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Girl's sex-assault case tossed

-- Alleged abuse of child by mom's ex -- Police took 18 months to serve warrant

By: Mike McIntyre

Posted: 11/8/2012 1:00 AM | Comments: 0

A Winnipeg man accused of repeatedly sexually abusing a young girl will never go to trial because of a technicality -- police took too long bringing his case to court.

Provincial court Judge Brent Stewart dismissed all criminal charges against the 32-year-old man on Wednesday, saying a clear breach of the Charter of Rights and Freedoms had occurred. It was a stunning decision for Manitoba justice officials, who had argued no damage had been done and the matter should proceed.

Roz Prober, founder of the Winnipeg-based Beyond Borders child-advocacy agency, called it a travesty that a child sex assault case would be tossed on a technicality.

"Who's really being impacted here by the delay? The reality is it's the victim who pays a very heavy price," Prober told the Free Press Wednesday. "This can't be allowed to happen again."

The case was set for trial next month.

The girl, who is now 17, came forward to police in December 2009 to say she had been frequently molested by her mother's ex-boyfriend between April 2002 and April 2003. She was just seven at the time of the alleged abuse, which included acts of fondling and forced oral sex. She provided a full statement, which prompted police to request the accused to visit the police station for an interview.

The man refused, citing advice from his lawyer. However, unknown to him, police authorized charges of sexual assault, sexual interference and invitation to sexual touching on Jan. 12, 2010, and issued a warrant for the man's arrest.

There was one problem -- police never told the man about the charges and allowed the warrant to gather dust until executing it on July 26, 2011. Police have given no reason for the 18-month delay, which prompted defence lawyer Martin Glazer to successfully file a motion for dismissal.

"The lack of explanation for the delay is a fatal factor to be considered in this case," Stewart wrote in his decision. The accused "has established his right to be tried in a reasonable amount of time" and the failure by police to act quickly, absent any reasonable cause provided to the court, left him no choice, he said.

"I am aware that a judicial stay is an exceptional remedy and should only be granted in the clearest of cases," Stewart said. "The period of delay which must be scrutinized relates to the initial 18-month period of time where the police, without explanation, chose not to serve the accused with information or warrant. As to that period of time, there is no reason for delay given by the Crown and, of course, the accused took no action which can be charged against him to delay this matter."

The case underscores a long-standing problem with enforcing existing warrants.

Winnipeg police have previously said the vast majority are overlooked and only enforced when officers stumble across an accused person in another, unrelated matter. There are approximately 20,000 existing warrants in the province at any given time, although some accused may be wanted on more than one.

Winnipeg police and the RCMP established a warrant apprehension squad in September 2011, which is designed to track down fugitives. But, as Glazer pointed out Wednesday, it's questionable whether that would have made a difference considering his client wasn't exactly on the run.

"He didn't even know about the charges being laid. He was here in the city, at home, the whole time," Glazer said.

There have been examples of other high-profile cases in Winnipeg being lost due to judicial delay. Last year, a manslaughter charge against shopkeeper Kwang Soo Kim was stayed after a key witness, who faced his own criminal charges, fled Manitoba and could not be located by police in time for the trial. Kim was accused of fatally injuring Geraldine Beardy after she allegedly tried to steal a can of luncheon meat.

www.mikeoncrime.com

Republished from the Winnipeg Free Press print edition November 8, 2012 B1

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