Charges stayed against accused child sex offender after 8 years of police, Crown delays

A man accused of raping a 14-year-old girl a decade ago won't face trial because of years of delays by police and the Crown, a Manitoba judge has ruled.

Thompson RCMP charged Frank Graham with sexual assault in 2011. He was released on bail and appeared in court twice, but then skipped his next hearing and moved to Edmonton.

Police and Crown attorneys knew where he was from 2012 to 2014, but they didn't arrest him until 2019, a recent Manitoba court decision says.

Graham later applied to have his charges stayed on the basis that his right to a trial within a reasonable time was breached.

Manitoba provincial court Judge Stacy Cawley granted that request in an Aug. 5 written decision that highlighted some of the problems in the case.

Cawley said that while Graham was responsible for part of the 10-year delay, which started when he skipped out on court and moved to Edmonton, more than eight years of delay was due to the actions and inaction of the Crown and the police. 

"A delay of over eight years is not reasonable," Cawley wrote in her decision. "The Crown and the police should have known they were required to make timely decisions and the failure to act would risk the prosecution."

Lack of 'reasonable diligence'

The Crown had argued that since Graham skipped out on a court hearing and moved to Edmonton, he was to blame for the delays.

Cawley rejected that argument.

"The severity of this charge is precisely why the Crown and the RCMP should have acted with reasonable diligence to arrest Graham when they had the chance," Cawley wrote.

"The Crown can't rely on 'Hey, the accused screwed up in the beginning, so we don't really have to move this matter forward,' and I think this case says that," said Rohit Gupta, Graham's lawyer, in an interview.

The state not only failed to honour the rights of the accused in this case, he said, but it also failed the victim, a 14-year-old Indigenous girl.

"Had this complaint been in a locality such as Winnipeg, would the police have taken it more seriously?" he asked.

Gupta wondered if the case would have been taken more seriously by police and the Crown if the complainant hadn't been an Indigenous youth involved in the criminal justice system.

"It's a failure of the northern Manitoba system in general," he said.

Chronology of events

Graham was released on bail March 14, 2011, and ordered to live in Thompson, Man. In August 2011, he stopped making court appearances and moved to Edmonton, so a judge issued a warrant for his arrest.

In 2012, Alberta RCMP arrested Graham for offences under the Fisheries Act and for violating his Manitoba bail conditions. He was granted bail in Edmonton and later pleaded guilty and sentenced to fines.

In July 2012, Thompson RCMP sought approval from the Crown to extend the Manitoba warrant to Alberta, so Graham could be arrested and brought back to face sex assault charges in Manitoba. The Crown didn't respond, so police tried again in September. 

"The warrant was extended in October 2012 but because of a series of miscommunications between the police agencies in Manitoba and Alberta, Graham was never arrested," the court decision said — even though Graham attended court 10 times between July and October 2012.

In April 2014, Alberta Conservation was prepared to arrest Graham for unpaid fines and contacted Thompson RCMP to see if they wanted him arrested on the outstanding warrant. The Mounties declined.

The court filings say the Crown wanted to be sure the victim would co-operate with the case if Graham were brought back to stand trial, but there's no indication anyone tried to contact her until five years later. 

"The same Crown's office that was saying, 'Hey, we need to speak to her,' didn't bother speaking to her," Gupta said.

The RCMP and the Crown were more concerned with prosecuting the teen for the charges she was facing than bringing her alleged assailant to justice, he said.

"The state had control of her physical location. They knew exactly where she was and they still didn't speak to her."

They don't appear to have spoken to her until February 2019. Graham was arrested on Aug. 22, 2019, by which time he was living in Nova Scotia, and taken to Manitoba. 

Manitoba Justice and policing agencies "understand the importance of addressing delay issues in Manitoba," said a spokesperson for the provincial department in an email to CBC News.

Timely execution of warrants and increased documentation of those efforts are of "the utmost importance," the spokesperson said.

"While we are not able to discuss issues related to a specific case, government will continue to work with key stakeholders to address delay issues in the coming weeks and months."

1-year document delay

Gupta said not only was there a significant delay in arresting Graham, but it took the Crown over a year to provide full disclosure of documents.

"Our justice system is predicated on this inherent trust that we have with the Crown's office to fulfil their duty to provide disclosure," he said.

The Supreme Court of Canada ruled in a landmark 1991 decision that the Crown must provide the defence with all relevant evidence, even if it hurts their case.

"We are relying on the Crown to faithfully provide this to us," said Gupta. 

Gupta said issues of transparency and disclosure were paramount in the Supreme Court decision to overturn the wrongful convictions of four men, after the court found Crown prosecutor George Dangerfield withheld crucial evidence. 

Gupta said the judge's decision to dismiss the case was based on documents that the Crown withheld from him. No explanation was provided to him as to why that material was withheld or redacted, he said.

"For a defence counsel and for an accused and for society as a whole, it's extremely scary. It's alarming."