Double-booked courtroom, Crown delays lead to Ontario sex assault case being thrown out
Angelina King | CBC | Posted: November 27, 2023 9:00 AM | Last Updated: November 27, 2023
University of Toronto student says justice system failed her
Warning: This story mentions sexual assault.
Taylor had been feeling really strong.
It was the morning of the trial and more than a year since police charged a man with sexually assaulting her in an alleged incident she describes as "severe."
Taylor was feeling confident about the trial and felt that by testifying this spring, she was "standing up for a lot of other victims" of sexual violence.
But on the day of, she broke down and remembers the Crown prosecutor comforting her and giving her pep talks.
"It was a pretty rough day," she told CBC Toronto.
Taylor isn't her real name. CBC is using a pseudonym because she was the complainant in a sexual offence proceeding.
She lives in Toronto, but the case was being heard in Fort Frances, a town in northwestern Ontario right on the border with Minnesota where the alleged incident happened.
"I made eye contact with [the accused] in the courtroom. It's like your body is going into flight-or-fight mode when you're there and you have to live through that whole experience," she said.
WATCH: 'Taylor' talks about the experience of seeing the accused in court:
But Taylor didn't end up testifying, because the trial didn't go ahead.
The courtroom was double-booked with another sexual assault trial, according to court records. The Crown prioritized the other case, which involved a youth and had been winding through the courts for longer.
Taylor's case was rescheduled for seven months later. But before it could be heard this fall, it was thrown out because it took too long to get to trial, an issue that's gotten worse since the pandemic and hit a record high last year, according to provincial statistics.
"It feels like when somebody passes away and you're in disbelief — it doesn't really feel like an end, because there's been no defining moment," Taylor said. "I'll never get that. And [the accused will] probably never get in trouble for what he did."
CBC Toronto isn't naming the man because he wasn't convicted in the case.
125 cases tossed in Ontario last year due to delays
In 2016, the Supreme Court of Canada ruled on a case called R v. Jordan, which established deadlines for when a trial must be completed — 30 months in Superior Court and 18 in provincial and youth courts.
Delays beyond that violate the accused's right to be tried within a reasonable time, the decision said. An accused can file what's become known as a Jordan application, and a judge must grant it in order for charges to be stayed.
When it comes to these applications, Ontario set three record highs last year: the number of completed applications; the percentage of them that were granted; and the number granted (125), more than double the year before.
"We are still dealing with the aftermath of pandemic closures," said Michelle Johal, a vice-president of the Criminal Lawyers' Association. "What's significant about this period of time is that jury trials were essentially on hold for long periods of time, and what happened is that just sort of exacerbated an already pre-existing backlog."
Johal, a defence lawyer based in the Greater Toronto Area, calls last year's record "an anomaly." She says that while there are staffing and resource issues in some jurisdictions, her experience is that cases are being heard quicker now.
"I'm hopeful that the numbers that emerge from 2023 and then in 2024 will be better," Johal said.
Since the Jordan ruling came into effect in the summer of 2016, 86 Ontario sexual assault cases have been thrown out due to delays, or a quarter of all Jordan applications filed in sexual assault cases in that time frame.
A spokesperson for Ontario's Ministry of the Attorney General says the ministry takes trial delays very seriously and will continue to examine best practices for cases nearing the Jordan timelines and work to ensure cases proceed through the courts sooner.
"Fair and timely access to justice is a core value of this ministry and our government," said spokesperson Maher Abdurahman.
"Our government is committed to working with all our legal partners to explore ways to address delays and backlogs in the justice system and to ensure that cases proceed through the system as efficiently and effectively as possible."
Double-booking, Crown delays to blame, judge says
Two weeks before the new trial date in Taylor's case, Justice Jana-Rae Dewson granted the accused's Jordan application and the charge was stayed.
Another sexual assault charge against him was withdrawn earlier this year, according to court records. He had also been accused of sexually assaulting Taylor about six years ago, when they were both under 18.
The Crown had to separate those two charges, because one had to go through youth court, which slowed down the proceedings.
In her decision, Justice Dewson said that administrative issue, along with the courtroom double-booking and a delay in the Crown providing disclosure from a sexual assault examination kit (the Crown argued the documents were illegible and had to request new ones), pushed the case past the 18-month time frame.
"I was very angry, especially at the system," Taylor said.
Abdurahman didn't say why the courtroom was double-booked, just that scheduling is done at the discretion of the judiciary.
Johal said it's "sadly not uncommon" for a courtroom to be double- or triple-booked in an effort to maximize court time, since cases are often resolved or don't go ahead on the day of trial.
Let down by the system
As the delays caused the case to drag through the courts, Taylor says the support she first felt from the system started to dwindle. She says she was assigned four different provincial victim services workers, which made it difficult to build rapport and often left her in the dark about the case.
"You have all the support and they promise you that it's going to be better and there's going to be so many people [to help] and it's good that you came forward … and then it disappears," Taylor said. "It makes you think, OK, well, what's wrong with me? Why aren't people here?"
Abdurahman said the ministry can't comment on specific cases, but welcomes feedback from survivors and victims and is committed to making improvements to ensure the needs of victims and survivors are met.
'Is it fair to society?'
Simona Jellinek, a Toronto lawyer whose been specializing in civil sexual assault cases for nearly 30 years, says she doesn't believe Jordan time frames should apply to sexual assault charges.
"Cases that involve sexual violence are often times much more complicated than your normal, run-of-the-mill criminal case, and therefore require more time to bring that case to trial so that it's a fair trial," she said.
"[Jordan timelines] just seem very, very unfair to the complainant. … In some ways, it is perfectly fair to that accused. But is it perfectly fair to society?" she said.
"When do the rights of the accused trump the rights of the victim of the alleged crime? And the rights of society as a whole to have a trial that will show whether or not that person was guilty, and if that person was guilty, having that guilty person walk free?"
Taylor says she'd like to see more awareness for sexual assault survivors on where to access resources and more victim services workers in remote areas.
She also thinks Jordan applications should be granted on a more situational basis.
As for her own case, Taylor hopes the accused can take the opportunity to "make a good, positive life for himself and it can be a turning point."
"Just never do what you did ever again."