In his reasons, the judge found that the delay experienced by Cavey was not caused by him or his counsel, but was the fault of the Crown and unexpected involvement of The Toronto Star, citing journalistic privilege over documents Cavey was attempting to access.
At paragraph 22 of his reasons for decision, His Honour made the following commentary at the end of the case: "The manner in which this case was litigated is simply the new reality of sexual assault trials. Neither Crown nor the defence took frivolous litigation positions, raised vexatious issues or made untenable legal arguments. "
This should not be the case.
We are truly saddened by this outcome.
Sexual abuse cases in criminal courts are growing increasingly complex, and the default timeline for cases, known as the Jordan rule, should not be applied to increasingly complex cases.
The complainant was denied justice on a technicality. This does not inspire public confidence in our criminal justice system.
I recently spoke to CBC's The House about the devastating impact the growing complexity of criminal prosecutions have on sexual assault survivors. Many survivors lose their chance to get justice in the criminal courts because cases are being dismissed for delay. These dismissals citing to the Jordan rule ate referencing a rule that came into existence before prosecutions became this complex. The new reality is that the criminal courts are just not keeping up with the times. Survivors are increasingly losing hope that they will get justice.
Survivors may still have option to seek justice through a civil lawsuit, even if the criminal process can no longer keep up with the modern "realities" of criminal cases. In a civil setting, there are no limitations periods, and so survivors can bring forward claims at any time. Survivors who choose to become Plaintiff in civil lawsuits also have far more control and choice over how the process proceeds than they do in the civil process.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.