R. v. Wilkinson (K.G.), (2011) 378 Sask.R. 214 (QB)

• Judge: Maher, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: June 09, 2011
• Jurisdiction: Saskatchewan
• Citations: (2011), 378 Sask.R. 214 (QB);2011 SKQB 230

R. v. Wilkinson (K.G.) (2011), 378 Sask.R. 214 (QB)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. JN.027

Her Majesty the Queen v. Keith George Wilkinson

(2010 CRNJ No. 25; 2011 SKQB 230)

Indexed As: R. v. Wilkinson (K.G.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Prince Albert

Maher, J.

June 9, 2011.

Summary:

The accused was charged with possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act. The accused requested a stay under s. 24(2) of the Charter based on the non-disclosure and subsequent destruction of relevant video and the Crown's failure to alert him to the existence of the evidence. The accused also alleged that the Crown had not proved beyond a reasonable doubt that he had had the cocaine in his possession for the purposes of trafficking.

The Saskatchewan Court of Queen's Bench denied the accused's request for a stay. The court found the accused not guilty of possession for the purpose of trafficking but guilty of possession of cocaine.

Editor's Note: A voir dire in this matter is reported at (2011), 372 Sask.R. 62.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - The accused was charged with possession of cocaine for the purpose of trafficking (Controlled Drugs and Substances Act, s. 5(2)) - The accused requested a stay under s. 24(2) of the Charter based on the non-disclosure and subsequent destruction of relevant video and the Crown's failure to alert him to the existence of the evidence - The Saskatchewan Court of Queen's Bench refused a stay - There was no evidence to establish that a video was actually made at the time the accused was arrested in a parking lot - While a video was made when the accused was being booked and the cocaine was seized from his sock, the tape was overwritten when no disclosure request was made within the first six months of his arrest - The accused had an obligation to diligently pursue disclosure - The accused could not rely on his failure to do so to now request that the proceedings be stayed - The lack of a video from the booking area did not affect the reliability of the hearing or make the trial unfair - See paragraphs 25 to 33.

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production (disclosure) - [See Civil Rights - Topic 8374 ].

Evidence - Topic 7002

Opinion evidence - Expert evidence - General - Acceptance, rejection and weight to be given to expert opinion - The accused was charged with possession of cocaine for the purpose of trafficking (Controlled Drugs and Substances Act, s. 5(2)) - The Crown tendered evidence from Constable Lair, an expert qualified to provide testimony on the production, packaging, pricing, distribution, use, terminology, availability, value and trafficking in cocaine - The Saskatchewan Court of Queen's Bench found the accused not guilty of possession for the purpose of trafficking but guilty of possession of cocaine - The court had concerns about the reliability of Lair's opinion - It had concerns as to the methodology used in relying upon non-evidentiary information to reach his conclusion and whether he was impartial and objective - It was apparent that Lair had been influenced by information he had received from a cell phone and a statement of the accused, neither of which were evidence in the proceedings - The court was also bothered by his conclusion that the quantity of cocaine was "a strong indicator" - The court had to be satisfied beyond a reasonable doubt that the accused had possession of the cocaine for the purposes of trafficking - Evidence of a "strong indicator" was not sufficient - See paragraphs 34 to 48.

Narcotic Control - Topic 703

Offences - Trafficking - Possession for purposes of trafficking - [See Evidence - Topic 7002 ].

Narcotic Control - Topic 720

Offences - Trafficking - Evidence and proof (incl. certificate of analysis) - [See Evidence - Topic 7002 ].

Cases Noticed:

R. v. Forster (H.R.) et al. (2005), 269 Sask.R. 275; 357 W.A.C. 275; 2005 SKCA 107, refd to. [para. 25].

R. v. La (H.K.) et al., [1997] 2 S.C.R. 680; 213 N.R. 1; 200 A.R. 81; 146 W.A.C. 81, refd to. [para. 26].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 27].

R. v. Mack (D.R.) (2007), 458 A.R. 52; 2007 ABQB 182, refd to. [para. 27].

R. v. Dixon (S.), [1998] 1 S.C.R. 244; 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241, refd to. [para. 32].

R. v. Kimery (C.A.) (2010), 362 Sask.R. 255; 500 W.A.C. 255; 2010 SKCA 153, refd to. [para. 33].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 35].

R. v. J.-L.J., [2000] 2 S.C.R. 600; 261 N.R. 111; 2000 SCC 51, refd to. [para. 36].

R. v. Abbey (W.N.) (2009), 254 O.A.C. 9 (C.A.), leave to appeal dismissed (2010), 409 N.R. 397; 276 O.A.C. 398 (S.C.C.), appld. [para. 37].

R. v. J.K., [2011] O.T.C. Uned. 800 (Sup. Ct.), refd to. [para. 37].

Counsel:

A.D. Hunter, for the Crown;

P.A. Abrametz, for the accused.

This case was heard by Maher, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Prince Albert, who delivered the following judgment on June 9, 2011.