A Supreme Court Judge has ordered a new trial in an impaired driving matter, reversing the decision of a Surrey provincial court judge who tossed the case out in 2012 because of court delays.

Graham Edward Kelly, accused of impaired driving, was set to go to trial for one day on Jan. 16, 2012, for a crime alleged to have happened in Delta on Feb. 5, 2010. On the day his trial was to begin, Kelly applied for a judicial stay of proceedings, arguing that his Charter right to be tried within a reasonable time had been infringed.

The provincial court judge granted the stay, and the Crown appealed.

Kelly was released on a promise to appear at Surrey provincial court on April 7, 2010, but a charge hadn't been approved by that date because some supporting documents from police were missing. The charge wasn't sworn until July 5, and his first court appearance was on Sept. 14, 2010.

Since his arrest, Kelly had got married and was now the father of a three-month-old child. Uncertainty about the charge approval caused him considerable stress and anxiety, his lawyer argued.

The provincial court judge noted that when Kelly was arrested, only he was in the picture. But in the time it took the system to bring the matter to trial, the judge noted, Kelly experienced increased stress because his wife and child, who were now also in his life, would be affected by the trial's outcome. While finding Kelly had not suffered any actual prejudice, the trial judge nevertheless decided Kelly's case was "an appropriate case wherein prejudice can be inferred," and stayed the charge against him, finding the stress and anxiety was "mostly attributable to the delay."

But Justice Terry Schultes, after hearing the Crown's appeal in B.C. Supreme Court in New Westminster, found the trial judge had "erred in his reliance of pre-charge matters as part of the process of inferring prejudice" and ordered that a new trial be held.

Schultes found the grounds on which any prejudice could be inferred in Kelly's case - namely, tension between him and his wife, his anxiety about how she and their child would be affected by the outcome of the case, and his shock at being summoned after the promise to appear in court date had passed with no charge - were, as Schultes put it, "all manifestations of the simple fact of Mr. Kelly having been charged."

tzytaruk@thenownewspaper.com