Jun 28, 2017

Summary of R. v Montague-Mitchell

R. v Montague-Mitchell, 2017 SKPC 32 (CanLII)
Criminal Law – Controlled Drugs and Substances Act – Possession for the Purpose of Trafficking – Methamphetamine
Criminal Law – Controlled Drugs and Substances Act – Trafficking – Cocaine and Methamphetamine
Criminal Law – Evidence – Credibility
Criminal Law – Proceeds of Crime

The accused was charged with the following: unlawfully trafficking in methamphetamine and/or cocaine, contrary to s. 5(1) of the Controlled Drugs and Substances Act (CDSA); possession of the proceeds of crime not exceeding $5,000, contrary to ss. 354(1) and 355(B) of the Criminal Code; possessing methamphetamine for the purpose of trafficking, contrary to s. 5(2) of the CDSA; and possessing proceeds of crime exceeding $5,000, contrary to ss. 354(1) and 355(B) of the Criminal Code. Counts one and two related to a meeting between the accused and a suspected drug trafficker, W., where the accused was alleged to have sold cocaine to W. He was arrested with $2,770 Canadian and $100 American money. The third and fourth counts related to the search and seizure of an apartment the next day, where 55.2 grams of methamphetamine and $26,650 cash were seized. Cst. B. testified that he and Cst. G. were conducting surveillance on the residence of W. in an unmarked vehicle. The officers observed W. leave and then participate in what they were satisfied was a drug trafficking transaction. A black male was observed to go to the truck and then walk away. The officers had information that W. was being supplied drugs from unknown black males, so the officer took down and arrested the person, the accused. There were three bundles of cash located on the accused, as well as keys to the apartment searched the next day. Drugs and cash were located in the bedroom of the apartment. An ounce of cocaine and two and a half ounces of methamphetamine were found in W.’s vehicle. Cst. F. authored the Expert Opinion Report, which was admitted by consent along with his credentials. Cst. F. considered W. a street-level trafficker and the accused a mid-level trafficker. The accused testified that he had an evening meal with his roommate at his old apartment and then went to his new apartment to go to a movie with his girlfriend. He said he was walking to the theatre to meet his friend when W. rolled down his window and asked for a cigarette, which he gave him. He said he was walking in a circuitous route because he was unfamiliar with the city. The accused said that W. was driving the truck. He said that he had a lot of cash to avoid automatic debits being withdrawn from his account for debts. The accused said that he had the keys to the apartment after a chance meeting with his friend, who gave them to him in case anyone needed into his apartment while he was away in Ontario. The accused said that he never entered the friend’s apartment. The issues were as follows: 1) whether the accused conducted a drug sale in the parking lot and is therefore guilty of trafficking and possessing the proceeds of the crime; and 2) whether the accused, in law, had possession of the drugs and cash found in the apartment the day following his arrest.
HELD: The court assessed the credibility of the accused and applied the principles of W.D. to conclude that the evidence was not believed and the court was not left with any reasonable doubt by it. The court determined the issues as follows: 1) in all the circumstances, the evidence led to no rational conclusion other than that the accused trafficked in methamphetamine and that the monies found in his possession were proceeds of the crime; 2) the apartment was an obvious stash house. The accused would have at least tried to contact his friend after the arrest if he had been unaware of the drugs and cash in the apartment. The court found that the only rational inference to be drawn from all of this evidence was that the accused had the keys for the apartment knowing full well that his friend used it as a stash house. The knowledge of the presence of the drugs and cash therein was not proved beyond a reasonable doubt for various reasons. The accused was found guilty of the first two counts only.