Mounties accused of pepper-spray assault won't face trial because of court delay

Court delays have resulted in the staying of an assault charge against two Vancouver Island Mounties accused of using excessive force by pepper spraying a prisoner.

In a decision released this week, Nanaimo, B.C., provincial court judge Brian Lamperson found that the Charter rights of Cpl. Michelle Rene Lebrun and Const. Mick Donald White have been violated by unreasonable delay in bringing their case to trial.

The two officers were charged in connection with the June 2013 incident in March 2015, after an investigation by B.C.'s independent police watchdog.

A third Mountie was also charged, but his trial has been severed from the other two.

In his ruling, Lamperson worked the math on the 39 months that will have passed between the date the charge was sworn and the projected end of a trial that was set to run for two weeks beginning on May 14.

Even taking into account more than 20 months caused by defence delay, the judge found that the net waiting time would still exceed 19 months — more than a month past the 18-month window laid out in a Supreme Court of Canada ruling meant to tackle systemic delays in the justice system.

Charge of assault with weapon

According to a Criminal Justice Branch news release issued at the time the charge was sworn, the alleged incident occurred in the RCMP detachment cells in Parksville, B.C.

While the alleged victim, Trevor Ryan Vandervalk, sustained injuries, the Crown decided against charges specific to his injuries because of the lack of a substantial likelihood of conviction.

Instead, they proceeded with a charge of assault with a weapon, namely oleoresin capsicum spray, better known as pepper spray.

"The charge alleges the use of oleoresin capsicum spray in a manner that constitutes excessive force," the release said.

Series of delays

Lamperson's ruling details a series of delays that began almost the moment a summons was issued to the accused, when the case was put over for a month by consent.

A 16-day trial was set for May 2016, but in the meantime Crown and defence lawyers argued about the process of disclosure of records concerning Vandervalk's interaction with the justice system, as well as forensic psychiatric reports and hospital records.

The trial was adjourned and further disclosure was sought, including reports to Crown counsel relating to Vandervalk's convictions, the complete Independent Investigations Office file, and files from other police departments.

Vandervalk's counsel withdrew from the case in December 2016, causing further postponements.

Finally, the court itself was unable to find the time needed to schedule a trial before this spring.

The so-called Jordan decision

A groundbreaking Supreme Court of Canada ruling in 2016 set out to curb delays in the justice system which threaten an accused's Charter right to be tried within a reasonable period of time.

The so-called Jordan decision set up a new framework to deal with unacceptable delay: no longer than 18 months in provincial court and 30 months in superior court.

The Crown argued that accounting for delays attributable to defence would bring the time to trial to a point just short of 18 months.

But by Lamperson's calculation, even accounting for exceptional circumstances would still result in an unreasonable delay.

A separate trial for the third accused, Const. Scott Kennedy Jones, is set for this fall.