Judge dismisses N.S. sexual assault case due to lengthy delay

·2 min read

A second sexual assault court case in the Annapolis Valley has been dropped due to delays.

The latest matter involved the case of Regan Brant Tolbert, who was charged with sexual assault on June 7, 2017.

Because the case took longer than 18 months, Justice Ronda van der Hoek of the Nova Scotia provincial court agreed with a defence motion that Tolbert's constitutional right had been violated by unreasonable delay.

"All parties in the justice system bear the responsibility to ensure matters progress through the system within what must surely be a reasonable eighteen-month window," wrote van der Hoek in her Dec. 18 decision.

The 2016 Supreme Court of Canada ruling known as the Jordan decision sets a limit of 18 months between the laying of charges and the actual or anticipated conclusion of a provincial court trial. The limit is 30 months for superior courts.

Many delays

The Torbert case had many delays. Some came from lawyers on both sides who had busy schedules.

On Nov. 28, 2018, when Tolbert's case was scheduled for trial continuation, he was hospitalized with a collapsed lung. Due to scheduling conflicts and planned vacations, the case didn't get back to court until April 2019.

"An April date without effort to obtain an earlier date is not a result of exceptional circumstances, but instead represents a failure to consider Mr. Tolbert's Charter protected right. There is blame to go around," van der Hoek wrote.

It's the second sexual assault case in Nova Scotia to be thrown out this month due to delays.

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

But the Ellis case did not come near a conclusion until August 2019, more than two years after he was accused. The trial judge, Alan Tufts, agreed with a defence motion that Ellis's constitutional rights had been violated by unreasonable delay and ordered a stay in proceedings.

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

However, the Crown could not locate the photographs, which eventually turned up in an RCMP detachment office.