A Quebec man who was sent to prison for 14 years on child molestation charges nearly three years ago will now instead serve four years behind bars after the Court of Appeal ruled his rights were violated due to unreasonable court delays. Kenneth Marlin, 69, was found guilty on all charges at the end of his trial in January 2023 after five men accused the former volunteer firefighter of sexually abusing them when they were children in the 1980s and 1990s at his family’s dairy farm in Hemmingford, Que., about 65 kilometres south of Montreal. When he was sentenced to 14 years, the judge said that he sexually abused children between the ages of seven and 15 when he was in his 20s and 30s for his sexual pleasure “whenever and wherever he could.” But on Tuesday, the Quebec Court of Appeal granted a stay of proceedings in relation to four of the five complainants. In a 47-page judgment, three appellate judges took aim at the criminal justice system when they concluded that his right to a speedy trial was violated and that provincial police had lost or destroyed key evidence. As a result, Marlin, who was released from prison shortly after being sentenced while his case was under appeal, must now report to prison by Sept. 15 to serve a new sentence of four years. Reached by phone on Wednesday, Crown prosecutor Patrick Cardinal said the appeal judgment is “pretty disappointing given the seriousness of the accusations.” The Crown said it is still reviewing the ruling and has not yet decided whether to appeal it. Unreasonable court delay In its judgment, the appeal court agreed with Marlin’s argument that his case took far too long to be completed, violating his rights under section 11b of the Charter of Rights and Freedoms. According to the ruling, a delay of 73 days from September to December 2020 was attributable to the prosecution. “There was absolutely no justification for an additional delay of this magnitude to carry out what the parties had agreed to do before the trial date was set. The trial judge’s silence is just as problematic,” the Court of Appeal wrote in Tuesday’s judgment. In a landmark 2016 decision, the Supreme Court of Canada ruled that criminal trials in provincial court must be completed within 18 months, starting from the date charges are laid to the end of the trial. After subtracting court delays attributable to the defence, what was left was a net delay of 31 days exceeding the 18-month ceiling, according to the appeal court, which also ruled that the trial judge erred in calculating the length of delay. “This is exactly what the Supreme Court identified as the culture of delay and complacency towards delays,” the judgment stated. “A stay must follow.” Provincial police lost evidence Marlin also filed an appeal on grounds that the trial judge erred in concluding there had been no unacceptable negligence by the Sûreté du Québec (SQ) for losing or destroying evidence related to the case. In the mid-1990s, two of the five complainants had filed complaints with the RCMP in British Columbia regarding historical sexual abuse allegations against Marlin in Quebec. After the case was transferred to the SQ, Marlin was arrested in January 1996, but the Crown’s office in Quebec decided in September of that year not to lay charges. Those two men, identified in the ruling by their initials T.D. and S.D., joined the 2020 criminal case against Marlin after other men came forward to police with allegations of historical sexual abuse. However, SQ investigators could not locate some of the evidence that the RCMP had sent them in the 1990s, including videotaped statements from T.D. and S.D. and six of the eight pages of Marlin’s written statement to police at the time. An SQ archivist testified that police evidence is typically retained for a 20-year period before it is sent to the Bibliothèque et Archives nationales du Québec (BAnQ), which has the sole discretion to either keep or destroy the records. The archivist could not tell the court what had happened to the files. The appeal court ruled that the trial judge erred when he concluded the prosecution had proven there had been no unacceptable negligence in handling evidence related to the case. ‘Discrediting our justice system’ An SQ detective who worked on the 2020 Marlin case also shredded handwritten notes she made from the interviews of both men. Marlin’s lawyer argued during the trial that these pieces of evidence were key to the case because it was material on which the defence could cross-examine the complainants to assess their credibility and reliability. “It is rather remarkable that, following decades of case law on the disclosure of evidence and the importance of police notes, police officers still believe they can dispose of the notes taken during meetings with a complainant,” the appeal court wrote. “Doing so runs the risk [of] discrediting our justice system, one of the fundamental purposes of which is to ensure a fair trial, as well as victimizing the victims again by jeopardizing the prosecution. Absolutely no benefit flows from such a practice.” The trial judge considered “the loss of documents was not prejudicial as to prevent the appellant from making a full answer and defence,” but the Court of Appeal disagreed. In Tuesday’s ruling, the judges said the absence of the evidence compromised the fairness of the trial “in a case that hinges on the credibility and reliability of the witnesses.” “Again, the credibility and the reliability of the complainants’ account of what occurred several decades ago was central. The destroyed or missing elements were premium tools to ascertain this,” the Court of Appeal ruled. “There is no alternative remedy short of a stay of proceedings.” Both grounds of appeal were in relation to four of the five complainants. Marlin’s conviction relating to the fifth victim, known as D.S., still stands. According to the judgment, that victim was put into foster care at the Marlin family farm in 1982 and recounted the first time he had been molested by Marlin in the hayloft when he was 11 years old. The sexual abuse would also happen at times in a vehicle and would take place “approximately a couple of times a week” until it stopped in the six months before he left the farm at age 16. According to the judgment, D.S. decided to come forward when his sister showed him a newspaper article about the allegations against Marlin in 2020. As he prepares to head to prison, Marlin is also facing a pair of civil lawsuits filed by two of the alleged victims, who are suing for a combined $2.4 million in damages. They alleged the abuse they suffered because of Marlin led to serious problems later in life, including alcohol issues, anxiety and thoughts of suicide. None of the allegations in either lawsuit have been tested in court. If you or someone you know is struggling with sexual assault or trauma, the following resources are available to support people in crisis:
