Child porn charges stayed against N.S. man because of judge shortage

A Nova Scotia man has had child pornography charges against him stayed because his case took too long to make it through the justice system.

Most of the delay has been attributed to having no judge available to hear the case.

Nathaniel Matheson, 38, was charged in January 2021 with two counts of distributing child pornography and two counts of possessing it.

In provincial court in Antigonish on Wednesday, Judge Bryna Hatt ruled that Matheson's rights under the Charter had been violated, leading to the stay.

Tom Singleton, Matheson's lawyer, had made what is called a Section 11-B application. That's the part of the Charter that talks about an accused's right to a trial in a timely manner.

The Supreme Court of Canada, in its Jordan decision, said a trial in a provincial court must be concluded 18 months after the charges are laid. Matheson's case went well beyond that.

This is the second time in the last four months that the shortage of judges has been a problem in Nova Scotia. In January, supernumerary Judge Alan Tufts complained about delays caused by the lack of judges.

Since his complaint, the province has appointed four new judges, including Hatt.

However, those appointments made up for existing retirements and did not anticipate pending retirements or the fact some retired judges who'd continued working part-time — like Tufts — would soon leave the field altogether.

Delays

Right now, according to the director of communications for the Nova Scotia Judiciary, there is one vacancy, with two retirements set to happen in the next couple of months.

In the time calculation in her decision, Hatt laid out all the times Matheson's case came to court, and all the reasons why it was delayed.

A voir dire to look at pre-trial issues was scheduled for April 2022, but had to be postponed when no judge could be found.

At one point, the trial was scheduled for last June, but there was no judge available.

The trial was rescheduled for November 2022 until the assigned judge, Nicole Rovers, discovered she had a conflict with one of the witnesses on the Crown's list and had to withdraw.

On April 27, 2022, the parties were called into court to be informed that there was no judge available for the period from the end of October to early November 2022.

Conditions withdrawn

New trial dates were set for this May. But by that time, Singleton had already started the application to have the charges stayed.

With that request for a stay granted, any conditions Matheson has been living under since he was charged have been withdrawn.

A spokesperson for the Nova Scotia Department of Justice said reducing the backlog of cases is a "high priority" for the department, and said there are no current vacancies on the provincial bench.

"It is also important that we fill judicial vacancies as quickly as possible," wrote Peter McLaughlin in an emailed statement. 

"The Provincial Judicial Appointments Advisory Committee is expected to meet and consider applications later this spring, which will assist us in filling any vacancies that occur in the coming year."