A tug-of-war taking place in southern Alberta over delays that are threatening two murder trials, and one conspiracy to commit murder trial, will have to be settled by the Chief Justice of Alberta's Court of Queen's Bench.
Justice Eric Macklin, who is presiding over a triple murder trial underway in Red Deer, has refused to allow an adjournment in his case, which is expected to run beyond its scheduled end date. That means the three defence lawyers involved in that case will not be able to attend their scheduled trials in Calgary the week after.
Three accused killers and three gangsters accused of plotting a murder could walk free if any of the trials face further delays.
On Friday, prosecutors and defence lawyers — some via teleconference — for the trials that are being threatened by delay gathered in a Calgary courtroom with Justice Beth Hughes to discuss how to move forward. Hughes is presiding over one of the threatened Calgary trials.
"Nothing is going to be adjourned," said Hughes after hearing from the lawyers. "I'm going to speak to the chief justice … we'll go from there."
Hughes's decision on how to proceed came after strenuous objection to adjournments from the prosecutors involved.
"What we have is a justice in another case forcing an adjournment," said Susan Pepper, who is due to prosecute Joshua Burgess for second-degree murder in the death of his wife, starting Nov. 27.
"It seems to be manifestly unfair ... for the [time limit] problems in one case to be passed along to another."
Gordon, Sandra and their daughter, Monica Klaus, died in a house fire in Castor, Alta., on Dec. 8, 2013. Jason Klaus and Joshua Frank were charged eight months later.
Their triple murder trial was supposed to begin on Oct. 9 but lost three of its seven weeks; it faced a two-week adjournment at the outset so defence lawyers could prepare to fight the admissibility of evidence gathered in an undercover operation. Also, the judge isn't available the week of Nov. 20.
The prosecutor in Red Deer has 22 witnesses left to call and defence lawyers say they need about a week-and-a-half for their own witnesses. The chances of it wrapping-up in the next week are slim to none.
Two weeks ago, Macklin said: "I'm not going to adjourn this trial so that other trials can proceed."
"We have not been provided an explanation as to why he's not available," said Burgess's lawyer, Allan Fay.
Victim's family upset, anxious
If they are delayed, all three trials will almost certainly face so-called Jordan applications, where defence lawyers argue their clients' rights to a timely trial have been violated. If judges in those cases agree, the accused would walk free.
In 2016, a Supreme Court of Canada ruling dealt with the issue of unconstitutional delay by imposing hard timelines on trials. For superior court matters, a case can take 30 months from the date of a charge to trial.
Burgess is accused of killing his wife, Shannon Madill, and hiding her body at the home the couple shared in Ramsay. He was charged 28 months ago.
That trial was originally set for February 2018, but Pepper was concerned about the Jordan timelines, so she and Fay had it rebooked for November.
Pepper said the Madill's family is upset and anxious over the threat of a delay. Many have flights booked so they can attend the trial.
"We strenuously object to any adjournment of the Burgess trial," said Pepper. "There are people who have been affected by this crime who are expecting to be here."
'I want to know why'
Pepper says her properly scheduled trial shouldn't be affected by the judge's inability to sit for a week, which hasn't been explained.
"I don't know why they're not sitting, but I want to know why," she said.
In his 30 years as a practising lawyer, Fay said he's never been involved in a situation like this. He has already said on the record he will make a Jordan application if the Burgess trial is adjourned.
On Nov. 29, Toni Roulston and Andrea Urquhart are supposed to represent Henry Nguyen on a charge of conspiracy to commit murder.
Their client and two others were charged nearly 55 months ago after police uncovered a plot to kill a rival gangster.
Nguyen was a member of the FOB gang, one of Calgary's most violent criminal organizations. A gang war between the FOB and the FK (FOB Killers) is connected to at least 25 deaths between 2002 and 2009.
Roulston and Urquhart both expressed frustration with the situation.
Hughes says she will involve newly appointed Court of Queen's Bench Chief Justice Mary Moreau to help settle the matter.
The Jordan time limit arose from a B.C. case involving Barrett Richard Jordan, who was charged with trafficking in 2008. Due to numerous delays, it took more than 49 months for his case to be heard. Through the appeal process, he was eventually given a stay of proceedings due to the delays.