A youth who skinned gophers alive and cut off their feet had his sentence stayed because the time it took for the case to proceed violated his rights.
Because 27 months had passed from the time the charge was first before the courts, judge Michael Gray ordered a stay of proceedings at a Prince George hearing in October. Gray's judgement was released last week at the request of The Citizen.
"(In) my view that is not acceptable," Gray said in his judgment, finding the time amounted to an unreasonable delay.
At an August court date, Gray found the youth guilty beyond a reasonable doubt of causing pain or suffering to an animal - a criminal offence. Despite that finding, it won't appear on his criminal record because of the stay.
Court heard the offence happened in 2013, and the charge was sworn before the court in July 2014. By January 2015, the defence still did not have disclosure from the Crown.
A trial date was fairly quickly set for October that year, but the trial was ultimately delayed until June 2016. The boy is from a community outside of Prince George and cannot be named due to a publication ban protecting his identity under the Youth Criminal Justice Act.
The case against the youth, whose age is not mentioned in the judgment, hinged on his confession of gopher torture to a woman mentoring him and a 15-year-old boy who witnessed the attack. Their words were pitted against the accused's testimony, which Gray said was unreliable.
Court heard the boys looked for traps over a few days and tried to snare gophers.
When they discovered the animals the Crown's witness, who was 12 at the time, said the gophers were still alive with snares around their necks.
He recalled hearing the gopher's squeals as the accused cut their paws off. He estimated they died within 10 to 15 seconds.
He also spoke of the gophers being suffocated.
The 15-year-old recounted a memory of the youth using a knife to stab the gopher to a tree. The defence questioned the practicality of the action, but Gray noted the witness was firm in his description of the event.
"He is fabricating. I did not actually do these things," the accused said during his testimony, agreeing he discussed torturing gophers but it was because he used to "lie a lot" to get attention.
"I vaguely recall speaking of gophers and hardship of foster care. No good memory of that, but it is not true. No recall at all of sticking a gopher to a tree or using a stick, or suffocating a gopher. I never absolutely did not do that. The words that were said were a lie," he said.
When pressed, the youth said he often says positive and negative things with the goal of getting attention "no matter what."
"I cannot remember the lies. It is not part of my memory," he said, agreeing he had talked about torturing gophers a couple times but that the boy, who said he'd witnessed the acts, was lying.
The judgment suggests the accused's testimony asserted two opposing narratives.
"(I) am not able to place any weight on it because of what I view as a contradictory response, a terse response, almost not engaging in any background detail," Gray said in the judgment.
Gray said the boy can't in one breath say he has no recollection of the incident and in another say he didn't do it.
"As I view it, those are two contradictory things and I cannot rely on the fact of your denial," said Gray, who contrasted that testimony with the 15-year-old boy, who acknowledged when he had a weak memory of details but remained clear "in fairly stark terms" about the violent act.
"I did see these actions by (the accused). I saw him do these things. He used wire cutters," the boy testified.
But, provincial court matters should not exceed 18 months, unless the Crown can prove exceptional circumstances. Gray said in this case the Crown could not have done anything more than they did.
However "(the) Crown at large can be criticized for not taking steps to remedy what are now viewed as institutional delays," he noted, adding circuit courts in remote locations are unique because of the limited number of court dates.
Gray also pointed to a 1991 Ontario Court of Appeal decisions stressing youth matters need to be dealt with expeditiously, with a time limit shorter than 18 months.
"(Youth) are in the process of growth and need direction and support and the longer the delay takes place, there is not timely resolution."
