A Nova Scotia judge has stayed a sexual assault charge against a former St. Francis Xavier University lecturer after significant delays by RCMP in sending evidence for forensic analysis.
In a decision released this week, Nova Scotia Supreme Court Justice Patrick Murphy found RCMP are largely to blame for delays that meant Behrang Foroughi-Mobarakeh's trial would not start until 38 months after his arrest.
Murray said that length of time violates the Supreme Court of Canada's ruling that such trials must be completed within 30 months. The judge ordered a stay in the case, ending the prosecution.
"The accused has been responding to this prosecution since March 2014, as has the complainant and other participants. Under law he is presumed innocent," Murray wrote in his decision.
The case is one of a number of prosecutions in Nova Scotia, and one of a slew across the country, that have been stayed as a result of last year's ruling by the Supreme Court of Canada in the Jordan case, a decision that dealt with court delays.
Foroughi-Mobarakeh taught in the department of adult education at St. Francis Xavier University in Antigonish, N.S., and now is listed as an assistant professor at Arizona State University.
CBC News's attempts to reach him were unsuccessful and his lawyer declined comment.
The RCMP has not responded to requests for comment.
Disclosure in 'bits and pieces'
The court ruling does not detail the precise allegations against Foroughi-Mobarakeh.
Antigonish RCMP arrested him on March 31, 2014, and charged him with sexual assault.
"Considerable efforts were made on behalf of Mr. Foroughi-Mobarakeh to obtain full and complete disclosure," wrote Murray. Disclosure in criminal cases means a copy of evidence that's been collected.
That disclosure came in "bits and pieces" and was still incomplete when the preliminary inquiry took place over several dates in January, February and May 2015. The judge said even after that, "significant disclosure remained outstanding."
In August 2014, Foroughi-Mobarakeh's release conditions were changed so that he could move to Arizona for work.
2 years to send samples for testing
Antigonish RCMP waited two years to send evidence seized at the time of the arrest to the forensic lab in Ottawa. The court decision does not say what that evidence was. Police got the results a few weeks later, in April 2016, which meant Foroughi-Mobarakeh's trial date for May 2016 had to be delayed.
The Ottawa lab asked Antigonish RCMP for additional samples, but "significant delays" slowed that process down. The Antigonish police did not send the material until late September 2016. They got those results a few weeks later, forcing another delay.
The defence and Crown did not get full disclosure of the lab results until Jan. 25, 2017. Foroughi-Mobarakeh's trial date was reset for May 1, 2017, with a projected end date of May 24. That would amount to a 38-month delay. Crown attorney Bill Gorman acknowledged then that "the police were at fault for the delay, which ultimately falls at the feet of the Crown," Murray wrote.
Murray ruled three months of the delay were caused by the defence, and that the remaining delay of 35 months "exceeds the presumptive ceiling by five months. It is therefore presumptively unreasonable."
That means the Crown had to prove it had been due to exceptional circumstances, which they did not do. "In as much as the Crown (through the police) has had difficulty in disclosing (and testing) evidence on a timely basis, the defence has been diligent in seeking to move things forward," Murray wrote.
He said police "failed to act on a timely basis."
"The charge here is extremely serious. The seriousness of the case is reason for concern when considered in light of society's interest in having charges such as sexual assault tried on their merits," Murray wrote.
"An accused's right however is one that is entrenched in our constitution. This must also be kept in mind in determining whether a delay is unreasonable and whether a stay of proceedings is appropriate."
For those reasons, Murray stayed the charges and ended proceedings.