12. Regina v. S.K.P. [Court of Queen’s Bench of Alberta (Calgary) – October, 2018]

On September 23, 2016 at approximately 5:00 p.m. a uniformed member of the RCMP stopped an eastbound Nissan for speeding on Highway No. 1 near Lake Louise, Alberta. While pursuing the Nissan the Constable also noted that it had a broken tail lamp. According to the Constable, when he approached the passenger side of the Nissan he immediately detected the scent of cannabis marijuana emanating from inside the vehicle.

As a consequence of the foregoing, S.K.P. was removed from the Nissan and placed under arrest for possession of a controlled substance. A subsequent search at roadside incidental to that arrest revealed the presence of the following:

• 9 grams of cannabis resin.
• 100 cannabis “can dies”
• 176 grams of marijuana oil packaged in 1 gram syringes.
• $5,100 cash
• According to the police, all of the drugs were packaged in a manner consistent with trafficking and the cash was located with the drugs.

As a consequence of the foregoing S.K.P. was charged with the following offences:

1. Possession of cannabis resin for the purpose of trafficking contrary to Section 5(2) of the Controlled Drugs and Substances Act.
2. Possession of cannabis marijuana for the purpose of trafficking contrary to Section 5(2) of the Controlled Drugs and Substances Act.
3. Possession of Proceeds of Crime exceeding $5,000 contrary to Section 355(a) of the Criminal Code.

As the Crown was seeking a lengthy period of incarceration S.K.P. decided to retain a “local” lawyer to defend this most serious prosecution. That lawyer entered an election of trial by way of a Justice of the Court of Queen ’s Bench of Alberta sitting with the intervention of a Jury and with a preliminary inquiry. By the end of the preliminary inquiry S.K.P. was left with the distinct impression that the case for the prosecution was overwhelming and the odds of him going to jail were exceedingly high. It was at this stage of the prosecution that S.K.P. decided to retain the services of Patrick Fagan.

After reviewing and analyzing S.K.P.’s case , Patrick Fagan secured the Crown ’s consent to re -elect from trial by way of Judge & Jury to a Justice of the Court of Queen ’s Bench of Alberta sitting without the intervention of a Jury. The matter was scheduled for trial and several weeks prior to the commencement of same Patrick Fagan provided the assigned Crown prosecutor with notice of his intention to seek relief pursuant to the Canadian Charter of Rights and Freedoms (hereinafter referred to as the “Charter” ). Specifically, Patrick Fagan notified the Crown that he intended to seek the exclusion of all evidence (ie. the “dope” and the cash) from trial proceedings pursuant to Section 24(2) of the Charter as a consequence of the violation of S.K.P.’s right to be secure from unreasonable search and seizure, right not to be arbitrarily detained and right to counsel as guaranteed by Sections 8, 9 and 10 respectively.

BOTTOM LINE:   Prior to commencement of trial proceedings the Crown extended an offer of resolution that was simply too good to refuse. The matter was dealt with as follows:

1. A guilty plea was entered to SIMPLE possession of cannabis resin contrary to Section 4(1) of the Controlled Drugs and Substances Act
2. There was a complete withdrawal of the charge of possession of cannabis resin for the purpose of trafficking contrary to Section 5(2) of the CDSA.
3. There was a complete withdrawal of the charge of possession of cannabis marijuana for the purpose of trafficking contrary to Section 5(2) of the CDSA.
4. A complete withdrawal of the charge of possessing proceeds of crime in an amount exceeding $5,000 Contrary to Sect ion 355(a) of the Criminal Code.
5. In relation to the guilty plea for simple possession of cannabis resin, Patrick Fagan was successful in having the $5,000 fine paid directly from the cash seized by the police pursuant to Section 734(6) of the Criminal Code.