A Crown attorney who blamed a software update for missing a court appearance caused a delay in a case that ultimately led to a man’s drug and gun charges being tossed.

Brampton provincial court judge Paul O’Marra recently stayed firearm and drug possession-related offences against David Ansah due to delay in his case, finding that just over 20 months would have elapsed between his 2018 arrest and his trial set for May 15 of this year.

The Supreme Court ruled in 2016 that cases in provincial court that go over 18 months must be tossed for violating an accused person’s right to a trial within a reasonable time unless the Crown can prove there were exceptional circumstances for the delay.

In the Ansah case, a Crown attorney failed to appear for a judicial pretrial last June, causing it to be rescheduled for September and adding 93 days of delay to the case.

Crown attorney Jelena Vlacic (not the same prosecutor who missed the pretrial) argued before O’Marra that this was a “discrete event” that should be subtracted from the overall delay in the case. Specifically, she argued that there had been “technological issues stemming from a recent software update with the Ministry of the Attorney General — Criminal Law Division,” which impacted the Crown attorney’s ability to access his schedule and be reminded of the date and time of the pretrial, according to O’Marra’s ruling.

But the judge disagreed, finding that the Crown attorney “simply forgot” to attend the June pretrial.

“I am more than satisfied that the assigned Crown attorney was aware of the date of the (judicial pretrial) and simply lost track of the time of the (judicial pretrial) and forgot about it that morning. In my view, the assigned Crown attorney did not lose ‘track’ of the case in the system due to a scheduling issue, as erroneously submitted by Ms. Vlacic,” the judge wrote in a ruling, released on Christmas Eve.

“I find that the assigned Crown attorney simply forgot to attend the (judicial pretrial) that morning. The assigned Crown attorney’s forgetfulness, in my view, does not constitute a discrete event that laid beyond the Crown’s control in this case.”

O’Marra said he came to this conclusion after looking at emails between the defence and the Brampton Crown attorney’s office shortly before and after the June 12 pretrial, as well as by “applying common sense and experience.”

He noted an email was sent to the defence on June 11 indicating a Crown attorney would be attending the following day. On June 14, the Crown attorney who missed the appearance emailed the defence to apologize and said, “I was immersed (sic) the procedures around the refreshing of our computers to incorporate Office 365 and lost track of the time.”

The Ministry of the Attorney General, as well as Ansah’s lawyer, Heather Spence, declined to comment when reached by the Star.

There were also other “unacceptable” periods of delay in what was not a complex case, the judge wrote. It took the Crown approximately seven-and-a-half months to disclose to the defence a copy of an Information to Obtain, a document submitted by police to obtain a search warrant, and it took nine-and-a-half months to disclose a police officer’s notes. But it was the delay caused by rescheduling the pretrial that sent the case over the 18-month limit.

“The delay was compounded after the case was re-assigned to a second Crown attorney who was essentially unavailable and too preoccupied to case manage or conduct a (judicial pretrial) as a result of other obligations,” O’Marra wrote. “Therefore, I am satisfied that there were no exceptional circumstances that justified this delay.”

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