The case against four men accused of a drug-related kidnapping, confinement and assault was dismissed Wednesday after the alleged victim continued to evade attempts to bring him to court to testify.
There were smiles all around after Michael Andrew Joseph Fitzgerald, 34, Francois Christiaan Meerholz, 26, Dillan Meerholz, 24, and Craig Anthony Niedermayer, 37, heard Prince George Provincial Court Judge Dan Weatherly's decision to stay the charges.
The Crown had alleged the four kidnapped the man because they suspected he was responsible for the loss of about seven kilograms of marijuana from a Salmon Valley grow operation and held him at a Ferndale home for several days where he was beaten and tortured. On the evening of April 15, 2012, he escaped through a second-story window and fled to the nearby community hall.
It was the second time the case has gone to trial.
The first trial began in January 2013, but was halted after nearly seven days of testimony when Provincial Court Judge Darrell O'Byrne, now deceased, fell ill. The man testified at the first trial after a publication ban on his name was ordered but he was unwilling to testify at the second trial.
In November, while he was in custody at Kamloops Regional Correctional Centre, he was issued a subpoena to testify but was released last week and failed to appear in court on Tuesday when the second trial, which began in July, resumed.
On Tuesday, Weatherly agreed with Crown prosecutor Marie Louise Ahren's request to issue a warrant for the man's arrest but he remained on the lam as of Wednesday morning.
On Wednesday, Ahrens relayed to the court an e-mail the man had sent police on Tuesday morning in which he asked if the warrant would mean he would be held in custody. When police confirmed he would be arrested and transported to Prince George, the man replied "well, let's play hide and seek, LOL."
Police efforts to locate the man once the warrant was issued included visiting three homes in Vernon where he was known to stay on five occasions, the court was told. Ahrens asked for one more day, saying there was reason to believe he would be found in a "small town in B.C."
In making a case against further adjourning the case, defence counsel variously argued that when a Canada-wide warrant was previously issued for the man on another charge, it took police three months to apprehend him and he was clearly unwilling to testify.
Given the time the trial had already taken - it became bogged down over disclosure issues and an inability to locate the man when it first began in July - lawyer Tony Zipp said the proceeding had "crossed the line" in terms of delivering an expeditious resolution.
Over the course of the first trial and the start of the second, the four had been in custody for 18 months but had since been released on conditions.
In response, Ahrens said further dates have been secured to continue the trial in March and June - the current portion of the trial was scheduled to last a week to hear testimony from the alleged victim - and contended she would have the trial completed by the end of that time.
But Weatherly noted the trial had been adjourned a number of times already and expressed doubt that the alleged victim, and the trial's key witness, would cooperate once on the stand.
Defence counsel had been raising doubt about whether the man was kidnapped at gunpoint from a Prince George crack shack where he had been working as a doorman or had voluntarily stepped into the van that took him to the Ferndale home.
In the first trial, he testified that he had been held for about six days in the home and had been stapled with a tack hammer, his cheek pierced with gardening shears, and had been kicked, jumped and stomped on.
Among his injuries, the man said he had suffered a collapsed lung and blood was leaking into his chest cavity. He was in hospital for at least two days, with an RCMP guard at his door, while the blood was being pumped out.
A bloodied and frightened man burst into the Ferndale community hall where a group was taking in a presentation on organic farming, the court had also heard. He then hid in the kitchen while police were called to the scene.
The outcome is particularly important for Francois Meerholz. Had he been found guilty of a crime for which the sentence was greater than six months or for which the maximum penalty is at least 10 years in jail, he would have been deported to South Africa.
