Sex-related charges stayed by trial delay
“The court concludes the delay in this case exceeds the 18-month presumptive ceiling and is therefore unreasonable ... Having found a breach, the only available remedy is a stay of proceedings.”
A judge has stayed charges against a Kentville man, some for alleged sexual offences involving a teenage girl, saying his right to have a trial within a reasonable time was breached.
Bradley Lloyd Clarke, 40, was arrested in February 2020 and charged with obtaining sexual services for consideration from a person under the age of 18, luring a child, sexual interference, sexual assault, and trafficking cocaine and methamphetamine.
The charges followed a five-week investigation by the provincial human trafficking team, made up of RCMP and municipal police officers.
Clarke was supposed to stand trial in Kentville provincial court this month, but his lawyer filed an application under the Charter of Rights and Freedoms, seeking a judicial stay of proceedings because of unreasonable delay.
The Supreme Court of Canada, in its 2016 Jordan decision, mandated that trials in provincial court must conclude within 18 months of the accused being charged except for defence delay and exceptional circumstances.
Clarke’s lawyer, Kyle Williams, waived 2.5 months of the delay as being attributable to the defence.
The Crown argued that some of the remaining delay was also due to the actions of defence counsel and to exceptional circumstances around the time of Clarke’s arraignment – the provincial state of emergency arising from the COVID-19 pandemic and two investigating officers’ deployment to the Bible Hill RCMP detachment after the mass casualties in April 2020.
The Crown also maintained there should be a further deduction in the delay because of the effects of COVID-19 on the scheduling of trial dates.
Judge Ronda van der Hoek recently heard the application and delivered a written decision Feb. 18 after applying the legal framework for assessing delay.
The judge deducted 22 days from the delay for exceptional circumstances and said the defence should have been able to make its election on the charges two months earlier than it did. That left the delay at 19 months – one month over the Jordan limit.
“The court concludes the delay in this case exceeds the 18-month presumptive ceiling and is therefore unreasonable,” van der Hoek said in her decision. “Having found a breach, the only available remedy is a stay of proceedings.”
The judge noted the Crown did not provide significant disclosure of the evidence to the defence until June 2020, four months after the charges against Clarke were sworn.
COURT BAFFLED
“Laying an information triggers the Jordan clock, and it continues to baffle the court just how often this is done before the investigation is complete and disclosure can be provided,” she said. “Police maintain the right to the lay an information when they choose, however such a decision taken prematurely affects delay and impacts the Crown as a matter proceeds through the court.
“With 12 steps remaining in the investigation in May, it was not made clear to the court why the information was laid so soon.”
Van der Hoek said the completion of those investigative steps in 15 days, after taking only a week to adapt to the provincial state of emergency, was “quite impressive” on the part of the RCMP.
“Perhaps there is a builtin expectation they will use some portion of the 18 months to complete their investigation,” she said. “The court will accept that conclusion because it certainly appears to be the rule rather than the exception.
“The court accepts the Crown argument that 22 days be characterized as exceptional circumstances, given the police more than made up for that delay demonstrated in the prompt investigative actions taken after each event. That said, leaving defence counsel without initial disclosure for four months should not be the gold standard.”
FURTHER DISCLOSURE
After reviewing the 600 pages of evidence, the defence then applied for further disclosure of cellphone records and received more than 9,000 pages in August 2020. The defence then needed time to digest that material, although the judge decided that process took longer than it should have.
The judge refused to find any of the delay was caused by the COVID-19 pandemic.
“There was no evidence led that COVID-19 caused the court to offer four days in October 2021 and not earlier,” she said. “Based on my own understanding of how matters are addressed in this jurisdiction, four trial days close together are always difficult to schedule.
“There are very few (Jordan) applications in this jurisdiction, and without an evidentiary basis, the court cannot accept on a balance of probabilities that COVID-19 had any impact when scheduling this four-day trial. Despite the argument that there was a cascading effect caused by adjourning three months worth of trials due to COVID, I simply cannot agree that was the case. Rather, there was no attention brought to delay, and COVID was not mentioned in any of the appearances in this matter.
“No court relishes a finding of unreasonable delay, but the right to a trial in a reasonable time represents ‘discipline for the justice system.’”
Crown attorney Peter Dostal said the prosecution will review the ruling. “There are a few aspects of the decision that may give rise to an appeal,” Dostal said.
Ronda van der Hoek Provincial Court Judge