Metis man’s lawyer says he was wronged – but not by ‘me’ by Kenneth Jackson, Oct 25, 2017, ATPN News
Alberta lawyer denies he knew the so-called drugs were in fact baking powder when his client pleaded guilty to drug possession in May.
An Alberta lawyer representing a Metis man that had his drug possession conviction overturned last month denies he knew the so-called drugs were in fact baking soda when his client pleaded guilty.
APTN News reported Tuesday the RCMP, the Crown and Clayton Boucher’s lawyer, Leighton Grey, were told the test results came back negative on suspected cocaine before Boucher pleaded guilty on May 30.
“I did not learn until after Mr. Boucher pleaded guilty that the alleged drugs were buff (baking soda),” wrote Grey, who is himself a First Nations man, late Tuesday after reading APTN’s story published earlier that day.
However, Alberta Crown prosecutor Erwin Schulz said in an email last month to the Law Society of Alberta, obtained by APTN, that he told Grey of the test results May 4.
APTN asked Grey if he was disputing Schulz’s record of events but he has yet to respond, or to any other follow up questions.
In depth: Alberta Crown let Metis man plead guilty after RCMP said drugs weren’t real
Boucher, 45, was arrested Jan. 22 in an RCMP drug raid of his home in Lac La Biche, Alta., and maintained the “cocaine” police say they found was in fact baking soda found in his kitchen.
“That is why he instructed me to send several letters asking the Crown to expedite the lab analysis,” Grey wrote.
The tests were sent to Health Canada by the RCMP Feb. 3 and were completed on two samples by Feb. 24.
But Boucher remained in the Edmonton Remand Centre despite the results confirming it was not cocaine.
APTN reported Schulz repeatedly asked the RCMP for the results but never got them until May 3.
Boucher said he pleaded guilty to two counts of simple possession because he faced being kept in jail until a September trial – and that he was having a hard time coping with the loss of his common-law wife who died in a car collision April 30.
He pleaded May 30 and was released the same day.
Boucher said he believed at the time that the tests were never completed and later filed a complaint against the RCMP.
That’s when things started to unravel.
Last week Boucher finally got the Health Canada lab results and the list of exhibits seized during the police raid.
On the exhibit list, which was provided to APTN, it shows two small samples of suspected drugs were to be sent to Health Canada for testing.
It was those small samples that Boucher pleaded to.
It also lists other items found in the police raid.
“He had been found in possession of items packaged for sale that appeared to be drugs. Only he knows why,” wrote Grey.
APTN had called Grey’s office Oct. 23 prior to publishing the Oct. 24 story and left a message for him.
“I could not return your call this week because I was not instructed to do so by Mr. Boucher. I remain bound by solicitor-client privilege,” wrote Grey.
Boucher said he never received a call from Grey to get permission to speak to APTN.
Grey also wrote that APTN should have looked into Boucher’s, his client’s, background.
“The content of your piece has slandered a reputation that I have spent a lifetime earning. You might have taken the time to more thoroughly research Mr. Boucher’s public reputation,” wrote Grey.
Grey did not specify what particulars he meant about Boucher’s “public reputation” in his email to APTN.
However, in the original story, APTN reported that Boucher has a criminal record and he was also wanted for breaching his bail.
Boucher has maintained he is not a drug dealer.
Grey also took issue with APTN reporting Boucher filed a complaint against him with the Law Society.
“I am not under investigation by the Law Society, nor was any formal complaint brought against me,” wrote Grey.
APTN has a copy of the original complaint, and a letter from the Law Society confirming it was reviewing it in June.
Boucher said his complaints against Schulz and Grey were dismissed, but has since sent the Law Society the test results from Health Canada, as well as the list of exhibits.
APTN confirmed both complaints have been forwarded to the conduct department and are under review.
Grey did say Boucher was “wronged”.
“In any case, I would appreciate it very much if you could print a clarification of your piece which sets the record straight. Mr. Boucher was wronged, but not by me. Your readers deserve to know that, especially the ones who are my colleagues and clients,” said Grey. I’m surprised Mr. Grey didn’t blame Mr. Boucher, the way my lawyer, Murray Klippenstein, blamed me when he and Cory Wanless betrayed me and the public interest, and abruptly quit my lawsuit (by email).
APTN has also been waiting three days for the RCMP to comment. Boucher told APTN he was told five Mounties face discipline based on his complaint. APTN also wants to know why it took over a month for the RCMP to provide the lab results to the Crown.
RCMP apologizes to Alberta man after mishandling drug test in wrongful conviction case, Clayton Boucher settles lawsuit alleging police, prosecutor, lawyer withheld evidence by Rachel Ward and Charles Rusnell, CBC News, May 28, 2020
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.”
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.
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.
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.
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. Ya sure, and many call Alberta’s premier Kennochio
It noted the Law Society of Alberta dismissed a complaint from Boucher against him. Of course it did, that’s what Canadian “regulators” do: cover for dirty rotten, too often law violating, abusers and licence known convicted pedophiles so that they can abuse us and our children, and piss on us, again and again and again.
Canadian judges: let Charter violating AER off the legal hook; let AER’s outside counsel, Glenn Solomon, lie in court and in briefs, again and again; let illegal aquifer-frac’ing Encana/Ovintiv break Alberta’s rules of court; intentionally published lies in their rulings on my case – and not just the nine Supreme Court of Canada judges; intentionally let rapists and pedophiles go free, again and again and again while often abusing and horridly shaming – in court – the innocent people raped. Canadian prosecutors knowingly, again, and again and again, jail innocent people. Canada’s legal/judicial industry rots in hell along with the frac’ing oil & gas industry.
Refer also to:
An Ernst chronology
Jessica’s Ernst’s lawsuit against Alberta’s fracking industry and its regulators provides a blunt view of how slow and protracted Canada’s legal system has become.
May 1, 1998: Ernst moves to a small rural property in Rosebud, Alberta. Her well produces soft, high-quality water. Water tests state “Gas Present: No.”
2001: Encana begins an experimental shallow fracturing natural gas project around Rosebud, without consulting with the community or landowners in violation of the Alberta energy regulator’s requirements.
Feb. 14, 2004: Encana drilled and later hydraulically fractured in the drinking water aquifers supplying Ernst, a dozen families and the Hamlet of Rosebud.
January 2005: An explosion at the Rosebud water tower seriously injured a Wheatland County worker. It was reported that an investigation determined the explosion was apparently caused by “an accumulation of gases.”
Nov. 24, 2005: The energy regulator (then the Energy Resources Conservation Board, now the Alberta Energy Regulator) sends a letter to Ernst. It brands her criticisms of the regulator as a “criminal threat” and says it ceases all communication with her.
Dec. 6, 2005: Ernst sends a letter seeking clarification on the regulator’s decision to cut off communication. It is returned unopened.
June 8, 2006: Regulator lawyer Rick McKee questions Ernst in a recorded conversation with a witness. McKee admits that the regulator never saw her as “a criminal threat,” but as an unwelcome critic. He also asks Ernst what it will take to get her to leave Alberta. Ernst replies she will gladly leave Alberta as soon as the regulator starts to do its job.
December 2007: Ernst hires lawyer Murray Klippenstein and files a $33-million lawsuit against Encana, the Alberta environment ministry and the Energy Resources Conservation Board alleging groundwater contamination was caused by the shallow fracking of coalbed methane wells in central Alberta.
Feb. 12, 2009: RCMP officers arrive at Ernst’s home without warrants to ask questions.
Oct. 24, 2009: Prime minister Stephen Harper announces the appointment of Neil Wittmann as new Alberta chief justice of the Court of Queen’s Bench.
July 19, 2010: The U.S. Congress investigates fracking practices, including the impact on drinking water. Encana is one of the companies questioned.
June 24, 2011: The Harper government appoints Barbara Veldhuis to the Court of Queen’s Bench.
Oct. 1, 2011: UNANIMA International, a U.S. NGO, presents Ernst with a Woman of Courage award in New York City.
April 26, 2012: The first hearing on the lawsuit takes place in the Court of Queen’s Bench in Drumheller. Justice Veldhuis requests a shorter statement of claim and volunteers as case manager. Energy regulator lawyer Glenn Solomon asks that the original statement of claim be removed from the court and public record. The request is denied.
Oct. 1, 2012: Defendants apply to have the case moved to Calgary during a case management call with Justice Veldhuis. Justice Wittmann later accepts the application to move the case to Calgary.
December 2012: In its legal brief filed with the court, the energy regulator changes its 2005 accusation that Ernst posed a “criminal threat” and described her as being an “eco-terrorist.”
Jan. 18, 2013: A second court hearing takes place in Calgary, where the courtroom is packed. Ernst refused to accept the change of venue and attends the Drumheller Court House with a witness. Encana does not argue to have the case struck, though the company website states that the case has no merit.
Feb. 8, 2013: The Harper government promotes Justice Veldhuis to the Alberta Court of Appeal. She advises that ruling on arguments in the Ernst case is “not an option.”
Feb. 15, 2013: During a case management call, Justice Veldhuis says Justice Wittmann has volunteered to take over the case.
Sept. 19, 2013: Justice Wittmann, despite not having presided over the original hearing, rules Ernst has a valid Charter of Rights and Freedoms claim but that the regulator is protected by legislation giving it immunity from civil litigation. He dismisses the regulator’s claim that Ernst is an “eco-terrorist” due to “the total absence of evidence.” He denies the Alberta government’s attempts to get the word “contamination” removed from Ernst’s statement of claim.
January 13, 2014: During a case management call, Justice Wittmann grants the Alberta government another chance to try to get Ernst’s case thrown out (at great cost of time and money to her). The hearing is set for April 16, 2014, and the case is moved back to Drumheller, where by law, it belongs.
Feb. 18, 2014: The Alberta government files a brief to strike the lawsuit against it. It argues the government has no duty of care to landowners and immunity. The motion comes three years after the lawsuit was launched.
March 18, 2014: Ernst responds to the government. Her lawyers argue that the approach taken by Alberta Environment is an abuse of process.
April 16, 2014: Drumheller Court of Queen’s Bench hears the Alberta government’s application to be removed from the Ernst case. Justice Wittmann orders document exchange between Ernst and Encana.
Sept. 15, 2014: The Alberta Court of Appeal rules that Alberta’s energy regulator cannot be sued by citizens even if it breaches constitutional rights.
Nov. 10, 2014: Chief Justice Wittmann rules that Alberta Environment can be sued. He orders Alberta Environment to pay Ernst “triple costs,” still less than the legal cost of protecting her case from having been thrown out.
Nov. 13, 2014: Ernst’s lawyers appeal the ruling on the regulator’s immunity to the Supreme Court of Canada.
Jan. 30, 2015: The Alberta government finally files its statement of defence.
Nov. 4, 2015: The Hamlet of Rosebud sends a petition to the Supreme Court of Canada arguing the energy regulator should not be exempt from lawsuits over Charter violations. It is rejected and not included in the docket. On a different case a letter from the Canadian Association of Petroleum Producers is accepted.
Jan. 12, 2016: Supreme Court of Canada hears the case.
Jan. 13, 2017: In a split decision the Supreme Court of Canada rules that Ernst cannot sue the regulator.
Jan. 17, 2017: Chief Justice Neil Wittmann announces his retirement and recommends that the parties choose a replacement case management judge together. Ernst instructs her lawyers to write, “Our client believes that case management is not in her interest and therefore requests that the matter no longer be subject to case management… Our client also does not believe that it is appropriate for the parties to play a role in selecting a case management judge.”
Jan. 27, 2017: Encana and Alberta Environment provide their preferred judges to replace Justice Wittmann. Justice Eamon, one of their preferred judges, becomes the new case management judge.
March 29, 2017: The court orders case management to continue.
Aug. 26, 2018: Klippenstein and Wanless resign from the case.
June 30, 2019: Ernst announces that her lawyers have dropped her landmark case. To date, Encana still has not disclosed key records to Ernst, as required by Alberta’s Rules of Court and ordered by Justice Wittmann in July 2014
May 28, 2020: Today it’s 634 days since Mr. Klippenstein promised to send me my files which I need to continue my lawsuit.
Email sent to Ernst from Republic of Ireland responding to above article:
Hi Jessica
Good to see your still strong.
The establishment don’t know what to do with you. It’s clear from the comments that your story is well known now. Your credibility with the public is growing every year. It’s clear your operating in the public interest. I hope new lawyers step up.
Regards
Ed
A few other comments to the article:
“Klippenstein said he advised Ernst that she now has three options: she can transfer the case to another lawyer; continue with the lawsuit by representing herself; or let Klippenstein wind down the lawsuit ‘in a way that is most advantageous or least disadvantageous to you.’”
So what’s behind door number 3 Mr. Klippenstein? Settle and gag?
From Klippenstein’s letter to the Law Society of Ontario published in Quillette:
“In short, I would not be the person I am without freedom of thought and expression. I will not be told what to say or what to value—especially by the regulator of what is supposed to be a body of independent lawyers. And so I have decided that I must contribute, in my little corner, in my limited way, to the defence of those freedoms. I did this knowing that taking a stand on this issue might destroy the career and law firm I had built. And it has, although it has been a disaster I have been able to manage.
Compelling speech is unconscionable regardless of the principles a person is made to parrot.”
How noble, putting his business on the line to defend some “freedoms.” Seems “compelling speech” is a terrible thing in Klippenstein’s book – especially when it happens to him.
Klippenstein, admittedly, “would not be the person” he is “without freedom of thought and expression,” so where’s his outrage at the legal suppressing of those freedoms – aka gag orders? And who would he be then, with his mouth legally taped shut?
Klippenstein’s made it clear he’s all about defending “freedoms” as they apply to him, so I’d like to know what he thinks about reaching into the legal toolkit and pulling out the heavily-used duct tape – to suppress and kill those freedoms in others?
“She said Klippenstein told her that lawsuits like hers were usually settled with a payment and a non-disclosure agreement that silences the person who had sued ‘because our legal system is set up to make that happen.’
Yeah, no shit – does Klippenstein avail himself of such a rampant set up?
October 18, 2018 – “How Non-Disclosure Agreements Have Become a Cancer on Democracy – The powerful, from churches to energy companies, pay to keep wrongdoing secret.”
“Ernst said she had always been clear that she would not accept a non-disclosure agreement. The issue of contaminated water goes beyond one household or community and the public needs to be aware, she said.”
Can’t thank you enough for that Ms. Ernst.
“Klippenstein also offered another reason for quitting the case, saying in an email to The Tyee that he ‘had increasing concerns about Ms. Ernst’s views about the viability of her own lawsuit, in particular because of Ms. Ernst’s highly and increasingly critical views of the legal system, and of the lawyers that were a part of that system, to the point where I thought it was simply no longer viable for us to represent her going forward.’”
Good call Mr. Klippenstein, we know she won’t let you gag her and kill her freedoms, and you obviously don’t have what it takes to go up “against a number of very powerful, very well-resourced, and very determined opponents,” so best you run along to your “little corner” now and go defend – in your “limited way,” – those freedoms you feel apply to you personally.
Clearly, Jessica Ernst is looking out for the rest of us, and I sincerely hope she continues to expose and share the rampant industry, regulator and government contamination, corruption and cover-ups – as well as the goings-on of the disgusting “gag-factory” and its “workers” – as they continue to try to pass it off as a justice system in this country.
“We don’t have a justice system, but a legal system designed to serve the interests of the powerful and to employ judges and lawyers.”
~ Jessica Ernst.
ps. Please return Ms. Ernst’s money to her, immediately – some of it has been donated by concerned citizens around the world – who are facing the same industry, government and regulator abuse and squashing of their freedoms – and It doesn’t belong to you.
“Mr Murray Klippenstein
Klippensteins, Barristers & Solicitors
160 John Street, Suite 300
Toronto ON M5V 2E5
Dear Mr Klippenstein:
I met you several times during the 12 years of your representation of Ms Jessica Ernst of Rosebud in Alberta. I am now wondering about your withdrawal from her case after so many years as her lawyer, and so many hundreds of thousands of dollars. Your notice of withdrawal was on 26 August 2018, but she informs me that it is at present incomplete in terms of accounting, documentation, and financial return of the trust account.
The trust account of $40,000 is a very significant amount of money, especially to Ms Ernst – who is no longer able to work in her profession.
I consulted the Law Society of Ontario’s Practice Management Guidelines for Client Service and Communication, Section 2.18 Withdrawal of Services, or Otherwise Ending the Engagement. There are many references to the Rules of Professional Conduct Section 3.7 which clearly describe the obligations of a lawyer. You do not appear to have followed most. Do you intend to do so in a timely fashion?
While you claim to have minimized your office staff, it appears the physical office still exists, and you have not given up your accreditation as a lawyer in Ontario. It would therefore appear that you have obligations of some urgency to fulfill for Ms Ernst.
Your prompt attention would be appreciated by many of us who have followed her case and her website.
Yours truly,
Linde Turner
CC The Law Society of Ontario
Ms Natasha Hassan, Opinion Editor, The Globe and Mail
Mr Ossie Sheddy, Editor, The Drumheller Mail
Mr Jacques Gallant, Legal Affairs Reporter, Toronto Star
Mr Andrew Nikiforuk, Investigative Journalist
Ms Jessica Ernst”
www.ernstversusencana.ca/the-lawsuit/
pps. Thank you again, Andrew Nikiforuk, for your consistent and tremendous reporting.
dda annie_fiftyseven Well done (as usual), annie!!!!!
Julie Ali annie_fiftyseven Wonderful. Thank you so much.
I’d say we all need to be writing to this lawyer as I do believe returning client trust money is an obligation of ethical practice.
PS-She said Klippenstein told her that lawsuits like hers were usually settled with a payment and a non-disclosure agreement that silences the person who had sued “because our legal system is set up to make that happen.”-
tic freedom of speech does not mean a thing when individual has no recourse against immunity. legal language is shrewdly manipulated expressions that fail to describe non substantial vs substantial rights of that whom has no recourse but to sew. mumbo jumbo, you say? exactly. those that make the decisions are caught in there as much as the one with seeking compensation for “damage” while the culprit has immunity, or any other legally offered benevolence by those representatives representing individuals on whose behalf they seek election. back to the case, where even the representing lawyer may give up cause there is no money to be had. we are just made like that. so, what gives. oh yeah, we know when we run out of the air to breathe. tic?
i rest my case.