B.C. judge finds delays in child sex assault case went beyond trial 'ceiling'

British Columbia Premier David Eby says there was a "perfect storm" of delays that caused a child sexual assault case to be stayed against a man accused of molesting a six-year-old girl.

"Not one case should be dismissed this way," Eby said Wednesday at an unrelated news conference.

Eby said the Supreme Court of Canada's ruling setting timely trial deadlines at 18 months for provincial courts and 30 months for higher-court trials is a "very restrictive rule" that has been "devastating in other provinces."

In 2023, more than 170 cases in Ontario were dropped because of unreasonable trial delay, but he said that number was about 19 in B.C.

Eby's comments come after a B.C. provincial court judge found trial delays for the man went beyond a "ceiling" set by the Supreme Court of Canada, and he stayed the case more than two years after charges were laid.

Provincial court Judge Mayland McKimm's ruling handed down in May said the man was accused of sexually assaulting the child at his family home when she and her mother attended a "pre-Christmas festive meal" in December 2021.

The ruling says the child told her mother of the man's "inappropriate behaviour" the next day, and the woman confronted him in his home with his wife present, secretly recording the interaction on her phone in an exchange that occurred "fluently" between Mandarin and Cantonese.

McKimm's decision says the mother provided the recording to police, and the man — only identified by his initials in the ruling — was charged in May 2022, but the Crown's "failure" to assign a prosecutor to the case led to a three-month delay before the man's trial could be set.

The stay prompted the B.C. Conservative Party to lay the blame for the delays at the feet of the provincial government, saying in a statement Wednesday that the ruling highlights "a severe failure in the administration of justice under David Eby's leadership."

"The administration of justice in British Columbia is in shambles, and this recent case is a devastating example of the consequences," B.C. Conservative leader John Rustad said in the statement.

BC Conservative MLA for Surrey South Elenore Sturko called it a “really, really sad situation."

“The reality is this was entirely a preventable situation – had the justice system been adequately resourced and managed,” said Sturko.

The ruling outlines a number of other delays that plagued the case, including a Cantonese interpreter's failure to show up to court, the man's lawyer falling ill, a witness being diagnosed with cancer, and a failure to ask the semi-retired trial judge to hear the case during "non-sitting months."

The judge found that no effort was "made to reorganize the presiding judge’s sitting time to accommodate the accused’s right to a speedy trial."

McKimm found the delays in the case went beyond the 18-month limit set by the Supreme Court of Canada for timely trials, warning that a "court scheduling model" that can't handle trials that take "longer than anticipated … will sadly lead to cases such as these simply taking too long to complete."

The trial was originally scheduled for four days in May 2023, but the delays pushed the trial to finish in mid-June of this year.

"The length of delay is entirely unacceptable and a violation of the accused’s right to a trial within a reasonable time even if the delay can be differently parsed and categorized and blame laid elsewhere to shoehorn the matter under the 18-month ceiling," McKimm's ruling says.

Criminal defence lawyer Michael Mulligan says the fault for the delay in this case falls squarely at the feet of the province, citing a lack of resources and funding for the justice system.

“We have an inadequate number of judges, we have an inadequate number of sheriffs, we have an inadequate number of court clerks, we have underfunding ... chronic underfunding of legal aid,” said Mulligan Wednesday.

Dale Marshall was the lawyer for the accused. He told CTV News his client maintains his innocence. The accused wanted a trial to clear his name and has taken every effort to have it heard quickly, but those efforts have been frustrated by delays outside his control, according to Marshall.

Eby said that the prosecution service will review what happened and "see what could have been done differently."

"Every time a file is dismissed in this way, everybody understands in the prosecution service and the government and the general public that it is corrosive to the public's confidence in the justice system," Eby said. "There are some factors that are outside of the province's control. There are some that are in the province's control."

This report by The Canadian Press was first published July 24, 2024.

With files from CTV News Vancouver's Robert Buffam