Nov 2, 2018

Summary of R v Montague-Mitchell

R v Montague-Mitchell, 2018 SKCA 78 (CanLII)
Criminal Law – Controlled Drugs and Substances Act – Possession for the Purpose of Trafficking – Methamphetamine – Conviction – Appeal
The accused was convicted after trial by a Provincial Court judge of trafficking in methamphetamine and cocaine and of being in possession of the proceeds of crime. The accused was acquitted of charges of possession for the purposes of trafficking (see: 2017 SKPC 32). He had been arrested as a result of police surveillance of another person they suspected of drug trafficking. The suspect was parked in a truck when the accused attended at it and remained there for two minutes. Believing that they had witnessed a drug transaction, the officers arrested the suspect and found cocaine and methamphetamine in the truck. They then arrested the accused, charged him with trafficking and searched him, whereupon they found two cell phones, $2,770 in cash rolled in small bundles and a set of keys. The keys were found to belong to another individual also being investigated by the police and after obtaining a search warrant, the police searched his apartment and found $26,600 in cash and a bag containing methamphetamine and cocaine, similar to those found in the truck. The accused testified at trial that he had the keys to the apartment because his friend who lived there was leaving for a period of time and wanted the accused to let people into it while he was gone. He denied ever having access to the apartment or know what was in it. The judge did not believe the accused when he said that he had stopped at the truck in the parking lot because someone in it had asked him for a cigarette and convicted him of the charges related to trafficking. Although the judge did not accept the accused’s account of how he came to have the keys to the apartment and found that the only reasonable inference was that he was an associate of the occupant and knew he used it as a stash house, he was not satisfied beyond a reasonable doubt that the accused had control and knowledge of the drugs and cash and acquitted him of the charges related to the search of the apartment. The accused appealed his conviction, submitting that the trial judge reversed the burden of proof during the course of his analysis and improperly admitted opinion evidence. He also contended that the convictions were unreasonable. The Crown appealed the acquittal on the ground that the trial judge erred in law by failing to consider whether the accused was willfully blind to the presence of drugs and cash in the apartment.
HELD: The accused’s appeal was dismissed and the Crown’s appeal allowed. The court ordered a new trial to be held on the charges related to the search of the apartment. Respecting the accused’s grounds of appeal, the court found after reviewing the judgment that the judge had not reversed the burden of proof. However, he had wrongly admitted the evidence given by one of the investigating officers, not qualified as an expert, who offered an opinion that the length of time of the contact between the accused and the suspect in the truck was suggestive of a drug transaction at higher than street level. The court applied the curative provision under s. 686(1)(b)(iii) of the Criminal Code and decided that admission of the opinion evidence had no impact on the decision to convict the accused. The conviction was also found to be reasonable. In the Crown’s appeal, the court found that the trial judge erred in law in failing to consider whether the accused had been willfully blind.