Edmonton teen sex assault case collapses due to 'unreasonable delay'
A sexual assault charge against an Edmonton teen has been dropped after a series of delays caused by police and the Crown prosecutor, a provincial court judge has ruled.
"This is not the way criminal charges are expected to end," Judge Julie Lloyd said in a written decision issued last week.
On Feb. 1, 2018, a teenage girl told police she had been sexually assaulted by a pair of 16-year-old twin brothers.
All of the names are protected by a publication ban under the Youth Criminal Justice Act. The brothers are identified in the written decision by their initials, PAW and PLW.
The day after she made the complaint, the girl was interviewed by an investigating officer at the Zebra Child Protection Centre, a non-profit centre for children who have been abused, which encompasses a variety of services including Edmonton police child protection officers.
She handed over a pair of underwear she said she was wearing at the time of the assault.
The unidentified officer put the clothing in an exhibit locker at the Zebra Centre yet nothing was done with it for five months.
When Det. Lael Sauter took over the case in July 2018, he found the clothing had not been sent for DNA analysis so he submitted it for testing.
Sauter received a report from the RCMP in January 2019 that identified PLW as a suspect after they ran the sample through a DNA database.
PLW turned himself in at Edmonton police headquarters on Feb. 26, 2019, accompanied by his Children's Services caseworker.
When PLW's alibi was found to be unsubstantiated, he was arrested and charged on March 20, 2019, more than a year after the girl first turned to police for help.
The following month, PLW's twin brother, PAW, was picked up on unrelated warrants and arrested and charged in connection with the same alleged assault.
Last minute trial adjournment requested by Crown
A trial date for the co-accused brothers was set for three days in January 2020. One month before the trial, PLW's lawyer asked to be removed from the case because he had been unable to reach the teenager.
PLW is not referenced again in the written decision.
On the day the trial was supposed to begin, Crown prosecutor Claudette Hargreaves asked for an adjournment because one of their key witnesses would not be able to testify.
That person was the executive director of an Edmonton agency that helps vulnerable children who said they knew the complainant for years.
The Crown said that person, referred to as MP, was who the teenager told first about the assault.
Even though Hargreaves knew about the January trial date, MP did not receive a subpoena until December.
By then, she had committed to chaperoning and driving for a ski trip with the children in her agency's care.
Defence lawyer Amanda Goodwin opposed the application for an adjournment, but she lost.
Months later in her written decision, Lloyd said arrangements could have been made for MP to drive to Edmonton, give her evidence and then return to the Jasper ski trip.
The trial was set over to August.
The written decision states that Goodwin filed a charter notice arguing that PAW's constitutional right to be tried within a reasonable time frame had been violated. The decision did not include the date of Goodwin's application.
The Supreme Court's Jordan decision sets out a framework for a provincial court case to be wrapped up within 18 months from the time a charge is laid. Another Supreme Court decision considers the unique circumstances that apply to youth cases.
It notes that a young person's memories fade more quickly and they have a different perception of time that affects their ability to see the connection between actions and consequences.
If PAW's August trial had gone ahead, it would have fallen below the Jordan ceiling at 16 months and 19 days but Lloyd also took into account the unique circumstances of the accused.
'Timeliness was a particular concern in this case'
She noted PAW is Indigenous, "and so burdened by the historic trauma accumulated over generations of the Canadian experience."
Lloyd also pointed out PAW has been a ward of the province since the age of 13. He struggles with addiction, has been diagnosed with fetal alcohol spectrum disorder and has low cognitive functioning.
"The Crown knew or ought to have known most or all of this accused's vulnerabilities," Lloyd wrote. "Timeliness was a particular concern in this case."
The judge also noted how long it took for Edmonton police to lay criminal charges.
"There was a significant delay between the complaint and the laying of charges, " she wrote.
"The charge was not laid for 13 months. The Crown did not identify any particular reason for this delay. The case was not complex."
Lloyd continued, writing: "The criminal justice system will not work for anyone if we are not careful to make sure that the system has worked fairly in each case.
"Unreasonable delay burdens and denies justice to accused persons. Unreasonable delay also burdens and denies justice to complainants, to witnesses, to friends and family members, and to the whole community.
"The complainant and the accused have each played a part in keeping the system of justice strong by keeping it accountable. That matters."
Goodwin said her client was pleased that a stay was granted.
"He was happy with that result," Goodwin said. "In the circumstances, I think this was the right result."
Goodwin believes the Crown still plans to prosecute PAW's twin brother on the sex assault charge.
The Crown did not respond to an email from CBC News.
