Lawyers for three Toronto police officers accused of sexually assaulting a female parking enforcement officer have filed to cancel the trial before it even starts due to a Charter issue, CityNews has learned.
Defence lawyers Harry Black and Patrick Ducharme have filed an application for a Superior Court judge to stay the charges against constables Leslie Nyznik, Sameer Kara and Joshua Cabero, arguing the 27 months from the time charges were laid and the start of trial is an unreasonable delay.
The officers, all from 51 division, are accused of sexually assaulting a female colleague in a downtown hotel room while she was too intoxicated to consent, according to court documents. They were charged with sexual assault and gang sexual assault on Feb. 19, 2015.
This July, the Supreme Court made sweeping changes to the framework that determines whether an accused has been tried within a reasonable time.
Ducharme says they plan to argue the threshold of 18 months set by the Supreme Court should apply to the officers because the Crown waited over a year to request a direct indictment to allow the case to proceed directly to trial.
“Because the prosecution sought deferred indictment to go directly to the Superior Court, we take the position that it took them a long time to make that decision and therefore there is unreasonable delay,” Ducharme said.
A trial date for the three officers is set for May 29, 2017.
Cheryl Milne, the executive director of the David Asper Centre for Constitutional Rights at the University of Toronto, says the recent Supreme Court ruling sets tangible limits to how long cases can drag out.
“It does put the onus fairly back on the State to make sure trials proceed in a reasonable time so that people aren’t left in limbo for lengthy periods of time,” Milne says.
The possibility of a direct indictment was raised earlier this year during a motion brought by the Crown to remove two defence lawyers from the case due to a conflict of interest. They were later removed and in July the Crown was allowed to go straight to trial.
Amanda Dale, executive director, Barbra Schlifer Commemorative Clinic, says strict time ceilings only add more barriers for sexual assault victims trying to make their way through a complicated and often one-sided justice system.
“She’s already been through a system she had no control over,” Dale said. “That system dictated the steps she needed to take for her case to come forward. There is no statute of limitations on sexual assault. She has not broken any rules. So for her not to have her day in court, not be heard, and not have justice on this issue would be a travesty.”
The application to have the charges stayed will be heard on Dec. 2.