Man held in custody in Alberta for months after lab tests showed substances were not drugs
Roberta Bell | CBC News | Posted: October 27, 2017 11:30 AM | Last Updated: October 27, 2017
Clayton Boucher pleaded guilty to drug charges and then successfully appealed his conviction
An Indigenous man facing drug charges was held in custody for more than three months after laboratory tests ordered by Alberta RCMP found the substances were not drugs.
Clayton Boucher, 45, was only released after he pleaded guilty to possession of methamphetamine and cocaine. By that point, he'd been in jail for more than the 90 days to which he had been sentenced.
Mr. Boucher has been wronged - Defence lawyer Leighton Grey
Since his arrest, Boucher had consistently maintained the substances were not drugs.
He filed an appeal. While his appeal was underway, Boucher learned that months earlier, Health Canada analysts had completed laboratory tests on the substances RCMP had seized. The results had been provided to RCMP, who gave them to the Crown, who shared them with Boucher's lawyer.
His conviction was eventually overturned.
Tests completed one month after arrest
Boucher has a criminal record dating back to 1994 and faces a recent armed robbery charge.
He was arrested on the drug charges Jan. 22, 2017, in Lac La Biche.
Boucher said hours after he was detained the RCMP laid multiple charges, mainly related to suspicious substances thought to be methamphetamine and cocaine that were found with drug paraphernalia in the residence where he was staying.
RCMP sent the substances for testing.
According to a timeline of events developed by Erwin Schulz, the federal prosecutor on the original case, Schulz contacted the RCMP on Feb. 22 to ask that the analysis be completed "as soon as possible."
According to certificates signed by a Health Canada analyst, the testing was completed by Feb. 24. Boucher said he obtained the certificates from a federal prosecutor involved in his appeal. He provided copies to CBC News.
Schulz said the RCMP told his assistant on March 13 that the analysis had not yet been completed. The Schulz timeline was also obtained by Boucher and provided to CBC News.
Tragedy changes circumstances
Schulz said his assistant again followed up with RCMP on April 3, and was again told the analysis had not been completed.
Boucher and his partner, Phyllis Favel, had been in a common-law relationship for three or four years. She died April 30, while he was in custody. He said he was devastated when he got the news from a chaplain.
Boucher said he attended her funeral, shackled and in a remand-centre orange jump suit.
According to Schulz's timeline, the RCMP confirmed on May 3 that the substances seized were not drugs but instead were "buff," a powdered cutting agent often used to dilute pure cocaine before it is sold on the streets. Boucher maintains the powder was baking soda.
Schulz said he conveyed that information to Boucher's lawyer, Leighton Grey, on May 4.
But Grey said he was advised by Schulz on May 4 that there could be spitballs — small packages of cocaine — in the buff.
Grey said he only found out after the fact that the suspected spitballs were actually small, packaged samples of buff.
Boucher agreed to a plea bargain on May 15. He pleaded guilty to four charges. He told CBC he was desperate to get out of jail. He was convicted on May 30 and sentenced to time already served.
Two weeks later, on June 15, Boucher appealed his conviction. Grey said he helped Boucher with the appeal without charging him legal fees.
When he filed the appeal, Boucher wrote: "I have always maintained my innocence. It wasn't drugs. Despite knowing full well what the RCMP seized wasn't drugs, I pleaded guilty to reduced charges in order to be released and tend to matters regarding my late wife."
On July 11, the RCMP faxed Schulz the certificates that Health Canada analysts had signed off on months earlier, according to a fax transmission sheet provided by Boucher to CBC News.
The office of federal Crowns provided a statement in support of Schulz: "At the time of the guilty pleas, the [Public Prosecution Service of Canada] agent believed that the substance being pleaded to was a controlled substance, and was distinct from the material that had been tested and found not to contain a controlled substance."
Grey said had he known earlier about the complete findings of the test results, he never would have permitted his client to enter guilty pleas.
"Mr. Boucher has been wronged," he said. "Regrettably, the information that the RCMP provided was not accurate."
Conviction overturned
Boucher's appeal file includes a letter dated Aug. 24 from Jonathan Martin, senior counsel for the federal Crown in Alberta. Martin said a review of the file and communication between the Crown on the case and the RCMP "establishes that the substances in the counts under appeal did not analyze as controlled substances.
"The non-existence of this information at the time of disposition would have been highly relevant to the decision to plead guilty," Martin said.
On Sept. 26, the Alberta Court of Appeal overturned Boucher's conviction and replaced it with an acquittal.
No one apologized to me. - Clayton Boucher
He is frustrated about the way his case was handled.
"No one apologized to me."
Boucher said he has filed a complaint with the RCMP about the handling of his case and contacted the law society with concerns about Schulz and Grey.
RCMP Sgt. Jack Poitras confirmed that Boucher's complaint is being investigated.
Boucher moved to North Battleford, Sask., after he was released. He has a court date of Nov. 16 related to his armed robbery charges.