By Shurtz, Delon on December 7, 2019.
A Calgary lawyer whose application to adjourn a sexual assault trial was rejected Friday may succeed if another judge grants him a different application next week.
Patrick Fagan asked Justice D.K. Miller to adjourn the one-week trial, which is set to begin Monday in Lethbridge Court of Queen’s Bench, so he could prepare for a last-minute decision by the Crown to call similar fact evidence. Similar fact evidence establishes the conditions under which factual evidence of similar misconduct of an accused can be admitted at trial for the purpose of inferring that the accused committed the misconduct at issue.
Fagan told court he only received notice of the Crown’s intention Nov. 22, and because the new direction changes the Crown’s case “in a substantial way,” he needs time to plan his defence accordingly.
Crown prosecutor Lisa Weich said, however, the evidence involving the four complainants doesn’t change and isn’t anything defence doesn’t already know. She said she’s not introducing anything new, just a different way of looking at it.
“He’s heard it all before,” she said.
Weich opposed the adjournment and said the complainants have waited long enough for the matter to go to trial.
The 29-year-old accused, who was a respite-care worker for people with developmental disabilities, was originally charged with six counts of sexual assault, six counts of sexual interference, two counts of sexual exploitation and one count of invitation to sexual touching. However, he was ordered following a preliminary hearing in May 2018 to stand trial on four counts of sexual assault, three counts of sexual interference, one count of sexual exploitation and one count of invitation to sexual touching.
The accused was charged early in 2017 in relation to one young person, and he had pleaded not guilty to that charge and elected to be tried by judge alone. He was later charged in relation to three additional young people, and in November 2018 he re-elected to be tried by a Queen’s Bench judge with a preliminary hearing.
And he may re-elect again.
After Miller rejected the defence request for an adjournment Friday, Fagan asked to re-elect and have a trial by judge and jury. That would require, however, the lengthy process of summoning potential jurors, resulting in an adjournment of Monday’s trial.
Miller told Fagan his request for re-election should made to the trial judge, and it was adjourned to 9 a.m. Monday, one hour before the scheduled trial.
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