[420 Girl]

The case of a night-time bust at sea, involving more than 100 pounds of marijuana, may be finally heading to trial after more than three years.

During this time the case has been debated by judges in all three levels of court in B.C. It began with a local provincial court judge ruling there was too much circumstantial evidence to send the three Cortes Island men to trial.

"The evidence put before the court involves suspicious circumstances, certainly, but it also raises too many possibilities...( the ) mere presence in the proximity of the impugned goods is not possession," said Judge Brian Saunderson, during a March 2008 preliminary inquiry.

But then then a federal prosecutor had the decision reviewed by the B.C. Supreme Court which set aside the lower court decision on Dec. 17, 2008. "...the reviewing judge held that ( Judge Saunderson ) has made two jurisdictional errors. First, he held that the judge's reasons did not make clear that he had met the duty imposed by the Criminal Code to consider all the evidence," the judge said in a written decision. "Second...the inquiry judge erred in preferring inferences favourable to the accused, rather than considering only the inferences favourable to the Crown's case."

As a result, the three men accused of possessing marijuana for the purpose of trafficking, Benjamin Howells, Romney David Shipway and Justin Stirn, appealed the decision to the B.C. Court of Appeal.

In a decision posted online Nov. 10, the court of appeal upheld the decision made by the supreme court and sent the matter back to provincial court, persumably for trial.

A trial date has not been set, but the trio is slated to return to Campbell River provincial court on Nov. 30, to set future court dates.

According to court records, on Oct. 14, 2006, three members of the RCMP West Coast Marine Services were conducting surveillance from a Zodiac vessel, in the waters between Cortes and Redonda islands.

The Mounties were acting on a tip that someone might be trying to transport contraband.

It was around 7 p.m., and dark outside, when one of the officers spotted a 16-foot skiff through his night vision goggles.

The vessel had no lights on, but officers could also hear people laughing and talking on board. However, the officers were unable to clearly make out how many individuals were on the skiff.

There were also no lights lit on the Zodiac which allowed the officers to follow the skiff in the darkness, heading south through Lewis Channel.

A few minutes later, from about 70 metres away, the officers turned a search light onto the skiff and saw someone toss three objects overboard.

The Mounties closed in and boarded the skiff where they found three men "looking sweaty" and wearing damp clothing and soiled hiking boots. The officers also noticed the odour of "green marijuana and liquor," and found 30 grams of dried pot in a baggy.

Two officers remained on board while the other took the Zodiac back to the drop site.

There, floating in the water, he found six garbage bags, tied together in twos. The bags contained fresh marijuana with a combined weight of 117 pounds.

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