TCC was the target of an RCMP drug investigation that extended over several months. At the conclusion of the investigation the RCMP executed a warrant to search the home of TCC where they seized multiple pounds of cannabis marijuana valued (according to the police) at $114,255.00, multiple ounces of hashish valued at $18,750.00, digital scales, score sheets and in excess of $10,000.00 cash. TCC was charged with possession of cannabis marijuana for the purpose of trafficking, possession of cannabis resin (hashish) for the propose of trafficking and possession of proceeds of crime.
The defence of this prosecution was complicated by the fact that TCC provided the police with a detailed statement admitting ownership of all the contraband. TCC provided this damning statement because the police led him to believe that if he accepted full responsibility for the seizures his roommate (who was also his brother) would not be charged – bad idea. Why? After securing an audio/visual recording of TCC’s statement the police promptly charged his brother with the same drug offences.
TCC instructed Patrick Fagan to defend this drug prosecution and to that end a preliminary inquiry was scheduled. At the preliminary inquiry Patrick Fagan was successful in having all charges against TCC’s brother completely withdrawn. As for TCC, he was ordered to stand trial.
Patrick Fagan provided the Crown with detailed notice of his intention to seek relief pursuant to the Canadian Charter of Rights and Freedoms as a consequence of the violation of TCC’s right to be secure against unreasonable search or seizure as guaranteed by section 8 of the Charter. In other words, Patrick Fagan prepared to challenge the validity of the warrant to search pursuant to which all seizures were made. As it turned out, however, Patrick Fagan never got a chance to challenge the warrant to search. Why? Two clear business days before commencement of trial proceedings the Crown decided to provide the Defence with revised disclosure relative to the warrant issuing process. The Crown endeavoured to offset the delay (and any corresponding prejudice to the Crown which might be occasioned by late disclosure) by attacking the sufficiency of Patrick Fagan’s Charter notice.
On the first day of trial Crown and Defence argued for hours relative to the issues aforesaid. The presiding Justice ultimately agreed with Patrick Fagan as to the profound impact of the revised disclosure to the Defence and ruled that the Crown concerns relative to the sufficiency of Mr. Fagan’s Charter notice were “moot” (i.e. hypothetical in the circumstances). Bottom Line: The entire prosecution against TCC was successfully terminated by way of the entry of a stay of proceedings .