Court of Appeal refuses to reinstate sex assault charge tossed due to delays

·2 min read

Nova Scotia's highest court has refused to reinstate a sexual assault charge against a man whose case took too long to make its way through the system.

Jordan Michael Ellis, 34, was charged on May 30, 2017. A woman alleged he raped her when they met on a remote country road in Annapolis County.

His case did not come near a conclusion until August 2019, more than two years after he was first accused. The trial judge, Alan Tufts of the Nova Scotia provincial court, agreed with a defence motion that Ellis's constitutional rights had been violated by unreasonable delay.

Tufts applied the standard set by the Supreme Court of Canada in the Jordan case, a ruling that said matters in provincial court must be resolved within 18 months. Since the charge against Ellis went far beyond the time limit, Tufts entered a stay of proceedings.

The problem discovered at trial was that there were pieces missing from the rape kit, the package of documents, photographs and forensic evidence collected by sexual assault nurse examiners (SANE) who examine victims of sexual assault.

In this case, the 35-year-old complainant testified that the SANE team had photographed her as part of their examination. However, the Crown could not locate the photographs, which eventually turned up in an RCMP detachment office.

Ellis's lawyer complained that he could not properly respond to the Crown's case without seeing those photographs.

Dave Laughlin/CBC
Dave Laughlin/CBC

The Nova Scotia Court of Appeal ruled this month that Tufts was correct in his consideration of the missing evidence as part of the delay the Crown is responsible for.

"The failure of the police to properly manage the evidence, with the result that it was not located for some time, cannot be characterized as an unforeseeable or unavoidable circumstance that could not have been mitigated," Justice Anne Derrick wrote for the three-member appeal panel.

"The trial judge made no error considering the only remedy that has ever been applied to vindicate an accused's right to a timely trial. I have not been persuaded this Court should embark upon the exercise proposed by the Crown and assess the suitability of less onerous alternatives, especially where a failure to provide disclosure was a significant delay-causing factor."