COURT BACKS COP TACTIC

RCMP Sale Of Drugs To Suspect Was Not Entrapment

Alberta's top court yesterday released a decision which upholds the right of
police to take off the gloves and get a little dirty while trying to bust
suspected drug dealers.

The decision, which overturns a lower-court-issued stay of proceedings and
orders a new trial for alleged methamphetamine dealer Darrell Schacher,
revolves around whether the actions of police selling drugs or substances to
make drugs to drug dealers constitute "entrapment."

Defence lawyer Robbie Davidson had argued it was illegal for an RCMP
undercover officer to sell Schacher some ephedrine, a regulated drug found
in over-the-counter asthma medications, because he knew it was going to be
used to produce methamphetamine (speed).

Normally when police use illegal substances to make deals with suspected
drug dealers, they require a certificate to gain exemption from breaking the
law themselves. Davidson argued the Mountie did not have one.

However, in a Court of Appeal of Alberta decision written by Justice Keith
Ritter, the three-judge panel ruled the ephedrine was not illegal at the
time and the officer did not need an exemption under police regulations.

"He was engaged in the course of his responsibilities for this particular
investigation and was a member of a police force. He did not introduce the
methamphetamine to the street. The respondent did," said Ritter.

"In those circumstances, (Section 3 of the Controlled Drug and Substances
Act Police Enforcement Regulations) operates to provide him with an
exception from otherwise illegal activity."

Schacher was issued a judicial stay of proceedings by Court of Queen's Bench
Justice Sterling Sanderman on May 17, 2002, after police refused to follow a
ruling he made ordering them to disclose to the defence a legal opinion
regarding a proposed reverse-sting operation.

Sanderman ruled the disclosure of the usually privileged solicitor-client
information was necessary under the rules of entrapment, but Ritter
disagreed, saying such a rare decision must be reserved for the most
shocking conduct.

"A reverse sting aimed at a known drug dealer who appears to be active in
his field does not fit that category," said Ritter.

At Schacher's trial, the RCMP officer testified he came up with a "novel"
tactic to trick the suspected drug dealer into selling him illegal
substances.

After learning Schacher was buying ephedrine, a plan was hatched to sell him
a quantity of the drug, seized in an unrelated city police investigation, at
a bargain price.

It was hoped the sale, and an additional offer to sell him cocaine and
heroin, would earn Schacher's trust and lead to him selling finished product
to the undercover cop.

Because it was a "novel" tactic, the officer obtained a legal opinion from
in-house counsel as to its legality.

Schacher's defence lawyer applied for disclosure of the legal opinion and,
after Sanderman ruled the police must disclose it under the rules of
entrapment, the Crown invited the judge to issue a stay of proceedings.