Case Summary
On January 22, 2017, police pulled over a vehicle in which Clayton Boucher was a passenger. They believed him to be in breach of his probation for a prior offence by not informing the court that he had changed addresses, given that he was staying at a friend’s house at the time.1 The driver of the car told police that he had purchased methamphetamine from Boucher. The RCMP arrested Boucher and, despite finding no drugs upon arrest, proceeded to obtain a warrant to search Boucher’s friend’s home. During their search of the home, the police found ‘white powdery substances’, including those found inside an Arm & Hammer baking soda box that was in a kitchen cupboard.2 Boucher told the RCMP that the substance inside the baking soda box was, in fact, baking soda; however, the RCMP believed that Boucher was lying and made a preliminary determination that the substance was cocaine, crack cocaine, or methamphetamine.3 Within hours of his being detained, the RCMP laid multiple charges against Boucher, most of which were related to the ‘suspicious substances’ that were found with drug paraphernalia in the house Boucher was staying in.
On January 23, 2017, the day following his arrest, Boucher told his lawyer, Leighton Grey, to contact the Crown prosecutor, Erwin Schulz, to get the powder tested to determine the composition of the substance. Boucher gave the same instruction to Grey on February 17. Grey emailed Schulz, seeking the test results, but was informed that the RCMP had not yet sent the powder to be tested. On February 22, Schulz contacted the RCMP to ask that the analysis be completed as soon as possible.4
In March of 2017, Boucher called Grey five more times requesting the lab results determining the composition of the powder. Boucher was given to understand that the lab results had been requested on several occasions but that they were not yet available.5
Despite the lack of test results, Boucher’s trial was scheduled for September 2017. Boucher continued to call Grey, as well as Schulz and other members of the Crown Prosecution Service, up until April 28, 2017, to request the lab results, all the while maintaining that he had been wrongfully imprisoned.
On April 30, 2017, Boucher’s common-law wife died in a car accident.6 While he was permitted to attend the funeral, Boucher was required to wear an orange prison jumpsuit and shackles around his wrists and ankles. On May 5, with still no lab results and after suffering the trauma of his wife’s death, Boucher told Grey that he would plead guilty to lesser charges if he was released on time served.7
However, Boucher later learned that the test results had been ready prior to his plea and definitively showed that there were no drugs in the tested substances.8 Boucher’s defence lawyer would later state that he told the Crown he would file a disclosure application to obtain all RCMP evidence that remained outstanding if the test results were not made available. On May 3 – two days before Boucher would tell his lawyer that he planned to plead guilty – the RCMP told the Crown that the results had come back negative for cocaine. Schulz called Grey the next day to discuss the results. However, the exact contents of this conversation are in dispute. Grey’s account is that Schulz incorrectly informed him that the test results indicated the presence of trace amounts of drugs. What is clear is that the Crown did not drop the charges against Boucher, notwithstanding the negative lab results.
On May 15, the RCMP sent Schulz the lab certificates showing the clean test results. On May 30, 2017 Boucher pled guilty to the lesser drug charges as he had still not been informed of the negative test results. He was sentenced to 90 days in prison but released that day for time served, just over four months’ worth.9
It was not until after his release that Boucher was informed by an RCMP officer that the test results had actually come back negative for illicit substances. Boucher called the Health Canada lab which had conducted the analysis, and discovered that the Certificate of Analysis was complete and indeed had been available prior to his guilty plea.10 The Health Canada records indicated that the powder samples had been sent to the lab on February 20, 2017, and testing was completed four days later.11
On June 15, 2017, Boucher filed a handwritten appeal from his conviction after Grey had declined to take the case several days earlier. Following Boucher’s subsequent request for Legal Aid, Grey advised Legal Aid on July 7 that there was no procedural or substantive basis for an appeal. Eventually, after Legal Aid rejected his application, Grey agreed to take Boucher’s appeal, pro bono.12
In his appeal, Boucher explained that he “always maintained [his] innocence” and that the substances discovered in his friend’s house were not drugs. Boucher stated that, despite knowing full well that what the RCMP seized were not drugs, he pleaded guilty to reduced charges in order to be released and “tend to matters regarding [his] late wife.”13
On September 26, 2017, Boucher was acquitted of all charges with the consent of the Crown prosecutor.14 Boucher believes that he had not been imprisoned, his wife may still be alive. He said: “We went everywhere together… Now I am serving a life sentence. Every day is a horrible day.”15
Boucher subsequently filed a complaint with the RCMP about the handling of his case and contacted the Law Society of Alberta with concerns about Schulz and Grey that were subsequently dismissed by the Law Society.16 In May 2020, the RCMP apologized to Boucher and acknowledged that the test results were negative. It also stated: “The RCMP regrets that you were in jail at the time of [your wife’s] death and that you were required to attend her funeral while in shackles.” Boucher replied: “All I ever wanted was an apology from the beginning.”17
The RCMP misspelled the last name of Boucher’s late wife in their apology to Boucher. One Mountie was disciplined in relation to the case by being docked two days’ pay and some leave time, and being made ineligible for promotion for a year.18