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1st criminal case stayed in Manitoba since Supreme Court ruling

CBC News

Posted: Jan 25, 2017 9:29 AM CTLast Updated: Jan 25, 2017 4:06 PM CT

A Manitoba judge has stayed charges against a man accused of sexually assaulting a child because the case took too long to get to trial.

A Manitoba judge has stayed charges against a man accused of sexually assaulting a child because the case took too long to get to trial.

The case against a Manitoba man accused of sexually assaulting and making death threats against a young girl has been tossed out of court due to “an unreasonable delay” in getting to trial.

It’s the first criminal case in the province to be thrown out since a Supreme Court ruling in July 2016 set a deadline of 30 months for cases to be completed from the time charges are laid.

In October 2006, the girl went to police about the assaults, which she said started in March 1996, when she was six years old, and continued until March 2003, when she was 12.

The accused was the former common-law partner of the girl’s mom, court documents say.

A police detective was assigned to investigate and in February 2007 he pursued an arrest warrant for the man.

But due to mismanagement of the file, which got lost and forgotten in the computer system, it wasn’t found again until June 2013 by another officer who was searching the police database on the accused regarding a different matter.

The file was forwarded to Manitoba Prosecutions for a legal opinion and charges against the man were authorized. They included sexual assault, sexual interference, invitation to sexual touching and uttering death threats.

Lost again

The arrest warrant was written up and entered into the Canadian Police Information Centre database.

That’s where it got lost again.

The man was only notified of the warrant after RCMP found it on the database on March 10, 2015. They had been searching his name after he complained he’d been assaulted.

The warrant was used to arrest the accused that same day but more delays followed as the case worked its way through the court system.

By the time it got to a preliminary hearing in February 2016, the girl was a 26-year-old woman.

At the preliminary hearing, it was determined there was enough evidence to proceed to trial, with dates set for April 10-13, 2017. But in September 2016, defence lawyers filed a motion for a stay of prosecution on the grounds of the delay.

The Supreme Court set the parameters at 30 months from the time charges are laid to when the trial wraps up. In this case, that would have surpassed 44 months.

“By anyone’s standards … that is an unreasonable delay,” Justice Robert Dewar stated in his ruling, released on Tuesday, to stay the case.

2nd sexual assault case tossed over delay

This is the second time in recent years a person charged with sexual assault in Manitoba has had the charges tossed or stayed due to delay.

In 2013, Marlin Vandermeulen was convicted of sexual assault causing bodily harm, uttering threats and assault causing bodily harm, among other charges. He was sentenced to 3½ years in prison.

Mike Mahon, Manitoba’s head of prosecutions,

In August 2016, Mike Mahon, Manitoba’s head of prosecutions, said the province is doing ‘very well’ on delay. (CBC)

But the case took 37 months from the time charges were laid to conviction. Vandermeulen’s lawyers appealed, arguing the delays were unreasonable.

The judge agreed and issued a stay of proceedings. The Supreme Court later upheld that decision.

In August 2016, Manitoba’s head of prosecutions said his office took the case very seriously and that similar situations would be “rare.”

Ruling sends clear message

Alex Steigerwald, the defence lawyer in the case that was stayed this week, said the decision by Dewar sends a clear message.

“Delays, unreasonable delays in bringing a case to trial, will not be tolerated and the charter rights of the accused will be enforced and upheld by the courts.”

In this instance, the delay was shocking, Steigerwald said.

“I’ve never seen a case that’s been neglected to this extent, where police simply forgot about a case,” he said, adding his client is relieved.

“It’s truly been hanging over his head for a long period of time.”

Police spokesman Const. Rob Carver said the Winnipeg Police Service just received the judgment and couldn’t comment on this specific case and what went wrong with the file.

“We are currently reviewing our systems and processes in light of the decision,” he said.


After trial delay, charges stayed against teen accused of daycare sex assault of child

The Ottawa Sun

First posted: Monday, January 23, 2017 06:06 PM EST | Updated: Monday, January 23, 2017 06:58 PM EST

By Andrew Seymour

Ottawa courthouse

Ottawa courthouse.

An Ottawa judge has stayed charges against a 15-year-old boy accused of sexually assaulting a three-year-old child at his mother’s daycare, finding that delays in bringing the case to trial violated the teen’s constitutional rights to a speedy trial.

It is the latest case in Ottawa to be stayed for delay after a Supreme Court ruling in July in the case of R. v. Jordan, which set a presumptive ceiling of 18 months of delay for cases in the provincial court and 30 months for cases in Superior court from the time the charge is laid until the end of the case.

In staying the charges, Ontario Court Justice David Paciocco found that the amount of court delay that the Supreme Court found reasonable for an adult is not acceptable for a young person.

The judge also found delays in the accused boy’s case that he attributed to “technical failures” of courthouse technology and the amount of lost time it took to get them fixed, as well as what he described as the “state of readiness” of the Crown’s case.

However, the young accused is still facing a separate charge related to an alleged sexual offence on a second pre-schooler at the daycare that was laid after the initial charges. The time it took for that charge to get to trial wasn’t a violation of the boy’s rights, the judge found.

The Supreme Court’s Jordan decision outlined that trials delayed longer than 18 or 30 months – depending on the court — are considered presumptively unreasonable and violate an accused’s constitutional rights to be tried in a reasonable amount of time, unless the Crown can prove that there were exceptional circumstances caused by unforeseen or unavoidable circumstances or the case is particularly complex.

The decision also applies to cases that were already in the justice system, although in those “transitional” cases the Crown can attempt to show that the delay is justified based on the law as it existed before the Jordan decision.

Judges in Ottawa have already stayed a first-degree murder charge against one accused who waited four years to stand trial and charges for a romance fraud against a second man whose case stretched on for four years and three months before going to trial. (A third man, Sam Tsega, is now asking a judge to stay his manslaughter conviction after six years in the justice system.)

In the case of the boy, it has been 21 months since he was charged in April 2015 with sexually assaulting the three-year-old. During that time period, the boy’s trial concluded but a verdict was never reached. At the time of the alleged assault, he was 13 years old.

The Jordan decision did not address delay in criminal cases in youth court, but lawyer Mark Ertel successfully argued on behalf of the accused boy that the presumptive ceiling for unreasonable delay should be lower for young people based on case law that existed before the Jordan decision.

Paciocco said he believed it would be wrong to apply the Jordan guidelines indiscriminately to both youth and adult cases.

“Constitutional standards for delay have to respond to the prejudice at stake, and pre-Jordan case law has recognized, with good reason, that children generally experience accelerated and heightened prejudicial impact from delay,” Paciocco wrote.

Young people “tend to experience the prejudice caused by delay more quickly and more intensely than adults do,” he added.

The law previously recognized that the amount of delay needs to be presumptively lower because the ability of a young person to appreciate the connection between behaviour and its consequences is less developed than in adults and if treatment is needed, it is best ordered as soon as possible, Paciocco wrote.

Paciocco noted the 15-year-old had experienced prejudice, including being banned from communicating with his own sister unless his parents or grandparents were present and several months that were spent under virtual house arrest.

Paciocco concluded that a delay of 15 months would be unreasonable for a youth.

In his decision, Paciocco lamented that in the accused boy’s case, more than 10 per cent of the scheduled five-day trial was lost due to technical problems.

“I recognize that technical difficulties will ordinarily be the kind of unexpected circumstance that leads to delay for which the state cannot fairly be held responsible. Most of the delay in this case was spent, however, waiting for a technician to arrive to fix the problem,” said Paciocco. “This is not unusual. Technical assistance is often difficult to secure in Ottawa in a timely manner, and courts not uncommonly sit idle, waiting for help.”

Paciocco acknowledged the delay caused by a lack of technical support is not the fault of the prosecutor.

“It is not unlike delay caused by the unavailability of interpreters, or of courts or judges. The time lost may have been outside the control of the prosecutor, but, on the evidence before me, it was not outside the control of the state,” he wrote.

However, Paciocco also singled out the Crown for the late disclosure of some evidence and the failure to call the appropriate witness to testify to the discovery of DNA evidence on a stuffed children’s toy. That resulted in the Crown having to call additional unplanned witnesses and further delay because more days were needed for trial, he found. It wasn’t until six months later that the trial could resume.

Paciocco wrote that trial judges in Ottawa are booked daily for months in advance with no time left in their schedule to accommodate such trial continuations.

“Had the Crown had a better understanding of the state of its case going in, and had the technical problems been addressed expeditiously, no more than a day would have been required for continuation,” he wrote. “Based on judicial experience, if only one day rather than a multi-day continuation was required, the continuation date would have been far earlier.”


Ontario tries to stop criminal charges being stayed by trial delays

Ontario Crown Attorneys Association estimates 6,000 criminal cases could see charges stayed or withdrawn

CBC News   Ottawa

Posted: Nov 20, 2016 10:55 AM ETLast Updated: Nov 21, 2016 10:42 AM ET

By Keith Leslie, The Canadian Press

Yasir Naqvi, Ontario's attorney general, said his officials are examining cases to make sure other serious charges aren't stayed or withdrawn because of delays in meeting the Supreme Court's deadline.

Yasir Naqvi, Ontario’s attorney general, said his officials are examining cases to make sure other serious charges aren’t stayed or withdrawn because of delays in meeting the Supreme Court’s deadline. (CBC)

Ontario’s ministry of the attorney general is reviewing thousands of criminal charges that could be stayed or withdrawn because cases are taking too long to get to trial, but Crown attorneys say the government had made the situation worse.

The Supreme Court of Canada ruled last July in what is known as the Jordan decision that a reasonable delay to trial is 18 months for provincial cases and 30 months for cases before the superior court.

Last week, a first-degree murder charge against former Canadian Forces member Adam Picard was stayed on the grounds that his right to a speedy trial had been violated, four years after the charge was laid in Ottawa. On Friday, the attorney general’s office announced it would appeal the ruling.

The Ontario Crown Attorneys Association estimates there are about 6,000 criminal cases that could see charges stayed or withdrawn, and it blames a shortage of judges, prosecutors and court space.

Association president Kate Matthews said the group has been raising the alarm about the need for more resources in Crown attorney’s offices for years, calling a crisis inevitable.

“Anyone working in the criminal justice system could see ‘Jordan’ coming, and yet the government did nothing with respect to the key reasons behind it,” Matthews wrote in an open letter. “In the last few years, the government has effectively reduced the number of assistant Crown attorneys in trial offices.”

‘Worst record in the country’

Attorney General Yasir Naqvi said cases can be stayed or withdrawn after the accused completes an alternative or restorative justice program, like a domestic violence or drug treatment program, or if the accused enters a guilty plea or agrees to another resolution like a peace bond.

Naqvi said his officials are examining cases to make sure other serious charges aren’t stayed or withdrawn because of delays in meeting the Supreme Court’s deadline.

“Of course we need to work on the cases that are imminent, in the system right now, but I want to make sure to use this decision as an opportunity to bring reforms to the system so that justice is delivered on time, without any unreasonable delays,” he said.

Progressive Conservative justice critic Randy Hillier said about 43 per cent of criminal cases in Ontario are stayed or withdrawn before trial.

“Ontario is without equal in its failings of the administration of justice,” said Hillier. “We have the worst record in the country.”

Ontario Superior Court Justice Julianne Parfett attributed her decision to stay the proceedings against Picard “to the Crown’s heavy caseload and the Crown’s refusal to expedite the trial,” added Hillier.

“The justice system is either keeping innocent people behind bars or allowing criminals to walk free,” he said. “It doesn’t take a legal expert to see that our justice system is acting in the manner that frustrates and obstructs justice while also failing to protect society from dangerous offenders.”

Delays across Ontario

Naqvi said the Supreme Court’s Jordan decision imposed new responsibilities on governments across the country.

“They basically have asked all levels of government and all of the partners within the criminal justice system to make sure the trials are getting done in a reasonable period of time,” he said.

“We have been actively and diligently working on that, doing better case management.”

The problems with delays are in courts across Ontario, added Naqvi.

“Some courthouses are just busier than others, and we’re working on all fronts and putting resources where they’re needed to make sure the cases are moving through the system.”

Matthews said the Crown attorneys welcome any effective efficiencies.

“However, those steps will be mere Band-Aids if the government does not take meaningful, significant and immediate steps to increase the number of assistant Crown attorneys,” she said.


Supreme Court sets new deadlines for completing trials

Top court cites need to change courtroom culture and create ‘more efficient justice system’

CBC News

Posted: Jul 08, 2016 9:34 AM ETLast Updated: Jul 08, 2016 2:24 PM ET

The Supreme Court of Canada has set new deadlines for both Superior and provincial court cases to battle "a culture of complacency towards delay."

The Supreme Court of Canada has set new deadlines for both Superior and provincial court cases to battle “a culture of complacency towards delay.” (Adrian Wyld/Canadian Press)

The Supreme Court of Canada has set new rules for an accused’s right to be tried within a reasonable time frame, in a decision that criticizes the country’s legal system for a “culture of complacency” when it comes to delays in criminal trials.

Superior Court cases will now have up to 30 months to be completed, from the time the charge is laid to the conclusion of a trial. Provincial court trials should be completed within 18 months of charges being laid, but can be extended to 30 months if there is a preliminary inquiry.

Any delays beyond these time frames are “presumptively unreasonable” and violate the accused’s charter right to be tried within a reasonable time, the decision said.

“A culture of complacency towards delay has emerged in the criminal justice system,” reads the majority decision.

“This court has a role to play in changing courtroom culture and facilitating a more efficient justice system.”

2 men waited too long, court finds

Friday’s decision was sparked by two separate cases where the accused waited years to be tried.

The first case before the court was an appeal brought by Barrett Richard Jordan, who was convicted of selling cocaine and heroin in British Columbia. From the time Jordan was arrested in December of 2008 to his conviction in February of 2013, more than 49 months had passed.

In the second case, Kenneth Gavin Williamson waited nearly three years to be tried on charges related to sex offenses against a minor decades ago.

The Supreme Court agreed the Ontario man’s delay was unreasonable and endorsed a lower court’s stay of proceedings.

The majority wrote that “the system has lost its way” in allowing unreasonable delays in trials and that the old guidelines — known as Morin (after 1992 Supreme Court case that established them) — have been “interpreted to permit endless flexibility.”

If the Supreme Court’s new time frames are missed, the onus is on the Crown to argue that the delays were caused by exceptional circumstances that were either reasonably unforeseen or beyond the Crown’s control — like a medical or family emergency.

5-4 decision on new deadlines

The test doesn’t apply when delays are caused by the defence team.

The decision to stay the Jordan case was unanimous. But four judges dissented on the new framework outlined by the majority, warning that it could lead to thousands of stays of proceedings in criminal cases.

Justice Thomas Cromwell — writing for the minority — warned that the new guidelines were “not an appropriate approach to interpreting and applying” the charter right to a speedy trial.

Cromwell argued the new deadlines are too blunt an instrument and setting firm timelines for what constitutes unreasonable delay is best left to legislatures.

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