Issues finding a lawyer leads to Saskatoon sex assault case being stayed

A man is being released and an alleged victim may not get justice after a sexual assault case was stayed in Saskatoon because of unreasonable delays.

The accused, referred to only as D.G. in the court documents due to a publication ban, was charged in March of 2021 with sexual assault and touching for a sexual purpose. Those are the only details of the crime given in the documents. The court decision, instead, explains the back and forth involved in his attempts to find and keep a lawyer.

D.G. was rejected by Legal Aid and community legal assistance services on financial grounds, so he applied for court-appointed counsel. It took nearly three-and-a-half months for documents to be gathered, the applications filed, arguments to be made and the judge to approve the application.

At that time, on Sept. 2, 2021, the administrator for the court-appointed counsel program, Leslie Sullivan, asked for three weeks to appoint someone because of the number of appointments the program had been receiving.

Three weeks later, court documents show no one had contacted D.G. from the program and Sullivan said she’d been dealing with a backlog.

Two weeks after that, Valerie Harvey was on record as the defence counsel.

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In mid-November of 2021, D.G. elected to have a trial by judge and jury and the earliest date offered for a pre-trial was July, 2022.

In June of 2022, the Crown filed the indictment to Court of Queen’s Bench, as it was called at the time, and that court took over jurisdiction.

On the pre-trial date in mid-October 2022, a trial was scheduled for the last week of October, into November, 2023.

At the end of June 2023, D.G.’s lawyer, Harvey, abruptly ended her legal practice and returned her open files to Legal Aid.

A little over three weeks later, Sullivan wrote to the local registrar saying “I think we have a situation here,” according to the court documents.

The email explained he would have to re-apply for court-appointed counsel.

“My best guess is that it will be tough to find counsel (either Legal Aid or Court Appointed) for these trial dates,” Sullivan wrote.

She also said D.G. had no idea Harvey was no longer practicing and she found that disconcerting.

Sullivan spoke with D.G. that same day and within a few days he applied for Legal Aid again.

Last August, Justice Richard Danyliuk asked the local registrar to talk to Sullivan and find out if she could just appoint a replacement. Sullivan responded that she wished she could, but there was no court appointment order from King’s Bench.

D.G. asked for and received court-appointed counsel at the provincial court level, but when his case was moved to King’s Bench he would have needed to get a new order for appointment. Harvey didn’t take care of getting a new appointment, and didn’t tell D.G., so court services wanted an updated application for a new appointment.

Sullivan said in the email she doubted counsel could be found in time for the trial dates at the end of October, explaining the program was having trouble finding counsel for half- or one-day trials in the fall and early winter. But she said she would put out an urgent request once the application came in.

D.G. spent September applying to and being rejected from Legal Aid. Then he spent October waiting for the formal letter he would need for the application for court-appointed counsel. The trial dates had to be vacated in the interim.

In mid-November, D.G. was cleared for court-appointed counsel. It took less than a week to find a lawyer who would accept the case, Blaine Beaven, but he was on parental leave until the third week in December and asked for the pre-trial date to be moved into the new year.

Beaven waited almost a month, including the Christmas and New Year holidays, for the files to be sent to him from Saskatoon Prosecutions. By the end of January this year, a new trial date had been set for mid-June.

But before that trial could happen, an application was made for a judicial stay for unreasonable delay of D.G.’s trial.

Unreasonable delay

Each person in Canada, when charged with a crime, has a right to be tried within a reasonable time under the Charter of Rights and Freedoms. In R v. Jordan, the Supreme Court of Canada put the ceiling for a reasonable delay at 30 months.

When a Jordan defence is put forward, the judge has to take the total delay in the trial, subtract any delay that’s the fault of the defence, and see if the result is under that 30-month, or 913-day, ceiling.

The judge in this case, Justice Krista Zerr, said some of the delay was due to the defence, but some of that was legitimate action taken in response to the charges, which doesn’t count toward the defence delay count.

The Crown and defence agreed that Harvey ending her practice constituted exceptional circumstances, but Zerr said at least some of that delay was on the Crown, as it didn’t take any steps to ensure another lawyer could be in place. She also noted the original trial dates were outside the 30-month threshold.

Zerr found the net delay was 1,031 days, which is over the presumptive ceiling, and so she ordered a judicial stay to the charges against D.G.

The response

This isn’t the first time a sexual assault case was put aside because of an unreasonable delay in Saskatchewan. In early May, another sexual assault case in Saskatoon was stayed due to a delay of six years.

But it doesn’t appear to be a frequent problem. According to Saskatchewan’s Ministry of Justice, Saskatchewan Public Prosecutions is aware of 27 cases that have been stayed in the province since 2016 due to the Jordan decision and unreasonable delay – 13 of those were sexual assault cases.

In a statement, the ministry said each stay was due to “unique rather than systemic circumstances.”

As for delays for court-appointed counsel, Legal Aid Saskatchewan said there aren’t any.

The court-appointed counsel program is administered by Legal Aid Saskatchewan and, in a statement, it said it’s unaware of any backlogs and isn’t aware of anyone who hasn’t had a lawyer appointed. It also said the timeline from request for a lawyer to appointment is anywhere from immediate to a few days.

“A delay may occur in securing a lawyer based on the nature of the case, location or could be a perceived Court Appointed Counsel delay on the part of the client, if they terminate the services of their lawyer, or the lawyer removes themselves from the record for ethical reasons on the eve of trial this could result in a new lawyer not being able to get up to speed for a trial that has already been scheduled,” read the statement.