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Vancouver Island man whose marijuana grow-op was busted has case tossed due to trial delay

Keith Fraser, Postmedia Network

A Vancouver Island man whose marijuana grow-op was busted has had trafficking charges stayed because his case took too long to get to trial, the latest in a series of such cases in B.C.

Nicholas Christian Boehme, 51, was arrested on May 25, 2012 after police searched his home in Youbou and his office in Victoria.

The residence was the site of two valid licenses to grow medical marijuana issued by Health Canada, one of them issued to Boehme to grow 205 plants and store 9,225 grams of dried marijuana.

Police located three "grow rooms" in the house containing 217 plants and 153 grams of dried marijuana and another 19.9 kilograms of dried marijuana from the garage.

Earlier, police had seized 18 packages of marijuana that Boehme had mailed from a post office in Duncan with receipts indicating he had sold the drugs for $6,473. On another occasion, police seized 12 packages of marijuana mailed by Boehme with receipts indicating the drugs were sold for $5,109.

Court heard that Boehme had long acknowledged he was distributing marijuana illegally, but only to people authorized by federal law to have and use the drugs for medical purposes.

"He was operating in plain view and the government knew what he was up to," B.C. Supreme Court Justice Robin Baird said in his ruling on the trial delay issue. "Prior to his arrest, in fact, he had been attempting to persuade Health Canada officials that the best way to remedy gaps in the supply of medical cannabis would be to license independent producers such as himself to distribute freely within this market."

But police took a different view and in January 2013 he was charged with two counts of trafficking and one count of possession for the purpose of trafficking.

After numerous delays, his jury trial was set for Oct. 2, meaning the total delay from the laying of charges to the expected end of the case was about 57 months.

Last year, the Supreme Court of Canada found that there was a "culture of complacency" in the court system and set deadlines for the completion of court cases of 18 months for matters tried in provincial court and 30 months for cases in superior courts.

In his ruling, Baird found that even accepting the Crown's arguments for discounting some of the delay, there was an unreasonable delay of 36.5 months, substantially exceeding the limits set by Canada's highest court.

"The meandering process of the matter has been the result of a failure by all participants to drive it to a conclusion within a reasonable time," said the judge. "Criminal cases, if they are to be brought at all, must not be permitted to drift the way this one did."

According to figures released by the B.C. Prosecution Service, to date this year there have been 21 criminal cases in the province in which stays of proceedings have been entered due to unreasonable trial delay. Of the 21 cases, 11 have been handled by the B.C. Prosecution Service.

Last year, there was a total of 19 stays of proceedings in B.C., seven of them provincially prosecuted and the rest federally prosecuted.

In an email, the provincial prosecution service noted that the numbers of annual stays of proceedings both provincial and federal has fluctuated over the past few years.

It said while the numbers are only a fraction of the more than 50,000 files the B.C. Prosecution Service approves to court each year, minimizing delays has been a key priority recently.

The service said it had implemented a number of reforms to improve efficiencies including on-line charge assessment processes and focusing on early resolution of cases.

"We are currently developing a comprehensive disclosure strategy and implementing a continuous improvement plan which should further reduce the time it takes to bring our files to trial."

The Boehme drug case was prosecuted federally by the Public Prosecution Service of Canada, which said in an email Tuesday that it had not yet decided whether to launch an appeal.