Outrage after twice-accused drunk driver walks

The families of two young women whose car was hit by an accused drunk driver on Vancouver Island in 2007 are outraged after charges against the man were thrown out because of RCMP mistakes and excessive court delays.

Case backlog and judge shortage in B.C. increase number of impaired cases stayed

The families of two young women whose car was hit by an accused drunk driver on Vancouver Island in 2007 are outraged after charges against the man were thrown out because of RCMP mistakes and excessive court delays.

"It just is fundamentally wrong at so many levels," said Andy Van Ruyven, father of one of the women. "These girls almost died. The emotional, physical and psychological impact of this is going to stay with them forever."

Several impaired driving cases have been thrown out in British Columbia's courts this year — or dropped before they got to trial — because of excessive delays. Judges have blamed investigative mistakes, court backlogs and not enough sitting judges. 

The province has 11.5 fewer full-time provincial court judges today than it did in 2006. Several lawyers who work in the system told CBC News if the attorney general doesn't fill all the vacancies left by retiring judges, the court backlog will soon reach a crisis level.

Problem 'snowballing'

"The problem is snowballing," said Stephen Fudge, of the B.C. Crown Counsel Association. "Even if all the vacancies were filled, we might still need more judges."

"I don't know how you make this an urgent issue," said Van Ruyven. "This case was the biggest gong show that you could imagine. We need to fix this."

Torie Gerard, 24, spent several months in hospital after the collision and had to learn how to eat again. She was with her friend Jessica Van Ruyven in August 2007 when their car collided with a truck driven by a man accused of drunk driving. ((CBC))

Accused drunk driver Todd McKinnon, 39, of Campbell River, was driving a pickup truck that collided with a car driven by Jessica Van Ruyven, of North Vancouver, on a highway near Campbell River on Vancouver Island in August 2007. Van Ruyven's friend Torie Gerard was in the passenger seat. Both women were 21 at the time and had just graduated from the University of Calgary.  

While Van Ruyven has recovered from her injuries, Gerard initially wasn't even expected to live. She is now permanently brain-injured and has several other disabilities. Her mother, Joanne Davignon, said her daughter isn't likely to have a career or children and will need lifelong care.

Submit your story ideas:

  • Go Public is an investigative news segment on CBC-TV, radio and the web.
  • We tell your stories and hold the powers that be accountable.
  • We want to hear from people across the country with stories they want to make public.

Submit your story ideas to Kathy Tomlinson at Go Public

"I am absolutely numb from dealing for three years with the enormity of the devastation this [accused] drunk driver caused my family and now I am forced to deal with the fact that there will be no justice as well," said Davignon.

Provincial court Judge Brian Saunderson stayed the impaired charges against McKinnon in June, at his lawyer's request, citing the accused's rights to a trial within a reasonable time.

The judge predicted at the time more cases would be thrown out for the same reason, stating, "I would expect any number of further delay applications to be brought forward."

Attorney general not available

CBC News made several requests to interview B.C. Attorney General Mike de Jong on the issue, but he did not make himself available.

Gerard now suffers from a brain injury and uses a walker to get around. ((CBC))

His office sent a statement, which said, "Government is actively pursuing a number of judicial appointments in response to the provincial court's requests for additional judges."

"I propose an advertisement," said Davignon. "If you want to drink and drive, move to Vancouver Island … nothing will happen to you … there aren't enough judges!"

After the collision in 2007, McKinnon was given a breathalyzer test by the Campbell River RCMP. Police said the evidence supporting impaired charges against McKinnon was very solid.

Court records show RCMP then took several months to get all the information they had on the case to the Crown. In the process, a key witness statement was irretrievably lost at the detachment. 

The RCMP has apologized to the families, for its part in delaying the case.

'We failed': RCMP

"We apologize and we accept that responsibility," said RCMP Cpl. Darren Lagan. "To families specifically — there is no doubt that for the part that we played in delays and issues that arose in this case we failed them."

Crown counsel David Fitzsimmons told court that no one within the RCMP had control of the file and that "everybody was expecting somebody else to have done something."

"If nobody is driving the bus, then nobody is driving the bus," Fitzsimmons told the judge.

"That should not happen," said Lagan. "In looking at this file and the mistakes that were made, we've taken steps to make sure that it doesn't happen again."

Vancouver Island RCMP spokesperson Darren Lagan apologized to the families for the RCMP's role in the delay before the case got to court. ((CBC))

Charges were not laid against McKinnon until almost 17 months after the collision. Then, because of postponements and the chronic court backlog, the case took another 17 months to get to trial. The main problem causing court delays in Campbell River was that a judge retired in the fall of 2009 and has still not been replaced.

"Failure [in this case] clearly lays at the feet of the Crown," said Fitzsimmons in court. 

"There's not a single person who stood up there for Jessica and Torie and told their story," said Van Ruyven. "It's not right."

Driver let off before

It was not the first time McKinnon was charged with impaired driving and didn't have to stand trial. Court records show he was also charged with two counts in 2005. His case was thrown out then because the RCMP had faxed him an incomplete copy of the breathalyzer report. 

Because his copy didn't match the original, his rights to full disclosure were breached. He was free to keep driving, with a clean record. Two years later, he was involved in the collision with Van Ruyven.

"If the full force of the law had have been applied at that time … there's a very good reason that he might not have been driving at the time that he caused this accident," said Van Ruyven.

"Right now this guy is laughing every single day. Twice off! Man!"

Calls to McKinnon's lawyer, Jeffrey Green, were not returned. Court records show Green was so confident in June that his client's case would be thrown out that he allowed him to leave the country for an undetermined period, the day before the court hearing.

There were 17 judicial stays of proceedings in B.C. impaired driving cases between March 2009 and March 2010 — up from six in 2006. A judicial stay of proceedings means charges cannot be revived and are wiped from the record of the accused.

Jessica Van Ruyven, left, and Torie Gerard, centre, were both 21 and had graduated from the University of Calgary in the spring of 2007, months before the crash. ((CBC))

Delay is the most common reason for that outcome.

In addition, the Crown Counsel Association said some impaired cases get dropped before they even reach a judge — if the Crown believes they are likely to be thrown out because of delay.

"If you want us to prosecute vigorously and not make deals, you have to give us the resources to do that," said Fudge.

A provincial court judge in Golden, B.C., threw out three impaired driving cases at once in April, because he didn't have time to hear them. 

"Backlogs have increased, days are hopelessly overbooked," said Judge Ronald Webb in his ruling.

"Impaired driving is a serious matter … the state ought to expect more decisions of this nature."

Clients told not to plead guilty

Defence lawyers told CBC News they are now advising clients charged with impaired driving not to plead guilty — instead telling them to wait it out and take the chance of getting a stay, based on delays.

"Courts are double booked [with the same judge]. They are triple booked more often than double booked," said lawyer Marvin Stern, who works in Surrey, B.C, where there are chronic delays.

Statistics Canada figures show that B.C. impaired cases that were stayed in 2009 took an average of 487 days — or 16 months — to get to trial. The Supreme Court of Canada has determined an accused should be tried within half that time.

The national average time delay on impaired cases that were stayed was 423 days. "We explain [to clients] the system has some flaws in it … and without an incentive to plead guilty it's in the client's best interest to go to court that day to see if the case is going to get heard," said Stern.

What's ironic, he said, is delay applications by defence counsel then take up even more precious court time.

"They take up more resources in a system that can't afford more resources," said Stern.

Donation drive for Torie Gerard: http://bit.ly/cewB4c

Meanwhile, Jessica Van Ruyven has set up a Facebook page for her injured friend, Torie Gerard.  She is hoping to raise money to help pay for Gerard's future care, because her family now expects any insurance settlement they receive won't cover the costs.

The car Jessica Van Ruyven was driving was totalled in the collision. ((CBC))

Gerard lives in Whitehorse, where the local Scotiabank branch is offering to match the first $5,000 raised for the family.

"It's outrageous than an innocent child was so hurt and continues to suffer," said her mother Joanne Davignon.

"Before the accident, to see these girls, they were just fun. Everything about them was fun," said Andy Van Ruyven.

"This has got to change. The likes of this driver getting off on an impaired charge twice is unacceptable, at any societal level."