CALGARY (CP) - An Alberta judge who fell asleep during a sentencing hearing has apologized to the lawyers and the drug dealer who was testifying at the time, but has refused to declare a mistrial.
"I want to start by apologizing to all lawyers who were here on Dec. 1," a contrite Justice John Moore of Court of Queen's Bench said Monday. "I apologize to Mr. (Nicholas) Chan. I fell asleep during Mr. Chan's testimony on Dec. 1."
Chan was convicted during the summer of drug trafficking. The judge's snoozing during Chan's sentencing hearing earlier this month led his lawyer, Thomas Engel, to file an application for a mistrial. That application was heard Monday.
"There is no positive way to determine how long I was asleep," said Moore, 73.
"I have reviewed my sleep problems with doctors and have further appointments. It may be a while before my medical problems are resolved," he said.
Chan's lawyer had added another wrinkle Monday in his argument to have a mistrial declared.
"There's now an allegation that you were inattentive during parts of the trial," said Engel after conferring with Chan.
"Mr. Chan says the appearance of the court, except for the snoring, was the same as during sentencing. There were times during the trial that the judge didn't appear to be paying attention."
Engel said the matter wasn't raised during the trial because lawyers don't usually question whether judges are paying attention.
Moore rejected a mistrial. He said he had reviewed the evidence that was given while he was dozing and determined it wasn't crucial to the case.
But he did cite a section of the Criminal Code that would allow him to step aside to allow another judge to preside over Chan's sentencing.
"I believe there are valid reasons why in the sentencing of Mr. Chan Section 669.2 should be considered," the justice said. "I find that section is appropriate. I rule that the sentence will be performed before a new judge in the future."
The new date for sentencing is to be determined in February.
Crown prosecutor Bob Sigurdson dismissed the latest allegation as something Chan made up at the last minute.
"This is a new twist on an old story. This is the type of an allegation, if it wasn't made up at the last minute, you'd have expected he would have raised Dec. 1," said Sigurdson.
"He's not going to get a mistrial because you were inattentive for a short time," he said.
Sigurdson read into court Chan's testimony from the time Justice Moore last spoke to the point the court clerk asked for a break. It involved Chan's complaint that he was unable to get vegetarian meals at the Calgary Remand Centre.
"The critical evidence you missed is wholly inconsequential," said Sigurdson.
"How can any right thinking person believe any harm was done? Judges are human like everybody else - mistakes happen.
"There's nothing to suggest you were inattentive at any time during the course of the trial."