49 KILOS OF EVIDENCE IS WORTH ZIP

RCMP Sergeant Glen Magark developed some pretty good instincts during
his 28 years of police work. That experience came into play one dark,
winter's night, when he spotted a van parked in an industrial area,
near the Fraser River. Sgt. Magark sensed something wasn't right and
punched the plate numbers into his computer. He got a hit, with an
advisory telling him the owner was facing drug charges, and warning:
"Caution. Violence."

Sgt. Magark pulled up behind the apparently empty van and turned on
his floodlights. It was only then he realized two people had been
hiding under the dash. He saw their eyes reflected, then they sat up
and waited for him to make the next move.

You've got to figure a cop alone, in a dark, lonely cul-de-sac,
surrounded by empty industrial warehouses, has to have some guts to
get out of his car to find out what's going on in a situation like
that. But that's what Sgt. Magark did. After calling for backup, he
walked slowly up to the driver's side, noticing through the van's
windows that there were three big, black duffle bags piled in the
back. Sgt. Magark didn't like the look of those bags.

Hung Duong Lam was behind the wheel, accompanied by another man. Mr.
Lam, as he is called in the court judgment, produced a driver's
licence, but didn't have his vehicle registration. It was at home, he
said.

Sgt. Magark asked politely what was in the duffle bags. Mr. Lam said
he was a fisherman and the bags held his clothes.

Sgt. Magark didn't ask, What's a fisherman doing in an industrial park
after dark, out of fishing season? But he was suspicious enough to ask
if he could see the clothing.

That, according to the British Columbia Court of Appeal, was where the
veteran cop made a big mistake, because he didn't tell Mr. Lam he had
the right to say no to the question.

Mr. Lam responded by taking the key out of the ignition, walking to
the back and unlocking the rear doors. Then he stepped back, as if
inviting the cop to look for himself. Sgt. Magark asked again if he
could see the clothes and Mr. Lam partially unzipped one of the bags.
Sgt. Magark couldn't see much, but didn't think clothing was stuffed
in there.

After waiting for backup to arrive, Sgt. Magark again asked Mr. Lam to
show police the clothing.

This time the fisherman opened the duffle bag more fully and police
saw packages of "plant-like" material. The cops didn't search the
bags, but guessed they were looking at a lot of dope.

Sgt. Magark had the backup officers arrest Mr. Lam and the passenger
for possession for the purposes of trafficking. It was only the next
day, after obtaining a search warrant, that police examined the bags.
There were no clothes, just hundreds of packages of marijuana -- 49
kilograms in all, or about $400,000 worth.

It was a rich catch, and even in a country where the leader of the NDP
calls pot a "wonderful substance," it was illegal.

When the case came to trial, the judge rejected a defence argument
that Mr. Lam's rights had been violated.

"I conclude the officer was entitled to ask the accused what was in
the bags and to ask him to open the bags, and he did so in a minimally
intrusive manner," said the judge. Given the circumstances, it's hard
to imagine Sgt. Magark doing anything other than what he did. And
considering that he was alone, faced with two potentially dangerous
criminals, it would seem he deserves to be praised for his actions.

But when the case went to the B.C. Court of Appeal, Sgt. Magark's
conduct was called into question. He was rebuked for acting "in bad
faith" by not telling Mr. Lam he had the right to say no when asked to
open his bags. The evidence -- the three duffle bags of dope -- was
ruled inadmissible and Mr. Lam was declared not guilty.

"The obvious defect in the present case was in failing to tell the
appellant that he did not have to open the bag if he did not want to,"
stated Justice Ian Donald and Madame Justice Risa Levine.

The ruling is hard to comprehend. Sgt. Magark showed courage and
initiative on that night patrol, but in the end his conduct became the
issue. He never bullied Mr. Lam. Never threatened him. He just asked
what was in the bags, and when he doubted the honesty of the answer,
asked to be shown.

Mr. Lam, not the cops, unzipped the bags, and what was there told the
whole story. Neatly wrapped, ready for sale: 49 kilos of dope. A lot
of drugs, but in Canada, not enough for a conviction -- at least not
when a cop forgets his manners.