Delays in court lead to stay of child porn charge against Regina man

One of the charges of possessing child pornography against a Regina man has been stayed, simply because the legal proceedings took too long.

The charge was filed against Douglas Pennington in 2016, and items of his — including four hard drives — were seized. According to Pennington’s lawyer, the hard drives were sent to Ottawa, where police officers set about trying to get into them.

But last month, a Court of Queen’s Bench justice in Regina determined Pennington had waited too long for the charge to be dealt with and stayed it.

At that point there had been a delay in the proceedings of more than 35 months, which the justice determined wasn’t caused by Pennington. The ceiling established by the Supreme Court of Canada in 2016 in the ‘Jordan’ case is 30 months.

Darren Kraushaar is Pennington’s defence lawyer. He said he can appreciate that some people might see this and be frustrated.

“But you’ve got to realize, from the individual’s standpoint, that’s 30 months of their life where they’ve sat and waited. And even in this case, we’re not sure when this was ultimately going to come to an end. And if there wasn’t a case like Jordan, it could be an indefinite amount of time in some ways,” explained Kraushaar.

For Pennington, Kraushaar said the 35-month delay was a “terrible frustration.”

“This is something that’s hanging over his head,” he said. “It’s a very serious charge. He has already faced a number of consequences, you know, losing his job and suffering some consequences that way. And just not knowing what’s going to happen with this, it’s a terrible frustration.”

Pennington’s legal troubles aren’t over, though; he’s facing a similar but separate charge.

Kraushaar said long delays that end in a decision like this are fairly rare. He said shortly after the Jordan decision came down, people in the courts became very aware of time, and made a point of getting it on the record whose fault a delay is. That way, the defence can’t use its own delays to get charges stayed.

“Everyone is cognizant of not having that delay laid at their feet, and the Crown and the court especially. So definitely, I’ve noticed that shift. As soon as Jordan came out, that was the biggest shift in my view,” said Kraushaar.

He said in some parts of the country the Jordan decision can pose problems, but the courts in Saskatchewan are pretty good at keeping things moving.

Police units contributed to delays

According to the decision, Saskatchewan’s Integrated Child Exploitation (ICE) unit and Technological Crimes Unit (TCU) were involved in the case.

The Crown tried to convince the justice that there were exceptional circumstances to this case but ultimately failed.

A constable testified there were limitations that restricted the investigators’ efforts, including: Staff shortages in both units; increased workloads; a change in the job responsibilities of the constable testifying, which put strains on his time; an office move; and, a lack of storage space on computers.

As an example, the constable said two of the four hard drives still hadn’t been analyzed, more than three years after they were seized.

The justice determined in his decision that the constable was saying the unit didn’t have the resources it needed to finish investigations within the timeline set out in the Jordan decision. But the justice wrote that the Jordan decision was intended to encourage better allocation of resources.

The ICE unit declined to comment for this story.