1. Regina v. PS [Saskatchewan, Court of Queen’s Bench Swift Current – January 2014]

On October 21, 2011 a uniformed member of the RCMP observed an eastbound vehicle on Highway #1 just east of Swift Current. PS was the driver and sole occupant of the vehicle and according to the constable he decided to conduct a traffic stop to check for license/vehicle particulars and driver sobriety/fatigue. TRANSLATION: this was a classic Pipeline/Interdiction roadside stop.

Well. . . one thing led to another other, officers were summoned to the scene, a police service dog was deployed and ultimately the police seized 4 kilograms of cocaine from a sophisticated hidden compartment in the rear of the vehicle. The police, who estimated the value of the cocaine (if sold by the kilogram) at $250,000.00, charged our client with possession of a controlled substance for the purpose of trafficking.

After receiving full disclosure we elected trial by way of Queen’s Bench and scheduled a preliminary inquiry. At the preliminary inquiry we conducted extensive cross-examination of the investigating officers and through that process laid the essential evidentiary foundation for constitutional arguments at trial.

The trial was conducted before a Justice of the Saskatchewan Court of Queen`s Bench siting without the intervention of a jury and during the course of those proceedings we defended this most serious prosecution on a number of grounds. Firstly, we argued that the warrantless search of the motor vehicle conducted at roadside was unlawful and unreasonable within the meaning of section 8 of the Charter and sought the exclusion of all seized evidence pursuant to section 24(2) of the Charter. Secondly, we challenged the admissibility of the certificates of analysis that the Crown was endeavouring to rely upon to prove beyond a reasonable doubt the nature of the substance (cocaine) seized. Thirdly, we sought an order pursuant to section 24(1) of the Charter staying (killing) this prosecution in its entirety as a result of an abuse of process/section 7 Charter violation arising from the suppression of evidence by the primary investigating officer.

BOTTOM LINE RESULT: The trial Justice, relying heavily on the recent law enforcement oriented decision of the Supreme Court of Canada in Regina v. MacKenzie, [2013] S.C.J. No.50, held that the warrantless roadside pipeline/interdiction search of the motor vehicle was lawful/constitutional and refused to exclude the seized evidence on this basis. As for the abuse of process application, however, the trial Justice held that the primary investigating office intentionally suppressed evidence by muting the audio recording repeatedly during the roadside investigation/search. For this reason the trial Justice held that irreparable prejudice was occasioned to the Defense and the only just remedy in the circumstances was to enter a Stay of Proceedings is a legal term used to refer to a direction by a Crown prosecutor or a Judge to the Clerk of the Court to terminate a criminal prosecution. Click for more information. effectively terminating the prosecution in its entirety.

It is significant to note that the trial Justice held, in the alternative, that the Crown could not rely on the certificates of analysis to prove the nature of the seized substance (cocaine) and in the absence of other compelling evidence in this regard the Crown had not proven beyond a reasonable doubt a critical element of this drug offence and would have entered a verdict of not guilty on this basis as well.

The full text of the judicial decision aforesaid can be reviewed at Regina v. PS 2014 SKQB 5.

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