Calgary terrorism case should go to trial, says Crown after defence alleges Charter breach due to delay

April 11, 2024 Canuck

A Calgary man accused of committing acts of terrorism overseas more than a decade ago should go on trial, say prosecutors, despite an application by his defence lawyer to have all charges stayed because of delays in the case.

Jamal Borhot, 34, faces three terrorism charges stemming from alleged activity in Syria in 2013 and 2014.

Defence lawyer Pawel Milczarek filed an application asking the judge to stay Borhot’s charges, alleging his client’s Charter rights have been violated because the case has taken too long to get from charges being laid to the expected conclusion of the trial.

But the Crown now says Borhot’s rights have “not been infringed” and the defence application for a stay “must be dismissed.”

Borhot is accused of travelling to Syria with his cousin Hussein Borhot to fight for ISIS.

The investigation began in 2013 with an RCMP wiretap and undercover investigation which spanned more than seven years and ended with charges being laid in 2020.

Hussein Borhot pleaded guilty to terrorism offences in 2022 and was handed a 12-year sentence.

Over the past four years, Jamal Borhot’s case saw delays for disclosure, two changes of counsel and federal court proceedings.

Much of delay falls ‘squarely’ to defence

Federal court proceedings — dealing with issues of what potentially sensitive disclosure could be provided to Borhot and his lawyer — had to be concluded before the trial could begin, but Milczarek argued in his application that “criminal prosecutions in cases involving national security issues are well-known, predictable and avoidable with due diligence.”

The Supreme Court of Canada says cases in superior court must be concluded within 30 months of charges being laid.

In his Jordan application, Milczarek outlined a 44-month delay from when Borhot was charged to the expected trial conclusion.

A Jordan application seeks to stay charges for failing to meet time limits set by the Supreme Court of Canada in the 2016 R. vs. Jordan case.

But in their response to the application, prosecutors Domenic Puglia and Kyra Kondro calculated the amount of delay attributable to the defence and to exceptional circumstances.

‘A complex case’

The Crown says with those calculations in mind, the case is at 17 months — “far below” the Jordan ceiling.

“Much of the delay in this case falls squarely at the feet of the defence,” reads the Crown’s reply.

“This time period is significantly under the 30-month Jordan ceiling and indicates the efforts the Crown undertook to advance this case. Defence cannot demonstrate that it took meaningful, sustained steps to expedite the proceedings.”

The Crown has also argued the case is complex which, under Jordan rules, can allow for some leeway in calculating delay.

In fact, Yoav Niv, one of Borhot’s past lawyers, told the judge “there couldn’t be any more of a complex case.”

The Jordan application is set to be argued Monday.

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