Leigh Van Gorder

Michael Malabre was convicted following a jury trial of possessing cocaine and fentanyl for the purpose of trafficking and possessing the proceeds of crime under $5,000.

The Crown sought a penitentiary sentence of five to seven years, while the defence requested a conditional sentence of 18 to 24 months, citing pre-trial custody conditions and the effects of anti-Black racism.

The court found a conditional sentence inappropriate, imposing a sentence of four years and nine months incarceration.

The judge considered aggravating factors including the dangerous nature and quantity of drugs (fentanyl), the commercial scale of the trafficking, evidence of prior sales, and the mixing of drugs.

Mitigating factors included the offender's youth, difficult upbringing, and harsh pre-trial detention and stringent bail conditions.

The court found insufficient evidence to connect anti-Black racism to the offender's moral blameworthiness in this specific case.

The defendant, Kayne Robinson, was charged with possession of cocaine for the purpose of trafficking and possession of property obtained by crime (cash over $5,000).

A third charge of cannabis possession was withdrawn.

The Crown's case relied on police observations during a search warrant execution and expert testimony regarding drug dealing practices.

The defence argued that the cocaine was not in Robinson's possession and highlighted inconsistencies in police testimony, a gap in surveillance, and lack of forensic evidence.

The court found Robinson not guilty of the cocaine-related charges due to reasonable doubt arising from the inconsistencies in police evidence and Robinson's credible testimony.

The court also provided guidance on the Superior Court's jurisdiction over summary conviction offences when charged alongside indictable offences, noting that the Superior Court generally lacks jurisdiction for standalone summary offences and that reconstituting as a summary conviction court would be unwise due to potential appellate conflicts.

The accused brought a pre-trial motion alleging breaches of their rights under sections 8, 9, and 10(b) of the Charter following a warrantless arrest and subsequent strip searches.

The police arrested the accused based on an uncorroborated tip from a confidential informant and conducted strip searches before allowing them to consult with counsel.

The court found that the police lacked reasonable and probable grounds for the arrest, rendering it and the subsequent strip searches unlawful.

The court also found a blatant violation of the right to counsel.

Concluding that the Charter breaches were serious and had a profound impact on the accused, the court excluded the seized drug evidence under section 24(2) of the Charter.