R. v. Z.R. [Provincial Court of Alberta, Lethbridge, December 2018]
Z.R. was out at a local drinking establishment one night when he and his friends allegedly exchanged words with a group of intoxicated women. Z.R. and his friends left the bar in a vehicle. They were followed by the complainant and her friends in a second vehicle. After being followed for several blocks all parties exited their vehicles at a stop light and further words were exchanged. Ultimately, one of the females ended up needing significant dental work after an alleged punch to her mouth knocked out her teeth. Z.R. was arrested and charged with aggravated assault contrary to s. 268 of the Criminal Code. Prior to scheduling the matter for trial Ms. Fagan spoke with the Crown Prosecutor and discussed what she believed was a non-existent (or best case, low) likelihood of conviction. The Crown agreed.
BOTTOM LINE: The most serious charge of aggravated assault was completely withdrawn without Z.R. having to step foot in a courtroom.
R. v. A.D. [Court of Queen’s Bench of Saskatchewan, Swift Current, December 2018]
A.D. was driving along the TransCanada Highway heading east when he was pulled over by members of the RCMP. When they approached the vehicle to speak with A.D., the driver and lone occupant, the officers sensed that he was nervous and noted what they believed to be several indicia of a person transporting drugs including that he was driving a rental car which was rented for a short period of time, and was travelling from a “source” Province to a “distribution” Province. When the police conducted a database check on the driver they discovered a report that mentioned an affiliation with the “Hell’s Angels” and the drug “meth”. The police arrested A.D. and conducted a search of his vehicle where they located 350g of cocaine. A.D. was charged with possession of cocaine for the purpose of trafficking, which is punishable by up to life in prison. A preliminary inquiry was held and (no surprises) the Court determined that there was sufficient evidence to warrant a trial. The trial was initially scheduled for two days. An additional two days was scheduled for argument. Ms. Fagan argued a number of Charter violations including: (1) that the police had no grounds for the initial traffic stop. It was arbitrary and unconstitutional; (2) in questioning A.D. the police violated his right to be free from unreasonable search and seizure and that they failed to advise him of the true reason for his detention and his right to contact counsel; (3) that there were insufficient grounds for a warrantless arrest and search and finally, (4) that all evidence obtained by police (i.e. the brick of cocaine) should be excluded from evidence. Following extensive cross-examination of the officers involved Ms. Fagan launched an attack on their credibility, alleging that their version of events was not believable and that there had been grave breaches of her client’s Charter rights. Arguments were made orally and then written submissions were directed by the presiding Justice. In addition to oral submissions, Ms. Fagan also wrote and filed a 65 page legal memorandum and the matter was thereafter scheduled for decision.
BOTTOM LINE: The week before the Judge was scheduled to give his decision following trial the Crown entered a stay of proceedings (i.e. ended the prosecution again A.D.), ostensibly acknowledging the strength of Ms. Fagan’s position.
R. v. J.C. [Provincial Court of Alberta, Calgary, December 2018]
Police observed J.C. fail to stop at a stop sign. When they pulled him over he was unable to produce his vehicle documentation and the police detected alcohol on his breath. J.C.’s partner was in the vehicle and advised the police that J.C. had been drinking. J.C. was asked to and did provide a roadside sample of his breath, which showed a FAIL and gave the police the ostensible grounds to arrest him. He was taken to the police station where his breath samples showed that his blood alcohol level was more than double the legal limit. J.C. was charged with impaired driving and driving with a blood alcohol level in excess of the legal limit, contrary to ss. 253(a) and (b) of the Criminal Code and a number of traffic offences under the Traffic Safety Act. Ms. Fagan scheduled the matter for trial and filed a Charter notice alleging a breach of his right to be free from arbitrary detention, his right to be free from unreasonable search and seizure and his right to counsel.
BOTTOM LINE: J.C. entered a guilty plea to one traffic ticket and received a fine; all criminal charges against him and all other traffic tickets were withdrawn.
R. v. M.A. [Provincial Court of Alberta, Calgary, November 2018]
Members of the Calgary Police Service conducted a traffic stop on a vehicle when the driver failed to signal before turning. M.A. was seated in the back seat of the vehicle. The police noted indicia consistent with the possession of drugs – an odor of marijuana, nervousness and evasiveness by the occupants of the vehicle. The driver and M.A. were arrested. A bag of 61.9g of crack cocaine was located in a bag draped around M.A.’s shoulder along with two cell phones and a significant amount of cash. M.A. was charged with possession of crack cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act (CDSA) and possession of proceeds of crime contrary to s. 355 of the Criminal Code. M.A. admitted to the police that the drugs were his. Ms. Fagan scheduled the matter for trial in Provincial Court. The first trial date scheduled was adjourned as a consequence of the Crown providing the defence with late disclosure. Ms. Fagan highlighted the potential challenges that the Crown would face due to the delay of the trial and a deal was struck.
BOTTOM LINE: The most serious charge of possession of crack cocaine for the purpose of trafficking was withdrawn and M.A. entered a guilty plea to a single count of simple possession (for 61.9g of crack cocaine….) for a fine of $1000.00.
R. v. G.A. [Provincial Court of Alberta, Calgary, November 2018]
G.A. was charged under s. 268 of the Criminal Code with aggravated assault (i.e. one step below manslaughter) following a “brawl” outside of a local bar. The police alleged that G.A. had kicked the complainant in the head and permanently paralyzed him from the neck down. There were multiple witnesses, and the kick and subsequent paralysis was captured on CCTV video. If convicted G.A. faced significant jail time. The matter was scheduled for a preliminary inquiry. In advance of the preliminary inquiry Ms. Fagan and the Crown prosecutor spoke. Ms. Fagan argued that the Crown had no reasonable likelihood of conviction because they would not be able to prove the identity of her client as the person who kicked and paralyzed the complainant. The Crown, ostensibly, agreed.
BOTTOM LINE: A stay of proceedings was entered against G.A. (i.e. the prosecution against Ms. Fagan’s client was ended) without him having to step foot in a courtroom.
R. v. N.R. [Provincial Court of Alberta, Calgary, October 2018]
N.R. was facing almost 30 charges stemming from multiple seperate investigations, in three different jurisdictions. In one rural Alberta town he was alleged to have driven by a police officer going double the speed limit and a police chase ensued. They ultimately traced N.R. to a residence which the police entered and searched finding a loaded handgun and cocaine. N.R. was charged with a number of firearm offences and possession of cocaine for the purpose of trafficking. He was released on bail. Some months later in a different rural Alberta town, he was alleged to have nearly run over a police officer conducting radar and another police chase ensued. N.R. crashed his car and then ran into a field to escape capture by the police. He was ultimately apprehended and charged with impaired driving, flight from police and breach of his bail conditions. Again, he was released on bail. Next, N.R. was charged in a complex robbery and counterfeit currency investigation. Among the charges were pointing a firearm (s. 87(1) of the Criminal Code); possession of break-in instruments (s. 351(2) of the Criminal Code); robbery (s. 344 of the Criminal Code which carries a mandatory minimum punishment of 4 years in jail); fraud (s. 380 of the Criminal Code) and various charges relating to counterfeit currency. He retained Ms. Fagan for, among other things, the conduct of his bail hearing. Clearly this was an uphill battle. It was made worse by the fact that N.R. had a criminal record and was charged with multiple counts of breaching his existing bail conditions. A bail hearing was scheduled and run by Ms. Fagan.
BOTTOM LINE: Notwithstanding the enormous odds against them, Ms. Fagan was able to secure her client’s release on bail (again).
R. v. B.M. [Court of Queen’s Bench of Alberta, Calgary, September 2018]
B.M. was charged with a single count of sexual assault. B.M. and his friends met two women at a liquor store. They invited them to drink in their hotel room and as a group they later went out to a local bar. When the bar closed, the group including two women returned to the hotel room. One of the women alleged that B.M. had non-consensual sexual intercourse with her at that time. The other woman told police that she had witnessed M.B. having sex with her friend while her friend screamed out “no, no, no”. B.M. did not deny sexual contact but maintained that it was consensual and in fact initiated by the woman. The matter was scheduled for preliminary inquiry and then eventually for trial in the Court of Queen’s Bench of Alberta. After multiple instances of delayed disclosure by the Crown Ms. Fagan brought an application for a stay of proceedings as a consequence of the violation of her client’s right to be tried within a reasonable time. She filed a 50 page legal brief in support of this application.
BOTTOM LINE: a verdict of not guilty was entered. B.M. was acquitted.
R. v. W.O. [Arrest Processing Unit, Calgary, September 2018]
W.O. was charged with sexually assaulting one of his employees, contrary to s. 271 of the Criminal Code. This alleged sexual assault was captured on video. W.O. retained Ms. Fagan initially for bail and later for trial.
BOTTOM LINE: Ms. Fagan was able to secure W.O.’s release on minimal conditions promptly following his arrest
R. v. V.H. [Provincial Court of Alberta, Calgary, September 2018]
In early 2017 the Calgary Police Service was involved in an undercover drug investigation targeting V.H.. The police eventually made an evidentiary purchase of cocaine from V.H. (allegedly), which was captured on film. Further attempts were made to purchase cocaine by the police without any luck for several weeks. Finally a second transaction was arranged. When V.H. attended for the meet the police arrested him and searched his vehicle. There they located large amounts of cocaine, marijuana and cash. V.H. was charged with possession of cocaine and marijuana for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act (CDSA), trafficking in cocaine x 2 contrary to s. 5(1) of the CDSA and possession of proceeds of crime. Ms. Fagan alleged that her client had been entrapped in violation of his rights as guaranteed by section 7 of the Canadian Charter of Rights and Freedoms.
BOTTOM LINE: All charges against V.H. were stayed (i.e. the prosecution against him was brought to an end).
R. v. M.N. [Provincial Court of Alberta, Calgary, August 2018]
M.N.’s matters had a complicated history. In 2014 he had been convicted under the Securities Act of fraudulently obtaining funds from various people for an investment he was promoting (which as it turns out, did not exist). He entered guilty pleas under the Securities Act and spent 2 years in jail and 3 years on probation (note: Ms. Fagan was not counsel at this time). While he was in custody the police discovered other alleged victims of M.N.’s scheme and further alleged that while in prison he was actively soliciting new investors to give him money. According to the police, there were 9 new victims/ complainants who had been allegedly defrauded of approximately $250,000. In 2015 M.N. was released on conditions that, among other things, he refrain from possessing any bank or credit cards in anyone else’s name. In 2018 he was charged with multiple breaches of this condition. He retained Ms. Fagan to (among other things) assist with bail. Ms. Fagan scheduled the matter for bail, which was hotly opposed by the Crown.
BOTTOM LINE: Mid-way through Ms. Fagan’s submissions at the bail hearing the Crown consented to M.N.’s release.
R. v. P.K. [Alberta Provincial Court, Calgary, July 2018]
The police conducted a vehicle stop on P.K.’s vehicle after observing that it had damage to its front end. Police computer database checks showed that P.K. had a warrant for his arrest. He was arrested and his vehicle was searched incident to arrest. He was ultimately charged with three counts of section 5(2) of the Controlled Drugs and Substances Act – Possession for the purposes of trafficking in cannabis resin, cocaine, methamphetamine and with possession of proceeds of crime. Ms. Fagan took the position that the amount of drugs seized was more consistent with personal use than it was with trafficking (notwithstanding that the police seized a cell phone with drug-related conversations; a scale; drug packaging and cash). ‘No guilty’ pleas were entered and the matter was scheduled for trial.
BOTTOM LINE: Ms. Fagan was able to secure Alternative Measures for her client (in other words, upon the completion of community service hours P.K.’s charges were completely withdrawn).
R. v. R.M. [Provincial Court of Alberta, Jasper, July 2018]
R.M. was charged with assaulting her boyfriend following a night of drinking (section 266 of the Criminal Code). Due to the comparatively minor nature of the allegations, the Crown offered to resolve the matter by way of a peacebond (ie. withdrawal of the charges so long as certain conditions are satisfied). The issue was that R.M. was at risk of losing her career if she received a peacebond or was convicted.
BOTTOM LINE: Ms. Fagan successfully negotiated with the Crown to outright withdraw the charge against her client.
R. v. H.S. [Provincial Court of Alberta, Lethbridge, July 2018]
In an odd factual scenario, H.S. was charged with assaulting her husband and he in turn was charged with assaulting her. H.S. unequivocally asserted her innocence. She was charged under section 266 of the Criminal Code. Ms. Fagan was prepared to enter a plea of ‘not guilty’ and schedule a trial date. Before doing so she spoke with the Crown, and was successful in getting him to agree to withdraw the charge against her client
BOTTOM LINE: The charge against H.S. was completely withdrawn.
R. v. F.M. [Alberta Court of Appeal, Calgary, June 2018]
F.M. was represented by other counsel at trial (i.e. NOT Ms. Fagan or anyone from her firm). Following trial he was convicted of three counts of trafficking cocaine and three counts of possession of proceeds of crime. He was sentenced to 2.5 years in prison. He retained Ms. Fagan for the purpose of providing an opinion as to the merits of the appeal and to make an application for bail pending appeal (notoriously difficult to obtain in this jurisdiction). Extensive written materials were filed and oral submissions made in the Court of Appeal.
BOTTOM LINE: Ms. Fagan was able to convince the Court that this was a meritorious appeal and that her client should be released on bail.
R. v. C.A. [Alberta Provincial Court, Calgary, June 2018]
C.A. was charged with refusing to provide a breath sample and impaired driving. Just after 2:00am a civilian witness saw the vehicle driven by A.C. lose control and run into a power pole in the downtown core going approximately 60 km/ hour. The vehicle was described as driving up the pole and then doing a 180 turn. The powerlines were knocked to the ground. Police, EMS and fire were dispatched. When the police arrived on scene they asked C.A. what happened, she slurred “I’m super intoxicated”. She was arrested and put in the back of the police car where she laid face down moaning. When she arrived at the police station she was incomprehensible and unable to balance. She was in and out of sleep and had a hard time controlling her body movements. Ultimately she provided a single sample of her breath which measured at over three times the legal limit. She was not able to provide a second sample because she lost her balance and fell on the breathlyzer machine, aborting the test. She then could not maintain consciousness for long enough to provide a sample. Ms. Fagan entered pleas of ‘not guilty’ and scheduled a trial date. The trial commenced in January and continued over the course of several days in the months that followed.
BOTTOM LINE: Ostensibly acknowledging the strength of Ms. Fagan’s position, the Crown withdrew all charges against C.A. midway through trial.
R. v. M.R. [Provincial Court of Alberta, Strathmore, April 2018]
Police received a call from concerned family members that M.R. was going to commit suicide or otherwise harm himself and that he was in possession of several firearms. The police attended at his residence and endeavored to gain consensual access without any luck. The ultimately deployed tear gas and conducted a forced entry, locating M.R. and several firearms (which were all lawfully owned and stored). The Crown brought an application to have all the firearms forfeited. It argued that it was not in the public interest for M.R. to have his firearms returned. M.R. retained Ms. Fagan to secure the return of his firearms. A hearing was scheduled and Ms. Fagan attended on M.R.’s behalf
BOTTOM LINE: Ms. Fagan was successful in arguing that the Court had no jurisdiction to hear the matter and that the police had no authority to keep the seized firearms. All firearms were returned to M.R.
R. v. K.R. [Alberta Provincial Court, Calgary, April 2018]
Police received a report of “road rage” complaining of a driver who waived a handgun and threatened another motorist. Police obtained a description of the driver and the vehicle and located a vehicle matching the same description. Police cornered the vehicle and drew their firearms, demanding that the driver exit his vehicle. The driver rolled up his windows and did not exit the vehicle for several minutes. Once he exited he was arrested and the vehicle was searched. Police discovered a hidden compartment underneath the steering wheel which contained a loaded handgun and drugs. He was charged with 13 charges including possession of fentanyl for the purpose of trafficking, and possession of cocaine for the purpose of trafficking. He also faced seven charges with respect to possession of a loaded handgun. The Crown was opposed to K.R.’s release on bail and the matter proceeded to a hearing.
R. v. M.E. [Alberta Provincial Court, Didsbury, February 2018]
M.E. was pulled over driving a vehicle on the highway outside of Didsbury as a consequence of a burnt out tail light. The police ran his information through a computer database and discovered that there was a warrant out for his arrest. They arrested him. As no one (the driver nor the passenger, a 16 year old girl) could produce insurance or registration for the vehicle, it was towed. The police conducted an inventory search of the vehicle prior to towing it and discovered 31 grams of cocaine and 465 grams of marijuana in the trunk. M.E. was arrested for possession of cocaine for the purpose of trafficking and possession of marijuana for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act. M.E. retained Ms. Fagan to defend these charges. If convicted, a lengthy jail term was imminent. Ms. Fagan promptly entered pleas of “not guilty” and scheduled a trial date. Ms. Fagan identified several issues with the police investigation which would make it, in her view, challenging for them to put him in possession of the drugs. In the weeks leading up to trial the Crown, recognizing these issues offered to allow M.E. to plead guilty to the lesser included offence of simple possession and to pay a fine. It meant that M.E. would have a drug conviction entered on his record. Understandably fearful of a jail term M.E. initially wanted to “take the deal” but changed his instructions when Ms. Fagan expressed confidence in her ability to kill the prosecution in its entirety.
BOTTOM LINE: Ms. Fagan was able to kill the prosecution in its entirety. All charges were ultimately withdrawn. M.E. incurred no criminal record.
Mount Royal University Hearing [February 2018]
B.M. was charged with a number of serious offences arising from allegations that he had broken into a Mount Royal Professor’s home (a woman in her 60s) and beat her so severely that both her hands were broken. He was charged with a number of offences including two counts of s. 348(1)(b), break and enter with intent to commit an indictable offence. B.M. was a student at Mount Royal in his last semester of study. B.M. received notification from the University that he had been suspended from school and was banned from campus until such time as a hearing was held. He retained Ms. Fagan to represent him with respect to that hearing with the sole goal of being able to complete his final semester of studies and graduate.
BOTTOM LINE: Ms. Fagan successfully negotiated with the University to have B.M.’s suspension lifted so that he could graduate as scheduled.
R. v. S.P. [Court of Queen’s Bench of Alberta and Provincial Court of Alberta, Calgary, January 2018]
The police received information from a confidential informant that S.P. was transporting large amounts of high quality marijuana from British Columbia to Alberta and Saskatchewan. Police investigated the tip by locating S.P. and putting a tracking device on a rental vehicle she had been known to use. Police also conducted a “garbage pull” where they found evidence of marijuana in her discarded trash. Weeks into the investigation police tracked S.P.’s rental vehicle from Calgary to interior BC. After a brief stay the vehicle was en route back east towards Calgary. Police followed the vehicle and eventually located it in a Costco parking lot. She was observed meeting with an unknown male and transferring large garbage bags from her vehicle to his. The police mobilized and arrested both S.P. and the man. They police located approximately half a million dollars’ worth of marijuana and some cash. S.P. faced charges of possession of marijuana for the purpose of trafficking; trafficking in marijuana and possession of proceeds of crime. Ms. Sanders initially retained Patrick Fagan Q.C. for the purpose of conducting the preliminary inquiry and then eventually retained Ms. Fagan for trial. The Crown’s pre-trial resolution offer upon a guilty plea was 2 years federal incarceration. Over the course of nearly four years Ms. Fagan fought to keep S.P. out of jail despite the fact that the allegations in question, if proven true, would call for a lengthy jail sentence.
BOTTOM LINE: Ms. Fagan was successful in keeping S.P. out of jail in exchange for a $5000.00 fine and a term of probation.