How a ‘deeply disturbing’ police misstep derailed a sexual assault case

It wasn’t long before he reached out to her by direct message. The two began communicating daily, sometimes talking on the phone, and eventually arranged to meet face-to-face.

Nicole isn’t her real name because her identity is protected by a publication ban. Not long after the pair met, RCMP arrested Ellis for sexual assault — one of a small percentage of such cases that actually result in a charge in Canada.

But Nicole’s case never had a chance to be adjudicated because of what one expert calls “callous” and “deeply disturbing” missteps. Ellis’s trial was delayed once after a courtroom was double-booked, and then again for five months because RCMP lost the contents of Nicole’s rape kit, ultimately leading a judge to throw out the case for taking too long.

That day, in the Irving parking lot about a two-hour drive from Halifax, Nicole had never heard of R. v. Jordan. The groundbreaking 2016 Supreme Court of Canada ruling set strict deadlines for criminal cases to be heard and has rippled through the justice system across the country, leading to hundreds of cases being tossed over delays.

It would come to confound her life.

As they met in person for the first time, Nicole and Ellis lowered their windows to chat about plans: He would show her around the area and they would hike to his family’s cabin in the woods.

“I felt comfortable enough with the first introduction that I grabbed my rubber boots and my book bag, and I hopped in his car,” Nicole testified in February 2019 at Ellis’s sexual assault trial.

But later, just before Nicole was about to make the two-hour drive back to her home in central Nova Scotia, the two made one last stop. They were going to smoke cannabis down the remote Spurr Road in Annapolis County.

Ellis backed the car up against a bank of trees and immediately started kissing her, Nicole testified. He grabbed her legs, swiveling her body across the front seats and pulled down her sweatpants, which caught on the emergency break. As she tried to squirm back into them, she told the court, she pleaded, “No, I don’t want to do this. This is not why we came here.”

“I remember saying no over and over,” Nicole testified. “I remember trying to push him off of me and I remember giving up halfway through.

“My brain very quickly concluded the three options that I had. I could try and physically fight him … I could try and run away … Or I could let him finish and I could survive.”

The following day, according to evidence presented in court, Nicole texted Ellis: “I can’t figure out why you didn’t listen when I said no is all.”

Ellis replied: “I guess I just got too worked up. Sorry.”

Nicole also wrote: “Why do I feel that’s not the first time you got rapey?” In reply, Ellis texted “idk,” an abbreviation for “I don’t know.”

In court, Ellis pleaded not guilty and did not testify in his own defence. His lawyer, Zeb Brown, argued the sexual encounter was consensual, that Nicole simply later regretted it.

The day after the encounter Nicole went to a Halifax-area hospital, shaken and teary. Two sexual assault nurses performed a rape kit, taking 19 photos of bruising, including a hand impression on her leg.

On a form, they recorded nine sets of bruises, including two linear red bruises on her mid-back (from being pressed into the emergency brake, Nicole said), one on her right breast (where Nicole testified Ellis bit her) and a vaginal abrasion.

But RCMP working out of the detachment in Bridgetown, N.S., lost this evidence, failing standard procedure to provide it to the prosecutor. Neither the Crown nor the defence even knew the photos existed until Nicole’s cross-examination on Feb. 28 when she mentioned they had been taken at the hospital as part of the rape kit.

Following that, Crown attorney Robert Morrison asked Bridgetown RCMP several times for the missing rape kit evidence, but police couldn’t find it nor did they have any record of ever receiving it.

One last request inexplicably turned up the photos, unlabeled and unattached to any file, at an RCMP detachment 25 minutes away in Middleton. A copy of the rape kit form was eventually located at Avalon Sexual Assault Centre in Halifax.

The Supreme Court’s Jordan ruling set an 18-month limit for cases to be tried in provincial court, or 30 months in superior court.

This summer, Nova Scotia provincial court Judge Alan Tufts cited the combination of two delays that pushed Ellis’s trial over the Jordan limit.

The double-booking of a courtroom, a standard practise to maximize use of court time because some cases fall through, forced the trial to be rescheduled once. There was also, Tufts said in his Aug. 22 decision, “the failure of the Crown to disclose very important documents — that is the photos, some photos and other contents of the rape kit, some of which was in police possession all along, although in the wrong locker, police locker.”

The delay, he said, was “unreasonable” and had breached Ellis’s Charter rights. The judge ordered a stay of proceedings.

The Crown is appealing, but a University of Ottawa criminologist said the outcome shows the RCMP were unprofessional and “should be embarrassed.”

“These were blatant violations of their duty, their duty to provide evidence to the Crown, their duty to handle evidence carefully, and at the very least not lose it and mislabel it or unlabel it,” said Prof. Holly Johnson. “This is all deeply disturbing — that a case would be thrown based on a Jordan ruling when it was highly preventable.

“There are so few cases that get to court that this is actually extremely disappointing that it happens out of carelessness or callousness.”

According to Statistics Canada, the vast majority of sexual assaults are not reported to police. Of those that are reported, fewer than half result in charges.

Nova Scotia RCMP refused to answer questions about the case.

“That matter is before an appeal and we cannot discuss anything that’s currently before the courts,” said Sgt. Angela Corscadden.

She said RCMP have detailed methods for marking, storing and preserving evidence. Supervisors and managers are responsible for ensuring members follow these protocols. If they’re not followed, there would be consequences, she said, but she wouldn’t specify what.

Morrison, who prosecuted Nicole’s case, said the rape kit would have provided a fuller picture. Crucially, he said, the search for the missing evidence meant the trial had to be adjourned for five months, leading the judge to conclude it had crossed the Jordan limit.

“Any kind of evidence, any kind of mixup in disclosure, things that should be provided that aren’t, is problematic,” he said, adding a police review should take place to find out exactly how the rape kit went missing and why it wasn’t disclosed to the court.

Morrison said sexual assault nurse examiners’ reports were only introduced last summer as a pilot program in western Nova Scotia, and the complainant had not told him there was one. “There really wasn’t anything there in the file to suggest that it existed,” he said.

‘A complete catastrophe’

Nicole, who now lives in Pictou County in northern Nova Scotia, said her life is no longer recognizable. Prior to the assault, she had been diagnosed with post-traumatic stress disorder from a past abusive relationship. She now lives in almost complete isolation, with only her daughter and a guard dog.

She grocery shops in the middle of the night to avoid people, and the confidence she once had, that she could turn to people in positions of power for help, is gone.

“Coming out of it, I feel rather dumbfounded. I went in … naive, believing that the system was designed to help the victim follow due process … What I saw was a complete catastrophe and a farce of this system,” Nicole said in an interview.

“Now I can’t trust my government. Now I can’t trust the police officers that are assigned to protect me. And now, as a mother, I can’t trust them to protect [my daughter] either.”

‘It still failed’

As she awaits the appeal process, she is reeling from the missteps in her case and feels revictimized. She is speaking out because she wants accountability and system-wide changes so that no other victim of sexual assault will be treated so unfairly.

She is still waiting for an explanation about why RCMP misplaced her rape kit. She said provincial agencies that deal with sexual assault victims need more training. And she is hopeful a higher court will overturn the decision in her case.

“I believed that the evidence was there. I had believed that the accused confessed. I believed that the Justice Department had everything that they needed to proceed with this and it still failed,” she said. “There needs to be some sort of massive, massive change.” Nicole said in an interview.

Shelley Curtis-Thompson, executive director of the Pictou County Women’s Resource and Sexual Assault Centre, said the case may discourage others from coming forward.

“It is absolutely unacceptable to imagine that survivors of sexualized violence are not, because of mistakes, having an opportunity to have their day in court,” she said.

“Very few victims of sexualized violence come forward, and they come forward reluctantly often because of fear of what could happen in the legal system. So when there are mistakes or delays … that leaves complainants in general and society feeling a level of distress potentially in terms of the system.”