Trial delay scuttles charges in daycare sex-abuse case

An Ottawa judge has stayed charges against a 15-year-old boy accused of sexually assaulting a three-yearold 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 boy’s case, it has been 21 months since he was charged, in April 2015, with sexually assaulting the three-year-old. During that period, the boy’s trial ended 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,” he 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 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.

He 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,” Paciocco said. “This is not unusual.

Children generally experience accelerated and heightened prejudicial impact from delay.

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.”

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 for months in advance with no time left 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. Based on judicial experience, if only one day rather than a multiday continuation was required, the continuation date would have been far earlier.”