13. Regina v. GMS [Provincial Court of Alberta, Calgary, October 2019]

The Calgary Police Service (“CPS”) Gang Unit conducted a drug investigation that extended over several months and involved multiple targets. The investigation was to culminate in the arrest of all of these targets and simultaneous execution of warrants to search on their homes, vehicles and so-called stash locations. As of this “take-down” date, GMS had not been targeted for arrest. What happened is, that as the police were gathered around a condominium complex ready to enter a target premise GMS drove into the complex parking lot in his truck. According to the police, GMS (and the truck) had been observed several weeks before meeting with a primary target during which he was believed to have engaged in activity consistent with a drug transaction. So. . . out of an abundance of caution, the police stopped GMS and detained him pending execution of the warrant to search.

Well. . . instead of releasing GMS from detention after the execution of the warrants to search, the police decided (based upon the previous surveillance) that they had the grounds to arrest him and to conduct a search of this vehicle incidental to that arrest. A search of GMS’s vehicle revealed the presence (in a hidden compartment) of a loaded handgun, cash and a small quantity of cannabis marihuana. Consequently, the police charged GMS with the following offences:

1. Possession of a restricted weapon contrary to Section 95(1) of the Criminal Code.
2. Careless storage of the firearm contrary to Section 86(2) of the Criminal Code.
3. Possession of proceeds of crime contrary to Section 355(b) of the Criminal Code.
4. Possession of a controlled substances contrary to Section 4(1) of the Controlled Drugs and Substances Act.

As the Crown would be seeking a lengthy period of imprisonment in a Federal institution upon conviction (particularly for the charge of having a loaded handgun) GMS retained the legal services of Patrick Fagan. Patrick Fagan entered an election of trial by way of Provincial Court Judge and scheduled the matter for trial.

A 3 day trial was held during which Patrick Fagan challenged the admissibility of all evidence acquired by the police during the course of their search of GMS’s vehicle pursuant to Section 24(2) of the Canadian Charter of Rights and Freedoms (hereinafter referred to as the “Charter”) as a consequence of the alleged violation of GMS’s right to be secure against unreasonable search or seizure, right not to be arbitrarily detained and right to counsel as guaranteed by Sections 8, 9 and 10(a) and (b) of the Charter respectively.

BOTTOM LINE: Patrick Fagan’s constitutional arguments were successful at trial and all evidence acquired by the police was excluded pursuant to Section 24(2) of the Charter; the end result being. . . the entry of verdicts of NOT guilty on all charges.

For those who may be interested, a copy of the learned trial Judge’s Charter ruling can be accessed by Clicking Here.