Robert Wood's lawyer gave notice to the court Wednesday that he will bring a Charter of Rights application to stay proceedings against the former engineer because of the length of time it has taken for his criminal negligence charges to get to trial.
Citing a recent Supreme Court of Canada decision, Robert MacRae said new guidelines, which he described as a "dramatic change," have been established for trials in the Superior Court of Justice requiring that they be completed within 30 months of a person being charged.
It is presumed to violate the person's right to have a trial in a reasonable time, he told Superior Court Justice Edward Gareau during the second day of his client's trial on three criminal charges stemming from the collapse of Elliot Lake's Algo Centre Mall four years ago.
Doloris Perrizzolo, 74, and Lucie Aylwin, 37, were killed when the mall's roof top parking deck collapsed on June, 23, 2012, and dozens of others injured, including an individual who suffered fractured ribs and facial injuries.
A former engineer and majority partner in the now-defunct Sault-based engineering firm of M.R Wright and Associates, Wood inspected the mall a few weeks before it collapsed
He was charged with two counts of criminal negligence causing death and a single count of criminal negligence causing bodily harm on Jan. 31, 2014, and "we are in the 32nd month" since he was charged in a trial that is set for four months, MacRae said.
The time Wood has been in the judicial system awaiting trial isn't reasonable, he said, indicating he is going to file an application for a stay based on unreasonable delay.
Prosecutor Marc Huneault argued that the trial should continue and that if the accused wants to bring the application he should follow the procedures.
Gareau said his inclination was to hear the application after the trial is completed since everyone is ready to proceed with hearing evidence.
He questioned whether a potential delay of six weeks would serve the administration of justice.
MacRae countered that he wasn't doing this to bring the matter to a stop, but to alert the court that he was going to file the application.
If it has to be a formal motion, he'll do it with the required 60 days of notice as soon as possible and he will ask for an interruption of the trial, if the motion is appropriate, to hear it, he said.
Gareau said the court has to see the application, and the Crown must be given an opportunity to respond.
Once that happens, it can be decided whether to deal with it then or at the end of the trial, he said.
The trial continued with Gareau hearing from the first prosecution witness on a lengthy list of people who will be called to testify.
Ontario Provincial Police Const. Dale Burns, a forensic identification officer based in Sault Ste. Marie, provided the court with diagrams of the mall and more than 75 interior and exterior photographs he shot following the collapse.
A 40-foot-by-80-foot portion of the rooftop parking deck crumbled shorty after 2:15 p.m., killing the two women who were directly below at a lottery kiosk.
Burns arrived on the scene about three hours later and began by taking aerial photos of the damaged mall.
Interior photographs of the collapsed section from June 23 and following days and weeks detailed chunks of cement, a hanging beam, and other debris.
Burns also showed the judge numerous photos of yellow rubber bladders that were being used to collect leaking water in areas throughout the mall.
The bladders were connected to rubber garden hoses depositing water in trash cans, buckets and a planter, he testified.
Ceilings in many areas were stained, metal portions were rusted or corroded and tiles were missing.
Sheet metal troughs were also utilized to collect water inside the the ceilings.
The trial continues Thursday.
