17. Regina v. R.J.B. [Court of Queen’s Bench of Alberta (Calgary) – December, 2018]

In late 2016 the Calgary Police Service (CPS) received information by way of a Crime Stoppers Tip that R.J.B. was using a specific telephone to sell cocaine. Consequently, a CPS undercover officer called that number and ultimately purchased cocaine from R.J.B. on three separate occasions over the course of a two week period. Shortly thereafter the police obtained a warrant to search the residence of R.J.B. and during the execution of that warrant R.J.B. was located and arrested within his residence. Police search of the premises resulted in the following investigative seizures of consequence:

• 30 grams of cocaine.
• 20 fentanyl pills.
• A twelve gauge shotgun with attached silencer.
• Several cellphones including the “buy” phone used to arrange the undercover purchases of cocaine. . . registered in the name of R.J.B.
• A multitude of documents in the name of R.J.B. confirming occupancy of the searched premises.
• Drug paraphernalia associated with trafficking.

As a consequence of the foregoing R.J.B. was charged with the following offences:

1. Three counts of trafficking in cocaine contrary to Section 5(1) of the Controlled Drugs and Substances Act.
2. Two counts of possessing proceeds of crime contrary to Section 355(b) of the Criminal Code.
3. Possession of cocaine for the purpose of trafficking contrary to Section 5(2) of the Controlled Drugs and Substances Act.
4. Possession of fentanyl for the purpose of trafficking contrary to Section 5(2) of the Controlled Drugs and Substances Act.
5. Unsafe storage of a firearm contrary to Section 86(2) of the Criminal Code.
6. Unauthorized possession of a firearm contrary to Sect ion 91(1) of the Criminal Code.
7. Possession of a prohibited device (silencer) contrary to Section 92(2) of the Criminal Code.

As the Crown was seeking a lengthy period of imprisonment in a federal institution germane to this matter, R.J.B. retained the services of Patrick Fagan. R.J.B.’s primary objective in retaining Patrick Fagan was to avoid (if at all possible) the imposition of any jail time at all.

Defending this prosecution was complicated by the fact that the police investigation was exceedingly tight and involved a video recording of the undercover transactions which accurately captured and depicted the person of R.J.B. While the “defence” of entrapment was certainly a viable avenue of defence the odds of success were marginal at best.

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. Prior to conducting the preliminary inquiry Patrick Fagan canvassed the possibility of R.J.B. avoiding the imposition of a jail term by engaging in the Drug Treatment Program (DTP). Unfortunately, the Crown refused to admit R.J.B. into the program due to the multiple weapons related offences and the fentanyl charge.

As a consequence of the foregoing, Patrick Fagan’s primary objective at preliminary inquiry was to (1) kill as many charges as possible at this early stage, (2) lay the evidentiary foundation for an entrapment defence through cross-examination and (3) kill those charges that were militating against R.J.B.’s admission to the DTP.

Bottom Line At Preliminary Inquiry: Patrick Fagan was successful in killing a multitude of charges at prel iminary inquiry including the “proceeds” charge s, the fentanyl trafficking charge and two of the firearms charges including. . . possession of a shotgun “silencer” contrary to Section 92(2) of the Criminal Code. R.J.B. was ordered to stand trial on only three charges — trafficking in cocaine, possession of cocaine for the purpose of trafficking and possessing a firearm without a permit/license.

As a consequence of a successful preliminary inquiry, impediments to R.J.B.’s admission to DTP were removed and the Cr own ultimately agreed to R.J.B.’s admission. Again , all R.J.B. really wanted was to avoid going to jail — period.

Bottom Line: As long as R.J.B. abides religiously by the terms and conditions imposed by the DTP he will NOT spend a day in jail.