V.D.W.N. was the driver and sole occupant of his truck in downtown Sylvan Lake, Alberta. An astute uniformed member of the RCMP drove past V.D.W.N. and noticed that the truck had an inoperative headlamp and that V.D.W.N. wasn’t wearing a seatbelt. The Mountie pulled a U-turn, pursued and stopped V.D.W.N.
According to the Mountie, as he approached the rear of V.D.W.N.’s truck he could smell a strong odour of fresh marihuana. As the Mountie approached the open driver’s window of the truck the scent was “overpowering”. Instead of immediately detaining V.D.W.N. the Mountie proceeded to question him regarding the odour and location of the “pot”. V.D.W.N. stated that he had a small quantity of marihuana in the center console. At that point the Mountie advised V.D.W.N. that he was being “detained” for a drug investigation, had him exit his truck and enter the backseat of the patrol car.
The Mountie then searched V.D.W.N.’s truck and found a large quantity of cannabis marihuana and cannabis resin (“hashish”); then (and only then) did the Mountie advise V.D.W.N. that he was under arrest. V.D.W.N. was transported to the Sylvan Lake Detachment of the RCMP where he was charged with the following offences:
- Possession of cannabis marihuana for the purpose of trafficking in an amount exceeding 3 kilograms contrary to Section 5(2) of the Controlled Drugs and Substances Act .
- Possession of cannabis resin for the purpose of trafficking contrary to Section 5(2) of the Controlled Drugs and Substances Act.
- Possession of a prohibited weapon (brass knuckles) contrary to Section 91(2) of the Criminal Code.
Patrick Fagan elected trial by way of Provincial Court Judge, entered pleas of not guilty to all charges and scheduled the mat ter for trial. Several weeks prior to commencement of trial proceedings Patrick Fagan notified the Crown of his intention to challenge the admissibility of al l evidence seized by the Mountie as a consequence of the violation of V.D.W.N.’s right to be secure against unreasonable search or seizure and right to counsel as guaranteed by Sections 8 & 10 of the Charter respectively.
Bottom Line: Patrick Fagan was successful in killing all charges against V.D.W.N. by way of the entry of a stay of proceedings .