Saint John lawyers not giving up on a preliminary inquiry in manslaughter case

·2 min read
Lawyers for two young Saint John-area men say their right to a fair trial was violated by not having a preliminary hearing.  (Belenos / Shutterstock - image credit)
Lawyers for two young Saint John-area men say their right to a fair trial was violated by not having a preliminary hearing. (Belenos / Shutterstock - image credit)

Lawyers for two Saint John-area men accused of manslaughter haven't given up on finding out why their clients didn't get a preliminary hearing.

During a brief court appearance on Wednesday, Rodney Macdonald and Brian Munro said they want to read the judge's written decision before deciding their next step.

They believe their clients are entitled to a preliminary hearing before proceeding to trial, but in January, the hearing was cancelled after the Office of the Attorney General approved a direct indictment in the case.

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 provincial attorney general.

Defence lawyers had argued that such a process should only be used in exceptional circumstances, which they say are not present in their case. They applied to the court for disclosure of information that would shed light on how the decision was made, asking to see correspondence between the Crown's office in Saint John and the Attorney General's office in Fredericton.

In their application, both 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."

Garett Johnston, left, and Gordon McMillan, seen here at an earlier court appearance, are charged with manslaughter.
Garett Johnston, left, and Gordon McMillan, seen here at an earlier court appearance, are charged with manslaughter. (Roger Cosman/CBC)

Earlier this month, Justice Darrell Stephenson dismissed the application.

He was supposed to issue a written decision but told the lawyers on Wednesday that he hadn't yet done that. The case is scheduled to return to court on May 21.

Once they read the judge's decision, Munro and Macdonald said they'll decide what to do next.

Their clients — Garrett Edward Johnston, 24, and Gordon Mitchell McMillan, 22 — 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.