Judge stays sexual assault charges over ‘unacceptable’ delay

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It’s hard to imagine what the alleged victim must feel after a judge tossed sex assault charges because Toronto Police dragged their feet.

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Ontario Court Justice Michael Waby has stayed seven counts against nurse Urgen Tsering after finding his right to a trial within a reasonable time had been violated: It wasn’t slated to finish until 21 1/2 months after he was charged, more than three months past the 18-month Jordan deadline set by the Supreme Court as a reasonable.

And Waby laid the blame for the delay at the feet of Toronto Police.

Tsering was charged on Oct. 25, 2022, with four counts of sexual assault by touching, two counts of criminal harassment and one count of voyeurism following a complaint by a co-worker at a Toronto hospital.

Some of the interactions between the complainant and Tsering were allegedly captured by hospital security video — but it took a year for police to seize it and hand it over to the defence.

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“I accept that resources are not boundless for the police, the Crown or any other organization. Nevertheless, the simple reality is that the 12 months it took to provide this CCTV footage was woefully excessive,” the judge wrote in his decision this week.

“Such a period of delay for pre-existing material of this kind is utterly unacceptable.”

Nor is it unique, Waby complained.

“It has sadly become an increasing phenomenon in our criminal justice system that timely disclosure of video footage is becoming increasingly rare,” he wrote. 

In this case, what made matters worse was that on the first day of Tsering’s originally scheduled trial in October, the police suddenly gave the Crown and defence a video statement of a potential civilian witness — that they’d recorded five months earlier and not told anyone about.

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So “unsurprisingly,” the judge said, the trial had to be postponed to January. He then directed his dismay directly at Toronto Police.

“I echo the comments of judicial colleagues in this jurisdiction who have previously expressed their concern and frustration at the current state of affairs with respect to the lack of timely disclosure and its impact on our justice system,” Waby said.

“Policing is a challenging and increasingly complex task, but it is about more than simply the effective prevention and detection of crime. It necessarily involves the appropriate and timely provision of disclosure. 

“The work does not stop once the handcuffs are applied to an accused person. The disclosure process may not be glamorous, but it is critical work without which our justice system cannot function.”

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Toronto Police spokesperson Stephanie Sayer couldn’t comment on the specific case, but confirmed there are “numerous challenges” related to video evidence including the growing volume of footage — everything from cellphones and CCTV to in-car video to body-worn cameras — which investigators must now review and redact.

“As a result, providing disclosure takes more time,” she wrote in an email. “In response, we are streamlining the redaction process, investing in better tools, and creating dedicated civilian teams to manage the volume.”

It will come too late for the complainant.

“A stay of proceedings is a remedy of last resort and results in a case not being heard on its merits,” the judge admitted. “However, for the reasoning I have given, I find that Mr. Tsering’s right to be tried within a reasonable time has been breached. I am granting his application and staying the charges on the information before the court.”

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