Man convicted of killing 96 year old loses bid to have case tossed By: James Turner   Posted: 7:00 PM CST Tuesday, Dec. 18, 2018 Last Modified: 9:18 AM CST Wednesday, Dec. 19, 2018 Updates

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PORTAGE LA PRAIRIE — A Manitoba man convicted in the killing of a vulnerable senior has lost a bid to see his case tossed out of court due to the length of time it’s taken to deal with.

Justice Robert Cummings wasted no time Tuesday dismissing Martin Sutherland’s argument he should have his murder charge stayed in the May 2014 killing of Niels “Arne” Nielsen in the small town of MacGregor.

A jury convicted Sutherland, 59, of second-degree murder on Oct. 31, meaning more than 49 months had passed since RCMP charged him for the 96-year-old’s death in September 2014.

Sutherland argued the amount of time his case took to conclude violated his Charter right to be tried within a reasonable time.

Delays in Canada’s court system have been under a microscope since July 2016, when the Supreme Court imposed hard deadlines on how long cases should take to complete or face the likelihood judges will toss them out.

The top court said provincial court cases should be wrapped up in 18 months, or 30 months in superior trial courts such as Manitoba’s Court of Queen’s Bench.

The court, however, allowed for a transition period for cases such as Sutherland’s that were already going through the system when the new deadlines took effect.

Despite the exception, defence lawyer Zachary Kinahan argued the 19 months of delay in Sutherland’s case beyond the 30-month ceiling should merit a stay of proceedings.

“This is not a complex case, not an exceptional case — it’s essentially a one-witness case,” Kinahan told Cummings. “It’s not appropriate.”

The Crown’s case against Sutherland hinged largely on the testimony of Jason Conway, 25. Conway pleaded guilty to second-degree murder and was sentenced in June to life in prison without a chance at parole for 10 years.

The two men, while co-accused in Nielsen’s murder, were not jointly charged.

Conway told RCMP he and Sutherland thought Nielsen had cash in his house and went there to rob him. Court previously heard Nielsen — who lived alone — let them in after they asked to use his phone. He was stabbed to death in his kitchen after handing over some money.

The Crown conceded there was delay in getting Sutherland to trial, but not as much as Sutherland contended.

One reason for the differing view was an agreement between prosecutors and the defence that Sutherland’s preliminary hearing in provincial court should happen after Conway’s concluded, Crown attorney Michael Bodner said.

That arrangement (which Kinahan disputes existed) was made due to the possibility Conway was going to advance a defence that he wasn’t responsible for Nielsen’s murder due to mental illness, said Bodner.

If he was successful, the case against Sutherland may have collapsed outright.

Sutherland’s case was “unfortunately sidetracked by an NCR (not criminally responsible) defence that ultimately never happened,” said Bodner.

Cummings rejected Sutherland’s bid just moments after the lawyers finished up, saying he’d issue written reasons why in coming weeks.

Sutherland will be sentenced on Feb. 27.

While he will receive a life sentence, the Crown has said it will seek to have the time he’s ineligible for parole hiked beyond the mandatory 10-year period.

Neilsen’s killing rocked the small town of MacGregor, located about 40 kilometres west of Portage.

A devout Jehovah’s Witness who came to Canada in his 30s, Nielsen was known to spend a lot of time in his Talbot Street East yard. Neighbours said he loved tending to his garden.

He came to live in MacGregor in 2006 after spending a few years in British Columbia. He had also lived in Carberry and the small community of Sidney.

city.desk@freepress.mb.ca