‘Justice denied’: Another Sask. sex assault case stayed due to delay

Sexual assault is believed to be one of the most underreported crimes in Canada, and there are worries that recent procedural additions making court cases take longer could see more charges stayed and put a further chill on reporting.

In April, a sexual assault charge against Peter Larson in Regina was stayed because it was taking too long to complete, violating his Charter rights.

Judge J. Rybchuk found the case would have taken more than 28 months to conclude, while the ceiling established by the Supreme Court of Canada in R. v. Jordan in 2016 for provincial court cases is just 18 months. The high court found that anything past that violates a person’s Charter right to be tried within a reasonable time.

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This is at least the third sexual assault case in Saskatchewan to be stayed for that reason since the spring. One case was stayed because of issues finding and keeping a court-appointed lawyer for the accused, while another was stayed due to unfortunate circumstances and mistakes in the investigation.

In the Larson case, the case took so long mostly because of court procedures and scheduling. Rybchuk discussed it in his written decision, lamenting the added time and what it could mean for sexual assault cases writ large.

“The stark reality is that these intricate pretrial procedures are causing the justice system to take on water. And if it keeps on raining, the levee is going to break,” he wrote.

The problem in this case was a set of pretrial applications that are made when the accused possesses records related to the complainant, like text messages or emails.

Cases like the high-profile Jian Ghomeshi sexual assault case exposed a gap in how that kind of evidence was treated when it didn’t involve the complainant’s sexual history. Parliament passed a new law aiming to fill that gap, but Rybchuk and some other judges are pointing out that the process is complicated and time consuming, and may result in more sexual assault cases going over their time limits and being stayed.

“Excessive delay caused Mr. Larson’s future to hang in the balance for more than two years while he attended over twenty court appearances and anxiously awaited trial. Excessive delay caused the complainant to sit on the sidelines awaiting her opportunity to seek vindication for the harm allegedly inflicted upon her while the case languished in court… And ultimately a potentially meritorious sexual assault allegation was discarded,” wrote Rybchuk in his decision.

“The unfortunate reality is that this trial could have proceeded were it not for the delay caused by all the pretrial applications and motions. As demonstrated in this case, delayed justice is justice denied. And there is nothing just about that.”

‘No one should be okay with this’

The federal government estimates that 83 per cent of sexual assaults in the country weren’t reported in 2014, while the National Sexual Violence Resource Centre said 63 per cent of sexual assaults aren’t reported to police.

“People are losing faith in the justice system where there was minimal faith to begin with,” said Chantelle Priel, public education and outreach coordinator with the Regina Sexual Assault Centre.

She explained that victims often don’t come forward for a multitude of reasons – victim blaming is still quite common, their evidence may not be believed or valued, and the time and energy that goes into these proceedings can put someone’s life at a standstill.

In the Larson case, someone made the allegation, went through all the legal procedures, and then saw the case stayed because it took too long. Priel said if this were to become more common, it could put a further chill on people reporting sexual assaults.

“No one should be okay with this. We are working within a system that is typically not fair for anyone involved,” said Priel.

“We need to pay attention to this evidence, because the facts are there that the system is not working, and so the system needs new approaches at minimum, and a re-look at what a vision of justice that works could look like.”

Another way

Colton Fehr, a professor at the University of Saskatchewan’s College of Law, believes staying the proceedings isn’t the only course of action available to a judge in these cases.

“It’s not clear to me, at least, that a stay of proceedings needs to happen every time one of these trials goes over the allotted ceiling,” said Fehr, who added that the focus should be on the question of whether or not going over the allowed time frame will have a real impact on the fairness of a trial.

When the Supreme Court established the presumptive ceiling, it also said particularly complex cases could result in an exception to the ceiling on delay.

Fehr said even as courts become more efficient and evidence application become more normal, they can still make these cases very complex, very quickly, between the filing of the applications, scheduling multiple lawyers’ time, and the volume and organization of the records.

“This could just be so inherently complicated that it’s going to extend sexual assault trials habitually,” he said.

Rybchuk mentioned the complexity argument in his decision, but said the Crown didn’t try to advance it.

Fehr also noted that in the Jordan decision, the Supreme Court indicated it was willing to revisit the idea that a stay is the automatic remedy. Fehr said this is the only right under the Charter where this is the way the law has proceeded.

“The supreme court, in Jordan, seemed very, very open to hearing arguments to the contrary, and this seems like a good context to make those types of arguments,” he explained.

Fehr said an automatic stay is a dramatic remedy when there’s not necessarily any evidence that the right of an accused person to a fair trial has been breached, calling it unprincipled.

He said it is up to the Crown and the courts to deal with these problems legally, saying it could be up to the Crown to go ahead and make these arguments.

“Are these cases just so inherently complex that they constitute an exception now to the Jordan framework, or should we be recognizing that yes, trial delay is impacting accused persons in a negative way here, but maybe not in such a negative way that it warrants a stay of proceedings?” said Fehr.