Jun 29, 2016

Summary of R v Learning

R v Learning, 2016 SKPC 53 (CanLII)
Criminal Law – Controlled Drugs and Substances Act – Possession for the Purpose of Trafficking – Cocaine
The accused was charged with having possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act. The accused was arrested in British Columbia while he was driving a van that had been under surveillance by the RCMP for a number of days. The RCMP had arranged with an informant, T.M., who had been involved in the importation of cocaine from California to Canada at remote border locations in southwest Saskatchewan, to act as their agent in exchange for immunity. T.M. informed them that he would be transferring cocaine to a courier at a specific location and the RCMP substituted sham cocaine in which they inserted a tracking device. The courier’s van was identified by the agent and the RCMP had it under surveillance as it was driven from Alberta to Saskatchewan and took a photograph of the driver. The photo was of the accused. He was the only occupant of the vehicle. He was observed purchasing a cell phone before the meeting. The transfer then occurred and was witnessed by officers. However, it was too dark for them to see the courier. The agent testified at the accused’s trial and provided a general description of the man to whom he had given the drugs. The conversation was recorded and the accused showed the agent a hand-drawn map he had used to locate the meeting spot and told him that he was out of gas and would be driving to Medicine Hat. The agent identified the accused in the courtroom because he had been shown the photograph before the trial. The courier then drove to a gas station after the transfer and stopped at motel in Medicine Hat. When the police stopped the van in BC, they found the sham cocaine in a locked container inside the vehicle, a map matching the one shown to the agent, the gas station receipt, a motel receipt and registration in the name of the accused. There was other circumstantial evidence submitted by the Crown that the courier in question was the accused. The defence argued that the Crown had not proven that the accused was the courier and that the agent’s identification should be given no weight because he had been shown the police photograph. Because the light was so poor at the time of the meeting, the agent could not provide anything but a general description. The police could not prove that the accused was the driver of the van other than when it was stopped, nor could they prove that the accused had knowledge of the cocaine in the van.
HELD: The accused was found guilty. The court found the agent to be a credible witness and accepted his identification testimony, despite the potential influence of the photograph. Based on the whole of the evidence, the court concluded that the accused was the courier and had possession of cocaine for the purpose of trafficking.