RCMP apologizes to Alberta man after mishandling drug test in wrongful conviction case

The RCMP have issued a formal apology to a Lac La Biche man who was acquitted of drug charges after it was revealed exonerating evidence had been withheld from him.

Clayton Boucher settles lawsuit alleging police, prosecutor, lawyer withheld evidence

Clayton Boucher, 45, was held in custody for more than three months on drug charges after tests showed the substances were not drugs. (Supplied by Clayton Boucher)

The RCMP have issued a formal apology to a Lac La Biche man who was acquitted of drug charges after it was revealed exonerating evidence had been withheld from him.

Clayton Boucher settled a wrongful conviction lawsuit against the RCMP, the federal Crown prosecutor and his defence lawyer earlier this month.

The lawsuit alleged Boucher pled guilty in order to expedite his release from prison after the RCMP, the Crown, and his own defence lawyer withheld drug-test evidence that exonerated him.

"All I ever wanted was the apology from the beginning," Boucher wrote on Facebook. He did not respond to an interview request from CBC News.

"The RCMP apologizes for the manner in which the exhibit report was handled and acknowledges the test results came back negative," the formal apology stated, as first reported by the Aboriginal Peoples Television Network.

"The RCMP wishes the handling of the exhibit report was done more professionally and acknowledges that several members have been held accountable under internal processes."

Boucher's common-law wife, Phyllis Favel, died in a car accident while he was wrongfully imprisoned. He was allowed to attend her funeral, but he was shackled and dressed in an orange prison jumpsuit.

"The RCMP regrets that you were in jail at the time of her death and that you were required to attend her funeral while in shackles," the RCMP apology stated. The apology however, misspells Favel's name.

'Sense of absolution'

Boucher's lawsuit lawyer, John Kingman Phillips, said his client "struggled with the fact that he wasn't around when his wife passed away.

"What he has taken from [the RCMP apology] is this sense of absolution, that it wasn't his fault that he wasn't present for her," Phillips said. 

"I think the people that get mistreated in the system need to have that kind of acknowledgement, not just for them, but for others."

Clayton Boucher with his late partner, Phyllis Favel. (Supplied by Clayton Boucher)

None of the allegations contained in Boucher's lawsuit were tested in court and the statement of defence denied all wrongdoing.

The lawsuit, however, describes a troubling chronology of events that led to Boucher being wrongfully imprisoned.

The lawsuit alleges the RCMP had targeted and harassed Boucher for months before his arrest in January 2017.

The RCMP charged Boucher after a search warrant was executed on his home, following a traffic stop in which no drugs were found.

"They located some white powdery substances, including substances in an Arm & Hammer baking soda box in a kitchen cupboard, which they concluded must be cocaine, and therefore seized as evidence," said the lawsuit filed on Boucher's behalf by Phillips.

John Kingman Phillips is a senior lawyer with an office in Calgary. (Waddell Phillips)

Phillips is a Toronto lawyer who also practices in Calgary. He set a major Canadian legal precedent about disclosure now known to all lawyers as Stinchcombe.

In that case, the Supreme Court of Canada ruled the Crown and police must provide full disclosure to defence lawyers, and the failure to do so is a serious breach of legal ethics.

Boucher maintained innocence

The lawsuit states Boucher hired Cold Lake defence lawyer Leighton Grey. He recommended Boucher not seek bail because he was on probation at the time of his arrest and because he was facing serious trafficking and other charges. 

"Knowing that the powder obtained from his home was baking powder, and in no way an illegal substance, Mr. Boucher asked Grey to ensure the Crown and the police analyzed the samples quickly to confirm this," the lawsuit states. 

"Mr. Boucher understood that once the test results from such an analysis came back, there would be no basis for the charges against him."

Grey was recently appointed to a provincial committee that vets applicants for the provincial court. He declined several interview requests from CBC News.

The lawsuit chronicles numerous attempts by Boucher over the next several months to get Grey to obtain the test results from the Crown, including numerous phone calls in March and April, 2017.

The apology issued by the RCMP to Clayton Boucher. (Supplied)

On April 30, 2017, Boucher's common-law wife was killed in a car accident.

"Mr. Boucher was torn apart by his wife's death, and became desperate to get out of jail," the lawsuit states, and Boucher told Grey's office he was willing to plead guilty to lesser charges to expedite his release.

Guilty plea advanced despite exonerating evidence

Grey advised Federal prosecutor Erwin Schulz on May 15, 2017, that Boucher was prepared to plead out, even though Grey had still not obtained the drug analysis from the Crown. 

On May 30, 2017, Boucher pled guilty to several charges including unlawful possession of methamphetamine and cocaine, and was sentenced to 90 days in jail but was released due to time served. 

"Unbeknownst to Mr. Boucher, the Certificate of Analyst was actually completed several months before Mr. Boucher entered the guilty plea, and it was readily available to Mr. Grey, upon request, at least two weeks before Mr. Boucher entered his guilty plea," the lawsuit states.

The lawsuit states the RCMP did not send the alleged drug samples to Health Canada for analysis until a month after Boucher's arrest. 

A Health Canada analyst found no traces of drugs on Feb. 23, 2017 and in a second test on Feb. 24, 2017, the same day the analyst sent that information to the RCMP. 

That information however was not documented, and none of the responsible officers checked the exhibits until May 2017.

Leighton Grey, a lawyer in Cold Lake, Alta., represented Clayton Boucher in his drug case. (Grey Wowk Spencer LLP)

The lawsuit states Grey finally wrote to Schulz on May 2, 2017, and threatened to launch a "Stinchcombe application," which is an application for disclosure, unless the Certificate of Analyst was provided.

Grey's threat, the lawsuit states, caused Schulz to call the RCMP on May 3, 2017, and he was told the seized substances had tested negative. 

"On May 4, 2017, Schulz conveyed the results of the Certificate of Analyst by telephone to Grey. Remarkably, Schulz did not immediately offer to drop all charges and release Mr. Boucher, nor did Grey demand that he do so."

Grey, in the statement of defence, claims the Crown advised him on May 17, 2017, that the test showed trace amounts of cocaine and meth, and added that Grey had no reason to distrust the prosecutor. 

The statement of defence said Grey only learned the seized substance was drug-free in July 2017. 

Both the prosecutor and Grey then worked to assist Boucher to file an appeal and Alberta's Court of Appeal acquitted him of all charges.

The statement of defence said Grey represented Boucher diligently and responsibly.

It noted the Law Society of Alberta dismissed a complaint from Boucher against him.