Judge stays sexual assault charges against Pictou County man, citing Charter violations

A Nova Scotia provincial court judge has stayed some of the sexual assault charges against a Pictou County man because they took too long to go through the justice system. 

Herbert Allison Best, 70, was facing six charges of sexual assault, four of sexual interference and four of sexual exploitation. The last eight charges relate to the fact some of the complainants were children at the time of the alleged offences.

Best was also facing two historical sexual assault charges for offences that allegedly occurred between 1976 and 1986.

But in a decision on June 12, Judge Bryna Hatt ruled that Best's Charter right to a timely trial had been violated by unreasonable delay. The decision came after Best's lawyers filed what's known as a Jordan application — named after a Supreme Court of Canada ruling that set firm deadlines for when criminal trials must be completed. In provincial court, that deadline is 18 months.

The charges against Best were laid in August 2022, and the trial was set to begin in December of last year. But midway through that trial, complications arose. The defence discovered four of the complainants had exchanged text messages about the alleged offences and one of the complainants needed the help of a counsellor in "pulling out" memories related to the allegations.

Best's lawyer requested, and was granted, access to the text messages and some of the counsellor's records. All that took time, and four of the complainants had to be recalled to be cross-examined about the text exchanges.

Judge blames Crown for delays

In her decision, Hatt blamed the Crown for the delays, saying a prosecutor was only assigned to the file in November 2023 — a month before the trial was about to begin.

"Prior to November 2023, the Crown's response to defence was a breadcrumb correspondence trail of the file being sent from one Crown office to the next," the judge said.

"Logically at that time, the defence would have reasonably presumed the Crown picking up the file would respond to the substantive request. No response came."

Pandemic factor

Hatt said she could find no explanation for the Crown's failure to act sooner and rejected the Crown's suggestion this case was a victim of the "ripple effects" of the COVID-19 pandemic, which resulted in delayed trials across Canada.

"We are two years out from the last wave of the pandemic and from the end of the state of emergency," the judge said.

"To not require mitigation efforts to avoid delay at this point, either through prioritization or assigning more resources, would be to allow COVID complacency to justify ongoing infringements of Charter protections."

However, the judge did acknowledge that cases are taking much longer since the end of the pandemic, and finding enough court time to schedule a multi-day trial means cases can take up to a year or more.

Toward the end of her oral decision, the judge spoke directly to the complainants.

More legal problems for Herbert Best

"I acknowledge that you may feel this is unsatisfactory and disappointing," she said.

"The court is not left with any other options once it has found that the accused's [Charter] rights to be tried in a reasonable time are breached. The only remedy available is a stay of proceedings."

Best's legal problems are not over, however.

He's still facing nine charges of sexual assault, two of sexual exploitation and one count of failing to abide by conditions.

Those charges are scheduled to be dealt with in two separate hearings, one in September and the second in October.