Man held in custody in Alberta for months after lab tests showed substances were not drugs

An Indigenousman facing drug charges was held in custody for more than three months after laboratory tests orderedby Alberta RCMPfound the substances were not drugs.

Clayton Boucher, 45, was only releasedafterhe pleaded guilty to possession ofmethamphetamine and cocaine. By that point, he'd been in jail for more than the 90 days to which he had been sentenced.

Mr.Boucherhas been wronged- Defence lawyer Leighton Grey

Sincehis arrest, Boucher had consistently maintained the substances were not drugs.

He filed an appeal. While his appeal was underway, Boucher learned that months earlier, Health Canada analysts had completed laboratory tests on the substances RCMPhad seized. The results had been provided to RCMP, who gave them to the Crown, who shared them withBoucher's lawyer.

His conviction was eventually overturned.

Tests completed one month after arrest

Boucher has a criminal record dating back to 1994 and faces a recent armed robbery charge.

He wasarrested on the drug charges Jan. 22, 2017, in LacLa Biche.

Bouchersaid hours after he was detained the RCMPlaid multiple charges, mainly related tosuspicious substances thought to be methamphetamineand cocaine that were found with drug paraphernaliain the residence wherehe was staying.

RCMPsent the substances for testing.

According to a timeline of events developed by Erwin Schulz, the federal prosecutor on the original case,Schulz contacted the RCMPon Feb. 22 to ask that the analysis be completed "as soon as possible."

According to certificates signed by a Health Canada analyst, the testing was completed byFeb. 24.Bouchersaid he obtained the certificates from a federal prosecutor involved in his appeal. He provided copies to CBCNews.

Schulzsaid the RCMPtold his assistant on March 13 that the analysis had not yet been completed. The Schulz timeline was also obtained by Boucher and provided to CBCNews.

Tragedy changes circumstances

Schulzsaid his assistant again followed up with RCMPon April 3,and was again told the analysis had not been completed.

Boucher and hispartner, Phyllis Favel,had been in a common-law relationship for three or four years. She died April 30, while he was in custody.He said he was devastated when he got the news from a chaplain.

Boucher said he attended her funeral, shackled and in a remand-centre orangejump suit.

According to Schulz's timeline, theRCMPconfirmed on May 3 that the substances seized were not drugs but instead were "buff," a powdered cutting agent often used to dilute pure cocaine before it is sold on the streets. Bouchermaintains the powderwas baking soda.

Schulzsaid he conveyed that information to Boucher's lawyer, Leighton Grey, on May 4.

But Grey said he was advised bySchulzon May 4 that there could bespitballs small packages of cocaine in the buff.

Grey said he only found out after the fact that the suspected spitballs were actually small, packaged samples of buff.

Boucher agreed to a plea bargain on May 15. He pleaded guilty to fourcharges. He told CBChewas desperate to get out of jail. He was convicted on May 30 and sentenced to time already served.

Two weeks later, on June 15, Boucher appealed his conviction. Grey said he helped Boucherwith the appeal without charging him legal fees.

When he filed the appeal, Boucher wrote: "I have always maintained my innocence. It wasn't drugs. Despite knowing full well what theRCMPseized wasn't drugs, I pleaded guilty to reduced charges in order to be released and tend to matters regarding my late wife."

On July 11, the RCMP faxedSchulzthecertificates thatHealth Canada analysts had signed off on months earlier, according to a fax transmission sheet provided byBouchertoCBCNews.

The office of federal Crowns provided astatement in support of Schulz: "At the time of the guilty pleas, the[Public Prosecution Service of Canada]agent believed that the substance being pleaded to was a controlled substance, and was distinct from the material that had been tested and found not to contain a controlled substance."

Grey said had he known earlier about the complete findings of the test results, he never would have permitted his client to enter guilty pleas.

"Mr.Boucherhas been wronged," he said."Regrettably, theinformation that theRCMPprovided was not accurate."

Conviction overturned

Boucher'sappeal file includes a letter dated Aug. 24 from Jonathan Martin, senior counsel for the federal Crown in Alberta. Martin said a review of the file and communication between the Crown on the case and theRCMP"establishes that the substances in the counts under appeal did not analyze as controlled substances.

"The non-existence of this information at the time of disposition would have been highly relevant to the decision to plead guilty," Martin said.

On Sept. 26, the Alberta Court of Appeal overturned Boucher'sconviction and replaced it with an acquittal.

No one apologized to me.- Clayton Boucher

He is frustrated about the way his case was handled.

"No one apologized to me."

Bouchersaid he has fileda complaint with the RCMPabout the handling of his caseand contacted the law society with concerns about Schulz and Grey.

RCMPSgt. JackPoitrasconfirmed thatBoucher's complaint is being investigated.

Bouchermoved to North Battleford, Sask., after he was released. He has a court date of Nov. 16related to his armed robbery charges.