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Stay Set Aside, New Trial Ordered by Court of Appeal
Pubdate: Sat, 01 Jul 2006
Source: Regina Leader-Post (CN SN)
Copyright: 2006 The Leader-Post Ltd.
Contact: http://www.canada.com/regina/leaderpost/
Details: http://www.mapinc.org/media/361
Author: Barb Pacholik, The Leader-Post
STAY SET ASIDE, NEW TRIAL ORDERED BY COURT OF APPEAL
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, 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
that 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," she said, noting the data requested
wouldn't be of value in answering that question.
The unanimous decision by Smith and Justices Marjorie Gerwing and
Georgina Jackson said the trial judge had erred in ordering the Crown
to produce the requested data in the absence of a foundation to
support it.
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