A concrete building is seen on a grey day. The sign says "The Law Courts, Nova Scotia Court of Appeal, Supreme Court of Nova Scotia." There are three flags — two Nova Scotian and one Canadian, in the centre.
The Law Courts in Halifax in February 2020. Photo: Zane Woodford

The Crown is refusing Randy Riley’s request for a trial by judge alone, pushing ahead with a jury trial in September 2023 — well after the time limit prescribed by the court system.

In 2018, Riley was convicted of second-degree murder in the 2010 killing of Chad Smith. In 2020, the Supreme Court of Canada unanimously overturned that conviction, ordering a new trial, as El Jones reported for the Halifax Examiner then:

The appeal focused on the warning given to the jury about the witnesses in the case. Known as a Vetrovec warning, it concerns the special considerations required when considering evidence from an “unsavoury” witness. Nathan Johnson, Riley’s co-accused who was convicted of first degree murder in the same case, offered evidence that exculpated Riley when Johnson confessed to killing Smith on his own.

The Supreme Court agreed with the argument put forward by Riley’s appeal lawyers Lee Seshagiri and Roger Burrill that the trial judge erred in applying the warning to Johnson. They argued:

Vetrovec cautions were never intended to prejudice the defence, and serve no purpose when applied to exculpatory evidence. The fact that a witness is called by the Crown, or is described as a “mixed witness”, does not change these fundamental principles. A Vetrovec caution should not have been given against the exculpatory witness in this case.

It wasn’t just Riley’s co-accused who recanted. After Riley was sentenced, another one of the Crown’s witnesses, Paul Smith, called Riley’s lawyer in 2019 and gave a statement to a private investigator saying he lied in court, as Tim Bousquet reported for the Examiner. Smith, who also received payment from police, later went missing.

But the Crown is pushing on. Riley was released on bail last April, and after two previous sets of trial dates were adjourned, he was in court on Friday to set dates for a new trial.

After he was convicted by an all-white jury, Riley wanted to have his case heard by a judge alone for his second trial. On Friday, the Crown refused that request.

A judge-alone trial could’ve been scheduled for January to February 2023, but due to scheduling issues for the lawyers, the next available time for a jury trial in Halifax is September 2023.

Under the Canadian Charter of Rights and Freedoms, anyone accused of a crime has the right “to be tried within a reasonable time.” With a 2016 case, R. v Jordan, the Supreme Court of Canada created a new rubric for deciding what constitutes a reasonable time. For a trial like Riley’s in Nova Scotia Supreme Court, the timeline is 30 months.

The Supreme Court of Canada ordered a new trial on November 3, 2019, so a new trial has to conclude by May 3, 2023.

“There’s an option to schedule a trial for Mr. Riley before that time if we proceeded judge-alone,” Riley’s lawyer, Trevor McGuigan, said in court on Friday.

“The Crown, knowing that, is accepting dates that are beyond the Jordan time. Knowing Mr. Riley’s rights are presumptively violated, judge-alone would save that, the Crown is choosing not to consent in those circumstances.”

Crown attorney Peter Craig confirmed that the Crown is not consenting to a judge-alone trial, but said, “I certainly don’t accept the proposition that Mr. Riley’s rights have been violated.”

McGuigan is applying to have the charges stayed based on the Jordan time limit. That hearing could happen later this year.

In the meantime, Riley’s trial is set for September 5 to October 27, 2023 in Nova Scotia Supreme Court in Halifax.

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Zane Woodford is the Halifax Examiner’s municipal reporter. He covers Halifax City Hall and contributes to our ongoing PRICED OUT housing series. Twitter @zwoodford

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