Man convicted of sex crimes wins stay of charges because of court delays

New Brunswick's highest court has stayed six charges — three of which were for sex crimes, including incest — against a man because it took five years for his case to wind its way through the provincial court system.

The New Brunswick Court of Appeal released its written reasons Thursday for its Nov. 24, 2016, decision to allow the appeal by a man referred to only as D.M.S. and stay the charges against him. In the court system, a "stay" halts legal proceedings.

The ruling came less than five months after the Supreme Court of Canada's July 8, 2016, decision in which the country's highest court set out new ceilings for dealing with trials. Under the new guidelines, a trial in provincial court is expected to be dealt with in 18 months, or 30 months in cases where a preliminary inquiry is scheduled.

Charged in 2010

On April 19, 2010, D.M.S. was charged with sexual assault, two counts of assault with a weapon, incest, sexual interference and assault. It is alleged the conduct took place between 1990 and 1996.

D.M.S. made his first appearance in provincial court on May 4, 2010. He had difficulty obtaining legal aid funding but eventually did. It was Nov. 26, 2010, before D.M.S. elected to be tried by a judge and jury following a preliminary inquiry, which was scheduled for June 2011.

When the preliminary hearing was scheduled to begin, D.M.S. waived his right to the hearing and re-elected to be tried in provincial court.

Following his re-election of trial mode, the case was repeatedly adjourned for various reasons, many of which had to do with issues related to the disclosure of evidence by the Crown.

• Court of Appeal: D.M.S. vs. R
• Supreme Court of Canada: R. v Jordan
• Criminal courts scramble to meet Supreme Court's new trial timelines

D.M.S. applied for a stay of proceedings on April 16, 2012, arguing his trial had not been held within a reasonable period of time. His motion was not heard until December 2012 and it was dismissed the following month by a judge who ruled the delay had not, up to that point, infringed on D.M.S.'s right under the Charter of Rights and Freedoms to be tried within a reasonable period of time.

The trial on the charges began Aug. 20, 2013, and was adjourned after three days. It was to resume on Oct. 2, 2013, but was further adjourned, first to Nov. 4 and then to other dates in 2014 on which adjournments were granted for a variety of reasons.

Verdict in 2015

The trial didn't resume until October 2014. Final arguments were heard Nov. 21, 2014, and a verdict was rendered Feb. 20, 2015. It was May 2015 before D.M.S. was sentenced.

D.M.S.'s appeal of his conviction was heard on June 13, 2016. Following the Supreme Court's ruling in R. v. Jordan that established the new presumptive guidelines for cases to be dealt with, the Appeal Court gave the Crown and D.M.S.'s lawyer the opportunity to provide additional written and oral submissions. The Crown filed additional written submission's while D.M.S.'s lawyer made an oral submission to the Appeal Court on Nov. 24, 2016, after which it made an oral ruling to stay the charges against D.M.S.

In the written decision released Thursday and authored by Justice Kathleen Quigg, the Court of Appeal states the judge who ruled in January 2012 that D.M.S.'s Charter right to a speedy trial was not infringed made an error.

'Significant error'

"There is a significant error in the trial judge's decision regarding D.M.S.'s application for Charter relief," states the Court of Appeal ruling. "The error stems from the fact that the judge did not consider the time it would take from the date of D.M.S.'s motion to the reasonably anticipated date the matter would end.

This case exemplifies the culture of delay that Jordan addresses.- Kathleen Quigg, Court of Appeal justice

"Since the judge's decision is the result of errors in principle, it must be set aside. We now know the delay from the charge to the actual end of the trial was more than five years. From the first appearance to the verdict, the delay exceeded four years and nine months.

"In my view, this case exemplifies the culture of delay that Jordan addresses. In my opinion, the trial was not of a nature and complexity as to require almost five years to complete."