PROSECUTION: Possession for the Purpose of Trafficking and Production of a Controlled Substance
RESULT: Resolved by way of simple possession with a Fine
LAWYER: Sean Fagan
Regina v. R.D. – November 2018
Charge: Section 5(2) of the CDSA
The roving traffic unit is a group of highly trained RCMP officers who use their authority under the Traffic Safety Act to investigate drug offences. These officers are quite often experienced and highly knowledgeable about their powers of arrest, detention, search and seizure. In the course of the so-called traffic stop, they use the observations they make, to formulate the grounds to search the vehicle.
They engage the driver of the vehicle in a Q&A: where are you coming from? where are you going? how long are you staying? what are your reasons for travel? These questions, often described by the officer at trial as “small-talk”, are carefully crafted. A story that doesn’t add up, will contribute to the grounds to search the vehicle. The officers will make observations about the contents of the vehicle:
You are staying in town for a day and you have have 3 suitcases with you?
You’ve only been travelling for 2 hours and you have 6 empty coffee cups
Why do you have a collection of 16 air fresheners in the vehicle?
These are all observations that contribute to an officer’s formulation of grounds to search the vehicle.
These are difficult cases to defend, as the Supreme Court of Canada has approved these type of investigations. See: The Mackenzie decision
Whats more, is when it comes to trial, these officers inevitably testify that they were simply running radar and issuing traffic tickets. They deny that they are trained drug investigators, and deny that their purpose on the highway was to investigate drug offences. Does the drug-sniffing dog in the back of the patrol vehicle also issue traffic tickets?
This case was a traditional pipeline style investigation.
In this case, R.D. was driving westbound through the Banff National Parkway. The RCMP seize a substantial amount of controlled substances in this stretch of highway. This is because it is a much lower threshold for the police to search a vehicle than a house. Moreover, people travelling back and forth between BC and Alberta only have a few options for highways, the TransCanada being one of them.
R.D. caught the attention of a roving traffic unit officer positioned stationary on the side of the highway. The officer followed R.D. and performed a traffic stop for an inactive taillight. Given that the officer was an experience pipeline/convoy investigator, the real reason for the stop was to engage in a drug investigation. Once detained at roadside, the officer approached the vehicle and noted the smell of fresh marihuana emanating. The status of the law at the time was that the smell of fresh marihuana gave an officer grounds to arrest the driver and search the vehicle. In this case, that is exactly what the officer did.
The search of the vehicle gleaned a substantial amount of controlled substances. R.D. recognized that Sean Fagan was a criminal defence lawyer experienced in defending this particular type of drug prosecution and retained his services. This was an extremely difficult case from the defence perspective, as the officer, arguably, had the authority to do detain, arrest, and search R.D.’s vehicle, notwithstanding the use. However, due to the effective mandatory minimum periods of imprisonment for these offences, there is often little benefit to pleading guilty.
Sean Fagan was successful at resolving this most serious prosecution by way of a charge of simple possession and a fine.