A provincial court judge has thrown out a case against two men charged with assault causing bodily harm in Fort Fraser 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," Brecknell concluded. "Only government can reestablish 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 home the evening before and assaulting Boyd Lackey. Kevin Kaiser was also charged with assaulting and threatening Lackey's mother.
The attack allegedly occurred two days after Lackey assaulted the Kaisers' father in his home. Lackey, who had a history of alcohol and drug-related violence, eventually pleaded guilty to the incident.
Trial never concluded
The matter did reach the trial stage in Vanderhoof provincial court on July 26, 2010, but that was 11 months after the charges were sworn, Brecknell noted. 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 it was adjourned and no subsequent dates for continuing the trial were ever set.
At one point, judicial case management suggested the case be transferred to Prince George where more dates are would be available but defence council declined to agree.
In a submission during a subsequent hearing into whether the Kaisers' rights had been breached, David Jenkins, the defence counsel for Kevin Kaiser maintained the trial could have been concluded had the three days been fully utilized.
And Brian Gilson, defense counsel for Rodney Kaiser, argued it was a straightforward case that boiled down to who was most credible and could have been dealt with in short order, a point Brecknell agreed with.
In the end, Brecknell said he could not attribute much, if any, of the delay to the actions of the defence and none to the Crown counsel.
Lack of resources cited
Rather, 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 fill to beyond capacity even before considering the people who come into custody arising from arrest in the day or two before the court sits," Brecknell states.
Brecknell also noted that as of March 31, 2011, the Prince George registry, which also includes 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 and 74 pending for more than 18 months.
Delay caused suffering
The Kaisers suffered because of the delay, Brecknell noted.
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, Brecknell stated the legal and travel costs force Kevin Kaiser to sell assets and go into debt and prompting his wife to return to full-time work, 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, contributed to the breakup of his marriage, caused him to consider bankruptcy and made him the subject of continuous small-town gossip.
Steps taken says Attorney General
In an e-mail response, Attorney General Barry Penneer 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, where Ron Tindale was added in February.
"This is in addition to rotating judges into communities where they are needed to ensure court hearings proceed," he said,
And Penner credited the immediate roadside prohibition policy for drinking and driving for not only
reducing fatalities by 50 per cent but for a "big reduction in the number of new impaired driving cases.
"These types of cases have taken up more provincial court time than any other criminal charges."
