On a return trip to Calgary from the Middle East, R.A.A. was flagged by airport border officials as a potential drug trafficker. During the course of a secondary search of R.A.A. and his luggage, border officials performed a field drug test on a multitude of containers that tested positive for “cocaine”. The border officials seized the containers, arrested R.A.A. and charged him with various offences including:
- Importation of cocaine contrary to Section 6(1) of the Controlled Drugs and Substances Act.
- Possession of cocaine for the purpose of trafficking contrary to Section 5(2) of the Controlled Drugs and Substances Act.
- Breach of Recognizance contrary to Section 145(3) of the Criminal Code [R.A.A. was already on bail for a number of charges including possession of cocaine for the purpose of trafficking].
Notwithstanding the serious nature of the charges aforesaid and the fact that R.A.A. was ostensibly committing a serious drug offence while on bail for another, Mr. Sean Fagan was able to secure bail for R.A.A. on reasonable terms.
Bottom Line: It soon became apparent by way of disclosure that while the so-called “drug field tests” may have indicated the presence of “cocaine” the indelible fact remains that the results of those tests are NOT admissible as proof certain of the nature of the substance. In the end result, Patrick Fagan and Sean Fagan were successful in killing all charges (including the alleged breach of recognizance) by way of a complete withdrawal of all charges.