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Delays prompt judge to stay charges against man accused of sexual assault


N.B. Crown Prosecutors Association says staff shortages are at crisis levels

Shara Munn said the crown prosecutors' offices in N.B. have reached a crisis point. (Shane Magee/CBC)


Charges were stayed in Moncton provincial court Friday against a man accused of sexual assault, with the judge agreeing with the defence that the accused had waited too long to be tried. 


Meanwhile, a group representing Crown attorneys saying staffing shortages in their ranks are at crisis levels. 


Judge Paul Duffie stayed the charges while citing the accused's right under the Canadian Charter of Rights and Freedoms to be tried within a reasonable time. 


There is a publication ban on the name of the complainant and any information that could disclose that person's identity. 


The accused, a former dating partner of the complainant, cannot be named. He was charged May 28, 2021. 


While announcing his judgment, Duffie said no delays were caused by the defence. Duffie described some of the delays as exceptional circumstances, but said some were the fault of the crown prosecutors' office. 


Shara Munn, president of the New Brunswick Crown Prosecutors Association, said it was a disappointing outcome but not a surprising one.


She said their members have been experiencing staffing problems for the last 10 to 15 years, and over the last few years the shortage has become a crisis.


"We've been trying to sort of raise this to government that we are on the brink of collapse," said Munn.


"I think that this decision today out of Moncton basically signals that unfortunately we were right and so here we are."


Duffie's decision effectively brings an end to the case. 


Munn did not have statistics on how often judicial stays happen in New Brunswick, but said "surely one case is one case too many."


Attorney General Ted Flemming said in an emailed statement that the Department of Justice and Public Safety is talking with the New Brunswick Crown Prosecutors Association to get a better understanding of their perspective.


"In New Brunswick, court decisions to stay a charge because of an unreasonable pre-trial delay are very exceptional." he said in the statement. 


"Obviously every such decision is unfortunate, because everyone who's been harmed by crime deserves to have the case decided on its merits. Public Prosecutions Services reviews every file that is stayed for delay, to ensure lessons are learned and the risk is reduced going forward."


TImeline shows several delays


According to the timeline given by Justice Duffie, the accused first appeared in court on June 4, 2021. An adjournment was requested by the accused, which was granted until June 25. 


During the June 25 appearance, the accused pleaded not guilty and elected to be tried by a judge. A one-day trial was scheduled for May 12, 2022. 


On May 9, 2022, the parties appeared in court as the assigned prosecutor was on sick leave and the trial could not proceed as scheduled. It was rescheduled to Sept. 30. 


On Sept. 22, the provincial government announced it would observe the National Day for Truth and Reconciliation on Sept. 30. The trial was then moved to Jan. 19. 


However, the delays were not over. 


On Oct. 22, the parties appeared in court again as the court date had been assigned in error, according to the assigned crown prosecutor, who was unavailable. 


The next trial date was set for Feb. 27.


Defence lawyer Bruce Phillips had made a motion under Section 11(b) of the Charter for the charges to be stayed. 


Duffie heard testimony last week regarding the delays.


The presumptive ceiling for cases before a provincial court, set by Supreme Court of Canada precedent, is 18 months, and 30 months for Court of King's Bench.


Duffie said the total of the delays amounted to more than 19 months. 


Munn pointed out that the ceilings are not something to be aimed for.


"If you're participating in a system as a victim, or a witness, or or even an accused person, any delay feels like, you know, justice is not being done," she said.


"So the fact that we're having trial dates, you know, routinely set down now in 2024 when we're just …newly into 2023, that to me is a huge concern and that's a concern to our members."