Sex case against former MCFD manager dismissed due to time delay

MCFD sex case dismissed

A former B.C. Ministry of Child and Family Development manager no longer stands accused of sexually assaulting a minor after a Provincial Court Judge dismissed the counts due to unreasonable delay.

In a 27-page decision regarding Edward Owen Berry, Judge Brian Daley found Crown counsel had exceeded by 90 days the 18-month time limit, mandated by the Supreme Court of Canada for cases going through provincial court.

The decision was issued in March 2020, following four days of hearings on the matter spread over November 2019 and February 2020 in Fort St. John.

It was the second time Berry's lawyer, Jonathan Desbarats, had applied to have the case dismissed due to unreasonable delay. The first was heard in January 2018 and was applied to the period from when Berry was first charged in November 2015 and June 2018, the anticipated date for the court's decision.

In November 2018, Daley found that while the total delay was 950 days, he attributed 378 to defence counsel and 51 to "transitional cases criteria" leaving a net delay of 521 days - 26 short of the 547-day or 18-month limit.

By then, according to a timeline in Daley's most-recent decision, new trial dates had been set for three days in late January 2019 only to see those dates set aside for a pre-trial application by Desbarats for disclosure of the complainants psychiatric records.

Instead, a five-day trial was schedule for August 2019 but due to delays caused by uncooperative witnesses, troubles with the court's video system and a need to hear other matters on the days in question, more days were needed.

That same month, dates in October, November and December 2019 and in February and March-April were proposed but the Crown prosecutor was not available. In September 2019, the case was handed over to another Crown prosecutor and three more days were scheduled for November 2019.

It was the second time the case had changed hands. In late 2018, Teresa Mitchell-Banks took the case over from Tamara Golinsky. In turn, Golinsky took it over once again in September 2019.

Much of Daley's analysis centred on delays related to Desbarat's application for the psychiatric records. In the end, the judge found the loss of the August 2019 trial dates was due to Crown's failure to act in a "collaborative, time-sensitive and pro-active manner."

In all, Daley found the loss led to a delay of 116 days. Less the 26 days leeway Daley found in the first decision, the 18-month time limit had been exceeded by 90 days.

Daley further attributed blame to "institutional delay" manifest by an inability of the Fort St. John registry to schedule multi-day trials in a timely manner and constant interruptions on the days of the trial by other matters, such as bail hearings.

Depending on Crown or defence counsel's estimates, between 40 and 50 per cent of the eight days scheduled for the trial had been lost as a result.

"But whether it is 40 per cent or 50 per cent, it is, in my respectful opinion, a scathing indictment on the powers that be to properly resource the local community," Daley said. "The lack of judicial resources in this area has been endemic almost since my appointment as the resident Provincial Court judge in Fort St. John over 15 years ago."

Prior to the decision, Berry had been charged with sexual assault, sexual interference of a person under 16, and exposing himself to a person under 16.

In April 2018, Berry was sentenced to eight months in jail followed by two years probation on child pornography charges related to a discovery of images on a tablet computer recovered from a fire at a Prince George apartment building where he had been living.

For the full decision, click here.

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