Section 5(2) of the Controlled Drugs and Substances Act – Possession for the Purpose of Trafficking (MDMA)
S.L., an immigrant in Canada on a temporary work visa, was in Banff celebrating New Years Eve. S.L. was standing on a street corner with a few other partygoers when S.L. was alleged to have offered to give them “something”. Unfortunately for S.L., two police officers were standing directly behind in earshot of the entire conversation and heard S.L. offer to sell “something”. One of the police officers was an experienced drug investigator and believed that he was observing a drug transaction take place. The police arrested S.L. and searched him incident to the arrest. They found a number of tablets of MDMA and arrested him possession for the purpose of trafficking. The police officers took S.L. to the RCMP detachment and placed him in a cell. The police did not release S.L. until late the following day.
The seriousness of the charges, combined with S.L.’s immigration status, would have resulted in S.L. having his immigration status revoked for any drug conviction and him being deported. The Crown was unwilling to resolve the matter in any manner that would allow S.L. to stay in Canada. Consequently, a not guilty plea was entered and a trial date scheduled. Prior to trial, Sean Fagan put the Crown on notice of his intention to seek the exclusion of all evidence as a consequence of the violations of S.L.’s right to be free from arbitrary detention (Section 9 of the Charter) and free from unreasonable search or seizure (Section 8 of the Charter). Additionally, Sean Fagan indicated that he would seek a stay of proceedings as a consequence of the unlawful imprisonment of S.L.. Prior to trial, the Crown conceded the strength of Mr. Fagan’s constitutional argument and withdrew all charges.