A provincial court trial judge dismissed a defence application this week which argued the 2004 Pender Harbour May Day assault trial delay violated two of the accused's Charter right to be tried within a reasonable time.
The alleged offences occurred May 23, 2004 at a private property in Kleindale where longboarders, in the area for the weekend's longboarding competition, reported uninvited guests attacked campers, including some with the use of a hockey stick. Sunshine Coast RCMP laid charges against five Gibsons-area men two months later. The trial began in June, 2005, but since then many witnesses still remained to be called to the stand, after the time allotted for a trial, a continuation was set for this week.
The five accused were charged with four counts of assault, four counts of assault with a weapon, four counts of assault causing bodily harm and one count of possessing a weapon for a dangerous purpose.
Wednesday afternoon, Crown counsel Trevor Cockfield announced in court that the Crown would no longer be pursuing two of the assault with a weapon counts and two of the assault counts for each of the accused. But there has not been an official stay of proceedings on those counts.
Earlier in the week, defence counsel Greg Cranston, representing brothers Paul Johnson, 24, and Drew Johnson, 21, made the Charter of Rights and Freedoms application. The three co-accused, Daryl Costello, Daniel Wood and Michael Webb, are represented separately by defence counsel Mitch Foster. In Sechelt court Tuesday, Judge William Rodgers listed his reasons for dismissing the charter application, based on a test set out in case law which guides trial courts to consider the length of the delay, whether the accused waived his Charter right, the reason for the delay and prejudice to accused. Rodgers found the actual delay length for the court to consider was 12 months rather than the defence's assertion of 22 months because he considered the co-accuseds' counsel's trial date non-availability as a neutral delay. As well, the delay date began when the information was sworn rather than the offence date, Rodgers decided. He found 12 months is a reasonable length for the circumstances of this case.
However, he did find the accuseds did not waive their right because "at all times they have asserted their right to be tried within a reasonable time."
In his second reason for dismissal, Rodgers said no delay was caused by the Crown or by institutional delay. Regarding prejudice, he said prejudice to accused can be inferred from delay, as argued by defence counsel, because of bail restrictions, the stress of the trial process and the detrimental effects of accuseds living in a smaller community awaiting trial. However, there was no affidavit evidence of specific prejudice to the accuseds in this case so prejudice had not been shown, he said - his third reason for dismissing the application.
"It's very unfortunate that it's taken so long to get this thing back in court," Cranston said outside court.
The Charter application was addressed between Crown witnesses during the trial continuation this week. Beginning on Monday, a Crown witness completed his cross-examination, then three more civilian witnesses and six police witnesses testified for the Crown. The final Crown witness was testifying Wednesday afternoon. Identification continues to be an issue in the case. One witness, Katrina Phillips, described one male who stood out, noting he had a hockey stick in his hand and "he was pretty much hitting anybody." She also said, "He had blood running down his face." But she said she would not recognize him if she saw him again. Another witness, Tim Storoschuk, in cross-examination identified two of the accused sitting in court as being at the scene but not as witnessing them committing an offence. A youth witness pointed out three of the accused in the courtroom, saying he believed one of them was swinging a hockey stick, and two others were fighting in the "scrum." He also said, "It's been two years and my memory is a little foggy of the whole incident."
Two Sunshine Coast RCMP witnesses, auxiliary Const. Suzette Stevenson and Const. Jean-François Gelderblom, testified they pursued a vehicle matching the description of a vehicle reported to have left the campsite. They identified Costello and Webb in the courtroom as being occupants in the vehicle. The officers testified they found blood on the accuseds' hands and clothing. No weapons or hockey sticks were found in the vehicle after a search.
The case is expected to resume today (Friday) when the defence would be making a no-evidence motion, according to both Cockfield and Cranston. If the motion is unsuccessful, the defence would then proceed with calling its witnesses. Three weeks has been set aside for the trial.
