A 48-year-old Yorkton has been sentenced to 13 months in jail for trafficking marijuana.
Clark Protz appeared in Court of Queen’s Bench November 12 for a brief sentencing hearing during which the Crown and Defence presented a joint submission to Justice Donald Layh.
Although Protz was caught with more than 20 pounds of cannabis, the prosecutor and defence attorney agreed the sentence was fit because the defendant had no prior drug convictions.
During trial, the defence focused on excluding the evidence on the basis Protz’s arrest violated his Charter right to be secure from unreasonable search and seizure.
Police caught wind in May 2012 from a Saskatoon informant that Protz would be transporting a large amount of pot from Saskatoon to Yorkton.
The arresting officer, Const. Jill Boutilier and her partner Jeff Ball testified that when they approached the vehicle they could smell raw cannabis and viewed a large bag in plain view in the back of the truck. When Protz identified himself, Boutilier believed she had everything she needed to make the arrest.
Protz told police he had a medical marijuana permit and that the drugs he was carrying was destined for other legal medical users. That defence was never brought up at trial because a medical marijuana licence only allows for possession of 150 grams and does not give the holder the right to distribute to other users.
In a lengthy decision April 10 of this year, Justice Layh relied heavily on R. v. Shinkewski, a case out of Prince Albert of very similar circumstances. The original trial judge in that case had ruled the RCMP had no reasonable grounds to search Lee Shinkewski’s vehicle, but that was overturned by Justice Caldwell of the Court of Appeal.
In that case, police had staked out a home in Prince Albert where they had information from Saskatoon that a shipment of marijuana and cocaine would be delivered. Several vehicles had come and gone, but officers targeted Shinkewski’s truck based on information from their sergeant that the accused was the subject of three other marijuana trafficking cases, which turned out to be untrue.
Caldwell ruled that the evidence was admissible even though the members had no certainty drugs had been delivered and that the sergeant had acted on bad information and no evidence had been in plain sight at the time of the traffic stop.
Layh said there was far more certainty in the case before him and found no fault with the actions of police.
Furthermore, he said, he had to balance the effect of excluding the evidence on society’s confidence in the administration of justice and on the Crown’s case.
After finding Protz guilty, Layh set a sentencing date of September 10, but in the interim police charged Protz again with a number of new, similar, but unrelated trafficking charges. Sentencing on the previous case was delayed as negotiations between Priotz and the Crown took place on the second set of charges.
Nothing came of those discussions and on November 10 Protz pleaded not guilty electing trial by judge in Provincial Court. Judge Ross Green scheduled the trial for May 11 to 13, 2016.
