A Victoria provincial court judge says “unacceptable” delays in B.C.’s court system forced the staying of a criminal charge against a man accused of sexually assaulting a six-year-old girl.
In a scathing ruling, Judge Mayland McKimm found that factors including problems finding time in a semi-retired judge’s schedule pushed the accused’s trial beyond an 18-month limit set by the Supreme Court of Canada.
The decision — which was issued in May but only recently made public — predicts the collapse of more cases given a “court scheduling model that fails to accommodate trials that run on longer than anticipated.”
“This matter alleges the sexual violation of a young child. There are few types of cases more deserving of priority in these courts,” McKimm wrote.
“When this trial is set to conclude, the child will be nine years old. Such a result is entirely unacceptable. To have this issue hanging over a child for a full third of her young life is simply not consistent with this court’s mandate to deliver justice.”
‘A ceiling and not a floor’
McKimm’s decision provides a detailed window into issues raised by a variety of groups who have flagged fears about a scarcity of both sheriffs and judges leading to court delays.
In 2016, in what has become known as the Jordan decision, Canada’s highest court set a limit of 18 months for cases tried in provincial court and 30 months for cases in superior courts.
But McKimm pointed out that “eighteen months is a ceiling and not a floor and that even if the presumptive ceiling is not reached the delay below that ceiling may well still be unreasonable.”
According to the decision, the alleged sexual assault happened on Dec. 23, 2021, at the residence of the accused when the victim — known as A.Z. — and her mother visited for a “pre-Christmas festive meal.”
“A.Z. disclosed inappropriate behaviour to her mother, Mrs. W., the following day,” the ruling says.
“Mrs. W. attended at the residence of the accused and confronted the accused in the presence of his wife with these allegations. She was secretly trying to record this exchange on her phone.”
The mother went to police with a tape of the conversation.
‘The length of delay is entirely unacceptable’
The accused, meanwhile, hired a lawyer, who contacted the Crown in February 2022 to say “he will make his client available at any time to be processed in the event that a decision is made to proceed with charges.”
The charge was sworn at the end of May 2022, and a first appearance was set a month and a half later. But a failure to assign a Crown prosecutor resulted in a three-month delay in the arraignment — an appearance where an accused is informed of the charges against them and enters a plea.
A four-day trial was set to begin May 15, 2023 — almost a year after the laying of the charge — but a Cantonese interpreter failed to appear on the first day, and the remaining three days weren’t enough to finish the matter.
The continuation of the case got further delayed, in part, because the presiding judge is semi-retired and wasn’t sitting from mid-October to the beginning of December.
The trial finally resumed in February 2024 for three days.
But the defence lawyer was sick one day, and the Crown’s examination of the alleged victim’s mother took a day and a half — instead of the one hour the prosecutor had originally predicted.
“The length of delay is entirely unacceptable … The microscopic examination of each procedural event in order to lay resulting delay at the feet of one party or another or on the institution runs a serious risk of losing sight of the forest for the trees,” wrote McKimm.
“It is clear that these sorts of trials must be allowed to start and continue to conclusion.”
‘It’s mismanagement of time’
In a statement to the CBC, the B.C. Prosecution Service said the Crown is not appealing the decision.
“There were a number of factors that contributed to the judicial stay of proceedings in this case, including translation issues, availability of counsel, illness of a witness, illness of counsel, availability of the semi-retired trial judge and courtroom availability,” a spokesperson wrote.
“Crown counsel are conscientious about doing everything within their control to ensure that criminal trials are concluded within the timelines set by the Supreme Court of Canada.”
Surrey South Conservative MLA Elenore Sturko, an outspoken critic of the NDP’s government’s handling of the justice system, said the case spoke to a failure to deal with the administration of the courts.
“It’s mismanagement of time. It’s mismanagement of a resource,” Sturko told the CBC.
“Here we have someone who is accused of hurting a child, who now won’t be held accountable. Their trial is not complete. The charges are stayed, and we have a young child who went three years with this hanging over their head to ultimately have the case fall apart.”
In a statement, the Ministry of B.C.’s Attorney General said the department is working to “make sure that legal systems better respond and support those affected by sexual violence.”
A spokesperson pointed to the appointment of an independent expert “to systematically review the treatment of survivors of sexual and intimate partner violence in the legal system.”
“The reviewer will recommend practical and meaningful solutions to identified issues for the Province to implement in the short and long term,” the statement said.
“Every case that is judicially stayed due to delay is a concern. Survivors and the public expect to see cases determined on their merits and not dismissed because of unreasonable delay.”
The lawyer for the accused did not respond to an email.