Mar 31, 2017

Summary of R v Marckoski

R v Marckoski, 2016 SKPC 164 (CanLII)
Criminal Law – Controlled Drugs and Substances Act – Possession and Trafficking in Narcotics
Criminal Law – Evidence – Credibility

The accused was charged with possessing methamphetamine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act (CDSA), and possession of marihuana, contrary to s. 4(1) of the CDSA. The accused was a passenger in a vehicle that was stopped. As the vehicle was being stopped an officer saw the accused take off a blue bandanna and said he placed it under the passenger seat. He was arrested as a result of outstanding warrants. A search incident to arrest revealed a folding knife and a BB gun. Over $1,000 was also located on the accused. He was arrested on weapons charges. The co-accused indicated that there would be cannabis marihuana in the console of the vehicle. The vehicle was searched and cannabis marihuana was located in the centre console and smaller plastic bags with three to four crystals in each were found under the front passenger seat where the accused had put his bandanna. The accused was woken up in cells and arrested for the trafficking charge. When the accused was presented with a recognizance on previous charges, he asked about the whereabouts of the driver of the vehicle and told the officer that she should not be in cells because everything was his. The officer receiving the confession did not write it down in his notes but only included it in his report a few days later. Additional items seized from the vehicle included: cell phones; notebooks with names of buyers, amounts owing and what was purchased; pipes; bongs; etc. Two of the cell phones and one notebook was located in the co-accused’s purse. The accused testified that the co-accused had picked him up to hang out for the day and that he had only been in the car about two minutes when they were stopped by the police. He said that he had used cocaine and drank beer that day. He said that the cash found on his person was from being paid cash for working for his cousin. He denied any of the money was from selling drugs and he said he did not know there were drugs in the car. He denied putting drugs under the passenger seat. He also denied that he told the officer that the drugs were his when he was woken up in cells. The accused did acknowledge taking off the blue bandanna. The accused said he had the weapons because he was scared of a man whose girlfriend he had slept with. The issue was whether the accused had knowledge and control of the drugs found in the vehicle and therefore whether he had the drugs in his possession.
HELD: The court undertook a W.D. analysis because credibility of witnesses was a significant issue. The court was not satisfied beyond a reasonable doubt that the Crown proved its case. The most critical pieces of evidence that the Crown relied on were the drugs under the passenger seat, the marihuana in the centre console, and the blue bandanna. The court did accept that the officer saw the accused put the bandanna under the passenger seat. However, the officer was found to be mistaken because other officers and the accused say the bandanna was in the cup holder. The marihuana was in the closed console and the methamphetamine was under the passenger’s seat, not in plain view. There was no evidence that the accused handled the packages in any way. The court accepted the accused’s evidence that he did not see the blue bong in the back seat and noted that it would not prove possession of the drugs in any event. The court could also not totally reject the accused’s explanations for having so much cash and weapons on him. The court was troubled that an officer with as much experience did not take the time to write the confession from the accused in his notes. The court did not accept the officer’s explanation that he knew he would not forget what the accused said so did not need to write it down. The court was still left with a reasonable doubt when all of the evidence was considered, including the alleged confession of the accused. The accused was found not guilty.