NS Court of Appeal upholds stay of sexual assault case

Net delay is 24 months, which exceeds 18 months' Jordan ceiling, judge says

NS Court of Appeal upholds stay of sexual assault case

The lower court properly used the test for assessing delay in R. v. Jordan, 2016 SCC 27, applied it to the circumstances, and arrived at conclusions entitled to deference, the Nova Scotia Court of Appeal recently said.

In 2019, the respondent was charged with sexual assault under s.271 of the Criminal Code. The Provincial Court of Nova Scotia originally scheduled his trial for Nov. 16–17, 2020. It then assigned new trial dates for Nov. 29–30, 2021 and Dec. 3, 2021 after certain matters contributed to the need for adjournment.

Specifically, the complainant went to South Korea in March 2020. She told Victims’ Services that she would remain in her home country and disclosed the following in fall 2020: she had a diary, had text messages between her and the respondent, and had received medical treatment for memory loss relating to the incident.

On Nov. 24, 2021, Judge Ann Marie Simmons granted the respondent’s application to stay the charge. She found a breach of the respondent’s right to trial within a reasonable time under s.11(b) of the Canadian Charter of Rights and Freedoms.

The net delay was 24 months, which exceeded the presumptively reasonable ceiling of 18 months in Jordan, the judge said. The Crown failed to show exceptional circumstances to bring the delay below the ceiling, she added.

The Crown appealed. It asked the appellate court to quash the stay and to either remit the matter for adjudication on the merits or to order a new trial.

Jordan correctly applied

In R. v. Seyeon Lee, 2023 NSCA 3, the Nova Scotia Court of Appeal dismissed the appeal.

First, the appellate court rejected the Crown’s ground of appeal regarding exceptional circumstances. The judge made no errors in her categorization or allocation of delay or in attributing certain delay to the Crown instead of concluding that there were exceptional circumstances in this case, the court said.

According to the appellate court, the judge:

  • clearly provided that she was not requiring the parties to show that the events, which factored into the adjournment, were both unforeseen and unavoidable
  • clearly interpreted the Crown’s lack of attention to the complainant and to the case as a significant contributing factor to the delay
  • made no errors in her findings regarding the Crown’s responsibility in the continuum of events
  • acknowledged the Crown’s efforts to ameliorate any delay

Next, the Court of Appeal rejected the Crown’s ground of appeal about the allocation of defence delay. The judge recognized the highly contextual circumstances of each matter where the Jordan ceiling has been exceeded.

The respondent accepted that some delay was properly attributable to him but rejected the Crown’s suggestion that all the delay was his fault. The Crown was unfair to assume that the defence was doing nothing, given that the court’s availability was also a factor, the respondent said. The appellate court agreed with the respondent’s position.

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