Charges still make noise if no one’s there to hear them gather dust

courthouseIt was a criminal court circumstance which triggered palpable public ire in Manitoba.

A man accused of sexually molesting a girl but allowed to walk scot free without ever facing trial — apparently due to a sizable cop screwup where charges were laid but a warrant for his arrest wasn’t executed for 18 months — with no explanation why.

It just “gathered dust” in the system, as the common rhetoric goes.

The public freaked when the charges got tossed [if online comments are anything to go on (I know, I know…)].

But what a difference a few months and a Crown appeal to a higher court can make.

And my, how ironic sometimes life can be.

Queen’s Bench Justice Colleen Suche has ordered the man back to face trial, ruling Provincial court Judge Brent Stewart was mistaken to rule the accused’s Charter right to be speedily brought to trial was infringed to the extent the only remedy was a rare judicial stay of proceedings.

“In my view, no breach of the accused’s rights under s. 11(a) occurred and the trial judge erred in finding a breach of s. 11(b),” Suche wrote in her recent, succinct, decision. 

Here’s the facts Suche was working with (as she found them):

In December 2009, a member of the Winnipeg Police Service contacted the accused and asked him to attend at the police station to be interviewed about a complaint.  The accused was not told anything about the nature or source of the complaint.  On his lawyer’s advice he did not attend.

On January 12, 2010 the charges in issue were laid.  The accused was not arrested until July 26, 2011.

Thereafter, the charges worked their way through Provincial Court to the point where a trial date was set for December 12, 2012.  A pre-trial motion was brought by the accused seeking a stay pursuant to s. 24(1) of the Charter on the basis that his right to be tried within a reasonable time under s. 11(b) had been breached.

The trial judge found that there had been a 36-month delay from issuance of the charges to trial. Eighteen months of that was post-arrest.  He was satisfied, on a review of the circumstances, that this delay was not unreasonable.

The balance of the delay was a period of 18 months from the date the information was sworn, until the accused’s arrest, the latter being the date that the accused learned of the charges.  No explanation was offered by the Crown for this delay.  The trial judge concluded it was solely attributable to the police.

The accused did not assert that he had suffered any prejudice and did not provide any evidence that his right to a fair trial had been impaired.  He argued that prejudice should be inferred.  The trial judge agreed and concluded that the accused’s rights under s. 11(b) had been violated and granted a stay of proceedings pursuant to s. 24(1).

… “Turning to the case at hand, the accused did not provide any evidence of any prejudice to his right to a fair trial including any economic consequences.  As the Crown points out, his position before the trial judge was based solely on presumed or inferred prejudice.”

This is key, Suche’s decision suggests, as the law of the land (as interpreted by the Supreme Court on appeals from lower courts) appears to say that charges should stand in cases of “inferred prejudice,” because the accused person can’t claim his/her interests are in jeopardy in the absence of knowing they are charged with an offence or pending trial. 

It’s an interesting twist of logic. The law in this case seems to suggest an offence can’t be tossed out even if its subject isn’t there to hear the tree fall in the forest, as it were.

And then there’s the irony.

The accused didn’t participate in the appeal hearings. And likely doesn’t know he’s now due back in court.

An arrest warrant has again been issued for him.

Will be interesting to see what happens next. I’d bet the cops bend over backwards to get this one executed fast.

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