'I wasn't given any justice': Sexual assault charge stayed over trial delay

An Alberta woman who was the complainant in an aggravated sexual assault case feels she was revictimized by the justice system. The case took too long to go to trial and the charge was stayed under the first successful Jordan application in Alberta.

WARNING: This story details graphic subject matter some readers may find upsetting

Susan spoke to CBC News about being seriously injured four years ago during a sexual encounter with her ex-partner, Blair Hinkley. (Sam Martin/CBC News )

On a January night in 2014, Susan thought she was going to die from blood loss after a violent sexual encounter with her on-again, off-again boyfriend.

"I was terrified because that was a lot of blood," said Susan, who shared her story for the first time in an interview with CBC News last week. "And I was cold. I was in a lot of pain. And I knew if I didn't get out of the house and get treatment, I might not make it."

More than four years later, Susan's physical injuries have healed but her psychological torment continues. The aggravated sexual assault charge laid by police against her attacker was dropped because the case took too long to go to trial.

In July 2016, the Supreme Court of Canada put hard limits on how long prosecutors have to try criminal cases in the so-called Jordan decision.

The staying of charges against Blair Hinkley, the man accused of injuring Susan, was the first successful Jordan application in Alberta.

Sexual assault charges against an Alberta man were dropped because the case took too long to go to trial, leaving one woman without her day in court. 1:41

Now in her early 40s, her identity is protected by a court-ordered publication ban. CBC has chosen to call her Susan.

"I wasn't given any justice," Susan told CBC News. "I have to live with this for the rest of my life. I have to find a way where it doesn't hurt me every day."

That night in 2014

Susan invited Hinkley to spend the weekend at her central Alberta house. They ended up in her bedroom.  

"We had started to fool around and things seemed to be going well, until suddenly I felt very intense, searing, agonizing pain, and I knew what he had done," she says.

She claims he sexually assaulted her with his hand, causing severe internal injuries and profuse bleeding.

My forearms were covered in blood and I could feel it gushing ... I knew it was serious.- Susan 

"I used my hands to hold myself together," she said, wiping away tears. "My forearms were covered in blood and I could feel it gushing. It was bright red so I knew it was arterial. I knew it was serious."

Susan says she asked Hinkley to bring her some towels so she could apply pressure. She told him to bring her a phone so she could call 911.

"He's running around, trying to get dressed again, and washing his hands, telling me to calm down, that I'll be OK, that we can carry on in a few minutes."

Emergency surgery

Paramedics arrived 10 minutes after Susan called 911 and rushed her to hospital. A doctor quickly determined she needed emergency surgery.

Susan says she required three or four blood transfusions before surgery. A team of surgeons worked nearly four hours to stop the bleeding and repair the damage, she says.

"The gynecologist that was on call told me my vagina on the left side from the very top to the very bottom was completely ripped open."

Four days later, while she was still in hospital, RCMP allowed Hinkley to turn himself into the Ponoka detachment. He was charged with aggravated sexual assault.

Hinkley left court a free man after a judge stayed a charge of aggravated sexual assault because it took too long to go to trial. (Supplied )

Eight months later, Susan testified at Hinkley's preliminary hearing.

"It was good to get on the stand and to say what had happened," she said. "And I was very hopeful that things would turn out well."

Hinkley was committed to stand trial. A jury trial was scheduled for five days in October 2015.

But on the trial's second day, Hinkley's lawyer learned the RCMP and the Crown had failed to pass along a key witness statement to the defence.

Defence lawyer Brian Beresh immediately asked for a mistrial.

"We felt that compromised our position in front of the jury," Beresh told CBC News. "The judge agreed with that and granted a mistrial."

"I was devastated," Susan says. "It was almost worse than the incident itself. I just remember crying and screaming. My friends had to carry me out of the courthouse."

New trial date set

In late 2015, another five-day trial was set for December 2016.

But in July 2016, the Supreme Court of Canada released the landmark Jordan decision, which established a framework for the maximum length of time between a charge being laid and the end of trial —18 months for provincial court cases and 30 months for Superior Court cases.

If Hinkley's trial had gone ahead, it would have been 34 months between the time he was charged and the conclusion of his trial.

Beresh filed a Jordan application and the criminal charge was stayed.

"This was a case where there should have been a trial," Beresh said. "But there should have been a trial within the proper limits."

He maintains Hinkley's innocence, and insists he should not be painted as "the bad guy" for requesting a stay.

"The police knew the rules, the Crown knew the rules, I know the rules," Beresh said. "We have to play by them. If we say, 'OK the rule can be bent,' or 'there really isn't a rule,' who would respect that?"

Criminal lawyer Brian Beresh defended Blair Hinkley on a charge of aggravated sexual assault and successfully applied for a mistrial, then a stay. (Sam Martin/CBC News )

Susan was devastated when the charge was thrown out.

"It isn't a justice system," she says. "It's a legal system. That's my opinion."

Beresh says he has sympathy for Susan's position.

"I understand it and I'm not saying she shouldn't have [said] that," he says. "But [she should] ask why the rules weren't followed."

Shirley Hinkley died in April 2010 at age 75 after her son Blair ran over her with a semi-truck. He was convicted of of impaired driving causing death and sentenced to 33 months in prison. (Obituary photo/Ponoka News )

He wonders how Susan would feel if she had been the one facing a serious criminal charge.

"Would you like an open book in terms of how long the trial could take? What if the prosecution said, 'We'll book your trial five years from now,' and you'd have no remedy to that? Would that be justice? I don't think so."

The aggravated sexual assault charge wasn't Hinkley's first encounter with the law.

In 2010, he was convicted of impaired driving causing death. Hinkley ran over his mother Shirley with a semi-truck on the family farm with a blood-alcohol content more than twice the legal limit. He was given a 33-month prison term.

The 44-year-old will go on trial in May on two counts of assault against an elderly woman, his father's girlfriend. Hinkley is accused of attacking her last June with a ratchet set.

The impact of Jordan

Since Oct. 25, 2016, when Alberta Justice started tracking the numbers, 170 Jordan applications have been filed in the province. The number doesn't include the Hinkley stay, which was granted Sept. 28, 2016.

Of the 170, 55 applications were rejected by the court. Thirty-five cases were abandoned by defence lawyers, and charges in 29 others were stayed on Jordan grounds. Fourteen cases are pending and 37 cases were resolved for reasons unrelated to Jordan.

Alberta has poured millions into hiring new prosecutors and setting up a triage system to focus resources on the most serious cases. Many cases now go straight to trial, rather than beginning with a preliminary hearing.

Last week, Ottawa tabled Bill C-75, aimed at making sweeping changes to the justice system and speeding up the court process. The bill includes a proposal to eliminate preliminary hearings except in the case of crimes that carry a life sentence.

Stephen Coughlan, a Dalhousie University law professor, has been keeping a close eye on the national impact of the Jordan decision, and thinks that in general, it has had fairly little effect.

"I've certainly seen the figure that there have been nationally about 1,000 applications under Jordan since it came along," Coughlan said from Halifax.

"But to put that in perspective, that would be out of a total of say, 500,000 cases that have taken place since Jordan."

Coughlan believes the Jordan decision has served as a wake-up call for a justice system now trying to find new, streamlined ways of doing business.

"Across the board, I do think it's fair to say that the impact of Jordan has been to make everybody worried about delay," he says.

"On the whole, I think that's pretty much a success story, yes."

Susan doesn't see it that way.

"Justice is black and white," she says. "The law has many shades of grey."

About the Author

Janice Johnston is an award-winning journalist in Edmonton who has covered the courts and crime for more than two decades. You can reach her at janice.johnston@cbc.ca or on Twitter at @cbcjanjohnston