A convicted drug dealer will not be sentenced after a Prince George provincial court judge stayed the charges against him on Wednesday because the case took too long to get to trial.
Judge Michael Brecknell blamed a lack of resources for most of the 42.5 months it took to reach a verdict in the case of Joseph William Hammer, 50, who was found guilty last month of possessing cocaine for the purpose of trafficking.
Hammer remains in custody on other matters.
That an "unrepentant drug dealer" should "now be able to be free of the consequences of this very serious offence... should alarm and concern the community," Brecknell agreed when reading out his ruling.
"However, all citizens, even drug dealers, are entitled to protection of their rights under the Charter [of Rights and Freedoms]."
The Charter maintains a person has a right to be tried within a reasonable time, usually 18 months, although Brecknell cited several cases that took much longer - one that took 62 months among them - where stays were refused.
ARRESTED OCTOBER 2007
Hammer and two others, brother James William Hammer and wife Theresa June Malcolm, were arrested on Oct. 2, 2007 after an undercover officer arranged to purchase a quarter pound of cocaine for cash or firearms in the parking lot of a local fast food restaurant.
Police arrested the brothers at the scene, where four baggies of white powder was found on James and cash on Joseph, and a search warrant was obtained for Joseph Hammer's home where Malcolm was arrested.
There, they seized white powder contained in baggies, a cereal bowl, 160 paper flaps and a 297-gram coffee can, $11,676 in cash, various other baggies and paper flaps, two digital scales, two notebooks containing names and monetary amounts, three safes and a 2.2-kilogram container of dextrose.
In April 2008, James Hammer was sentenced to two years in jail and charges against Malcolm, whom Joseph Hammer maintained was not involved in the business, were stayed.
ROUGH START TO COURT PROCEEDINGS
Court proceedings got off on the wrong foot when Hammer appeared in court on Nov. 27, 2007 but his case was not on the court list. With the trial estimated to take two and a half days, the first of what ended up being five trial dates was set for Jan. 20 to 22, 2009 only to have the matter postponed because other matters before the court had priority.
Subsequent trial dates were rescheduled due to a conflict with another trial for the defence counsel, misplacement of notes related to the investigation by the RCMP, and, in the fourth instance, because other matters had priority on the first day and no sheriff was available on the second.
Three voir dire hearings - held to determine if evidence is admissible - were held leading up to the fifth and finally successful attempt at holding a trial over four days in July and August, but Brecknell found those hearings had only a minor impact.
LACK OF RESOURCES MAIN CAUSE
Brecknell put most of the emphasis on the lack of resources, which he said accounted for 21.5 months of the delay since the first trial dates in January 2009.
From a total of six full-time provincial court judges in March 2005, the complement is now down to the full-time equivalent of 4.5 positions, Brecknell said, serving Prince George, Vanderhoof, Fort St. James, Fraser Lake, Valemount, McBrid and Mackenzie.
A new judge for Prince George, Roderick Sutton, will be sworn in on Sept. 19, "which will assist with the present workload but will not adequately address case backlog issues," Brecknell said.
As of the end of March, the Prince George registry had 976 adult criminal cases pending, of which 59 per cent were over 180 days old. And of the 571 cases over 180 days, 13 per cent have been pending for more than 18 months.
"This case is one of those cases," Brecknell said.
MINISTER RESPONDS
In an e-mailed response, Attorney General Shirley Bond said the ministry is "always concerned when there is a stay of proceedings ruling - no matter what the specific reasons were for each individual case."
Bond, the MLA for Prince George-Valemount, said judges will continue to be rotated into communities where they are needed to ensure court hearings proceed and noted that the province is in the process of hiring and training new sheriffs.
Prince George will get three new auxiliary sheriffs as part of the province-wide campaign that saw 36 new recruits begin training Aug. 31 to start work in December.
"We are also undertaking auxiliary hiring into court administration positions to restore to the fiscal 2010-11 staffing level, which involves increasing staffing up to the equivalent of 55 full-time court administration positions," Bond said.
She also noted court procedures are being streamlined and digital technology is being used to get people to trial quicker.
"We need to encourage people to resolve disputes outside of court so they can be as efficient as possible and make room for those cases that require a courtroom," Bond said.
BROTHERS REMAING BEHIND BARS
The Hammer brothers continue to remain in custody following their arrests this summer on drugs and weapons charges.
James Edward Hammer, 57, and Joseph William Hammer, 50, were arrested July 5 after RCMP searched two homes in the 3400 block of Westwood Drive.
Police said they found powdered cocaine, crack cocaine, heroin and morphine and drug trafficking paraphernalia - including scales, packaging, measuring instruments, score sheets and a large quantity of cash.
The search also uncovered one loaded and one unloaded handgun, a rifle, a cross bow with arrows, a composite bow with arrows, brass knuckles, and a large hunting knife, none of which were were stored properly, police said.
They each face three charges of possession of a controlled substance for the purpose of trafficking and eight firearms related charges.
An arraignment hearing for both is scheduled for Sept. 28.
- Nielsen
CHARGES STAYED FOR FIFTH TIME THIS YEAR
Including Wednesday's decision, it's the fifth time in slightly more than a year that a case has been dismissed by a provincial court judge in the Prince George area.
- In August 2010, Judge Darrell O'Bryne stayed a $196 speeding ticket against Matthew Robert Pederson because the matter had not been brought to trial after nearly 20 months.
- In September 2010, Brecknell stayed charges against Jamie Dean McComber, accused of running into a police car while drunk, because the case had not been heard more than 21 months after charges were laid.
- In March 2011, O'Byrne stayed drunk driving charges against Arnold Thomas Trenaman primarily because RCMP took more than two hours to get a breath sample, triggering the so-called "last drink defence" in which the accused can claimed to have drank just before he got into his vehicle but was not yet drunk.
But O'Byrne also ruled he would have dismissed the case anyway, because it had taken 26 months to deal with the matter.
- In July 2011, Brecknell stayed charge of assault causing bodily against brothers Kevin and Rodney Kaiser because the trial had still not been completed two years after their arrest following an altercation with a third man in Fort Fraser.
Trouble getting time in Vanderhoof provincial court was cited as the reason.
- Nielsen
