15. Regina v. S.A.A. [Court of Queen’s Bench Of Alberta (Calgary) – November, 2018]

During the summer of 2017 the Calgary Police Service received information that S.A.A. was trafficking in controlled substances. Consequently, the police launched an undercover operation during which a police undercover officer was successful in purchasing drugs from S.A.A. on three separate occasions.

Undercover Buy #1

After a number of brief text messages between S.A.A. and the undercover officer (hereinafter referred to as the “U/C”) the U/C met with S.A.A. and purchased ten morphine (oxycodone) pills. According to the U/C, S.A.A. s stated at the time of the transaction that the pills should be cut in half as they were very powerful.

Undercover Buy #2

One week following buy #1, the U/C met with S.A.A. and purchased another ten morphine pills for the sum of $100.

Undercover Buy #3

Approximately one week after the second undercover transaction the U/C again met with

As a consequence of the foregoing the police obtained a warrant to search S.A.A.’s home. That search resulted in the seizure of various items of investigative consequence including the following:

• Two digital scales.
• Several thousand dollars cash.
• 2,366.6 grams of marijuana worth (according to the police) approximately $23,666.
• 912.3 grams of psilocybin worth approximately $9,123.
• 359.1 grams of hashish worth approximately $3,591.
• Multiple boxes of packaging material.

As a consequence of the undercover operation and foregoing seizures S.A.A. was charged with the following offences:

1. Three counts of trafficking in morphine contrary to Section 5(1) of the Controlled Drugs and Substances Act.
2. Four counts of possessing proceeds of crime contrary to Section 355(b) of the Criminal Code.
3. Possession of psilocybin for the purpose of trafficking contrary to Section 5(2) of the Controlled Drugs and Substances Act .
4. Possession of cannabis marijuana in an amount not exceeding 3 kg. for the purpose of trafficking contrary to Section 5(2) of the Controlled Drugs and Substances Act.
5. Possession of Hashish for the purpose of trafficking contrary to Section 5(2) of the Controlled Drugs and Substances Act.

As the Crown was seeking a lengthy period of incarceration in a federal institution (the starting point for sentencing for trafficking in morphine itself is 3 ½ years imprisonment) S.A.A. retained the services of Patrick Fagan.

Patrick Fagan entered an election trial by way of a Justice of the Court of Queen ’s Bench of Alberta sitting without the intervention of a Jury but with a preliminary inquiry. A preliminary inquiry was held and at the conclusion of those proceedings Patrick Fagan was successful in killing a multitude of offences including all of the proceeds of crime charges and the charge of possession of hashish/psilocybin for the purpose of trafficking. Consequently, at the end of the day, S.A.A. was committed to stand trial in Queen’s Bench on two charges only — trafficking in morphine and possession of cannabis marijuana in an amount not exceeding 3 kg. for the purpose of trafficking.

During the course of the preliminary inquiry Patrick Fagan (in anticipation of an order committing S.A.A. to stand trial on at least the morphine trafficking charges) cross -examined the undercover officer and primary investigating officers extensively vis a vis entrapment . While a Judge presiding at a preliminary inquiry does not have the jurisdiction ( that is, lacks the power) to grant relief whether or not entrapment exists, by laying the evidentiary foundation through cross examination at preliminary inquiry it enhances the odds of success at trial.

A Queen’s Bench trial was scheduled and prior to commencement of those proceedings the Crown acknowledged the “potential” strength of the defence position vis a vis entrapment and extended an offer of resolution that S.A.A. wisely instructed Patrick Fagan to accept.

Bottom Line:   In exchange for a plea of guilty to possession of cannabis marijuana in an amount not exceeding 3 kg. the Crown completely withdrew the charge of trafficking in morphine. By way of sentencing, S.A.A. was granted a conditional sentence order (ie: “house arrest” ) for a period of twelve months. The conditional sentence order was tiered, which involved four months of house arrest, four months of curfew and four months of merely keeping the peace and being of good behavior.