'Shameful' and 'inexcusable': Justice denied for Fergus, Ont. woman after sexual assault case tossed out due to court delays

WARNING: This story contains disturbing details of a sexual nature.

A Fergus, Ont. woman has lost all faith in the justice system after her sexual assault case was thrown out due to staffing shortages and courtroom closures.

“The justice system has completely failed me,” said Emily Ager.

She was in living in Toronto when she invited a co-worker to her place in January 2022.

“I went to bed alone, around 2:30am. I woke up about four hours later, and the male co-worker was on top of me and inside me. I felt immobilized, l couldn't speak or move,” she recalled.

Despite the shock, Ager found the strength to take all the right steps in the wake of an alleged sexual assault. She called police immediately, took herself to the hospital to be assessed, and cooperated with detectives.

“They wanted to take some photographs of my injuries. I did have bruising but in that moment, that was too much. I became physically ill during the whole process,” Ager said.

Emily Ager is pictured in her home in Fergus, Ont. (Sijia Liu/CTV Kitchener)

DELAYS IN COURT

Roughly 15 months after charges were laid, a three-day trial was set to begin on July 5, 2023. When Ager arrived to the courthouse at 10 Armory St. in Toronto, she was told there was no space due to a staffing shortage.

“The detectives sat me down and said there's no room for you right now. I was baffled,” she said.

Her case was adjourned until July 6, but the same problem pushed it to the next day.

On July 7, Ager took the stand to testify and was cross-examined.

“[The] cross examination was absolutely grueling. [The lawyer] tried to shake me and in many ways she did,” Ager recalled.

Her case could not be completed and was pushed back once again to Nov. 9.

The timeline of Emily Ager's case.

CASE DISMISSED

The newly scheduled court date stretched the length of Ager’s trial beyond 20 months.

Under the Criminal Code of Canada, anyone charged with an offence has the right to a trial within a reasonable time frame. That time limit is 18 months in the provincial courts of Ontario.

“If the case goes beyond that, from when a person is charged until when the trial finishes, the case will be stayed. Essentially, it’ll be dismissed. That’s what happened in Emily’s case,” said Michael Wilchesky, a lawyer who specializing in civil sexual assault cases.

As a result, the charges against Ager’s alleged attacker were stayed.

“When I got the call, I fell to the floor. It was an absolute nightmare. I once again felt like that frozen-in-time girl who couldn’t move and speak but was in so much pain,” she said.

'SHAMEFUL;

In his decision Justice Brock Jones, who presided over this case, said the court closures were “avoidable” and called the outcome “shameful.”

“This case should serve as a chilling reminder that this inexcusable state of affairs must never be allowed to happen again. When charges are stayed for delay, real people’s lives are affected.”

ATTORNEY GENERAL'S RESPONSE

In a statement to CTV News, Andrew Kennedy, spokesperson for the Attorney General, called the courtroom closure “unacceptable.”

“Following discussions between MAG and justice stakeholders, we have offered full-time employment opportunities to existing on-call staff and are recruiting new, permanent, full-time staff through $6 million in additional funding, which builds on our previous $72 million Criminal Court Backlog Strategy and our March 2023 compensation increases for 1,500+ of our Ontario court staff. We will continue to recruit and onboard new staff to support this courthouse, and to ensure victims have access to justice and that offenders are held accountable,” the statement reads.

86 SEXUAL ASSAULTS CASES THROWN OUT SINCE SUMMER 2016

Since 2016, 86 sexual assault cases have been tossed out due to court delays, according to statistics obtained by CTV News from the Ministry of the Attorney General.

In 2016, the Supreme Court ruled on a case called R. v. Jordan that set the precedent for unreasonable delays, outlining deadlines for completing trial. The ruling mandates an 18-month limit for provincial court proceedings and a 30-month limit for superior court cases.

“If a case goes beyond that – from the time a person is charged until when the trial finishes – the case will be stayed. Essentially, it will be dismissed. That's what happened in Emily's case,” explained lawyer Michael Wilchesky.

In response to prolonged delays, accused individuals have the option to file a Jordan application, seeking relief from the court. If approved by a judge, the charges are stayed.

RECORD NUMBER OF CASES IN DISMISSED 2022

Ontario witnessed a record number of dismissals in 2022. The Ministry of the Attorney General statistics reveal that out of 420 Jordan applications, 125 cases were dismissed last year – a significant surge from the previous year's 50 dismissals.

Since the inception of the landmark Jordan ruling in the summer of 2016, 408 cases have been dismissed due to delays, with 86 of them being sexual assault cases.

A spokesperson for the Ministry of the Attorney General clarifies that there is no automatic stay of cases at 18 or 30 months.

“Crown offices across the province continue to actively review cases against the Jordan timelines and develop strategies to prioritize cases that are at-risk or may be at-risk. Each case must be assessed on its individual facts.”

HARMFUL FOR SURVIVORS OF SEXUAL VIOLENCE

The vast majority of sexual assault cases never go through the criminal court system.

“Six per cent of sexual assaults are reported to police. Of every 33 sexual assaults that are reported, 12 will result in charges being laid, six will be prosecuted, and three will result in conviction,” explained Sara Casselman, executive director of the Sexual Assault Support Centre of Waterloo Region (SASCWR).

Casselman called Ager’s case is “an incredible miscarriage of justice” and worries it’ll deter other survivors of sexual assault from coming forward.

She believes more funding from the government won’t improve the justice system for survivors and is instead calling for policy changes that take into account the sensitivity of sexual assault cases.  

“The justice system is such an administrative process. [Sexual assault survivors] can not be treated like a cog in an administration system,” Casselman said. “There has to be an understanding of how hard it is to come forward. We can’t allow for cases like this to be timed out of our court system.”

Sara Casselman with the Sexual Assault Support Centre of Waterloo Region (SASCWR). (Sijia Liu/CTV Kitchener)

The SASCWR has an array of supportive services for victims of sexual assault, including a sexual violence legal advocacy program.

“We have a staff member that will go to court with survivors and support them through their entire criminal or civil experience,” Casselman explained.

SASCWR also has a 24-hour support line, which can be reached at 519-741-8633.