Two men charged in the death of a 59-year-old Saint John man in 2019 will be back in court next week so their lawyers can argue a constitutional challenge of a section of the Criminal Code.
Lawyers for Garrett Edward Johnston, 24, and Gordon Mitchell McMillan, 22, say Section 577 — which allows an accused to be sent directly to trial without having a preliminary inquiry — is incompatible with a section that allows for such a hearing.
Rodney Macdonald and Brian Munro have been fighting the direct indictment against their clients for months and were denied access to correspondence between the Crown's office in Saint John and the attorney general's office in Fredericton.
In a previous application to the court, the lawyers argued that the Office of the Attorney General "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."
Justice Darrell Stephenson dismissed that application in April.
Johnston and McMillan 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.
He was taken to hospital in serious condition and died the following day.
A jury trial is currently scheduled to begin on Nov. 15. One month has been set aside.