An Ontario judge says it is “totally unacceptable” that Crown attorneys in Brampton allowed case files to go missing for over four months, contributing to charges being stayed against a man accused of a stabbing.

Kadeem Payne’s legal right to be tried within a reasonable amount of time was violated as actions taken by the Crown, and regular procedural delays, prolonged his case by over 19 months, Judge Paul Monahan ruled on July 27.

That was enough to put Payne’s case over the time limit guidelines established in a Supreme Court of Canada ruling last year which has already resulted in dozens of criminal charges being stayed — effectively ending prosecutions without any decision of guilt or innocence.

Payne was arrested in Peel in September 2014 and charged with assault with a weapon and assault causing bodily harm, after he allegedly stabbed someone in the leg and hand with a knife, Monahan wrote in his decision.

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But the trial for Payne was not set to begin until this coming September, about 36 months after his arrest.

Provincial court cases like Payne’s should last no more than 18 months from the date of arrest to the anticipated conclusion of the trial, not counting delays caused by the defence or unforeseen circumstances like illness, the Supreme Court ruled in 2016.

Payne’s defence prolonged his case by applying for legal aid later than they could have, Monohan ruled. And a trial date scheduled for July 2016 had to be postponed when Payne’s then-lawyer fell ill, contributing to the 36 month-wait.

But even without those defence-related delays, Monahan ruled, Payne would have waited over 19 months between his arrest and the end of his trial.

Payne, who was out on bail while awaiting trial, would have pleaded not-guilty to the charges, Haig DeRusha, the senior lawyer on Payne’s defence team, said.

The Crown office at the Peel court in Brampton referred the Star’s questions about Payne’s case to the Ministry of the Attorney General. Ministry spokesperson Emilie Smith said it would be “inappropriate to comment on the specific facts of this case,” because an appeal of the judge’s decision could be launched.

On four separate occasions between August 2015 and January 2016, defence lawyers and Crown prosecutors went to court with the intention of setting a date for trial. But each time, no progress could be made because the Crown said its brief on the case was missing, Monahan said.

“The defence was ready to proceed and said on the record that they wanted to set a trial date but each time they were told they could not do so because the Crown could not find its own file,” Monahan wrote in his decision.

The judge acknowledged that files sometimes go missing, particularly when officials are grappling with large workloads.

“These things happen... when the Crown, the defence and the Court carry a heavy load, as they do in Brampton, a busy Court jurisdiction,” Monahan wrote. “Having said that, losing a Crown file for more than four months and having four court attendances during the same period of time which in turn prevents the setting of a trial date is totally unacceptable.”

Further delays were caused when the Crown failed to disclose all of its evidence to the defence, preventing a trial date from being set between February and July 2015, Monahan ruled.

The defence team is pleased that they were able to have Payne’s charges cleared without the time or cost of a trial, said DeRusha.

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“It is difficult to be perfect all the time, but one must try,” DeRusha said of the Crown’s missing files.

“The negative consequence to Kadeem has been remedied. He was facing criminal charges for a long time. He was on (bail) conditions that imposed penalties that make him a criminal when he does certain things that the rest of us do.”

As a condition of his bail, Payne had to be at home between 9 p.m. and 6 a.m. every day — restrictions that cost him his job when his boss put him on the night shift, Payne is quoted as saying in an affidavit.

This is at least the third time in under a year that delays by the Crown’s office in Brampton has resulted in charges being stayed — essentially ending a prosecution.

In the two previous cases which were both related to drug crimes, which concluded in December and February respectively, the Crown took too long to provide disclosure to the defence, judges ruled.

The right to be tried “in a reasonable time” is laid out in the Canadian Charter of Rights and Freedoms.

The Supreme Court’s 2016 ruling in the case of R. v Jordan articulated what that right means in practical terms, Michael Rosenberg, a Toronto lawyer not affiliated with the Payne case said.

“The core argument (is) that if you are put to trial some lengthy period after the relevant events we recognize there is a material likelihood that recollection will blur, important evidence won’t be available and at the very least justice won’t be seen to be done,” Rosenberg said.

Prior to 2016, judges could stay charges if a trial was not completed fast enough, but the decisions required a more “complex and contextual analysis,” Rosenberg added.

“Often there was delay that was not met with any sanction and brought into jeopardy the fairness of the proceedings.”

Under the old system, defendants had to establish that the delay in their case had created “prejudice” against them for their trial. Since 2016’s Jordan ruling, a judge needs only to determine whether the delay was “reasonable.”

While the Crown in the Payne case argued that many of the delays had occurred prior to the Supreme Court’s updated ruling, Monohan said in his decision that Payne’s charges would have been stayed even if they were measured using the old criteria.

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