TORONTO — A man accused of sexually assaulting his eight-year-old neighbour during a game of hide-and-seek had his case thrown out because police appear to have forgotten about a key piece of evidence, causing unreasonable delays.
Justice Bruce Duncan stayed proceedings against Jazwant Dhillon, charged with sexual assault, showing sexually explicit images to a child, and two counts of sexual interference, on June 11 at the Brampton, Ont. courthouse, one of the busiest in Canada.
A person convicted of all of these charges would face up to six and a half years of incarceration, be added to the National Sex Offender Registry for life, and have their DNA put into a databank and fingerprints and photographs kept for future investigations.
“But in the absence of a conviction obviously none of that happened and that’s the frustrating part of cases that are not completed in a reasonable amount of time,” said defence lawyer Daniel Brown, co-author of the book Prosecuting and Defending Sexual Offence Cases.
“It is a lost opportunity for the accused person to clear their name — he may always be suspected of committing this crime and will never get his day in court — and complainants or victims in the case are denied their opportunity as well.
“It really undermines the public’s confidence in the justice system.”
Peel Regional Police arrested Dhillon in July 2017, a day after he’d had neighbourhood kids over to his home to play, said Duncan in his judgement. Dhillon had allegedly been hiding with the girl, 8, when he showed her a pornographic video on his cellphone and then touched her sexually, and invited her to touch him.
After his arrest, Dhillon’s cellphone was turned over to investigators, said Duncan.
“Rather than being logged into and placed into secure police property storage, it was placed in a drawer of a desk in the police division investigative office. There it remained for about 15 months,” Duncan said, noting the phone was not brought before a judge, nor was a report made that police had kept the phone for their investigation, as required under the Criminal Code.
It wasn’t until October 2018 that the phone was mentioned in court. Dhillon’s defence lawyers David Locke and Glen Henderson requested to review the contents of the phone in preparation for the trial later that month. They did not respond to HuffPost Canada’s repeated requests for comment.
In Duncan’s judgement, an email from the defence team said, “I have not been provided any disclosure or received any information to suggest the phone is being held as evidence upon which the Crown intends to rely at trial.”
The defence’s inquiry is what “sparked action by the Crown,” said Duncan. The Crown attorney in this case was Christina Lynch.
A search warrant for the phone was granted more than a year after Dhillon’s arrest, and one week before the trial that was going to have a child witness present, according to the judgement.
The phone was then “quickly examined by police who ... reported that evidence of pornography or at least traces of it had been found,” Duncan said.
The trial was adjourned to allow the defence time to find an expert to testify about the reliability of the Crown’s evidence found on the phone, and if Dhillon was its only user, the judgement said.
The resulting delay pushed the new trial date past the 18-month cap, as set in the 2016 Supreme Court decision R. v. Jordan, which asserted a person’s constitutional right to a trial in a reasonable time. In that ruling, the Supreme Court changed the legal framework judges use to decide if a person’s Charter right has been violated, and implemented time restrictions, to combat what it called a culture of complacency in the court system.
WATCH: Legal system working towards more timely justice, top judge says. Story continues below.
“It seems the police officer simply forgot about evidence. If they had just done their job properly at the outset, there’s no reason to think this case (would’ve been delayed),” Brown said.
Police have launched an internal investigation into the concerns raised in Duncan’s judgement.
“Peel Regional Police take situations like these very seriously. We hold our members to a high standard and expect they follow procedures to ensure a smooth court process,” said spokesperson Joseph Cardi.
The Ministry of the Attorney General, on behalf of the Crown, declined to comment as there is still time to appeal the decision.
The stay in proceedings is disappointing, and fails the child who reported the alleged incident, said Heidi Illingworth, the Federal Ombudsman for Victims of Crime. Her office has advocated fast-tracking cases involving vulnerable child witnesses and for courts to have a victim-centered approach.
“Outcomes like this has a chilling effect on victims,” said Illingworth. “Sexual assault is already a very under-reported crime. This just leads to a further loss in confidence. For victims, there is no recourse.”
“You have to wonder what’s happening — is everyone’s plate so overwhelmed they can’t respond to make sure evidence is filed and used appropriately? Overall, it’s a failure.”
There’s nothing unusual or rare about proceedings being stayed in today’s clogged court system, said Brown. “It’s just, unfortunately, one of many cases that fall through the cracks in a busy jurisdiction like Peel Region.”
Brown said the problem won’t be solved by simply hiring more Crown attorneys, who are “under a huge amount of stress” dealing with the slew of cases coming through their jurisdiction on a daily basis. Rather, police and the Crown should be more selective of the types of cases that need to be prosecuted.
“Maybe the solution is more minor offences, like minor drug, property or shoplifting offences, need to be diverted out of the court system in some alternative way so you can free up time to prosecute these more serious crimes,” he said.