C. de Sa

The accused pleaded guilty to possession of heroin and oxycodone for the purpose of trafficking.

During sentencing, it was discovered that the accused had been held in custody unlawfully for approximately one month despite having an existing bail order.

The Crown had indicated an intention to bring a section 524 application to review the bail, but never proceeded with it.

When new charges were stayed, the accused should have been released on his existing recognizance but was not.

The court found a violation of the accused's section 9 Charter right to be free from arbitrary detention but declined to grant a stay of proceedings.

Instead, the court imposed a suspended sentence with probation as an alternative remedy.

The Crown charged two accused jointly with two counts of possession of cocaine for the purpose of trafficking and possession of proceeds of crime, with the first accused facing an additional count.

At a preliminary inquiry, both accused contested committal, arguing insufficient evidence of knowledge and control.

The court applied the test from R v Arcuri, examining circumstantial evidence including extensive police surveillance of hand-to-hand transactions, large quantities of cash and drugs found in a locked apartment, drug paraphernalia, and documentary evidence linking both accused to the premises.

The court found sufficient evidence to commit both accused to trial on the joint possession counts and the first accused on the additional count.

The offender pleaded guilty to trafficking in cocaine and possession of cocaine for the purpose of trafficking.

The court considered the appropriate sentence for a first offender engaged in street to mid-level commercial drug trafficking involving cocaine and MDMA, where the offender had made substantial rehabilitative efforts while on strict bail conditions for several years.

Applying the principles in ss. 718–718.2 and 742.1–742.7 of the Criminal Code, the court found that a sentence of less than two years was appropriate and that a conditional sentence would not endanger the community.

Significant mitigating factors included the offender’s youth, absence of prior criminal record, guilty plea, employment history, and rehabilitation from drug addiction.

A conditional sentence of two years less 18 days with strict house arrest conditions was imposed, followed by two years’ probation.