ALLEGED DRUG DEALERS TO GET NEW TRIAL

Law & Order

If the Crown fails to disclose the legal opinions obtained by the federal
department of justice about an illegal RCMP money-laundering operation,
does that warrant ordering a new trial for three accused cocaine dealers?

Yes, the B.C. Court of Appeal recently ruled in a unanimous decision.

The accused - Jose Fernando Castro, John Charles Stinchcombe and Erberto
Enrico Ferretti - were convicted in 1999 of drug offences based on evidence
derived from a reverse sting operation. All three were charged with
conspiracy to traffic cocaine.

The undercover operation, known as Project Eye Spy, involved illegal police
conduct - laundering money derived from drug dealing - so the appellants
applied for a stay of proceedings on the ground that the charges were an
abuse of process.

The appellants had applied at trial for disclosure of the legal opinions
prepared by the department of justice, which were considered by the RCMP in
assessing the legality of the operation.

The Crown claimed solicitor-client privilege. The trial judge refused to
order disclosure and ultimately denied the defence's application for a stay.

Castro's principal ground of appeal, supported by the other two appellants,
was that the trial judge erred in not ordering disclosure.

His lawyer argued that the legal opinion could have had an important
bearing on whether an abuse of process had occured and whether a stay was
the appropriate remedy.

"I accept this argument and would accordingly order a new trial," ruled
Justice Ian Donald, with Justices Jo-Ann Prowse and Mary Newbury agreeing.

The investigation of the appellants was conducted under the name of Project
Escudo, an offshoot of Eye Spy, which involved the Vancouver RCMP proceeds
of crime section operating a storefront currency exchange near Burrard and
Robson.

In the planning stages of Eye Spy, the RCMP had knowledge of legal opinions
prepared by the federal department of justice about the propriety of the
police committing illegal acts in the course of an investigation.

Through Eye Spy, Castro was identified as a possible drug trafficker and
the Vancouver RCMP drug section investigated, obtaining a wiretap
authorization. Between Jan.12 and 24, 1995, the RCMP intercepted calls
between Castro, Stinchcombe and Ferretti that suggested the three men were
organizing a drug deal at a Holiday Inn in Coquitlam.

Surveillance was established and the accused were later arrested. A
kilogram of cocaine was seized.

Stinchcombe testified that the intercepted phone calls were about a drug
deal between himself and Castro but it was a deal for marijuana, not
cocaine. The trial judge didn't believe him.