The assault trial of former Afghanistan hostage Joshua Boyle will be delayed while the courts settle a dispute over whether evidence about consensual sexual activity with his wife is admissible in the case.
Mr. Boyle has pleaded not guilty in Ontario court to offences against his now-estranged spouse Caitlan Coleman, including assault, sexual assault and unlawful confinement.
The offences are alleged to have occurred in late 2017, after the couple returned to Canada following five years as captives of extremists who seized them during a backpacking trip to Asia.
Ms. Coleman’s lawyer, Ian Carter, plans to have a higher court review a ruling that allows Mr. Boyle to introduce evidence concerning certain consensual sexual activity with his wife during the weeks after their return in mid-October 2017.
Justice Peter Doody, who is presiding over Mr. Boyle’s case, told the court Wednesday that Mr. Carter’s move automatically suspends the trial while the review plays out.
The Justice gave Mr. Carter until Friday morning to file for the review, expected to be heard May 15 in Ontario Superior Court.
Mr. Boyle’s trial began March 25 and was scheduled to conclude within eight weeks.
Justice Doody suggested that the review and any subsequent appeals – potentially all the way to the Supreme Court – could conceivably keep the trial on hold for years. The Justice stressed he would like to do whatever advance planning is possible to ensure the trial resumes promptly after the issue is settled.
Depending how quickly things proceed, the delay could raise the possibility of a violation of Mr. Boyle’s constitutional right to timely justice.
Mr. Boyle was arrested in Ottawa in the early hours of Dec. 31, 2017, after Ms. Coleman told police he had assaulted her on numerous occasions.
Under rules spelled out by the Supreme Court, an unreasonable delay is presumed in provincial court should proceedings, from the criminal charge to conclusion of a trial, exceed 18 months.
Eric Granger, a lawyer for Mr. Boyle, said after the hearing Wednesday it was too early to consider such a scenario.
“It’s premature to be drawing any conclusions at this point,” he said, noting it is unclear when the trial will resume or be completed. “Mr. Boyle is interested in seeing this concluded as quickly as possible.”
Mr. Boyle was released from jail last year under strict bail conditions including that he wear an electronic tracking bracelet and submit to restrictions on his travel. He has been living with his parents in Smiths Falls, Ont., near Ottawa.
During the trial, Ms. Coleman has testified her husband spanked, punched and slapped her during their overseas captivity, and that his violent ways resumed shortly after they were freed by Pakistani forces.
Lawrence Greenspon, another member of Mr. Boyle’s legal team, began a detailed cross-examination of Ms. Coleman’s allegations.
However, uncertainty arose as to how far Mr. Greenspon could go with his questions. In general, an alleged victim’s sexual history can’t be used as evidence in a sexual-assault trial unless it’s directly relevant to the case.
Justice Doody ruled last week that Mr. Boyle will be permitted to introduce evidence that after their return to Canada he and Ms. Coleman engaged in “acts of consensual anal intercourse, consensual vaginal intercourse from the rear, sexual acts involving ropes and consensual biting as acts of sexual play.”
Justice Doody said the evidence must be limited to the general nature of such acts, and will not include significant details of any particular act.
Mr. Carter, Ms. Coleman’s lawyer, initially expected he would head directly to the Supreme Court to challenge the Justice’s ruling but later realized Ontario Superior Court was the appropriate venue.