A 2016 criminal proceeding arose when a man was arrested after he allegedly participated in two drug transactions. The accused man faced charges of trafficking of oxycodone and morphine, but the judge dismissed these charges as there was reasonable doubt that the amount of drugs seized in the man’s arrest could have been to support only his personal drug habit. He was, however, convicted on the lesser offence of simple possession.
The facts of the case
Following three transactions at a Toronto bar with an undercover police officer, on August 23rd, August 26th and October 13th, a man was arrested for trafficking in oxycodone pills and possession of the proceeds of crime. The accused man was not involved in the third transaction on October 13th, but police had already decided to arrest him on that day, on the basis of the first two transactions.
Police carried out a pat-down search in the process of making the arrest and found 29 oxycodone pills and 35 morphine pills. At the preliminary hearing, the charges of trafficking and possession of proceeds were dropped, but the Crown continued to prosecute on two counts of possession of a schedule one substance for the purpose of trafficking (for oxycodone and morphine), contrary to the Controlled Drugs and Substances Act.
On October 16th, 2013, the applicant challenged his arrest and the search conducted in the process of the arrest, on the basis that police took these actions without a warrant and therefore violated his rights to be free from unreasonable search and seizure, as set out in the Canadian Charter of Rights and Freedoms ss. 8 and 9. In the proceeding, R. v McIntosh, Justice Quigley J. asserted that because the arrest was warrantless, it was presumptively invalid and thus there was a burden on the Crown to show that there were reasonable and probable grounds to arrest the accused on October 16, 2013.
If police did not have reasonable and probable grounds to make the arrest, then the evidence would be inadmissible and without evidence, he must be acquitted. However, even if the arrest violated the accused’s Charter rights, the evidence may still be found admissible in a trial, after considering the analysis and balancing set out by R. v. Grant (1993), when applying subsection 24(2) of the Charter.
If the court were to find that the evidence is admissible because the search was legal or because the evidence is admissible under subsection 24(2), then the offence of possession will be made out. However, an outstanding question yet to be decided would be whether the accused possessed these pills for personal use of the purpose of trafficking.
Justice Quigley J. decided that Toronto police officers had reasonable and probable grounds to arrest the accused, relying on information from a confidential informant, the two drug transactions completed with the undercover officer, and in consideration of all the circumstances, observations and surveillance pertaining to those transactions.
The judge acknowledged that the evidence was not perfect. There was no direct hand-to-hand transaction between the accused and the undercover officer, and although the officer could see the intermediaries at all times, there were points where the officer could not see the hand-to-hand transactions between the accused and the intermediaries who delivered drugs to the officer after meeting with the accused. Nevertheless, Justice Quigley J. decided that it was reasonable to infer that the accused was supplying the drugs purchased by the undercover officer. He therefore found that based on the observations by the various officers surveying the bar, there were reasonable and probable grounds that the accused was the person who was in possession of, and supplied the pills brought to the undercover officer by the intermediaries. On this basis, Justice Quigley J. found that the accused was lawfully arrested and lawfully searched incident to the arrest, and therefore, his ss. 8 and 9 Charter rights were not violated.
Justice Quigley J. noted that if he had applied subsection 24(2) of the Charter, based on the analysis dictated by R. v. Grant, he would have found that he breach was a low-level breach. The judge assessed that the undercover officer is extremely experienced and had been employed in numerous drug transactions, including a previous dealing with the accused some years prior. He was also acting on a credible trip that he personally corroborated. Justice Quigley J. believed that a pat-down search that yielded contraband was only minimally intrusive.
The judge also considered the fact that in the interests of the public and in consideration of the epidemic use of drugs like oxycodone favours the admission of the drug evidence under section 24(2) of the Charter. On the basis of all these grounds, Justice Quigley J. dismissed the accused’s application to exclude as evidence, the oxycodone and morphine that was seized in his arrest.
With respect to the charges brought against the accused, the judge considered the evidence of Detective Sergeant Margetson who testified that the quantity of pills found in the possession of the accused was less than many physicians regularly prescribe for personal use, to patients who are drug dependant. And, it was established that the accused is an oxycodone and morphine addict, who has suffered with a drug addiction for his entire life. On this basis, it cannot be concluded beyond a reasonable doubt, that the accused could only have been in possession of those drugs for the purpose of trafficking. It is equally believable that the drugs were intended for personal use, perhaps with the intent to supplement his small income by selling a few pills on the side.
On all the evidence, the judge found the accused must be acquitted on the charges of possession of oxycodone and morphine pills for the purpose of trafficking. However, the accused was convicted of simple possession.
A person charged with a drug-related offence in Canada, contrary to the Controlled Drugs and Substances Act, may face strict penalties including mandatory minimum sentencing, if convicted. Whether you have been questioned or are being charged, call a criminal defence lawyer experienced in defending drug charges who well understands the legal strategies that will avoid a conviction. At the Criminal Law Firm of Ted Yoannou, we will assess the unique circumstances of your case, and will devote our substantial resources and experience into mounting a strong defence.
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