Ottawa judge stays teen's sex assault charges at home daycare over trial delays

An Ottawa judge has stayed the charges against a 15-year-old boy accused of sexual offences involving a three-year-old at his mother's in-home daycare because of unreasonable delays. 

It's one of the first cases in Ottawa that didn't concern a murder charge where the defence argued that tighter deadlines set out in a landmark Supreme Court ruling last summer meant their client's constitutional rights to a speedy trial had been violated.

Last July the Supreme Court, in what's known as the "Jordan decision," took aim at the sluggish pace of lower courts by ruling that most criminal cases must not exceed eighteen months to get to trial.

Trials for the most serious cases, such as murder, should not be delayed past an upper limit of 30 months, the court said. 

21 months passed since arrest

In the case of the 15-year-old teen, Ontario Court Justice David Paciocco wrote in his decision that significant time was lost because of "technical failures" in court.

"I recognize that technical difficulties will ordinarily be the kind of unexpected circumstance that leads to delay for which the state cannot fairly be held responsible," Paciocco wrote. "Most of the delay in this case was spent, however, waiting for a technician to arrive to fix the problem."

As well, there were delays caused by the "state of readiness of the prosecutor's case" including late disclosure of some evidence and issues with a witness called to the stand, he said.

Paciocco said he understands the charges the 15-year-old accused is facing "are serious," but said it had been 21 months since the teen's arrest in April 2015. The trial had been completed, but a verdict had not yet been reached.

"All sexual assaults are serious, and the allegations here are aggravated," wrote Paciocco.

"Even under the pre-existing law, however, the seriousness of an allegation did not suspend the Charter right to trial within a reasonable time."

Unreasonable delay should be shorter for youth

Paciocco went further and found the amount of time acceptable for young offenders to wait for their case to go trial should be shorter than adults — not more than 15 months.

The accused was 13 when he was arrested and is now 15 years old. His lawyer Mark Ertel argued that the presumptive ceiling for youth should be 12 months and in this case that was far exceeded.

Since the teen's arrest he's been under "life-altering conditions," wrote Paciocco. The 15-year-old boy hasn't been allowed to wait at a bus stop near his house because there could be children there. He can't go to public parks, swimming areas, or community centres without his parents. He also can't speak to anyone under 12 years of age, including his sister, unless his parents or grandparents are in the room.

Teen still faces another charge

"The pre-existing law recognized that inherent prejudice caused by delay is more intense for young persons, given the differences in the way time is perceived, and the urgency of addressing criminological factors swiftly for young people if intervention is going to be effective," said Paciocco in his ruling.

The teen's lawyer, Mark Ertel, said he cannot comment on the case since it is still ongoing.

The 15-year-old faces another sexual assault offence involving a different three-year-old at his mother's daycare. The charge was laid after his original arrest and has not been stayed.