Extraordinary measures are under consideration to provide real time transcripts of court proceedings to a man charged with sex crimes involving minors.
Hugh McKay, 67, of Campbell River is charged with sexual assault and invitation to sexual touching a person under age 16.
The female victims were 12 and 11 years old respectively when the alleged offences took place in Campbell River.
Since his second arrest last July, McKay has been held at the B.C. Forensic Psychiatric Hospital in Port Coquitlam.
On Wednesday morning, he appeared by video in Campbell River provincial court for a hearing to determine his psychological fitness to stand trial.
According to Crown prosecutor Bruce Goddard, McKay was first arrested June 24, 2011, after a 12-year-old girl told police that a man had grabbed her buttocks.
The alleged incident took place near the downtown Community Centre.
McKay was released from custody the following day on bail conditions, but a warrant for his arrest was issued in September 2011 after he missed appointments with the probation officer.
The warrant was vacated when he did show up for his next court appearance when he pleaded not guilty to sexual assault, and a trial date was set for June 2012.
However, when it came time for the trial, McKay’s lawyer asked for a psychological fitness assessment.
The trial judge agreed and ordered the report to ready for July 9, 2012.
But just five days before the court date, McKay was arrested again following a complaint made by an 11-year-old girl.
According to Goddard, the girl knocked at McKay’s door and he allegedly offered her $40 to have sex.
McKay was arrested the same day and later detained.
On Oct. 4, Judge Peter Doherty ruled McKay was not fit to stand trial based on Dr. Eugene Wang’s finding that McKay was unable to follow or properly understand the court proceedings.
McKay does use a hearing aid, but it’s unclear if it actually helps him.
Goddard did point out there is concern among authorities and some staff at the forensic hospital regarding McKay’s “selective ability to hear.”
Goddard said it appears McKay hears things when people are not speaking directly to him and sometimes acts if he cannot hear.
Regardless, the situation changed in December following another fitness hearing at the forensic hospital.
This time McKay was able to read the real time transcripts of what was being said on a computer monitor and was able to understand the proceedings.
As a result, Dr. Wang changed his opinion and determined McKay was at least marginally fit to stand trial.
But the new diagnosis was news to both the prosecutor and defence lawyer Doug Marion when they came to court on Wednesday in Campbell River.
“I just heard about this,” Marion told Judge Parker MacCarthy.
Marion had an opportunity to speak with McKay privately, by video, before the hearing occurred and wasn’t sure if his client properly hears or understands what is happening.
“I can’t say his answers encouraged me,” Marion told the court. “Trying to deal with him orally has never been successful…we may have a miscarriage [of justice] here.”
Judge MacCarthy agreed that McKay has some sort of auditory impairment, “selective or not,” and also raised the issue of whether the equipment to provide real time transcripts was available in provincial court.
A hearing, involving equipment to provide a real-time transcript, has never occurred in the Campbell River courthouse.
However, Goddard said he would look into the matter to find out what equipment and operators are needed, and if it is even available to the court system in order to provide a fair trial.
“I’m not trying to railroad Mr. McKay in any way,” he said.
“This is a serious issue.”
More information on what will occur next is expected to be presented to the judge at McKay’s next court date on Jan. 28.