Couple found guilty of sexually assaulting young girl go free because case took too long

A Manitoba couple convicted of sexually assaulting a young girl over a five-year period have had their convictions thrown out in a Portage la Prairie courtroom after a judge ruled their case was unreasonably delayed.

The two were charged with sexual assault and two counts of sexual interference each in July 2013. They were convicted in May 2017, nearly four years later, but their convictions were tossed after filing a motion with the court, saying it took too long.

"I find that the delay in this case was unreasonable," Justice Sandra Zinchuk said in her decision last week.

CBC News is not naming the couple to protect the identity of the victim, who was a minor at the time of the offences.

The ruling follows the Jordan decision, as it has come to be known — a July 8, 2016, ruling by the Supreme Court of Canada that set aside drug convictions in a British Columbia case due to unreasonable delay.

In a 5-4 ruling, the court said the old means of determining whether proceedings had taken too long were inadequate. Under the new framework, unreasonable delay was to be presumed if proceedings topped 18 months in provincial court or 30 months in superior court.

Not meant to send a message to victims

Scott Newman is a Winnipeg defence lawyer and spokesperson for the Criminal Defence Lawyers Association of Manitoba. He said that while he couldn't speak to this specific case, as a whole, it's important for the criminal justice system to function in a timely manner.

"It's never meant to send a message to anyone involved in a particular case," said Newman. "It's meant to send a future message, to say 'get your house in order.'"

"This will happen again unless you have the criminal justice system running efficiently and running appropriately and delivering timely justice for everyone."

Newman said timely justice is important because "people's memories fade, it gets harder to defend yourself from allegations particularly when you don't know about them until you're arrested later."

He also said moving cases through the courts in a reasonable time is good for society as a whole.

"It's important for everyone to know that justice is delivered in a timely fashion … not just for the accused persons, for victims of crime, for the public at large to know that the criminal justice system is functioning efficiently."

Case adjourned several times

Court heard the couple's case was adjourned several times to allow them to file for legal aid, before they eventually decided to represent themselves — a delay that Zinchuk deemed to be acceptable.

"There would generally be some acceptable delay in retaining acceptable counsel. An accused is entitled to take legitimate steps to respond to charges," said Zinchuk . "There is no evidence that either accused delayed or hindered their legal aid application."

That was followed by delays in setting pretrial dates after a motion by the Crown asked that defence counsel be appointed in order to cross-examine the complainant in the case. Zinchuk also said the 10-month span between the date both the defence and Crown were ready to set trial dates and the actual trial was longer than it should have been.

The couple's case finally went to trial in May 2017. On the first day of the trial, the couple filed a motion to have the case thrown out due to the length of time it took.

Zinchuk ruled to proceed with the trial and the two were ultimately found guilty, nearly 46 months after they were charged. They were due to be sentenced Dec. 12, but Zinchuk instead ruled the length of time was longer than the acceptable length of 30 months set out in the Supreme Court of Canada's Jordan ruling.

"The delays noted above are not the result of action or inaction of either accused," Zinchuk told court. "There was delay in the range of 14 months which was not caused by the defence.

"This was not a complex case," she said. "There was one Crown witness and both accused testified … there were no pretrial motions or charter issues."

Zinchuk also said the case also didn't involve a large number of charges, other significant requirements or expert evidence that may have also caused delays.

The justice compared the couple's case to another, in which the Supreme Court ruled was unreasonably delayed.

Kenneth Gavin Williamson waited nearly three years to be tried on charges related to sex offences against a minor decades ago. The Supreme Court agreed the Ontario man's delay was unreasonable and endorsed a lower court's stay of proceedings.

65 motions filed in Manitoba

According to Manitoba Justice, 65 delay motions on Criminal Code matters in Manitoba have been filed, as of last week. Of these, nine remain outstanding.

Twenty-five have been dismissed by the court, 10 were stayed, 18 were resolved or withdrawn by counsel and three were successful, which led to the court staying the charge, a spokesperson said.

It is not clear if these most recent dismissals are reflected in these numbers.

Manitoba Justice Minister Heather Stefanson said she couldn't comment on the case specifically, but said in a statement to CBC News that the provincial government inherited significant challenges in the criminal justice system that included lengthy court delays, but that it is taking action to address the situation.

"Since the Jordan ruling in July 2016, Manitoba Justice has changed its Crown attorney policies and procedures to impel Crown prosecutors to take delay into consideration at every stage of a prosecution," Stefanson said.

"The number of direct indictments preferred by the provincial Crown in 2016 doubled compared to the previous year, ensuring that justice is not delayed by a preliminary inquiry."

"We will continue to work with our provincial and territorial counterparts to convince the federal government that preliminary inquiry reform is necessary to ensure that cases involving serious violent offenders are heard in a timely fashion," she added.