Is a 25-year delay enough to have criminal case thrown out?

Is a delay of 25 years from the laying of the information until trial enough to have a case thrown out? The answer seems obvious, but an Ontario judge had a tough job to do in parsing the advancements in DNA testing that resulted in an extraordinarily long investigation of the accused in R. v. Milani.

The fascinating case involves a string of home invasion sexual assaults between April 1985 and December 1987. While DNA testing was in its infancy, police believed they had enough evidence to charge Donald Milani in December 1987. The judge, however, found the evidence lacking and acquitted Milani on one charge and refused to commit him to trial in the three others at the preliminary inquiry stage.

By the 1990s, DNA testing had advanced somewhat through the use of restriction fragment length polymorphism, but that technique required more material than was available.

Eventually, with the development of short tandem repeat techniques and legal changes allowing police to obtain a warrant to collect DNA, authorities took a stab at the case once again in 1997. The results, however, were disappointing. While they didn’t exclude Milani, they didn’t do so with the degree of probability police were looking for, Superior Court Regional Senior Justice Helen Pierce noted in her ruling last week in Milani.

Finally, Y-chromosome testing became available in 2005 that would allow for a more accurate result. By that time, the officer who had been doggedly tracking the case and keeping up to date on forensic advancements had retired.

But police didn’t submit the materials to the Centre for Forensic Sciences until October 2007. In addition, there were problems with one sample, which meant police had to surreptitiously obtain a new one from a discarded cigarette in July 2008. The new results provided more solid evidence, including one that gave a probability of one in 18.8 billion. Police arrested Milani in August 2010. A trial by jury was to take place just a month from now.

Milani, however, applied for a stay given what Pierce determined to be a 301-month delay in the case.

In the Crown’s view, the clock didn’t start ticking for the purposes of analyzing the delay according to s. 11(b) of the Charter of Rights and Freedoms until the issuance of the preferred indictment in July 2010. Pierce, however, disagreed.

“I conclude that the time for assessing delay for the purposes of a s. 11(b) analysis runs from the date of the laying of the first information coincident with the applicant’s arrest on December 22, 1987,” she wrote.

At the same time, she attributed 32 months of delay to the Crown for, among other things, the unexplained failure by police to submit the exhibits to the centre until October 2007.

In the end, Pierce found herself commending certain police officers for the “doggedness and professionalism” in keeping the case — one she noted involved serious offences — alive. But balancing that against Charter protections, she stayed the charges against Milani.

“It is an acknowledgment that individuals should not have to live indefinitely with the prospect of prosecution hanging, like the sword of Damocles, above their heads,” she wrote.

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