Nice try, but no. A man accused of molesting two underage girls lost a court battle in Sudbury this month when a judge ruled proceedings against him can continue despite delays in bringing the case to trial.
A publication ban is in place on the trial to ensure the victims can't be identified.
The man was charged in February 2016 with sexual assault and sexual interference against the two girls, but his case won't go to trial until May of this year. A recent Supreme Court of Canada ruling placed a 30-month time limit for cases to be heard in the Superior Court of Justice – between charges being laid and the end of the trial. An 18-month limit is in place for cases heard in the Ontario Court of Justice.
In the Sudbury case, a complaint against the man was first heard by Greater Sudbury Police in September 2013. At the time, the officer investigating the complaint concluded it was unfounded, leading the girl's mother to complain in June 2014 to police that the investigation “was poorly done,” according to court transcripts.
That led to a review of the first investigation, which concluded the case should have been pursued. A second investigation began in October 2014.
After interviewing 10 witnesses over a 15-month span, and consulting with the Crown Attorney, the new investigating officer laid charges against the man in February 2016.
That's when the delays began. A hearing set for March 2016 was delayed to give the accused time to meet with his lawyer. The defence requested a second delay and a hearing was held on April 20. It was put over to May 18, to give the defence lawyer time to review disclosure from the Crown.
That hearing was delayed until June 8, because the defence lawyer wasn't available for the earlier hearing. A preliminary hearing was set for July 11, at which time a date of July 20 was set for the “matter to be spoken to.”
At that hearing, the sides agreed to a April 10, 2017, date for the preliminary hearing. It was then put over to May 2017, with a judicial pretrial set for July 31, 2017.
Pretrial motions were set for December 2017, and the trial was scheduled for May 2018.
At that point, the man's lawyer argued the delays in bringing the case to trial were excessive and sought to have the charges dismissed.
In his ruling, the judge wrote that recent precedent requires evidence that the delay has harmed an accused's ability to defend himself in court, and that they delay was caused by “egregious” conduct by the Crown.
To calculate the total delay, the judge wrote that he calculated the time between charges being laid in the case and the likely end of the trial. Then he subtracted delays agreed to or caused by the defence team, giving him the “net delay.”
The net delay in bringing the case to trial — total delay minus delays caused by the defence — was 25.6 months, the judge ruled, 4.4 months under the 30-month limit set by the Supreme Court.
The defence argued that his client was affected by the delay because witness memory of the events could be affected, and that potential witnesses would have more time to discuss their testimony. But the judge ruled the possibility the case could be affected isn't enough – the defence must demonstrate the case could be affected based on the balance of probabilities.
“It is reasonably clear from these authorities that real prejudice – real inability to receive a fair trial – must be established by the applicant, on a balance of probabilities,” the judge wrote. “(The accused) has not met this onus.”
While the failure of the first investigation and the subsequent laying of charges three years later may have caused the accused “anxiety and concern,” the judge wrote that there was no evidence the delay was malicious on part of the Crown.
While the defence argued the delay should still be deemed unreasonable, the judge wrote the defence didn't indicate the delays were a concern as the case made its way through the system, didn't request quicker court dates, and asked for a longer-than-necessary period for the preliminary inquiry, showing no apparent concern the process was taking too long.
“Adopting a bird’s eye view, the time this case has taken to reach trial is not unreasonable,” the judge wrote. “Certainly it has not taken markedly longer than it should have.”
As a result, the trial will begin as scheduled in May.
