charges were stayed on Tuesday after the judge issued a so-called Jordan ruling, finding Chan's right to a timely trial was violated.

"The institutions must shoulder far more of the blame, that is, this court and those who fund it," wrote Jeffrey.

In his decision, Jeffrey also outlines a complicated 58-month timeline that details who was responsible for each month of delay.

- Inherent delay (time to retain counsel, review disclosure, trial prep): 13 months.

- Institutional delay (time between when parties ready for trial but court can't accommodate): 20 months.

- Crown delay: 6 months.

- Defence delay: 11 months.

- Neutral delay (caused by co-accused): 8 months.

Initially, Jeffrey had indicated his reasons for the decision would be protected by a publication ban but on Thursday morning, the Court of Queen's Bench clarified that only the identities of some witnesses were protected.

Chan was arrested in July 2013 with his trial set to wrap up May 18, 2018. Because of the stay, the timeline was cut down from 58 to 57 months.

The judge wrote that the Crown "had a duty to be more proactive" and should have planned "to ensure these very serious charges would be prosecuted in a timely or manner."

Jeffrey said prosecutors were responsible for a delay in getting disclosure to defence that didn't affect the trial but did "reveal inadequate planning of the Crown not proceeding as diligently as it ought, especially considering that Mr. Chan was charged in 2013 for events in 2008."

Gang war

From 2002 to 2009, Chan is believed to have been the leader of the FOB gang that, in a street war with its rivals the FK gang, was responsible for 25 killings.

Police and prosecutors have never suggested Chan carried out the killings, but as the alleged gang leader, he was accused of directing others to carry out his orders and paying up to $10,000 for every dead FK member.

Chan has been tried three times since his arrest:

In 2016, a jury acquitted him of murder in connection with the Bolsa Restaurant triple homicide.

In 2017, he was found not guilty of weapons offences.

And Tuesday, Jeffrey found Chan's Charter rights were violated when it took 57 months to get him to trial.

'Notorious systemic' delays in Alberta courts

Chan was to go before a jury this week in the killing of Kevin Anaya.

Anaya, who was linked to the rival FK gang, was shot and killed in 2008 while walking to a friend's house for a barbecue in Calgary's Marlborough neighbourhood.

In March, counsel for both sides argued over the delay, with Chan's lawyer making a Jordan application based on a 2016 Supreme Court of Canada decision that put a 30-month hard timeline on matters getting to trial after an arrest.

Prosecutors Steven Johnston and Ryan Persad agreed with the timeline but argued there should be more leeway in Chan's case because of its complexity based on voluminous disclosure, the number of witnesses, an "extraordinary number" of pre-trial applications and complicated legal issues

But Jeffrey noted the Bolsa triple murder trial — for which Chan was acquitted — was completed within 33 months and involved many of the same issues stemming from the same operation.

The judge said that timeline supported his conclusion that the Anaya trial did not proceed within a reasonable time.

The Crown also argued the case should fall under transitional exception, which considers which delays occurred before the Jordan decision was issued.

"It is not for me to speculate on the cause or causes behind these delays, be they inadequate resourcing by either level of government or by insufficient resource allocation by court decision-makers," wrote Jeffrey.

"[Chan's] Charter right to be tried within a reasonable time cannot be sacrificed to any persisting disregard of the notorious systemic curial delays in Alberta or the persistent inability to remedy them."

The Crown has appealed Jeffrey's decision, asking for a new trial.