Kelowna Capital News

Drug case will go to trial after failed attempt to have charges tossed

Cheryl Wierda Contributor

One of the men accused of smuggling 97 kilograms of cocaine in a fruit grinder in 2010 has had his bid to have the case tossed out rejected.

Salvador Ascencio-Chavez applied last week to have his drug charges stayed, arguing that his right to a trial in a reasonable amount of time had been violated.

By the time his trial is scheduled to conclude this spring, Ascencio-Chavez will have been in custody approximately 33 months.

However, Justice Alison Beames notes that the case is very complex and said Thursday that a “significant” amount of the delay in getting to trial can be attributed to his two co-accused and their lawyers. That is considered a “neutral” factor in a stay application, she said.

Beames noted the case was first scheduled to be heard by a provincial court judge, but the co-accused, a month before a voir dire was scheduled, decided instead to have the case heard by a Supreme Court judge and have a preliminary hearing. (A preliminary hearing is used to determine if there is enough information to proceed to trial).

The case was sent to Supreme Court a year ago to schedule a trial and although Ascencio-Chavez was ready to go in the early part of 2012, the other lawyers were not available until early this year, Beames noted.

The court institution, meanwhile, was available to accommodate a trial within guidelines set out by the courts, and the intake period for the case happened in a “timely” fashion, ruled Beames.

Ascencio-Chavez’ lawyer had argued some of the delay lay at the feet of the Crown, which rejected a bid to have Ascencio-Chavez’ case heard separately back in 2011. However, Beames felt that could have, instead, resulted in Ascencio-Chavez having to wait until after his co-accused went to trial before his case could be heard.

She found that the Crown did not contribute to the delay in getting the case to trial and ruled a stay of proceedings was not warranted in the case.

The case returns to court in February for a pre-trial conference scheduled in advance of the April trial.

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