At approximately midnight in October 2017 H.J.O. was observed operating a black SUV at a high rate of speed within the City of Calgary. The police observed H.J.O. drive through a stop sign in a residential area thereby placing (according to the police) numerous pedestrians in the area at substantial risk. The police pursued and stopped H.J.O.’s vehicle and , when approaching the driver’s door , they detected the scent of what they believed to the cannabis marijuana. The police arrested H.J.O. for dangerous driving and conducted a search of his person incidental to arrest. The police located multiple cell phones on his person, approximately $2,000 in $20 denominations and a knife.
The police proceeded to search H.J .O.’s vehicle and the area immediately surrounding that vehicle. As a consequence, the police seized approximately 105 grams of crack cocaine (valued at $10,500) just outside the vehicle, a bundle of cocaine on the floor just beneath the driver’s seat, a bundle of cocaine on the dash of the vehicle and a final bundle of cocaine on the instrument panel. To aggravate the situation, the police also located 5.6 grams of cannabis marijuana in the vehicle thus corroborating their initial detection of the scent of that substance.
As a consequence of the foregoing H.J.O. was charged with the following offences:
- Dangerous driving contrary to Section 249(1)(a) of the Criminal Code.
- Possession of proceeds of crime under $5,000 contrary to Section 355(b) of the Criminal Code.
- Possession of cocaine for the purpose of trafficking contrary to Section 5(2) of the Controlled Drugs and Substances Act.
As the Crown was seeking a period of incarceration (ie : “Jail”) of at least two years H.J.O. retained the services of Patrick Fagan.
Patrick Fagan entered an election of trial by way of Provincial Court Judge and scheduled the matter for trial. Prior to commencement of trial proceedings Patrick Fagan provided the Crown 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 would be seeking 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 H.J .O.’s right to be secure against unreasonable search or seizure as guaranteed by Section 8 of the Charter.
- Patrick Fagan maintained a plea of not guilty to the most serious charge of possession of cocaine for the purpose of trafficking contrary to Section 5(2) of the Controlled Drugs and Substances Act and entered a plea of guilty to the much lesser charge and included offence of “SIMPLE” possession of cocaine contrary to Section 4(1) of the Controlled Drugs and Substances Act. In relation to the charge of simple possession of cocaine, the Court imposed a fine of $2,000.
- The charge of possessing proceeds of crime contrary to Section 355(b) of the Criminal Code was completely withdrawn.
- As for the charge of dangerous driving contrary to Section 249(1)(a) of the Criminal Code, Patrick Fagan maintained a plea of not guilty to this “criminal” charge and resolved the matter by way of a guilty plea to a traffic ticket .