M.J. faced twenty-two (22) charges which included possession of proceeds of crime and trafficking in cocaine. On ten occasions M.J. was alleged to have sold cocaine to an undercover police officer over the course of seven months. Most of these transactions were captured in a high quality audio-visual recording in which the seller (allegedly M.J.) was clearly identifiable. The challenges that this presented from a Defence perspective were obvious. The Crown’s position on sentence for a pre-trial guilty plea was upwards of 3 years incarceration. M.J. instructed Ms. Fagan to proceed to trial, notwithstanding that the odds were stacked against him. Ms. Fagan filed a Charter notice alleging that her client had been entrapped by the police in violation of his rights as guaranteed by s. 7 of the Charter. Two days prior to the commencement of a two-day trial, the Crown provided hundreds of pages of new disclosure to Ms. Fagan which effectively destroyed any chance at mounting an entrapment argument. The trial date was adjourned (i.e. rescheduled) at Ms. Fagan’s request. As a consequence of the delay of her client’s trial, Ms. Fagan argued that her client’s legal costs going forward should be paid by the Crown. While an order of costs in criminal law is exceedingly rare, the Court agreed and directed that the Crown pay for MJ.’s legal fees. A second trial date was scheduled and Ms. Fagan filed an additional Charter notice arguing that the delay from the late disclosure meant that her client’s right to a trial within a reasonable time had been violated. For reasons which were not made clear by the Crown, the second trial date was ultimately rescheduled as well, further strengthening M.J.’s Charter position.
BOTTOM LINE: The Crown, ostensibly acknowledging the strength of Ms. Fagan’s argument, entered a stay of proceedings against M.J. (i.e. they terminated the prosecution against him).