16. Regina v. F.A.H. [Court of Queen’s Bench of Alberta (Calgary) – December, 2018]

During the month of March 2017 the Calgary Police Service received information alleging that F.A.H. was actively trafficking in cocaine and cannabis marijuana. Consequently, the police embarked upon a drug investigation which involved several days of surveillance. According to the police, they observed nine separate incidents of F.A.H. being involved in activity consistent with drug trafficking. The police gathered sufficient information to obtain a warrant to search the residence of F.A.H. and that search yielded the following items of investigative consequence:

• A Smith & Wesson .38 caliber handgun with 89 rounds of ammunition.
• An additional 194 rounds of .22 caliber ammunition.
• 1 grams of cocaine packaged in small quantities consistent with trafficking.
• 49 tablets of codeine.
• Approximately 18 grams of cannabis marijuana.
• 3 digital scales bearing cocaine residue.
• A “score sheet” re cording what the police to be cocaine customers corresponding prices and amounts owing.
• Drug packaging material.
• A couple thousand dollars in cash.

As the Crown was seeking a period of incarceration in the range of 3-5 years imprisonment , F.A.H. retained the services of Patrick Fagan.

Patrick Fagan entered an election of 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 scheduled and during the course of those proceedings Patrick Fagan endeavoured to achieve two primary objectives: firstly, to kill as many charges as possible at this early stage of the prosecution, and (2) through extensive cross examination of the primary investigating officers, to create as much uncertainty (doubt) as possible in relation to who was actually in possession of the drugs and handgun at the relevant time.

Bottom Line at preliminary inquiry: Patrick Fagan was successful in challenging the admissibility of evidence led by the Crown as to the “intent” to traffic vis a vis the cocaine. In the end result, the Judge presiding at preliminary inquiry refused to commit F.A.H. to stand trial on anything but the weapons charges. Specifically, F.A.H. was committed to stand trial on the following counts:

1. Unlawful possession of a restricted firearm/handgun contrary to Section 91(1)(b) of the Criminal Code.
2. Unlawful storage of a firearm/handgun contrary to Section 86(2) of the Criminal Code.
3. Unlawful possession of a handgun with ammunition contrary to Section 95(1) of the Criminal Code.
4. Possession of a prohibited weapon (brass knuckles) contrary to Section 91(2) of the Criminal Code.

Between the date of committal to stand trial and F.A.H.’s first appearance in Queen’s Bench for the purpose of scheduling a QB trial, the assigned Crown prosecutor carefully reviewed the underlying record/transcript of the preliminary inquiry and ultimately concluded that there was simply no reasonable likelihood of conviction on any of the remaining charges. Why? Cross examination of police witnesses by Patrick Fagan at preliminary inquiry revealed weaknesses in the case for the prosecution vis a vis the critical issue of “possession” and it was too late for the police to fix the problem.

Bottom Line:   F.A.H. “walked” on all charges.