Pubdate: Wed, 17 May 2006
Source: Gulf Islands Driftwood (CN BC)
Copyright: 2006 Gulf Islands Driftwood
Contact:  http://www.gulfislands.net/
Details: http://www.mapinc.org/media/862
Author: Mitchell Sherrin
Bookmark: http://www.mapinc.org/coke.htm (Cocaine)

DRUG CASE DROPPED OVER LACK OF GANGES COURT TIME

Two islanders charged with possession of cocaine for the purpose of 
trafficking cashed in a victory at Ganges Provincial Court on May 9 
after a successful "unreasonable delay" defence saw court proceedings fold.

Jim Hawkins walked out of court beaming after Judge Pauline Maughan 
ordered a judicial stay of proceedings because he didn't receive a 
trial in a "reasonable period of time," constituting a violation of 
the Canadian Charter of Rights and Freedoms.

"Don't you love it when a plan comes together," Hawkins said outside 
the courtroom.

Court heard that Hawkins and Kimberley Mailey had been charged with 
possession for the purpose of trafficking after "a small amount of 
cocaine" was found in their home during a search by Salt Spring RCMP 
on December 5, 2003.

But their case never came to trial. Court appearances stretched over 
28 months and trials were scheduled three times (November 8, 2004; 
November 9, 2005 and May 9, 2006) due to conflicts between limited 
court resources on Salt Spring, a busy schedule for defence attorneys 
and, on one occasion, a glitch in dates for the Crown case.

Following the history of the process: Hawkins and Mailey first 
appeared in Ganges court on February 10, 2004, but Hawkins' counsel, 
Ellen Gordon, was not available until November that year.

Then, at the trial date of November 9, 2004, Hawkins announced that 
Gordon had been appointed as a judge (effective December 6, 2004) and 
that he required new counsel.

Hawkins' new lawyer, James Sutherland (Gordon's partner), wasn't 
available to appear on Salt Spring until November 2005.

But federal Crown counsel Michael Coleman requested an adjournment of 
the trial on November 8, 2005 because witnesses had not been notified 
due to a mix-up in dates related to the case.

The next available date that combined once-a-month court sittings on 
Salt Spring with Hawkins' lawyers' schedules was May 9, when defence 
counsel requested a judicial stay.

"It is the duty of the Crown to bring the accused to trial," said 
Sutherland. "They have repeated that mantra several times in these 
delay cases."

He said he still didn't have complete copies of files issued from 
Crown counsel.

"The really sad thing is that we still can't get on with the court 
case." Meanwhile, Mailey was represented throughout the court process 
by Sidney-based counsel Tybring Hemphill, who opposed all delays. "I 
say she has done everything in her power to speed the process along," 
Hemphill said.

Hemphill noted that as an island resident for the past 32 years, 
Mailey has suffered prejudice from local gossip, letters to the 
editor and a public demonstration at court.

Sutherland indicated that Hawkins has also suffered prejudice from 
"rampant rumours about him."

Coleman noted that he has no control over available court time on 
Ganges and said that Hawkins' choice of busy lawyers exacerbated the problem.

"The flashpoint is the balance between the rights of society and the 
rights of the individual." According to the precedent-setting Morin 
case of 1992, the Crown is obliged to provide a trial in a reasonable 
amount of time (deemed eight to 10 months by an administrative guideline).

"It's clear that a lack of institutional resources cannot be a 
failsafe fallback for the Crown," said Judge Maughan. "It should be 
noted that court sits in this community once a month and this has 
been granted as an administrative decision." Two weeks is the 
standard adjournment period in other communities, she noted. "There 
are severe institutional limits to the court dates in Ganges," Maughan said.

"To me, it's not surprising that busy counsel can find scheduling 
days on Salt Spring a formidable obstacle." Citing the Morin decision 
in her ruling, Maughan said, "The court cannot simply accede to the 
government's allocation of resources and tailor the period of 
permissible delay accordingly." "The weight to be given to resource 
limitations must be assessed in light of the fact that the government 
has a constitutional obligation to commit sufficient resources to 
prevent unreasonable delay, which distinguishes this obligation from 
many others that compete for funds with the administration of 
justice." "There is a point in time at which the court will no longer 
tolerate delay based on the plea of inadequate resources."
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MAP posted-by: Beth Wehrman