Criminal Law – Controlled Drugs and Substances – Possession for the Purpose of Trafficking – Marihuana
Criminal Law – Defences – Charter of Rights, Section 8
The accused was charged with possession of marihuana, in an amount not exceeding three kilograms, for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act. The accused was pulled over for erratic driving when he was clearly intoxicated. Incident to the arrest for impaired driving, the accused’s vehicle was searched. The officers testified that there was a large sealed package of what appeared to be marihuana in plain view on the bench seat of the vehicle. Another large package of marihuana was located under the seat as was a margarine container with marihuana and a grinder. The weight of all the marihuana was one pound. A search of the accused’s house the next day revealed a food sealer, a smaller amount of marihuana, various paraphernalia for personal use, and firearms. The Crown’s expert concluded that the two half-pound bags in the vehicle and the 18 grams located in the garage were for the purpose of trafficking. Also, because marihuana loses its potency within six months most users would not keep that large of supply for their own use. The marihuana would last a typical user a year and a very heavy user, using two grams a day, six months. The expert said that the food saver was the best way to seal large amounts of marihuana so there is not an overwhelming smell. The expert maintained his conclusions even though cash, a scale, a cell phone, and score sheets were not located. The accused testified that he was a heavy user. He said he used between 5 and 13 grams in one day. He said he had the firearms for hunting. The accused also said that none of the marihuana was in plain view in the truck. The accused argued that the initial search of the truck was unlawful because it was warrantless and without consent.
HELD: The court preferred the officers’ testimony that there was marihuana in plain view; the officers were sober, the accused was intoxicated. The court found that the accused did open one of the packages of marihuana in the vehicle and used some personally. The accused’s testimony regarding the packaging of the marihuana in the garage was also more accurate; there was 18 grams total in a large bag containing two smaller bags with marihuana and one bag with marihuana dust. The search of the vehicle was not contrary to the accused’s rights. His arrest for impairment was lawful and the search of a vehicle is allowed incident to the arrest. The Crown’s argument that the accused was trafficking by mere virtue of the fact that he was transporting it failed. Case law made it clear that there must be something more than merely transporting the drug in the literal sense. The court accepted that the accused used five grams of marihuana per day which would mean he had a three-month supply, well within the range of usability. The court was concerned with the lack of drug trafficking evidence such as a scale and cell phone. The court was most troubled by the lack of smaller packaging material. The court did not accept the expert’s conclusion that the accused possessed the marihuana for the purposes of trafficking. The accused was found guilty of possession of marihuana, contrary to s. 4(1) of the Controlled Drugs and Substances Act.