Digest: R v Learning, 2019 SKCA 5

• Date: January 15, 2019

Reported as: 2019 SKCA 5

Docket Number: CACR 2824 , CA19004

Court: Court of Appeal

Date: 2019-01-15

Judges:

• Caldwell
• Whitmore
• Leurer

Subjects:

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

Digest: The appellant appealed his conviction on the charge of possessing cocaine for the purpose of trafficking on the ground that the trial judge erred by finding him in possession of a substance that he had secreted in a hidden compartment of the van he was driving and that it was cocaine (see: 2016 SKPC 53). The RCMP had conducted an investigation into the transportation of cocaine into Canada at the border between Saskatchewan and Montana. After one member of the trafficking operation agreed to become a police agent, he was involved in a drug transfer set up by the police at a site in Saskatchewan. As the police knew the description of the vehicle being driven by the courier, they surveilled it in a number of locations as it travelled from British Columbia to Saskatchewan. The agent identified the appellant as the courier at trial, but the drug transfer occurred on a dark night. The appellant�s grounds of appeal were that the trial judge erred: 1) in law by admitting the Certificate of Analyst. Under s. 51(3) of the Controlled Drugs and Substances Act in effect at the time of the appellant�s arrest, the Crown was required to provide reasonable notice to him of its intention to produce it as presumptive proof that the substance found in the van was cocaine. In the absence of reasonable notice, the judge was permitted to exercise her discretion to admit the certificate. In this case, the judge found that the Crown had not provided reasonable notice but exercised her discretion to admit and erred by doing so because the Crown had not explained why it had failed to provide notice, and thus his right to full answer and defence was impaired because he was not aware of the Crown�s case against him prior to trial; and 2) by misapprehending relevant evidence and entering an unreasonable verdict not supported by the evidence. The appellant argued that she should not have accepted the police agent�s eyewitness testimony identifying him as the individual to whom the agent had given the cocaine and then failed to appreciate that gaps in the police surveillance of the van�s route which gave rise to a reasonable doubt that it was he who had driven it...