11. Regina v. AMB [Court of Queen’s Bench of Alberta (Calgary) – October, 2018]

The Calgary Police Service (“CPS”) Drug Unit engaged in a lengthy sophisticated investigation into the alleged drug trafficking activities of AMB and various other targets involving heroin, cocaine and fentanyl.

In November 2016 an undercover officer of the CPS met with AMB and purchased a street quantity of heroin. AMB was not arrested immediately after the drug transaction as the police were concerned that such an arrest would compromise their investigation of a multitude of other targets. The investigation concluded several weeks later with the execution of a warrant to search residential premises believed to contain drugs and a number of the targets, including AMB. As it turned out, AMB and various other targets were located on the premises at the time of the execution of the warrant to search.

A search of the residence revealed a fentanyl laboratory containing mixing agents, acetone and powdered fentanyl. In addition, the following drugs were seized from the residents:

  1. 118 grams of cocaine valued at over $10,000.
  2. 277 grams of fentanyl valued at $69,000.
  3. 645 fentanyl pills valued at $12,900.
  4. 9.8 grams of heroin valued at $3,000.
  5. 31 grams of psilocybin valued at $310.
  6. 11 grams of meth amphetamine valued at $550.
  7. Over a kilogram of “buff ”.
  8. Scales.
  9. Packaging materials.
  10. A multitude of cellular phones.

As a consequence of the foregoing AMB was arrested and charged with the following offences:

  1. Section 5(1) of the Control led Drugs and Substances Act – Trafficking in Heroin (ie: the undercover transaction).
  2. Section 5(2) of the Control led Drugs and Substances Act – possession of meth amphetamine for the purpose of trafficking.
  3. Section 5(2) of the Control led Drugs and Substances Act – possession of cocaine for the purpose of trafficking.
  4. Section 5(2) of the Control led Drugs and Substances Act – possession of fentanyl for the purpose of trafficking.
  5. Section 5(2) of the Control led Drugs and Substances Act – possession of heroin for the purpose of trafficking.
  6. Section 355 of the Criminal Code – possess proceeds of crime.

AMB initially retained a lawyer other than Patrick Fagan to “defend” this most serious prosecution. An election of trial by way of Provincial Court Judge was entered and a trial scheduled. Three weeks prior to commencement of trial proceedings AMB discovered that the only plan his lawyer had germane to trial proceedings was to plead him guilty on a number of the trafficking charges and to get him the least number of years of imprisonment in a federal institution. AMB fired his lawyer and retained Patrick Fagan.

Patrick Fagan immediately filed a Notice of Re-Election from trial by way of Provincial Court Judge to a Justice of the Court of Queen’s Bench of Alberta sitting without the intervention of a Jury but with a preliminary inquiry. Consequently, Patrick Fagan was able to transform the existing dates scheduled for trial in Provincial Court into a preliminary inquiry on all “11” charges .

A preliminary inquiry was conducted by Patrick Fagan and at the conclusion of those proceedings Patrick Fagan was successful in securing a complete withdrawal of 6 of the 11 charges. Specifically, the 6 charges withdrawn were as follows:

  1. Section 355 of the Criminal Code – possess proceeds of crime.
  2. Section 145(3) of the Criminal Code – breach of recognizance.
  3. Section 4(1) of the Control led Drugs and Substances Act – possession of psilocybin.
  4. Section 5(2) of the Control led Drugs and Substances Act – possession of meth amphetamine for the purpose of trafficking.
  5. Section 5(2) of the Control led Drugs and Substances Act – possession of heroin for the purpose of trafficking.
  6. Section 4(1) of the Control led Drugs and Substances Act – possession of psilocybin for the purpose of trafficking.

AMB was committed to stand trial in the Court of Queen’ s Bench of Alberta on the 5 remaining charges including trafficking in heroin, possession of cocaine and fentanyl for the purpose of trafficking and production of crack cocaine and fentanyl (ie. the “lab” ). The matter was scheduled for a one week Queen’s Bench trial and in defence of this prosecution Patrick Fagan provided the Crown with notice of his intention to seek relief pursuant to the Canadian Charter of Rights and Freedoms (ie. the “Charter”) . Specifically, Patrick Fagan challenged the initial under cover heroin transaction on the basis of “ENTRAPMENT” and the validity of the warrant to search the residential premises.

Bottom Line: prior to commencement of Queen’s Bench trial proceedings the Crown conceded the strength of Patrick Fagan’s legal arguments aforesaid and the entire case was successfully resolved (killed) by way of the entry of a stay of proceedings .