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A British Columbia judge has stayed assault charges against two Mounties accused of pepper spraying a man in custody while proceedings against a third officer are set to go ahead in the fall.

Provincial court Judge Ronald Lamperson said in a written ruling that the charter rights of RCMP Cpl. Michelle Lebrun and Const. Mick White were violated because their trials were delayed for too long.

Lebrun and White, along with Const. Scott Jones, were on duty at the Oceanside detachment in Parksville when the alleged incident occurred on June 10, 2013.

All the Mounties pleaded not guilty, and Lamperson said Lebrun and White applied to have the prosecution against them stayed for the assault with a weapon charge that was sworn in February 2015, though proceedings were repeatedly adjourned over issues such as requests for disclosure.

Lamperson said that after multiple delays, separate trials for Lebrun and White were scheduled to start next month, but 39 months and 14 days would have lapsed to the expected end of proceedings.

The trial for Jones is set for the fall.

The judge’s decision is in keeping with a Supreme Court of Canada ruling in 2016 that imposed an 18-month time limit for the start of provincial court trials. The top court said a further delay is presumed to cause prejudice to the accused.

Lamperson said 16 days over four weeks were initially set for a trial starting in May 2016, but disclosure issues and unavailability of lawyers led to further delays and an offer of three alternative dates for start of the trial, either in May, August or October 2017.

However, he said that while Crown counsel was available, defence lawyers were not. He said the lawyers provided four sets of possible dates for the trial to begin and then the court could not accommodate those dates.

Defence lawyers for each of the accused officers provided various dates that would have had proceedings starting as late as October 2018, Lamperson said, adding they also suggested Jones and White be tried separately from Lebrun, a move the Crown consented to.

Lamperson said defence delays in fixing the first trial date amount to 113 days, disclosure application issues added 212 days, but the unavailability of defence lawyers caused even longer delays.

A new lawyer for Trevor Vandervalk, the man in custody, also did not receive timely disclosure, the judge said.

“All things considered, I find the defence could have filed their disclosure applications much earlier than they did. I find that if they (had) done so, the disclosure process would very likely have been concluded before May 24, 2016, when the trial was first set to begin.”

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