A constitutional challenge by a man convicted last year of sexually assaulting a former girlfriend was abruptly adjourned April 17 when the Crown prosecutor said he felt ill.
Justice Simon Coval took a sudden break before the scheduled afternoon recess. He returned to set April 30 and May 1 as the next dates for Brendan Tomas Boylan’s application to stay the charge. The 39-year-old claims his right to a timely trial was violated.
Prosecutor John Cliffe, who told Coval in the morning session that he felt “a little wobbly,” was apologetic when he admitted he could not continue with his submissions.
“I hope you’re not on the same flight as I am tonight,” Cliffe said.
“I might,” Coval replied.
“Don’t sit anywhere near me,” Cliffe chuckled.
Before the courtroom closed, Coval set Sept. 8-10 as the tentative dates for Boylan’s sentencing, should his application fail.
The licensed school teacher was charged in November 2020 and tried intermittently between April 2023 and September 2024. At issue was a sexual encounter that began with mutual consent. The victim, who lived with Boylan in 2018, testified that he ignored her pleas to stop. Instead, he held her down on the bed and forcibly continued, causing her injury. Boylan denied the allegations.
Coval found Boylan’s testimony “implausible, not credible and untruthful” and deemed him guilty beyond reasonable doubt on Nov. 20.
Boylan’s constitutional challenge began Tuesday, April 15 with a surprise from his lawyer, John Duncan: Boylan had decided to represent himself. Duncan told Coval that Boylan’s decision was not related to fees. Boylan had asked him to assist on a limited basis, but he was not charging him.
“I see no professional, ethical issues, although you need to know I might become a witness in this matter, so that could be an issue,” Duncan told Coval.
Cliffe said he learned before 5 p.m. the previous day that Boylan had fired Duncan.
Coval asked Boylan if he understood the complexity of his application and whether he wanted a chance to adjourn to seek more advice. Boylan declined. He proceeded to argue that the time period from the charge to the end of his trial was 46 months and nine days, which far exceeds the 30-month presumptive ceiling for a case in B.C. Supreme Court.
That 30-month limit was set by the Supreme Court of Canada in the 2016 decision on Barrett Richard Jordan, a B.C. man accused of drug trafficking in 2008. Jordan’s lawyers succeeded in convincing the court that their client’s right to timely trial, as guaranteed by the Charter of Rights and Freedoms, had been violated. The Supreme Court ruled that any delay attributable to or waived by the defence does not count towards the time limit.
“There's only one time period where the defence waived delay,” Boylan submitted. “Particularly, the defence waived delay from April 5, 2023 to July 31, 2023, when the trial was adjourned to allow defence file a revised section 276 application (about evidence of a complainant’s sexual activity).”
Boylan called the Crown’s assertion that the case was complex “baseless.”
“None of the hallmarks of a complex case are present here. There's no co-accused, there's not a large number of witnesses, there was no expert evidence,” Boylan said. “The charges did not cover a long period of time, there is not a large number of charges and pre-trial applications, and there is not a large number of issues in dispute.”
On Thursday, April 17, Cliffe rebutted Boylan’s arguments, by quoting from court transcripts about scheduling and delays. He reminded Coval of the defence decision to move the trial from Provincial Court to BC Supreme Court and to file numerous applications that added to the delays.
After the November conviction, Boylan was listed in the BC government online registry of teachers as having signed an undertaking not to practice “pending resolution of a matter before the commissioner or a hearing panel under Part 6 of the Teachers Act.”
