Pubdate: Wed, 09 Jan 2002
Source: Kelowna Capital News (BC)
Copyright: 2002, Kelowna Capital News Ltd.
Contact:  http://www.kelownacapnews.com/
Details: http://www.mapinc.org/media/1294
Author: Marshall Jones

LAWYER GETS CLIENTS OFF ON TECHNICALITIES

A Kelowna man shook off a charge of possessing marijuana for the purpose of 
trafficking thanks to a technicality and quick and early action from his 
lawyer, Stanley Tessmer.

Tessmer convinced a provincial court judge to drop the charge against his 
client, Andrew J. Hutchings, because police ignored Tessmer's request to 
inspect evidence.

It is a strategy Tessmer has used before and he relied on case law he 
created to help build the case.

In pre-trial constitutional arguments heard Tuesday morning, Tessmer 
described how he sought access to the evidence just a week after Hutchings 
was arrested with four garbage bags of what police said was marijuana bud 
at a Nov. 1, 2000, CounterAttack Checkstop.

Tessmer wrote the police advising them not to destroy any of the evidence 
and in December he repeated the request to Clarke Burnett, the federal 
Crown lawyer assigned to the case.

Tessmer eventually got a court order to access them.

Another order he asked for demanding the personal notes from every cop on 
the CounterAttack Nov. 1, was denied as irrelevant.

Unbeknownst to everyone though was that the material in the bags was 
destroyed Nov. 16.

Police routinely destroy large quantities of seized marijuana and use 
smaller samples as evidence in court.

"If this court doesn't do something about it, this practice will continue, 
a practice which is illegal," Tessmer said.

Normally destruction of the materials isn't a problem but Judge Gale 
Sinclair said the fact that Tessmer asked to inspect the bags before they 
were destroyed-and was denied access to the evidence-was a breach of 
Hutchings's rights to gather a defence.

Sinclair said the 11.6 kilograms of material in the bags could not be used 
as evidence.

Only a small sample was saved thereby demeaning a case of proving there was 
enough marijuana for trafficking.

Hutchings pleaded guilty to possession of marijuana and was given a $500 fine.

To argue his case, Tessmer used some of his own cases.

One was a case in which an impaired driving charge was tossed out of court 
because police refused to extract separate blood samples which Tessmer 
intended to test independently.

He used the example of another case which he argued in which he sought an 
order for computer terminal records from a police car and was denied 
because the records are erased when the terminal logs 100,000 events.

Charges against his client were stayed on that case, as well.

Tessmer is a well-known criminal defence lawyer specializing in driving and 
drug offences.

In 1997, he argued before the Tax Court of Canada that legal defence fees 
should be exempt from GST because people have the right to choose a lawyer, 
even a more expensive one.

At an appeals court he argued unsuccessfully that if a client could not 
afford to pay the additional GST for his cases they would be denied their 
constitutional right to a defence.

The court said his fees were higher than most others-he is paid $5,000 for 
driving and $10,000 for drug cases-but that a richer man cannot necessarily 
guarantee better results by spending more money.
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