Crown appeals after Nova Scotia doctor's voyeurism charge tossed out

The Crown is asking the Nova Scotia Court of Appeal to overturn a judge's decision to stay a voyeurism charge against a New Glasgow doctor, after his lawyer argued the case had dragged on too long.

Rafid Al-Nassar, a family doctor, was charged on Nov. 30, 2016, by police in New Glasgow who alleged he had planted a video camera in the staff washroom at the Westside Medical Clinic.

Police began investigating after receiving a complaint from a staff member.

In court documents, the Crown alleged that forensic evidence from a concealed camera and micro SD card, as well as computers and a cellphone seized from Al-Nassar's home and office, draw a link between the doctor and the camera.

After multiple delays and two trial adjournments, Al-Nassar's defence lawyer Michael Scott applied in August 2019 to have the charge stayed. In his application, Scott argued that the Crown failed to bring Al-Nassar to trial within a reasonable time, breaching his rights as set out in the Supreme Court's 2016 Jordan decision.

That ruling has set a limit of 30 months between the laying of charges and the end of a trial for superior courts.

Defence argued delays fall on police 'procrastination'

Scott argued a delay of more than 38 months without a trial went well beyond the Jordan ceiling.

In his application, Scott argued a significant part of the delay was thanks to important evidence only being disclosed to the defence before trial was about to begin — twice.

The original trial in September 2018 was adjourned when the Crown disclosed a report from Gilles Marchand, an RCMP digital forensics expert, related to Al-Nassar's post-event conduct seized through electronics. It was eventually ruled inadmissible.

According to a court brief, two months before the rescheduled trial in May 2019, the defence was told the Crown was disclosing a new 10,217-page report from Marchand summarizing 12.2 gigabytes of data he'd only recently been able to extract from Al-Nassar's phone thanks to "new software." 

Marchand said he was limited in his January 2017 analysis of the phone due to the software available at the time, but after defence asked for clarification Marchand said a version of this newer software was released in August 2017. 

However, "due to the high volume of my workload" this only came to his attention in March 2019 during trial preparations, Marchand said.

Scott wrote that defence was prepared for both attempts at trial, but they "were lost as a result of investigative procrastination."

He asked to adjourn the May 2019 trial, which was granted. New dates were set for a third attempt at the trial in January and February 2020, before the charge was stayed.

Crown argues new software 'exceptional' circumstance

For his calculations, Crown attorney Bill Gorman noted that two situations where the defence was not available for court due to previous obligations should count as a deduction from the total.

He also suggested the roughly seven months between the first and second attempts at trial should be taken off, leaving 20 months and 15 days — "well below" the Jordan ceiling.

In his argument against the stay of charges, Gorman wrote that the discovery of the enhanced software was an "exceptional circumstance" since it was physically not available to the Crown before March 2019. 

These unique situations may allow for a case to continue, even if it goes past the Jordan ceiling.

But on Oct. 1, 2019, Justice Muise granted the defence's application and stayed Al-Nassar's voyeurism charge in Nova Scotia Supreme Court in Pictou.

Accused's mental health slipping under restrictions: lawyer

In his application, Scott also outlined prejudice as an important factor in staying the charges against Al-Nassar. 

After the charge was laid, Scott said Al-Nassar's children were bullied, while his wife (also a doctor in New Glasgow) left her practice and relocated with the family to Toronto in August 2017. Since then Al-Nassar has been splitting his time between both provinces while waiting for his case to finish.

Al-Nassar's mental health has "deteriorated" with the two adjournments due to the "general strain and humiliation" of the charge, Scott wrote.

He said the years of delays impacted his client's liberty beyond what is reasonable, since the Nova Scotia Health Authority had only allowed Al-Nassar to continue practising if he hired a nurse as his chaperone.

Al-Nassar cannot enter the clinic or interact with patients and staff without the chaperone. He also must only use a bathroom designated for his use, display a sign warning patients of these restrictions, and not take emergency room or on-call shifts.

These conditions were present on the College of Physicians & Surgeons of Nova Scotia's website as of this week.

Al-Nassar received his Nova Scotia medical licence in November 2011.

How the Crown is appealing

The Crown is appealing Muise's decision on the grounds he erred in law in his Jordan analysis by failing to attribute certain delays to the defence, and failing to characterize new technology that prompted new evidence as "exceptional" circumstances. 

In the appeal, the Crown is asking for the higher court to quash the stay of proceedings and order a new trial. Or, if the court decides Al-Nassar's right to trial in a reasonable time was breached, that the case be "adjudicated on its merits" and they come up with another remedy.

The case will be the Nova Scotia Court of Appeal on Wednesday to possibly set dates and get more direction.