Sex assault, extortion, other charges dropped against Northern Ont. man because of trial delays

Several serious charges against a North Bay man have been dropped because of delays in bringing the case to trial.

The man, who can’t be named to protect the identity of the victim in the case, was charged in October 2020, during the COVID-19 pandemic.

He was charged with several crimes, including sexual assault causing bodily harm, sexual exploitation, incest and extortion.

But in a decision released late last month, a judge with the Superior Court of Justice ruled the Crown took too long to bring the case to trial, meaning all charges would be stayed.

In Canada under the Jordan ruling, the Crown must bring criminal charges to trial within 30 months, not including delays caused by the defence or circumstances beyond their control, such as the COVID-19 pandemic.

In this case, the delay was 33.2 months, more than three months past the deadline. The Crown tried to argue that a significant portion of that delay was due to “the COVID-19 backlog.”

Several serious charges against a North Bay man have been dropped because of delays in bringing the case to trial. He was charged with several crimes, including sexual assault causing bodily harm, sexual exploitation, incest and extortion. (File)

The judge ruled that since the charges were laid in October 2020, well after the pandemic started, the Crown couldn't claim a blanket delay. To succeed, the Crown would have to show it did what it could to mitigate the delay.

“The Crown proffered no evidence of a specific link between any delays in this case and the pandemic, and I see none,” the decision said.

“I see no evidence that the Crown took steps to avoid and address the delay before it exceeded the ceiling. A review of the transcripts of various court dates in this matter revealed no mention of a concern for delay.”

Kathleen Jodouin, executive director of Victim Services Nipissing District, said these sorts of outcomes are devastating for victims who muster the courage to come forward.

It’s a classic example of survivors being re-victimized by the justice system.

“Such circumstances can fuel the sense of injustice and mistrust in the criminal justice system for victims,” Jodouin said in an email interview.

“It can be very disheartening to never have your day in court. Further, it discourages other victims from reporting as it sets the precedent that the accused will likely get off anyway.”

COVID DELAY

Repeated requests to the Ministry of Attorney General for information on how many cases have been dismissed because of Jordan weren’t returned by publication time.

Tanya Walker, of Toronto-based Walker Law, said the justice system has been under severe strain for a while, particularly since the COVID-19 pandemic.

While judges were willing at first to attribute delay to the pandemic, more recent rulings required the Crown to provide it was trying to mitigate delays.

“What are you doing as a Crown counsel to push the matter forward?” Walker said.

“Are you trying to schedule meetings by telephone? When Zoom is available, are you trying to schedule those hearings or applications by Zoom? You can't just not do anything for a period of time and then say, Oh, there's (a pandemic.)”

In this case, Walker said the Crown tried to claim COVID-19 as part of the delay, but didn’t explain exactly how the pandemic caused the delay.

“It was a really like kind of a bald, vague statement and no particulars were provided as to what backlog was caused as a result of COVID-19 or the efforts to mitigate,” she said.

With the pandemic no longer a flexible way to explain delay, Walker said more and more cases are being dismissed – with about 25 per cent of Jordan applications succeeding.

125 CASES DISMISSED IN THE LAST YEAR

“About 125 cases were thrown out last year because of a Jordan application,” she said.

Walker said they include a first-degree murder charge thrown out in May. In terms of sexual assault cases, 86 have been dismissed since Jordan came into effect in July 2016.

While these sorts of cases can put the justice system into disrepute, criminal defence lawyer Paul Lewandowski said the right to a speedy trial is fundamental in Canada.

“There's a saying that justice delayed is justice denied,” Lewandowski said.

Imagine the state being able to charge someone and then drag out the trial over a number of years. At some point, he said that becomes a punishment in itself, regardless of the eventual verdict.

“A person is presumed innocent by law until proven guilty by a court,” he said.

“Ultimately, the punishment is only supposed to begin once a court has actually adjudicated their guilt or acquitted the person.”

Before Jordan, there wasn’t a definite period of time the Crown had to bring cases before the court, but more weight and time were given to more serious offences.

“Jordan has tried to get away from that,” Lewandowski said.

That means it’s up to the Crown to decide which cases are moved forward first. So more serious cases are prioritized, meaning a charge that could have been dealt with quickly is pushed down the pecking order.

So an impaired driving case that would have ended with a plea within six months can now take 17 months or more.

RIGHT TO TRIAL WITHIN REASONABLE TIMEFRAME

Broadly speaking, Lewandowski said that the Jordan rule is an important part of the justice system, despite the occasional serious case that is dismissed.

This “case is more egregious than your average, everyday case, but that being said, I would also argue that to keep the Jordan principles … you're going to have to hear about a case that is on the more egregious side that does get a stay,” he said.

“Otherwise the Crown's office potentially gets complacent and even flippant with the Jordan deadlines.”

Whatever the big picture is, Jodouin said such systemic failures are devastating for victims.

“There needs to be a greater understanding of systemic victimization and accountability when the justice system contributes to re-victimization which affects not only the victim but their family and community,” she said.

And regardless of the state of a criminal case, Jodouin said victims should reach out for help.

“Victim/survivors should know that they do not need to report to police to access victim services in their community,” she said.

“Support is available whether you are ready to press charges or not.”