Accused Musitano killer asks for murder charges to be stayed

A man accused of planning the murder of mobster Angelo Musitano and another hit that killed an innocent bystander is asking the COVID-delayed justice system to let his preliminary hearing continue. If not, he wants his murder charges stayed.

The application was filed Wednesday by Jabril Abdalla, who faces two counts of first degree murder and one count of attempted murder. He was arrested Sept. 18, 2018, and argues his right to a speedy trial has been compromised due to a series of unusual and complicated legal issues - culminating with the worldwide pandemic that has shut down most court operations.

While Abdalla's case languishes in the Ontario Court of Justice (OCJ), he has made a rare application to the higher Superior Court of Justice (SCJ) asking it to intervene and order the OCJ to continue his long-paused preliminary hearing or stay the charges altogether.

A judicial stay of proceedings is considered the most extreme remedy a judge can deliver. The Supreme Court of Canada says: Charges that are stayed may never be prosecuted; an alleged victim will never get his or her day in court; society will never have the matter resolved by a trier of fact. For these reasons, a stay is reserved for only those cases of abuse where a very high threshold is met."

Abdalla believes his case, with its ongoing delays, meets that threshold.

His right to challenge the case against him has been suspended indefinitely without his consent," says the application. The parties have agreed to conduct the continuation of the preliminary inquiry remotely and the Ontario Court of Justice has refused to permit the continuation."

This application may open the floodgates for other accused persons in legal limbo to also seek quicker proceedings or stays.

However, the day after the application was filed, the province announced it will begin reopening the courts on July 6. That doesn't mean the Abdalla case will restart that day, but it will allow it to be scheduled.

Criminal defence lawyers have been frustrated that the COVID court system has permitted accused persons to plead guilty but has forced those wishing to plead not guilty to wait.

Abdalla is accused of doing elaborate surveillance that led to the March 2017 murder of Mila Barberi, 28, and the May 2017 killing of Musitano, 39. It is alleged an accomplice pulled the trigger.

Barberi was shot in Vaughan while inside a vehicle with her boyfriend, Saverio Serrano. Homicide detectives say they believe he was the intended target.

Barberi, a veterinary technician, is remembered for her love of family, nature and animals.

Musitano's wife and small children were home when he was killed. He said he found God in the years before his death and had renounced his past sins - including conspiring to murder mobster Carmen Barillaro - despite being a member of one of Hamilton's most notorious crime families.

Musitano's murder set off a chain of other hits on Hamilton-area residents with organized crime connections. That includes a failed attempt to kill Musitano's brother, Pat, who survived point-blank gunshot wounds.

Abdalla last made headlines in early May when he was granted bail after his lawyer, Leora Shemesh, successfully argued he was at great risk of becoming infected with COVID-19 while in jail.

Abdalla remains out on bail. Conditions of his release are protected by a publication ban.

There have been many twists and turns in Abdalla's case.

The first time he applied for bail he was denied. That decision was upheld at the Ontario Court of Appeal, but overturned during a bail review once the pandemic began.

Meanwhile, Abdalla's preliminary hearing was underway when Ontario's State of Emergency was declared and courts were shut down. Like most matters, the case was mothballed.

Court documents show dates as far away as October have been suggested to finish the preliminary hearing.

Wanting to move things along, Shemesh has told the SCJ her client would like to continue his proceedings via Zoom - a process that is working for other Hamilton court matters. The Crown and Justice Anthony Leitch have also said they are willing to do that. But the idea was shut down by the Regional Senior Justice Paul Currie because, with limited court availability, precedent is going to accused people who are in custody.

According to the application, the preliminary hearing is near completion" with eight Crown witnesses remaining.

To complicate things further, the Attorney General has asked for leave to review Abdalla's bail and send him back to jail.

Which might get him back to the courtroom faster.

Susan Clairmont is a Hamilton-based crime, court and social justice columnist at The Spectator. Reach her via email: sclairmont@thespec.com