13. Regina v. J.H.M. [Court of Queen’s Bench of Alberta, Calgary – June 2014]
JHM was the target of an undercover operation entitled “Heavyweight”. During the course of the operation JHM sold cocaine to an undercover officer on 9 occasions over the course of a four month period. The amounts sold ranged from an “eight-ball” to half ounces. A search of JHM’s vehicle revealed the presence of approximately 1 ounce of cocaine separated into 16 baggies. A search of the residence of JHM revealed the presence of an additional 200 grams of cocaine, 170 grams of cannabis resin (hashish), 435 grams of cannabis marijuana, several grams of ecstasy and a number of weapons. JHM was charged with 9 counts of possession of a controlled substance for the purpose of trafficking, 19 offences including 9 counts of direct trafficking, possessing proceeds of crime and weapons offences.
Patrick Fagan quickly concluded that (short of a miracle) JHM was “dead in the water” and a Federal jail term was inevitable. As the Crown adopted a very harsh position with respect to sentence (even on an early guilty plea) a decision was made to run a trial in an effort to damage the case for the prosecution sufficiently to create leverage to (at the very least) reduce/mitigate sentence.
Well. . . during the first day of a scheduled full week Queen’s Bench trial Patrick Fagan managed to acquire the much needed leverage through cross-examination of the primary undercover officer. Specifically, the undercover officer testified that he positively identified JHM by viewing a photographic line-up. Patrick Fagan obtained very detailed information from the officer through cross-examination as to when, where and how the photographic line-up was conducted. At the conclusion of Patrick Fagan’s cross-examination the Crown prosecutor conceded what the Defence already knew – no photographic line-up in relation to JHM had ever been conducted.
The foregoing “miracle” was still not enough to squeeze out verdicts of not guilty on all 19 charges (JHM was arrested on the spot after his last sale) but it did result in the Crown taking a much more reasonable position with respect to plea and sentence.
Bottom Line: A plea of guilty was entered to 1 count of trafficking in cocaine and 1 weapons charge; the other 17 charges were completely withdrawn. As for sentence JHM was granted a conditional sentence order (i.e. “house arrest”) and that was much more than he had hoped for.
Patrick C. Fagan is a highly accomplished lawyer with an impressive career spanning over 35 years in the legal field.