JUDGE SLEPT AT HEARING

Drug Trafficker Wants Court To Order Mistrial

A Calgary man convicted in July of heroin trafficking has applied for
a mistrial because he says the judge fell asleep during his sentencing
hearing.

Nicholas Cypuis Chan, 26, claims Court of Queen's Bench Justice John
Moore was sleeping for more than five minutes while he testified in
his own defence at Wednesday's hearing.

Defence lawyer Tom Engel filed the four-page application for a
mistrial on Thursday.

The document said Chan had been answering questions by Engel for about
35 minutes when the lawyer noticed the judge appeared to be asleep.

It alleges Moore, appointed to the bench in 1992, had his head bent
forward with his chin on his chest while Engel questioned Chan.

"After about five minutes and with no sign of movement or wakefulness
from the judge, defence counsel stopped asking questions and the
accused stopped testifying," says the document. "It could be
immediately heard that the judge was snoring and obviously sound asleep."

The court clerk suggested the hearing be adjourned, then woke up
Moore.

"The judge appeared somewhat dazed, like someone who had been awakened
from a deep sleep, agreed to the adjournment and exited the
courtroom," says the document.

Moore granted Engel's request for counsel to hear the recording of
Wednesday's hearing.

It was played back behind closed doors, without the judge present, in
the fourth-floor courtroom.

Engel would not comment outside court. Crown prosecutor Ivanna Perozak
said she will oppose the application.

The document noted there is no similar reported case law in Canada,
and only one case from 1961 in Britain, when a court martial appeals
court quashed a conviction because one of the judges fell asleep
during the trial.

It says the only fair thing to do is grant a mistrial, quashing the
convictions for heroin trafficking and possessing $7,000 derived from
the commission of an offence in connection with the sale of drugs to
an undercover Mountie on Nov. 15, 1999.

"The potential miscarriage is, of course, much greater in this case
than in (the British case) since here the judge is the trier of fact
and fell asleep while listening to the sworn testimony of the major
witness -- the accused," the written argument says.

"If a mistrial is not granted in this case, there is a real danger
both the accused's interests will be prejudiced by the sentencing
judge having fallen asleep during the accused's viva voce (oral)
testimony and that the reputation of the administration of justice
will be damaged."

The judge ruled the Crown has until Dec. 10 to file its written
argument on the mistrial application and the defence must file a
rebuttal by Dec. 17, three days before the application will be heard.

Moore set sentencing dates for the week of Feb. 7 and March 3 to 11
for sentencing arguments to continue, if the application should fail.