3. Regina v. HHW [Court of Queen’s Bench of Alberta, Calgary – April 2019]

HHW was the primary target of a drug investigation conducted by members of the Calgary Police Service (“CPS”). The investigation, which lasted several months, involved the use of so-called confidential informants, extensive surveillance and the covert installation of a hallway video recorder. The police investigation culminated in the execution of a warrant to search the premises which had been monitored by the hallway camera (hereinafter referred to as the “target premises”).

A search of the target premises revealed the presence of a large number of various drugs including over 2 kilograms of cocaine, approximately 1,000 hits of fentanyl, and half a kilogram of cannabis marijuana. In addition to the foregoing illicit substances, the police found various items consistent with the production of crack cocaine and approximately $20,000 cash. To top it all off (and to potentially make matters much worse) the police located a loaded stolen handgun. As a consequence of these seizures HHW was charged with the following offences:

1. Production of crack cocaine contrary to Section 7(1) of the Controlled Drugs and Substances Act.
2. Possession of cocaine for the purpose of trafficking contrary to Section 5(2) of the Controlled Drugs and Substances Act.
3. Possession of fentanyl for the purpose of trafficking contrary to Section 5(2) of the Controlled Drugs and Substances Act.
4. Possession of cannabis marijuana for the purpose of trafficking contrary to Section 5(2) of the Controlled Drugs and Substances Act.
5. Possession of proceeds of crime of a value exceeding $5,000 contrary to Section 354 of the Criminal Code.
6. Unlawful possession of a loaded handgun contrary to Section 95(1) of the Criminal Code.

The Crown made it abundantly clear that if convictions were entered at the end of trial that they would be seeking a minimum period of imprisonment of 10-12 years. Given that the fentanyl charge alone (1,000 hits) would attract at least 5-6 years imprisonment and the cocaine (2 “bricks”) an additional 4-6 years, the Crown was already comfortably in the range of 10-12 years without factoring in additional time for a loaded stolen handgun and possessing proceeds of crime. Bottom Line: The law more than supported the Crown’s minimum sentencing position (if convicted at the end of trial) of 10-12 years imprisonment.

The most damning evidence for the prosecution were the images of HHW captured by the hidden camera in the hallway outside the target premises over many weeks. If those images were admitted into evidence at trial the odds of securing verdicts of not guilty were remote in the extreme. By the same token, however, if the Defence could have those images excluded from evidence then the odds of securing verdicts of not guilty were very favourable.

The foregoing variables led inexorably to a review and analysis of the existing state of the law vis a vis covert camera installations. In the peculiar circumstances of this case, the police did NOT obtain judicial authorization to install the hidden camera. The existing state of the law (particularly in Alberta) requires the police to obtain judicial authorization before installing hidden cameras in relation to dwelling homes. That law, however, is subject to interpretation and substantive variation depending on the facts of a particular case, with the end result being that even where (as in this case) prior judicial authorization was not obtained, a Judge could still rule in such a manner as to admit the recorded images in evidence.

In other words, there is a risk (which varies from case to case) that the Defence can win a “battle” (ie: establish a violation of an accused’s constitutional right to be secure against unreasonable search or seizure as guaranteed by Section 8 of the Charter as a consequence of the police not obtaining judicial authorization before installing a hidden camera) but lose the “war” (ie: notwithstanding the finding of a violation/breach, the Court may still receive the impugned images into evidence).

The odds of “winning” in this case were no better than 50/50. All parties ultimately recognized this reality and in the final analysis (after months of “back-and-forth” between Crown and Defence) Patrick Fagan managed to get the following resolution on the table:

1. Guilty plea to possession of cocaine (2 kilograms) for the purpose of trafficking contrary to Section 5(2) of the Controlled Drugs and Substances Act in exchange for a joint submission for a term of imprisonment of 2 years less a day. Yes. . . 2 years less a day for 2 “bricks” of cocaine.
2. All other charges (including the fentanyl and stolen loaded handgun charges) would be completely withdrawn.

Ultimately, the obvious risk associated with running a trial (a minimum period of imprisonment of 10-12 years if convicted) was simply too severe to roll the dice, and the “deal” aforesaid was entered into and ultimately accepted by a Justice of the Court of Queen’s Bench of Alberta.

Bottom Line: HHW received a sentence of 2 years less a day for over 2 kilograms of cocaine and all other charges were completely withdrawn.