Manslaughter conviction overturned for Windsorite facing 15 years in prison for killing London man

Hanan’s conviction overturned A Windsor man convicted of manslaughter is now out of prison after mounting a successful appeal. CTV Windsor’s Michelle Maluske explains.

The Supreme Court of Canada (SOC) has ruled Dia Hanan was denied his charter right to a trial within 30 months.

Hanan, 39, was charged with first degree murder and weapons offences for the Dec. 23, 2015 shooting death of Alekesji Guzhavin of London.

An American man, Gregory Henriquez was also shot, but survived although he is now paralyzed.

Hanan was convicted by a jury of manslaughter and other weapon offences in November 2019 and then sentenced to 15 years in prison in March 2020.

In a Case Brief released Friday, the SOC has determined too much time passed between Hanan being charged and tried.

“The delay was due to the Crown’s refusal to agree to a trial by judge alone, despite being warned of the possible consequences of delay,” the brief explains.

Timeline:

The Brief outlines the 2018 delay as such: “On the night before the trial, Crown counsel announced that its only eyewitness refused to testify. It also disclosed new evidence. This change risked suspending the proceedings. To avoid delay, the accused offered to proceed to a trial by judge alone, without a jury. The Crown refused.”

After the shooting and before his trial, the rules around delay of process changed in the criminal code.

“In an earlier unrelated judgment (R. v. Jordan), the Supreme Court established a presumption that an accused’s right to be tried within a reasonable time under section 11(b) of the Charter is violated if the time between charging the accused and the end of the trial in a superior court exceeds the 30-month ceiling,” the SOC Case Brief reads.

In layman’s terms, the time between charging an accused and the end of a trial must not exceed 30 months.

Hanan had to wait 47.5 months.

When changing the rules, the court allowed for exemptions as the court transitioned to the new law.

With respect to Hanan, the SOC writes “He (Justice Kirk Munroe) ruled that although the net delay exceeded the 30-month ceiling established in Jordan (the new rules), it was justified because the parties had reasonably relied on the law before that case was decided.”

The SOC justices disagreed ruling “The delay was unreasonable and no transitional exceptional circumstance applied.”

“[w]ere it not for the Crown’s decision, the trial would have occurred within the ceiling,” the brief reads. “The parties had ample time to adapt to the Jordan framework. The delay was due to the Crown’s refusal to agree to a trial by judge alone, despite being warned of the possible consequences of delay, and despite Jordan having been decided almost two and a half years earlier.”

One of Hanan’s appellate lawyers, Parmbir Gill told CTV News, Hanan is “relieved that his constitutional right to a trial in a reasonable time was vindicated, albeit five years later than it should have been.”

He and Saman Wickramasinghe were also appealing a portion of Justice Munroe’s ‘charge to the jury’.

“We were alleging that he (Justice Munroe) had made a mistake in his instructions to the jury on how to handle the evidence in the case,” said Wickramasinghe.

“Mr. Hanan testified that he shot in self defence and we alleged that the trial judge misinstructed the jury on how to apply the law of self defence to the evidence called at trial,” Gill elaborated.

At the Ontario Court of Appeal, the lawyers say one of three judges agreed with their position so that appeal was lost.

When they appealed to the Supreme Court of Canada, the lawyers also wanted to appeal the lower court ruling of the two judges who did not agree with their arguments about the charge to the jury.

Those arguments are now “moot” according to both lawyers because the SOC did not consider them once they found Hanan’s charter rights were infringed. At that point, Hanan’s matter was stayed and concluded any further discussion.

In total, Hanan served about a year and a half incarcerated, including in the months after he was arrested and after he was sentenced.

Hanan was released after launching both appeals while he awaited their decision.

The lawyers say Hanan is now back living in Windsor.

The media spokesperson for the Ministry of the Attorney General wrote a comment to CTV News, "The ministry will review the Court’s written reasons and has no further comment."