V. Essert

The accused was charged with possession of cocaine for the purposes of trafficking contrary to section 5(3)(a) of the Controlled Drugs and Substances Act, and possession of a prohibited weapon.

The weapons charge was withdrawn during trial.

The Crown alleged that the accused possessed cocaine for trafficking purposes based on surveillance evidence showing him driving a rental vehicle in suspicious circumstances, his tenancy of an apartment where drugs and paraphernalia were found, and the presence of a scale in his bedroom.

The defence argued that the Crown had not proven the requisite knowledge and control for constructive possession, and that other occupants of the apartment could have been responsible for the drugs.

The court found that while the Crown established a drug trafficking operation existed at the apartment, the circumstantial evidence permitted reasonable exculpatory inferences regarding the accused's knowledge and control of the drugs, particularly given the possibility that drugs were recently deposited by another occupant and the limited visibility of drugs from the accused's bedroom.

The applicant brought a Charter application challenging the validity of a search warrant executed on his apartment on the grounds that the Information to Obtain (ITO) lacked reasonable and probable grounds.

The applicant was charged with possession of cocaine for the purposes of trafficking and possession of a prohibited weapon following the seizure of 156.5 grams of cocaine and brass knuckles from his apartment.

The court examined the sufficiency of the ITO content, considering the credibility and reliability of three confidential informants, the degree of corroboration by police surveillance, and the quality of the investigation.

Despite identifying deficiencies in the ITO including incomplete criminal record disclosure and reliance on unproven informants, the court found that the totality of the circumstances provided sufficient reasonable and probable grounds for the warrant's issuance.

The accused pleaded guilty to possession of cocaine for the purpose of trafficking.

The Crown sought a sentence of 15 months imprisonment, while defence counsel sought a conditional sentence followed by probation.

The court rejected the conditional sentence, finding it inconsistent with the fundamental purpose and principles of sentencing, particularly given the seriousness of drug trafficking offences and the need for denunciation and general deterrence.

The court imposed a sentence of time served (six days pre-sentence custody credited as 12 days) plus 258 additional days of imprisonment (equivalent to nine months), followed by three years of probation, along with ancillary orders including a firearms prohibition, DNA order, and forfeiture order.