Paul Bickford
Northern News Services
Monday, February 5, 2007

FORT SMITH - A peculiar series of events recently combined to halt a court case in Fort Smith.

A breach of probation charge was stayed against a man, meaning he won't have to pay restitution to three boys for destroying their bicycles.

The legal oddity began about two years ago when the man was convicted of mischief in Fort Smith Territorial Court for damaging the bikes.

Steven Hinkley, the Crown prosecutor in that original case, explained the boys and their bikes were on or near the man's property - around an old building used for storage - when he took a sledgehammer and attacked the three bikes leaning against a tree.

As a result of the mischief conviction, the man was placed on probation and ordered to pay $350 in restitution to each boy for damaging the bikes beyond repair.

However, the man failed to pay restitution while unsuccessfully appealing the original conviction. Eventually, he was charged with breach of probation for failing to pay.

That charge was heard in Fort Smith Territorial Court Jan. 25, and the case started to fall apart.

Territorial Court Judge Brian Bruser ruled the Crown's paperwork didn't show the accused received proper notice that a copy of the probation order was to be presented at the trial.

"As a result of that, the court wasn't going to allow the probation order to be tendered as evidence," Hinkley explained.

Crown prosecutor Michael Himmelman argued the second case, but Hinkley was deemed media spokesperson for both the first and second trials by the Office of the Department of Public Prosecutions.

The judge ruled the probation order was also inadmissible because it was stamped with a Supreme Court seal, not the required Territorial Court seal.

Hinkley explained that's simply a matter of a clerk picking up the wrong stamp.

"Given those rulings by the Territorial Court, there would be no evidence to sustain the charge," he said.

The charge of breach of probation was stayed as a result.

"It was one of those magic occasions where everything went wrong," Hinkley said.

Tom Wasylyshyn, the father of one of the boys, is frustrated by the turn of events.

"I think the boys are going to be awfully disappointed," he said, noting they were 12 or 13 at the time of the incident.

Wasylyshyn said the outcome of the case seems to say that, if you are found guilty, it is no big deal if you ignore an order of the court.

"It just doesn't seem fair," he said, noting the accused even kept the old bikes and now doesn't have to buy new ones.

Hinkley said the Crown made all efforts to prosecute the matter. "Certainly, our office appreciates the frustration level and it is regrettable."