The Judge Alan Tufts oral decision, delivered August 22 in Annapolis Royal, that the Charter rights of accused rapist Jordan Michael Ellis were breached, is about 35-minutes in length.
The audio begins, as it should, with the cool, refreshing sound of water being poured out of a plastic pitcher into a plastic drinking glass. Followed by the sudden, heavy thud of what may reasonably be assumed to be a near empty plastic water pitcher returning to its upright position on the Bench in a near empty courtroom.
“I’m just going to organize my papers, here, because I have a number of them, different pieces in different places…” Judge Tufts begins.
He speaks in a steady dispassionate voice, although he apologizes early on because late or additional briefing submissions passed onto him just that morning may appear to make his oral decision sound disjointed.
The court is reminded that Jordan Michael Ellis was arrested for rape on May 30, 2017. The time clock begins.
Two trial dates, the first set for March 2018 and the second set for August 2018, came and went.
In the first instance, the court was double-booked. Not an uncommon practise, just like the airline industry, all done for matters of efficiency, of course. But when the other matter which was not expected to go to trial actually went to trial, the Ellis rape trial was put off to August.
Alas, by August 16, 2018, Jordan Ellis’s original defence lawyer Chris Manning had closed up show and taken his legal talents to the Bench, leaving Ellis in the lurch.
A third trial date was then set for February 2019.
This is when things really went awry.
Under cross-examination by defence lawyer Zeb Brown, being questioned about RCMP photographs taken of her injuries, the alleged victim opined that the photographs taken by the Sexual Assault Nurse Examiner at the Cobequid Community Heath Centre in Lower Sackville (where she went April 22, a day after the alleged rape) as part of her rape kit might be of better quality.
Meantime, senior Crown prosecutor Bob Morrison is thinking the very same thing that defence lawyer Zeb Brown is thinking:
“Rape kit? A second set of photographs? What the hell is she taking about?”
Fact is, the so-called rape kit and this additional set of photographs was never turned over to defence lawyer Zeb Brown — because they were never turned over by the Bridgetown RCMP to prosecutor Bob Morrison as part of the disclosure package.
By the way, there’s strong disagreement between prosecutor Bob and the alleged victim as to whether or not she explicitly told him about the full-blown rape kit as opposed to having some swaps taken in hurried fashion by an emergency department physician.
The Bridgetown RCMP said they couldn’t find any such thing. Swore up and down, said they had turned everything they had over to the Crown.
Zeb Brown, prepared to protect his client’s right to a fair trial, was not prepared to continue until he received full disclosure - this other set of photographs - despite the fact that the defence was arguing that consensual intercourse had indeed taken place.
But back to JudgeTufts.
He also reminded the court that on June 7, the accused rapist applied for a judicial stay of proceedings based on the failure of the Crown to provide full disclosure in relation to the missing photographs. As well, at that time, applying to have the rape charge quashed on the basis of Jordan.
A hearing was set for June 12, five days later.
Lo and behold, on that day, or just prior to it, the missing SANE photographs were rather quite astonishingly discovered by the Bridgetown RCMP.
The explanation was that the disc of photographs of this young lady’s naked body, bruised genitalia, bruised boob, and whatever in the hell else, was found, alone and without any accompanying documentation or paperwork, just sitting on a shelf NOT at the Bridgetown RCMP detachment but at the Middleton RCMP detachment. Just sitting there, waiting for some curious passerby to pick it up and maybe wonder what the foook it was. Oh, dear.
Of course, right after the disc of naked pictures was rediscovered, defence lawyer Brown had to get the alleged victim back on the stand for another round of cross-examination.
That was set for July 18. It went off as scheduled and Judge Tufts used this date as the end date of proceedings. But defence lawyer Brown, although withdrawing his stay application for piss-poor disclosure, had not withdrawn or waived his Jordan application.
In his decision to toss the rape charge Judge Tufts delicately dissects a little something called “Defence Delay.”
He explained it has two components:
l Defence Waiver
l Defence Caused Delay
Quoting Jordan, he went on to explain:
“Defence Waiver can be explicit or implicit but in either case it must be clear and unequivocal. The accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights.
“Defence Caused Delay is comprised of situations where the acts of the defence either directly cause a delay or are shown to be deliberate and calculated tactics employed to delay the trial. Frivolous applications and requests are the most straightforward examples of defence delay where the court and the Crown are ready to proceed but the defence is not, the defence will then have directly caused the delay. There’s no suggestion that there are frivolous applications here.”
Judge Tufts noted that at various points throughout the proceedings the court asked defence lawyer Zeb Brown, “Do you have any Jordan concerns, here?”
He cites two defence replies at two various instances:
l “No, I don’t think so your Honor.”
l “No, that should be fine, your Honor.”
He further notes that such replies cannot be taken as “waiver,” because they are “not clear and unequivocal.” Therefore, the accused’s right to a speedy trial remains intact.
Last March, Judge Tufts asked defence lawyer Brown directly if he was contemplating a Jordan application. He said, no.
While Judge Tufts acknowledges there were short periods of time throughout the lengthy proceedings that defence conduct may have contributed to delay, he calls this “speculation,” concluding, “I’m not about to do that.”
The learned judge calculates the length of the proceedings at 25.6 months, or 779 days, then deducts 155 days for Defence Delay, bringing the length of the proceedings to 624 days, or in his estimation - 20.5 months, two-and-one-half months past the 18-month Jordan best-before date.
About a half-hour into his 35-minute oral decision, Judge Tufts gets into the meat and potatoes of the matter, or as he refers to it a “macro-level” discussion.
Those closing remarks are reproduced below largely verbatim, without any appreciable editing:
“Two significant events contributed to the delay and pushed this proceeding over the Jordan limits.
“One, the double-booking of the March trial date which caused the trial to be rescheduled and the failure of the Crown to disclose very important documents, that is the photos and other contents of the rape kit, some of which was in the police possession all along, although in the wrong police locker.
“And, again, I’m not trying to point fingers, or attribute responsibility. I’m trying to avoid that, but the bottom line is that the failure to disclose important matters contributed to the delay. Again, the explanations for this are all on the record.
“It was the combination of both of these events which allowed the timeframe to be exceeded. There are a lot of ‘What ifs’ which could be re-examined, however, in my opinion it’s not productive to do that…”
“Since Jordan was decided it has become clear, at least to me, that trials in Provincial Court, at least in this part of Nova Scotia where I preside, can tolerate in practical terms only one adjournment or delay. Because trials are generally set between nine to 12 months from the date of sworn information, at least in one-day trials such as this. Excepting, of course, any defence delay.
“Accordingly, an adjournment or delay, any adjournment or delay, beyond the initial trial date would be pushing the proceedings near the Jordan limits. It becomes incumbent at that point to ensure that no further delays are encountered. Regrettably that didn’t happen here.
“Again, I’m not pointing fingers because it’s not productive to do that. The explanations are all on the record.
“Again, returning to the Jordan analysis, 20.5 months is above the 18-month Jordan limit for Provincial Court proceedings. The delay is presumptively unreasonable.
“No exceptional circumstances have been identified. The burden lies with the Crown to establish that. It has not done so nor has the Crown made any arguments in that regard. I think it’s conceded that there are no exceptional circumstances…”
“I find the delay here is unreasonable. That the accused’s Charter rights have been breached. The only remedy available, in my opinion, is a stay of proceedings and accordingly a judicial stay is granted.
“I just would want to add the following — that if it is found that I am wrong in my determination of this issue I would be in a position to complete my deliberations on the merits of this proceeding in short order given that all the evidence has been heard and all closing submissions have been made as of early June, 2019.
“So, Mr. Jordan Ellis, this proceeding is stayed, sir, and any undertaking that you are subject to will end today, sir, thank you.”
As feet begin to shuffle and court benches begin to squeak, you can hear Jordan Ellis thanking Judge Tufts, then it’s that time for the court clerk to tug at her earlobe and say so long:
“All rise this sitting of provincial court is now closed. God save the Queen.”
q q q
Prior to the decision to appeal Judge Tufts’ stay of proceedings, Senior Crown Bob Morrison and his boss Western Region Chief Crown Ingrid Brodie on August 30th drove to Pictou County to share some quality facetime with the alleged victim.
In our Frank 825 Another Jordan Outrage expose, we ran many quotes from that, at times heated, two-hour meeting. However, here are some additional quotes from the same meeting:
Senior Crown Bob Morrison on Judge Alan Tufts:
“This particular judge since Jordan has been hyper focused on delay and trying to make sure that cases aren’t delayed needlessly and anytime somebody comes before him with an adjournment request he starts talking to them about delay: how delay is a problem, and we need to combat delay, we need to get things through quickly. So, he’s been very focused. Of all the judges I appeared in front of he is the one who is most focused on delay and is very familiar with the Jordan decision.”
Chief Crown Ingrid Brodie on the (then) possibility of an appeal:
“We don’t want to raise your expectation that there is an appeal.”
Bob on the victim: “You held things together really, really well, you did a great job testifying and you did an even better job under cross-examination.
“I was telling Ingrid on the way up here my favourite part of the whole thing was when Judge Tufts turned to you, I think you were being cross-examined on text messages back and forth between you and Ellis and there had been a couple of text messages where you had referred to each other as ‘Mo Fo’ and he (Judge Tufts) didn’t know what that meant so he posed a question, I don’t think he was asking you directly, he was just kind of asking what does ‘Mo Fo’ mean?
“And you turned to him without batting an eye and told him it means motherfucker. And he was like, OK, sorry I asked. So, you were very direct, clear, composed. You did well.”
Ingrid on Bob’s work:
“I haven’t witnessed a breakdown in Bob’s work. I can tell you that my review of the case is that he received initial disclosure, he disclosed it all. He ensured as the case moved along that every time defence asked for disclosure he went to the investigating agency and asked, and pursued the disclosure and the tough thing is we accept, because we aren’t the supervisors of the RCMP when they tells us we don’t have that, there’s nothing in our file, that’s what we have.
“And at each stage of the process Bob was pursuing what needed to happen for the case to move forward. And, so I can candidly say I do not see failings in the prosecution practises of this file.
“That being said, it doesn’t mean that I don’t believe this is a tragic result that is devastating for the victim, absolutely.”
The victim on herself:
“I’m not walking away from this. I don’t know if that’s what everybody thought would happen. But I’m not walking away.”
Ingrid on Ingrid’s work:
“We will do an ongoing review to determine if there are any practises that should be modified to do better and I will say that, I always say and it’s no excuse, but this is a system run by humans who are imperfect and when tragic decisions are made that impact victims — it is heartbreaking.
“I can tell you as the case was unfolding Bob and I were briefing regularly on what’s the strategy to address each step along the way.
“He took a very personal interest in this case and spent time reviewing it with me. This is the latest argument from the defence, this is the latest question they’ve asked — so that we’re strategizing on how we’re going to manage that and make arguments in return.
“So, it wasn’t a small case to us at all. It was a very important case to us. I’m really sorry this has happened.”
Bob also sends his condolences: And I’m certainly sorry as well. Like I said I thought it was a good case from the beginning and I’m sorry it turned out this way. I really wished it hadn’t. I thought you did very well at trial and I thought we had a more than decent chance of getting a conviction if this case had been heard on its merits.”