Digest: R v Bissky, 2018 SKCA 102

• Date: December 31, 2018

Reported as: 2018 SKCA 102

Docket Number: CACR 3017|CACR 3029 , CA18100

Court: Court of Appeal

Date: 2018-12-31

Judges:

• Jackson
• Herauf
• Whitmore

Subjects:

• Criminal Law � Controlled Drugs and Substances Act � Possession for the Purpose of Trafficking � Conviction � Appeal

Digest: The appellant appealed his conviction for trafficking in cocaine contrary to s. 5(2) of the Controlled Drugs and Substances Act. Both he and the Crown appealed the sentence of 12 months in custody. The police had obtained a warrant under s. 11(1) of the Act to search the appellant�s home and found a small amount of cocaine in the appellant�s bedroom that indicated personal use, but 110 grams of cocaine in two plastic bags and two cell phones were also found locked in a safe in the basement. Each of the bags contained smaller bags. The contents were estimated to be worth between $6,000 and $8,000. The cell phones revealed no evidence of trafficking. At trial, the appellant challenged the sufficiency of the Information to Obtain (ITO) used to obtain the warrant because it had not shown reasonable grounds to support the granting of the warrant and made a Charter application, alleging that the appellant�s s. 8 Charter rights had been breached by a warrantless search. The trial judge held that the search warrant was valid because, considering all the information contained in the ITO, the issuing justice could reasonably have concluded that the appellant was in possession of cocaine for the purpose of trafficking. Thus, there was no Charter breach and the evidence obtained from the search was admitted. At trial, a police officer, testifying as an expert witness regarding drug trafficking, stated that the amount of cocaine, the way it was packaged, and its concealment were evidence of trafficking. The appellant�s counsel objected to the witness being qualified as an expert because his objectivity was questionable, primarily because he had not mentioned that the police had not found any other indicia of trafficking in the appellant�s home and had not explained the effect of the absence of this evidence in his report. The Crown objected to this line of questioning and the judge determined that defence counsel�s questions relating to the omission in the report were not relevant to the assessment of the officer�s ability to give opinion evidence and ruled that they were inappropriate. He then found that the witness was properly qualified and would be permitted to give opinion evidence related to the question whether the drugs found in the appellant�s home could be considered evidence of possession for the purpose of trafficking. Insofar as objectivity was concerned,...