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A Calgary couple charged with manslaughter in the death of a five-year-old boy is appealing a judge’s decision to reopen their preliminary hearing but not to cancel their trial set for later this year.

Following a preliminary hearing a year ago, Allan and Carolina Perdomo were committed to stand trial in the death of Eneas Emilio Perdomo.

The boy died five days after he was taken to hospital in July 2015.

Eneas was Allan Perdomo’s biological grandson.

In June, Justice Richard Neufeld quashed the committal to stand trial and the indictment for the couple to allow the defence to question the lead investigator.

Last month, he said he would reopen the preliminary hearing for one day, on Sept. 19, but would maintain the trial dates that were already set for November.

“I think that my decision was blindingly clear on what is expected in this case in terms of next steps and I was very specific as to what’s to be done,” Neufeld said Aug. 15.

“We are in the post-Jordan era here where everyone is expected to row in the same direction as far as getting matters dealt with in an expeditious way.”

In 2016, the Supreme Court’s Jordan decision imposed time limits on how long it can take for a criminal case to go to trial before it is deemed unreasonably delayed.

The ruling said people charged with an offence have the right to have their cases tried within 18 months for provincial courts and 30 months for Superior courts.

But Allan Perdomo’s lawyer says Neufeld did not have the jurisdiction to maintain a trial date while the outcome of a preliminary inquiry is up in the air.

“There is no jurisdiction for the Court of Queen’s Bench to reserve trial time for a matter that is not before it for an indictment that has been quashed and does not exist in law,” writes Darren Mahoney in his appeal.

“It is an abuse of process for the Alberta Court of Queen’s Bench to assist the Crown to avoid a (Jordan) application by reserving trial dates for a matter not legally before it due to the Crown’s conduct at the preliminary hearing.”

The appeal also requests the disclosure of any communications between the Crown’s office and the Court of Queen’s Bench regarding the previously set trial dates.

Police have said Eneas had swelling and bruising all over his body when he was brought to hospital. An autopsy concluded his death was the result of multiple blunt-force trauma injuries.

No date for an appeal has been scheduled.

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