Crown appealing decision to stay Dartmouth molestation charges

The Nova Scotia Public Prosecution Service is appealing a judge’s decision this spring to stay charges against a Halifax man who was accused of molesting two young boys in early 2021.

In a June 12 ruling in Dartmouth provincial court, Judge Bronwyn Duffy said Brandon William McNeil’s constitutional right to be tried within a reasonable time had been violated.

McNeil, 29, stood trial in provincial court in the summer and fall of 2021 on two counts each of sexual exploitation, sexual interference and sexual assault.

But the judge hearing the case, Rickcola Brinton, went on a leave of absence for undisclosed reasons before she was able to deliver the verdict in November 2021.

With Brinton still off the job, a mistrial was finally declared this February. McNeil was supposed to have a retrial this May but applied to have the charges stayed due to institutional delay.

Duffy, who took over Brinton’s courtroom after she was appointed to the bench in February, said the Charters of Rights and Freedoms protects individual interests against unreasonable delay from the time charges are laid to the date a verdict is delivered.

The Supreme Court of Canada, in its 2016 Jordan decision, said trials in provincial courts should take place within 18 months of charges being laid. A delay longer than that is unreasonable, the top court said.

“Mr. McNeil’s trial ended in October 2021,” Duffy said. “He has yet to receive a verdict.

“This is not a failing on the part of the prosecution. Nevertheless, were the accused individual to bear this delay at the expense of charter-enshrined rights, the public at large is disadvantaged – deprived of timely trials that are important for victims, for accused and for public confidence in the system – and consequently the administration of justice is diminished.

“This is a problem of inherency that must be borne by the institution as a whole. A judicial stay of proceedings is recorded.”

The Crown filed a notice of appeal in the Nova Scotia Court of Appeal nine days after the decision. The notice claims Duffy erred in staying the proceedings “when a valid subtraction of time periods for exceptional circumstances brought the net delay to under 18 months.”

The filing also says the judge mistakenly “introduced a mandatory decision-making requirement,” based on provincial legislation, to her charter analysis of the delay application. 

Judge’s absence due to ‘medical reasons’

In her decision, the judge noted that during an appearance in March 2022, the court confirmed Brinton had been on leave for a “considerable period of time” and was not expected back before May 2022.

In April 2022, Crown attorney Jane Mills asked the court to explain why the judge was not available to render a decision. The court responded, “the best I can say is medical reasons.”

The following month, Mills suggested they set tentative dates for a new trial in front of a different judge but not declare a mistrial, so that if Brinton returned to work in the meantime, she could render her decision. Defence lawyer Mark Holden agreed with that approach. There was a discussion about a shortage of judges, and trial dates were set for this May.

Lawyers returned to court this February, when the mistrial was declared and dates for the new trial were confirmed. The defence rejected an option that would have seen a new judge review the evidence from the first trial.

“The question of court communications and the appropriate action when a seized judge is on leave is at the centre of the issue,” Duffy said. “The reality of the question is at what point should the decision have been made to replace the judge and recommence the proceeding? With little to no information regarding return of the trial judge, it is a very difficult call to make.

“It is in the forefront of my mind that it is easy to say the mistrial should have been declared early with the benefit of information now known.”

McNeil allegedly touched the boys’ genitals at a house in Dartmouth in February 2021. The identities of the youngsters, who are brothers, are protected by a publication ban.