A Penticton defence lawyer excoriated a “scandalous” delay for a cognitive assessment at what was intended to be a sentencing hearing for sex assault charges Wednesday morning.
Rick Allen, 27, pleaded guilty to one count of sexual assault in January in Penticton’s courthouse, but he’s still yet to receive sentencing, which was scheduled for Wednesday.
Allen had sex with an 11-year-old girl he met on Plenty of Fish, who claimed to be an 18-year-old single mother.
In a January court date, Crown counsel Nashina Devji argued there was a judgement call that Allen failed to make when he realized the girl was likely underage after meeting her in person.
However, Allen’s lawyer James Pennington argued the failed judgement call was a result of his struggles with ADHD and fetal alcohol spectrum disorder, which was the purpose for a cognitive assessment ordered in May.
When called forward Wednesday morning, Pennington told the court Allen wasn’t in a financial position to make it to Penticton for the hearing, adding he was also concerned about an October date for receiving a psychiatric evaluation.
“I am not prepared to wait until Oct. 31,” Judge Meg Shaw said.
“I don’t want to wait until October, either,” Pennington responded. “But I think it’s grossly unfair to the accused to get penalized just because the government can’t see fit to adequately fund the forensic psychiatric tests.”
Part of the delay occurred in June, when the forensics department conducting the assessment was told an October report would be too late for sentencing and the assessment was withdrawn from the queue.
With the case over 1,000 days old at this point, Shaw wasn’t interested in putting off sentencing any longer, pointing to the Jordan ruling, which limits provincial court matters to 18 months from charges laid to trial.
“Do you need to hear me say on the record that I waive Jordan and kiss Jordan goodbye?” Pennington asked.
Pennington told Shaw he would likely have instructions from Allen to waive any Jordan application “if I could get him to understand what Jordan’s about.”
But Devji argued the Jordan ruling doesn’t address any time delay following a guilty plea, something that has recently been upheld in the Alberta Court of Appeal.
“In this particular case, my friend is waiving the delay, I’m going to take the position that the plea was entered within Jordan territory, and while the sentencing has been significantly delayed, this is not a Jordan issue,” she said.
Still, Pennington took issue with a lengthy wait for a cognitive assessment, which was initially ordered in May.
“It’s scandalous,” Pennington said. “It’s not because the forensics has decided to take the summer off. They’re overworked as it is. And it’s not the fault of the court or the Crown or Mr. Allen.”
The Crown is seeking nine to 12 months of jail time for the offence, while Pennington is seeking 90 days with an 18-month probation. But Pennington said the results of the cognitive assessment could make the difference between a few months and a few years in jail.
Shaw was in agreement with that assessment, ordering Devji to put in another order for the cognitive assessment, and to put pressure on the forensics department.
“I would like forensics to know that this particular request is not done lightly,” Shaw said. “I’m asking that priority be put on this.”