A Nova Scotia man accused of sexual offences against two children has had his charges stayed due to excessive delays in proceedings, prompting the children’s mother to call the process “an abhorrent waiting game.”
While the trial wrapped up in Dartmouth provincial court in October 2021, a verdict was never handed down because the original trial judge went on a leave of absence.
“You get to a stage where a victim has done the right thing. They have come forward. They have entrusted the police. They have entrusted the court and the court does not hold true and do their job,” the children’s mother said.
“There was no urgency brought to this case, and there should have been.”
Global News is protecting the person’s identity due to a publication ban.
In a decision released Monday, 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.”
Brandon William McNeil, 29, had pleaded not guilty to two counts each of sexual exploitation, sexual interference and sexual assault. It was alleged the incidents happened between Feb. 11 and 27, 2021, when the children were ages six and nine.
A trial was held in Nova Scotia Provincial Court in July, August and September of that year. A decision date was set for Nov. 25, 2021, but the original trial judge, Rickola Brinton, went on leave.
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Several other court dates came and went, and it remained unclear when and if the trial judge would return. In April 2022, the Court said the trial judge was away for “medical reasons.”
On a May 31, 2022, court appearance, both the Crown and defence indicated they wanted to prevent a retrial.
“The proposal was in effect to reserve trial dates, but not to declare a mistrial per se, so that if the trial judge returned in the intervening period, a decision could be rendered,” wrote Duffy.
“Further, the suggestion was to fix a status date, and if the judge has not returned at that time, there would be a mistrial – or a recommencement of proceedings – per 669.2 CC.”
A mistrial was finally declared in February 2023.
While retrial dates were set, McNeil applied to have the charges stayed due to the delay, which Duffy approved.
“The reality of the question is at what point should the decision have been made to replace the judge and recommence the proceeding. With little to no information regarding return of the trial judge, it is a very difficult call to make,” wrote Duffy.
She went on to say that in hindsight, a mistrial should have been declared earlier.
“This is not a failing on the part of the prosecution. Nevertheless, were the accused individual to bear this delay at the expense of Charter-enshrined rights, the public at large is disadvantaged — deprived of timely trials that are important for victims, for accused, and for public confidence in the system — and consequently the administration of justice is diminished.”
‘No faith anymore’
The alleged victims’ mother said the entire court process was “drawn out and lengthy for everyone involved, especially the children,” who testified at the trial.
“One thing we maintained in saying when the (children) had come forward was, ‘You are so strong like a superhero.’ We let them know that coming forward is nothing to be ashamed of and extremely brave and then coming forward could potentially protect other victims,” she said.
“I know as a family we have to accept the decision and do our best to move on, kind of keep our focus, making sure the children are OK and putting the terrible situation behind us. But I really can’t help but wonder how we got to where we are today.”
She’s calling on the province to fix the judicial system, and said the delay was a problem that should have been “foreseeable.”
“The fact that there are so many laws to protect the accused and give them the right to a speedy trial, but it doesn’t seem like anyone ever thinks about the victims,” she said.
“If the courts and the laws can’t protect you, who can? I think this is why so many people have no faith anymore.”
Backlog of cases, higher-than-normal retirement rate
There is currently a backlog of criminal court cases in the province and a shortage of judges.
During a State of the Nova Scotia Courts address last month, Pamela Williams, the chief judge of the provincial court, called the backlog “significant.”
When fully staffed, there are 28 provincial court judges, but there are two vacancies and one judge is on long-term leave.
In a statement, Jennifer Stairs, the communications director for the Nova Scotia Judiciary, said the full complement of 28 judges is a number that has not changed in many years.
“Some judges who have retired choose to sit part-time and accept assignments at their discretion. But even with that support, it is difficult to meet the current demands of the Provincial Court,” she said.
Seven judges have been appointed within the past year, but there have been six retirements in the same timeframe.
Justice Minister Brad Johns told reporters back in May that there was a “higher-than-normal” retirement rate.
“We’re anticipating some more appointments very soon, so we’re trying to keep the bench full as well as we can,” he said.
In April, the Liberal opposition raised concerns when 38-year-old Nathaniel Matheson had child pornography charges against him stayed because of delays. In that instance, a judge noted that most of the delay in the case was due to the lack of availability of a judge to hear the trial.
The 2016 Supreme Court of Canada Jordan ruling declared defendants have the right to be tried within 18 months of being charged before provincial courts.
Data from the province’s public prosecution service indicates there have been 71 applications for stays under the Jordan rules since 2017.
As of March 20, 24 of the applications had resulted in stays. A Jordan application is brought by the defence if it believes the delay is attributable to the Crown.
— with a file from The Canadian Press