Fingers pointed after B.C. judge dismisses child sex assault case due to delays

Premier David Eby says the province is working on recruiting and retaining sheriffs and staff after a B.C. court threw out the case of an alleged pedophile due to delays.

On May 8, Honourable Judge Mayland McKimm stayed a criminal charge against a man accused of sexually assaulting a six-year-old girl, citing an “unacceptable” violation of the accused’s right to a trial.

An alleged assault occurred on Dec. 23, 2021, but multiple issues forced the trial to be delayed, including disagreements over translations between Mandarin and Cantonese, failure to assign a Crown prosecutor that pushed the arraignment by three months, and interpreters not showing up to court.

McKimm shared his regrets in dismissing the case, saying there are “few types of cases more deserving of priority” in provincial courts. He said both the counsel for the accused and the prosecution moved with “alacrity,” but the Crown was forced to delay the case.

Speaking at an unrelated news conference Wednesday, Eby addressed the claim that his government is responsible for not preventing delays, saying victims of sexual assault deserve to see suspects tried in the courts.

“We are recruiting the sheriffs and the court workers that we need to keep the system moving, but it’s the same stress that we face in the health-care system, the same stress that employers face to find the skilled employees … We have a very low unemployment rate, and it is a challenge,” said Eby.

He says he recognizes that even one case being thrown out is too many but claims there were factors that were out of his government’s control.

The MLA for Abbotsford South, Bruce Banman, took to social media Wednesday, calling out the provincial government for its “failure to protect the community.”

“Underneath David Eby and Niki Sharma, the attorney general of British Columbia, an alleged pedophile who sexually abused a six-year-old was set free. Why was he set free? Because Niki Sharma and David Eby have not bothered to pay attention to what’s going on in the law courts in British Columbia,” said Banman in a video posted online.

Banman says it’s “absolutely shameful” that the court threw out the case on a “technicality.”

Restrictive timelines ‘a perfect storm’: Eby

McKimm noted that the child would be nine years old by the time the trial was set to conclude, adding that having the issue hang over her for a third of her life was unacceptable.

His conclusion found the delays had violated the charter rights of the accused, and pointed to failures in the court scheduling model as one of the main causes.

“The trial has not occurred in an efficient manner. It has proceeded for three days in May, 2022, three days in January, 2024 and is now set for three days in June 2024. It is clear that these sorts of trials must be allowed to start and continue to conclusion,” he wrote in court documents.

McKimm says a system that does not account for extensions will “sadly” lead to more being thrown out.

“Every time a file is dismissed in this way, everybody understands: in the prosecution service, in the government, in the general public, that it is corrosive to the public’s confidence in the justice system. That’s why we take it so seriously,” said Eby.

Among the other issues that led to the delay, the presiding judge worked only half time, but the court ruling noted that nobody made any effort to ask the judge whether they would be able to return to work to deal with the case.

In a statement to CityNews, the BC Prosecution Service says Crown Counsel are “conscientious about doing everything within their control” to ensure the timelines of criminal trials. It says a small number of cases still get stayed due to delays.

“That being said, any case that is stayed is something that the BCPS and other justice stakeholders must learn from,” said a spokesperson for the service.

The B.C. government says its 19 cases dismissed in 2023 don’t compare to Ontario’s 177 dismissed in the same year.

“At the same time, we also need to make sure that legal systems better respond and support those affected by sexual violence. This is why we have appointed an independent expert to systematically review the treatment of survivors of sexual and intimate partner violence in the legal system,” said the province in a statement to CityNews Wednesday.

Eby says he agrees with McKimm but laid the blame at the feet of the Supreme Court of Canada for forcing restrictive timelines.

“It is a perfect storm, and thankfully, it is the exception, not the rule, in British Columbia. But it takes constant vigilance, because the Supreme Court of Canada set down very strict timelines, and if we don’t hit those, the individual walks free,” said Eby.

“It is a very restrictive rule. It was pointed out when it was introduced by the Supreme Court of Canada that it would result in outcomes like this. It has been devastating in other provinces, to see hundreds of people walk free, and for our part, in British Columbia, we will push every single day to hit those timelines.”