A Provincial Court judge has thrown out a case against two men charged with assault causing bodily harm because the trial had still not been completed two years after their arrest.
In a 22-page ruling issued last week, Judge Michael Brecknell put much of the blame on a lack of court resources for a delay he found had violated the Charter rights of brothers Kevin and Rodney Kaiser.
"The court constantly strives to serve the public interest in the administration of justice in the face of dwindling resources and burgeoning case load," Judge Brecknell concluded. "Only government can re-establish the necessary and appropriate level of judicial and support resources."
The Kaisers were arrested on July 6, 2009, on charges of breaking into a Fort Fraser, B.C., home the evening before and assaulting Boyd Lackey. Kevin Kaiser was also charged with assaulting and threatening Mr. Lackey's mother.
The attack occurred two days after Mr. Lackey assaulted the Kaisers' father in his home. Mr. Lackey pleaded guilty to that incident.
The matter was scheduled for trial in Vanderhoof Provincial Court on July 26, 2010, 11 months after the charges were sworn.
The judge noted that because the court had to deal with other matters at the same time, less than six hours of testimony was heard over three days before the case was adjourned and no subsequent dates for continuing the trial were ever set.
At one point, judicial officials suggested the case be transferred to Prince George where more dates would be available, but defence council did not agree to the change.
David Jenkins, the defence lawyer for Kevin Kaiser, and Brian Gilson, the lawyer for Rodney Kaiser, have both argued that it is a straight forward case that could have concluded quickly.
Judge Brecknell agreed.
In the end, the judge found neither the defence nor the prosecutor responsible for the delay.
Rather, Judge Brecknell focused on a lack of resources, and noted that there are now four full-time and one part-time judge serving Prince George, Vanderhoof, Fort St. James, Valemount, McBride and Mackenzie, down from six in March 2005.
"The challenges are further exacerbated in places like Fraser Lake and Vanderhoof, near where the events in question occurred, because the court lists on any given day are filled to beyond capacity even before considering the people who come into custody arising from arrest in the day or two before the court sits," Judge Brecknell said.
The judge noted that as of March 31, 2011, the Prince George registry, which also serves Vanderhoof, Fort St. James and Fraser Lake, had 976 adult criminal cases pending, of which 571, or 59 per cent, were over 180 days old. Another 74 had been pending for more than 18 months.
The Kaisers suffered because of the delay, Judge Brecknell said.
A school teacher in Kelowna, Kevin Kaiser was promoted to vice-principal in 2009 but was unable to continue in that position past June 2010 and was unable to apply for the district aboriginal principal's position due to the charges.
Moreover, Judge Brecknell said the legal and travel costs forced Kevin Kaiser to sell assets and go into debt, prompting his wife to return to full-time work and leaving their two young children in daycare.
As for Rodney Kaiser, a sawmill worker living in Engen, the matter interfered with his work to the point where his employer sent him to counselling. The court heard that it contributed to the breakup of his marriage, caused him to consider bankruptcy and made him the subject of continuous small-town gossip.
In an e-mail response to the queries, Attorney-General Barry Penner said the Prince George court manages about 3,000 new criminal cases a year, "and as far as I'm aware, this is the first stay of proceedings in Prince George this year."
He also noted that in 2010, nine new judges were appointed in communities across the province, including Prince George.
"This is in addition to rotating judges into communities where they are needed to ensure court hearings proceed," he said.
In fact, it's the fourth time in a year that a case has been dismissed by a Provincial Court judge in the Prince George area, citing delays.
Among them, in September, 2010, Judge Brecknell stayed charges against Jamie Dean McComber, accused of running into a police car while drunk, because the case had not been heard more than 21 months after charges were laid.
The Canadian Press