Jun 3, 2019

Summary of R v Kernaz

R v Kernaz, 2019 SKCA 37 (CanLII)
Criminal Law – Controlled Drugs and Substances Act – Possession for the Purposes of Trafficking – Cocaine – Methamphetamine
Criminal Law – Controlled Drugs and Substances Act – Definition of Trafficking – Give

The Crown appealed the respondent’s acquittal of a charge of possessing methamphetamine and cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act (CDSA). The respondent was found guilty of the lesser and included charge of simple possession. The respondent was arrested after parking a borrowed vehicle. A search of the accused revealed 3.92 g of methamphetamine in his pocket. A pipe and a container of 26.3 g of cocaine were found in the console of the vehicle. Other paraphernalia, drugs, and cash were found in other areas of the vehicle. An expert testified that, in his opinion, the respondent possessed the drugs for the purpose of trafficking and the cash was the proceeds of crime. The accused testified and denied ownership of everything except the methamphetamine in his pocket, and the cocaine and pipe found in the centre console. He said that he intended to share the drugs. The trial judge found that the respondent intended to do drugs with a friend when he parked the vehicle. She did not infer that the other drugs and paraphernalia found in the vehicle were subject to the respondent’s use and control. The trial judge did not directly deal with whether sharing the drugs was trafficking. The Crown argued that the trial judge erred because the definition of “traffic” in the CDSA includes “give”.
HELD: The appeal was allowed. The Crown was correct in that “give” in the definition of “traffic” includes sharing a drug with another person. The Crown was not required to prove that there was a settled plan with a third party to consume the drugs. It was clear that the trial judge accepted the respondent’s evidence that he had possession of some of the drugs. The trial judge’s statement that the respondent drove to the house to share the drugs was unambiguous and showed the trial judge believed the respondent intended to share them. The trial judge erred in law by concluding that sharing drugs was not trafficking. The conviction for simple possession was set aside and the verdict of guilty for the s. 5(2) trafficking charge was entered.