Delays mean no trial for repeat sex offender
Crown missteps cited by judge who stays charges in case involving woman attacked on New Westminster bus
A repeat sex offender accused of assaults in Alberta and B.C. will not be tried for a heinous New Westminster attack on a passenger while he was a bus driver seven years ago.
B.C. Supreme Court Justice Michael Tammen said the delay in prosecuting Oliver James Doherty, who has been in jail since May 2011 for the Alberta charges, doomed the B.C. case from the outset.
There was a “total breakdown” in communication between provinces, he concluded, and the Crown’s missteps, inaction and conduct fell “well below that which is expected of reasonably diligent counsel.”
“Although the logistical details of keeping two sets of serious charges on the proverbial rails in different provinces would not have been simple, they would not have been particularly complex or onerous,” Tammen wrote in the decision released Friday.
“The two court jurisdictions are separated by the Rocky Mountains, not the Atlantic Ocean. There is a one-hour time difference. Flight times between Edmonton and Vancouver are less than two hours.”
The Alberta assaults were considered so barbaric that prosecutors considered a dangerous offender application, the justice noted, and Doherty received a sentence of 11 years (after credit for time served) commencing June 6, 2014.
Tammen stayed the New Westminster charges saying the proceedings exceeded the deadlines established by the Supreme Court of Canada in a 2016 decision known as R. v. Jordan.
“We have also failed the complainant and the general public,” the judge wrote. “The complainant should never have been made to wait seven years for this case to get to trial. The public expects, and rightly so, that a crime such as that alleged here will reach conclusion in a fraction of the time this case has taken.”
Doherty was charged with sexual assault, unlawful confinement and uttering threats after a woman was attacked Feb. 7, 2010 in New Westminster.
“The allegations are extremely serious, involving non-consensual, unprotected oral and vaginal sex, accompanied by threats and confinement of the complainant on a bus which the accused was operating,” Tammen said.
Police matched the resulting DNA profile to an unidentified person in three unsolved 2004 Alberta sexual offences.
A year later, Doherty’s DNA was identified during the investigation of a Jan. 2011 sex assault in Edmonton. That tied him to the earlier Alberta and New Westminster offences.
On May 25, 2011, Edmonton police charged him with the four separate Alberta incidents.
But here’s where the Canadian justice system lets everyone down by being a patchwork quilt of jurisdictions that cooperate badly.
The New West police only learned Doherty was in custody on Oct. 12 and the same day advised the B.C. Crown counsel who handled the case until December, 2016.
She only approved charges a week earlier and now evinced the hope she wouldn’t have to do any work, that Doherty would plead guilty in B.C. because of the Alberta charges.
Over the years, Tammen said, there were multiple opportunities for her to have arranged a first appearance and commence prosecution on the B.C. charges.
The Alberta Crown didn’t bother to let B.C. know when Doherty was sentenced in 2014 — the New West police found out a year later in March 2015 and tried to light a fire under the B.C. Crown who did nothing until the following spring.
It was not until Doherty appeared by video link on April 20, 2016, that the B.C. warrant for his arrest was considered executed.
There was a preliminary hearing in March, 2017, and Doherty was committed to trial.
It was all for nought — the time from date of charge to his first appearance in 2016 was deemed to be slightly in excess of 54 months, or four and a half years.
“The breach of the accused’s rights under s. 11(b) was complete by that date, and the prosecution was beyond salvaging,” Tammen said.