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Mother feels ‘completely let down’ after appeal dismissed in excessive delay case

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N.B. introducing changes to try and alleviate backlogged court system
RELATED - New Brunswick is introducing a suite of changes to help alleviate the backlogged provincial court system. One defence lawyer says the new measures may help but that the issue won’t be fully resolved without more access to court time. Silas Brown reports – May 21, 2024

A Nova Scotia mother is calling for more attention on the rights of victims and complainants, after the province’s court of appeal upheld a decision to stay sexual offence charges due to excessive delays in proceedings.

The alleged incidents happened between Feb. 11 and 27, 2021, when the alleged victims were ages six and nine.

“My thoughts are the same as a lot of other people’s thoughts that have had to go through the justice system, and I don’t have a lot of hope for it,” said the children’s mother. Global News is protecting the person’s identity due to a publication ban.

“I think our whole justice system needs to be reworked. There needs to be a lot more support put in place for (complainants). And there needs to be more judges hired on, and they need to be able to help the people that are there that need help.” 

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Brandon William McNeil had pleaded not guilty to two counts each of sexual exploitation, sexual interference and sexual assault. According to the Nova Scotia Court of Appeal decision, McNeil now uses a different name and pronoun.

While the trial wrapped up in Dartmouth Provincial Court in October 2021, a verdict was never handed down because the original trial judge, Rickola Brinton, went on a leave of absence.

A mistrial was finally declared in February 2023. While retrial dates were set, an application was made to have the charges stayed due to the delay.

In June 2023, the courts decided to stay the charges.

In her 2023 decision, Judge Bronwyn Duffy said she was “wholly satisfied” the Crown did what they could to prioritize the case and that the defence “cannot be faulted,” but that there was “no easy answer to this quandary.”

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That prompted the children’s mother to call the process “an abhorrent waiting game,” while speaking with Global News in June 2023.

An appeal was filed with the Nova Scotia Court of Appeal, arguing in part that the application judge erred when agreeing that 15.7 months waiting for a verdict was a “deliberative delay” and that it was “markedly longer than it should have been.”

On Wednesday, the appeal court dismissed the appeal.

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“There was no “real option” here. As Crown counsel observed, the future as it related to the trial judge’s return from leave was obscured by uncertainty. It was only on February 14, 2023 that the plug was pulled and Crown and defence abandoned hope for a verdict,” the decision from the three-member panel stated.

“I find no legal error in the application judge’s determination the 15.7 months of deliberative delay was markedly longer than reasonable in all the circumstances.”

The mother of the children, who both testified in court during the original trial, said they were “completely let down” by this latest decision.

“We felt it was another huge let down from the justice system in an already terrible event that happened.”

There is now the possibility of taking the matter to the Supreme Court of Canada.

“I’ve reached out to the appeal lawyer to see what the process is. We’ll keep our options open with that and that’s something that we will think about pursuing,” the mother said.

She said she believes pursuing the case is beneficial for other future complainants “so that if they’re in this situation, they have a case that they can look at to give them hope.”

“But our biggest thing right now has to be focusing on the (children) where they’re at in life and making sure that they are okay.”

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Back in 2023, the Nova Scotia Judiciary confirmed there was a backlog of cases and a shortage of judges.

A full complement of judges in the province is 28, and that number had not changed in “many years” a spokesperson said.

Justice Minister Brad Johns also said at the time that there was a “higher-than-normal” retirement rate.

As of Wednesday, the courts confirmed there are currently no vacancies in the system, but there continues to be one judge on long-term leave.

Judge Rickcola Brinton, the original trial judge in this case, is suing the provincial court and its former chief judge, alleging her rights to judicial independence and medical privacy were violated when she was pressured to reveal her COVID-19 vaccination status.

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According to the statement of claim, she was approved for long-term disability leave.

For the children’s mother in this case, the situation has been nothing but frustrating.

“The courts should have looked at that situation sooner, and something should have been done sooner so that we didn’t end up in the situation we are in … with zero justice being brought forward to them after what they had to endure.”

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