R. v. M.J. [Court of Queen’s Bench of Alberta, Calgary, December 2017]

The police initiated an investigation as a result of information received by the police from a confidential source that M.J. was dealing cocaine. After several weeks of surveillance the police believed they had observed multiple drug transactions involving two people, M.J. and a second person, O.M.. Police ultimately executed search warrants at the residence of both M.J. and O.M.. In the residence thought to be M.J.’s the police found two handguns with ammunition and a significant amount of cocaine (crack and powder), marijuana and cash. J.M. was depicted on video keying in and out of the residence a number of times and was arrested leaving the residence.

J.M. retained another lawyer for conduct of the preliminary inquiry and eventually retained Ms. Fagan to defend him at trial. At this time he faced six charges, including three charges relating to the handguns and one count of possession of cocaine for the purpose of trafficking. If unsuccessful, M.J. was facing a significant jail sentence. Ms. Fagan’s argument (and M.J.’s fate) hinged on her ability to successfully challenge the search warrant. Ms. Fagan filed a Charter notice alleging a breach of his rights as guaranteed by s. 8 of the Charter (his right to be free from unreasonable search and seizure). The week before the trial was scheduled to start, M.J.’s co-accused O.M. plead guilty. M.J. continued on to trial and argued that there was an insufficient nexus between M.J. and the residence. After six days of argument on the validity of the search warrant the trial judge ultimately agreed with Ms. Fagan. A breach of s. 8 was established and the items seized (all guns, drugs and cash) were excluded from evidence.

BOTTOM LINE: After six days of trial, Ms. Fagan secured verdicts of “not guilty” on all charges.