8. Regina v. DJD [Court of Queen’s Bench of Alberta, Calgary, June 2019]

This is an all too typical “Pipeline” case involving a uniformed member of the RCMP conducting a drug investigation under the guise of a traffic investigation. In the circumstances of this particular case (as with most Pipeline cases) the police observed a vehicle and/or occupant who matched some investigative profile consistent with the potential transportation of contraband. As to precisely what that “profile” might be in any given circumstance, it is exceedingly hard to tell. Why? The police steadfastly deny the existence of any such profiling.

According to the police, DJD was speeding and that gave them the lawful authority to activate their emergency lights and pull him to the side of the road. Once stopped, the police approach the suspect vehicle and engage the driver in a carefully scripted Q&A. The police then use the answers gleaned by way of this Q&A to assist in formulating their grounds to detain a suspect and (in most cases) to deploy a drug dog to search the perimeter of the vehicle. Of course the police seek to justify the Q&A on the basis of building rapport with the motorist/suspect as opposed to engaging to any degree in a drug investigation. Well. . . after engaging DJD in the Q&A and receiving answers that led the police to believe he may be transporting something illegal, they detained him and employed a drug dog to search the perimeter of the vehicle.

The drug dog “hit” on the vehicle (thereby indicating the potential presence of a drug) and this gave the police the lawful authority to actually arrest DJD and to search his vehicle. A search of DJD’s vehicle revealed the presence of approximately 50 lbs. of cannabis marijuana.

As a consequence of the foregoing, DJD was charged with possession of cannabis marijuana 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 imprisonment in a federal institution, he 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 sitting without the intervention of a jury but with a preliminary inquiry. A preliminary inquiry was held in Canmore Provincial Court (the stop having occurred near Lake Louise, Alberta) and at the conclusion of those proceedings DJD was committed to stand trial as charged.

At trial in the Court of Queen’s Bench of Alberta (Calgary) Patrick Fagan sought to have all evidence (ie: the dope) seized by the police excluded from evidence as a consequence of the violation of DJD’s right to be secure against unreasonable search or seizure, right not to be arbitrarily detained and right to retain and instruct a lawyer without delay as guaranteed by Sections 8, 9 and 10(b) of the Canadian Charter of Rights and Freedoms (the “Charter”) pursuant to Section 24(2) of the Charter.

Bottom Line: Patrick Fagan was successful in establishing a violation of DJD’s right to retain and instruct a lawyer without delay as guaranteed by Section 10(b) of the Charter and was equally successful in convincing the presiding trial Justice to exclude all evidence acquired by the police during the course of the so-called “traffic” stop pursuant to Section 24(2) of the Charter. As a consequence, the charge against DJD was completely DISMISSED.

For those of you who would like to review the Charter Ruling of The Honourable Madam Justice Phillips as rendered on June 18, 2019 Click Here.

Patrick Fagan

Patrick C. Fagan is a highly accomplished lawyer with an impressive career spanning over 35 years in the legal field.

“… a sharp lawyer like Fagan could make mince meat out of their case.”


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