Pubdate: Sat, 01 Jul 2006
Source: StarPhoenix, The (CN SN)
Copyright: 2006 The StarPhoenix
Contact:  http://www.canada.com/saskatoon/starphoenix/
Details: http://www.mapinc.org/media/400
Author: Barb Pacholik, Saskatchewan News Network; Regina Leader-Post
Bookmark: http://www.mapinc.org/mjcn.htm (Cannabis - Canada)

NEW TRIAL ORDERED FOR DRUG SEIZURE CASE

REGINA -- A case that saw 100 pounds of pot seized on the 
Trans-Canada Highway is headed back to trial, after the Saskatchewan 
Court of Appeal ruled a bid by the defence to get RCMP data was a 
"fishing expedition."

Drug charges against Margaret Jean Fitch originally went up in smoke 
when the Crown failed to produce information about RCMP vehicle stops 
and searches that had been requested by the defence.

The charges against the 36-year-old B.C. woman were stayed, prompting 
the Crown to appeal.

In written reasons released this week, the province's top court sided 
with the Crown, set aside the stay and sent the case back to Court of 
Queen's Bench for a trial.

The case dates back to Feb. 6, 2003, when RCMP Const. Adam Chornenki 
stopped an eastbound truck on the highway near Moosomin. According to 
the decision, the officer said the vehicle appeared not to have a 
front licence plate, which was then required in Saskatchewan.

Only after stopping the truck did Chornenki realize it had a B.C. 
licence plate and the front plate was actually obscured by dirty ice. 
He asked the driver if she was carrying any alcohol, tobacco, drugs, 
weapons or large sums of money. When the driver said no, he asked if 
he could search the vehicle and she agreed to sign a consent form. 
The officer found 102 pounds of marijuana, along with $28,000 cash.

Prior to the trial, defence lawyer Kenneth Westlake asked the judge 
to order the Crown to produce lists and notes detailing 
out-of-province vehicle stops and searches by Chornenki from 2002 to 
2004. The defence contended the search breached Fitch's 
constitutional rights and the data required was relevant to that issue.

The Crown argued the request was simply a "fishing expedition" since 
the information wasn't relevant, didn't pertain to this particular 
investigation and wasn't in the possession of the Crown.

Court of Queen's Bench Justice Lynn MacDonald ordered the prosecutor 
to release the information, but without the names of the drivers 
stopped or the officer's notes. The prosecution declined to turn it 
over and MacDonald stayed the charges.

In the appeal court's 13-page decision, Justice Gene Anne Smith said 
the Crown is obliged to provide the defence all information in its 
investigation of an accused. But the defence must establish a basis 
and relevancy for disclosure of information that does not relate to a 
specific charge or investigation. The purpose is to head off requests 
based on "speculation or conjecture."

During the appeal hearing earlier this month, Westlake had stressed 
he wanted to show there was a "pattern" of targeting out-of-province 
vehicles on a pretext so the officer could search for contraband.

But it's unclear how the information sought could support that claim, 
Smith said, adding the relevant issue in this case is if the vehicle 
was stopped for legitimate traffic concerns.

"If not, the stop was arbitrary and the respondent's constitutional 
rights may have been violated."

The data requested wouldn't be of value in answering that question, she said.

The unanimous decision by Smith and Justices Marjorie Gerwing and 
Georgina Jackson said the trial judge erred in ordering the Crown to 
produce the requested data in the absence of a foundation to support it.
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MAP posted-by: Beth Wehrman