Robin Bellows

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 accused, Michael Malabre, applied for a mistrial during his jury trial for drug trafficking and proceeds of crime.

The application was based on a police officer's testimony that the accused refused to identify himself at the time of arrest, which the defence argued was inadmissible and highly prejudicial, infringing on the right to silence.

The court dismissed the application, finding that a prompt and clear mid-trial instruction to the jury, combined with defence counsel's cross-examination, effectively cured any potential prejudice.

The court emphasized that a mistrial is a remedy of last resort and that the instruction removed the impugned evidence from the jury's consideration.

The applicant, a 19-year-old Black man, sought a bail review after being detained on firearms and drug charges arising from a traffic stop.

The reviewing judge found the justice of the peace erred in law by failing to consider s. 493.2 of the Criminal Code regarding vulnerable populations when assessing the applicant's initial provision of a false name, and by relying on inappropriate racial stereotypes.

The judge also found the justice of the peace made unsupported inferences about the applicant's involvement in a criminal enterprise.

Finding a material change in circumstances due to a new surety plan and the death of the applicant's grandmother from COVID-19, the judge conducted an independent review and granted release on strict house arrest conditions.

The applicant sought certiorari to quash his committal to trial on charges of possession of cocaine for the purpose of trafficking and possession of proceeds of crime under $5,000, while consenting to committal on a breach of recognizance charge.

The court found that the preliminary inquiry judge made a jurisdictional error by committing the applicant on the possession and proceeds of crime charges, as there was a complete absence of evidence to reasonably infer knowledge and control of the items found in the vehicle's trunk.

The court determined that the inference drawn by the preliminary inquiry judge was based on speculation rather than reasonable evidence.

However, the court dismissed the application to quash the committal for breach of recognizance, finding sufficient evidence to support the inference that the applicant was not residing at his specified address.