POT CASE HEADS BACK TO COURT

When a judge decided more than $1-million worth of pot found near
Moosomin was inadmissible as evidence, the Crown's case went up in
smoke -- until the Saskatchewan Court of Appeal recently overturned
that ruling.

In a split 2-1 decision, the appeal court has ordered Regent Nolet and
John Vatsis can be retried. But the defence now expects to take the
matter to the Supreme Court of Canada.

Defence lawyer Mark Brayford, one of two lawyers who handled the
appeal, said the case has some significant issues that need clarity.

"It's something that ultimately citizens should have a great interest
in," he said in an interview Monday. "On the one hand, people don't
like to see people that appear to be factually guilty go free. But on
the other hand, if the police can violate your right to be free from
arbitrary detention or unreasonable search and always be confident
they can get the evidence admitted, then there is no need to ever
comply with the rules."

Crown prosecutor Doug Curliss couldn't be reached for
comment.

Brayford said Canada's top court is already wrestling with similar
issues. He would like to see the courts fashion a policy.

"If, for instance, police know they can illegally search any citizen
because they're going to be allowed to use the evidence ... why would
they not simply search everyone?" he contended.

According to the appeal court's written judgment released late last
month, Nolet and Vatsis were acquitted on drug and proceeds of crime
charges after a judge excluded crucial evidence. Court of Queen's
Bench Justice Jennifer Pritchard had ruled $115,000 cash and 392
pounds of marijuana, valued between $1.1 and $1.5 million, were
unlawfully seized in violation of the accused's Charter rights. The
Mounties found the drugs in a hidden compartment when an officer
randomly stopped a semi-trailer unit Feb. 16, 2004 on the Trans-Canada
Highway.

In overturning that ruling, appeal court Justice Ysanne Wilkinson
disagreed that the accused's rights had been breached. Her decision
was supported by Justice Gene Anne Smith.

In her dissenting opinion, Justice Georgina Jackson would have upheld
Pritchard's ruling tossing out the cash, but would have ordered a new
trial on the drug charges. While Jackson agreed the accused's rights
were violated, she said the negative effect of excluding the evidence
and the good faith of the officers outweighed the seriousness of the
Charter violations.

An RCMP officer initially stopped the vehicle to do a safety check and
look for proper documentation. The constable discovered the fuel tax
decal had expired and the documentation was incomplete. He asked to
inspect the trailer after being told there was no load, and Nolet obliged.

The trailer was indeed empty, but the constable suspected it may have
been altered because "it didn't appear right." Then a check inside the
tractor area turned up a small duffel bag filled with cash, mostly in
small bills and divided into smaller bundles associated with drug
trafficking. He arrested the truck's three occupants (one of whom has
since died) for possession of proceeds of crime.

When another officer arrived, a closer inspection of the trailer
revealed the interior length was a metre shorter than the exterior.
Because neither officer was licensed to drive a big rig, Nolet drove
it to the Moosomin RCMP detachment, where officers found a hidden
compartment in the trailer holding 15 boxes and two duffel bags of
pot.

Tossing out the evidence, Pritchard had found that once the officer
looked inside the trailer and had a hunch it had been altered, his
inquiry shifted from a regulatory inspection to a criminal
investigation, prompting Charter rights which were violated.

But Wilkinson said there were enough legitimate "red flags" for the
officer to detain the semi's occupants and check further. The court
found the regulatory search was not being used as a pretext to look
for drugs.