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2019

R. v. C.S. [Provincial Court of Alberta, Calgary, May 2019]

C.S. was pulled over for running a red light on 17th avenue SW at approximately 2:00am. The police detected an odor of alcohol coming from the vehicle. C.S. maintained that she had not drank any alcohol and that the odor of alcohol was coming from her three intoxicated passengers, for whom she was the designated driver. A demand for a roadside sample of her breath was made and for whatever reason, C.S. was unable to provide a suitable sample. She was charged with failing/refusing to provide a breath sample and put in the back of the police car. During this time the passengers in her vehicle got out and became belligerent with police. A fight later broke out between some unrelated males across the street which police attended to. Over the course of more than an hour S.C. was detained in the back of the police vehicle without being told why, and without being advised of her right to counsel and right to silence. Ms. Fagan filed a Charter notice arguing that her client’s rights had been violated as a consequence of the foregoing.

BOTTOM LINE: The charge against C.S. was completely withdrawn.

R. v. D.A. [Provincial Court of Alberta, Canmore, May 2019]

A. had spent the day snowboarding and as he was driving from the ski hill he ran into a check stop. At the check stop it was noted that there was a smell of burnt cannabis coming from the vehicle. D. A. had glossy bloodshot eyes and the smell of cannabis was still present when D. A. got out of the vehicle. D. A. admitted to smoking cannabis 1 hour prior. A Standard Field Sobriety Test was administered, which the police officer concluded D.A. had failed. D. A. was arrested for impaired driving. He eventually provided a sample of his breath and the results showed that his blood alcohol level was over the legal limit. Ms. Fagan scheduled the matter for trial and filed a Charter notice, alleging that he client was unlawfully arrested because the police lacked the reasonable grounds required to arrest him, that he was denied his right to counsel and that the police unlawfully seized breath samples from him.

BOTTOM LINE: All charges were stayed (i.e. the prosecution against D.A. was terminated) prior to trial.

R. v. M.K. [Provincial Court of Alberta, Calgary, April 2019]

The police received multiple calls about an impaired driver. Each of these calls detailed that the driver almost hit a child on a bicycle, that he was falling asleep at red lights, that he was running other vehicles of the road and that he was erratically weaving in and out of traffic. A civilian witness followed M.K.’s car into a cul de sac in a residential area and watched him fall asleep at the wheel of his vehicle in the middle of the road. When the police arrived they hauled the driver out the vehicle and onto the pavement, arresting him for impaired driving. The in-car video recording showed M.K. unable to maintain balance and consciousness. Ultimately, M.K. was charged with impaired driving and refusing to provide a breath sample – the conclusion drawn by the police was that he was simply too impaired to provide a breath sample. The matter was scheduled for trial. At trial the civilian witnesses testified and were cross-examined by Ms. Fagan, as was the primary officer who arrested M.K.

BOTTOM LINE:   Following Ms. Fagan’s cross-examination of the primary officer the Crown conceded that she had no reasonable likelihood of conviction and invited the court to acquit M.K.. Verdicts of “not guilty” were entered on all charges against M.K.

R. v. F.J. [Provincial Court of Alberta, Cochrane, April 2019]

F.J. was pulled over for running a stop sign at approximately 2:00am. The police detected alcohol on his breath, observed that he had slurred speech and alcohol was observed throughout the vehicle.  F.J. was arrested for impaired driving. The in-car audio visual recording showed that F.J. was less than courteous with police … this eventually led to an altercation in which the police were allegedly injured by F.J.  F. J. was charged with impaired driving, refusing to provide a breath sample, obstructing a police officer in the execution of his duties and assaulting a police officer. Ms. Fagan scheduled the matter for trial and filed a Charter notice alleging that her client was arbitrarily detained, that he was not given a reasonable opportunity to contact counsel and that his security of the person was violated because he was not released from custody until nearly 18 hours after his arrest.

BOTTOM LINE: Upon receiving Ms. Fagan’s Charter notice all criminal charges against F.J. were completely withdrawn before the commencement of trial.

R. v. S.A. [Provincial Court of Alberta, Calgary, April 2019]

A member of the Calgary Police Service responded to a single motor vehicle crash where a vehicle had crashed into the center median in the City’s northeast due to icy conditions. The police arrived and spoke with S.A. about the crash. S.A. asked if he could sit in the police vehicle to stay warm, as it was -30’C. The police officer obliged and put him in the back of the police vehicle. While S.A. was seated there, the police ran his name through a computer database that showed he was on bail conditions in relation to his arrest on drug trafficking charges from a few months prior. The police proceeded to arrest S.A. for a (non-existent) breach of his bail condition, notwithstanding that S.A. explained that the particular bail condition in question had been deleted a few weeks prior. En route to arrest processing, S.A. became angry and began banging on the barrier between the back seat and the front where the officer was driving. The officer pulled his vehicle over to the side of the road and an audio recording captured a physical altercation between the two including when S.A. asked the officer: “Do you want to die”. Half a dozen other police officers were dispatched to the scene to assist. Eventually, S.A. was charged with assaulting a peace officer with a weapon, uttering threats, assaulting a peace officer causing bodily harm and breaching his bail conditions. Ms. Fagan scheduled a trial in Provincial Court. In her review of disclosure Ms. Fagan noticed that while some of the video footage was provided, there were critical parts missing that she believed would depict the police assaulting her client. Ms. Fagan filed a Charter notice alleging a violation of the right of her client to be free from cruel and unusual punishment and his right to the security of his person. She also alleged a violation of her client’s right to make full answer and defence, because she believed that the entirety of the video footage was not disclosed.

BOTTOM LINE: The videos which Ms. Fagan believed depicted the assault of her client were never disclosed and all a stay of proceedings entered on all charges (i.e. the prosecution against S.A. was terminated).

R. v. E.K. [Provincial Court of Alberta, Calgary, March 2019]

E.K. was charged with possession of fentanyl. E.K. was an addict who had been using fentanyl for years and was eventually arrested when a cab driver called the police because she was passed out in the back seat of his taxi. When the police arrived they located the fentanyl on her person. In light of the well-publicized dangers of fentanyl, the Crown Prosecutor’s office had been asking courts to impose jail terms on those convicted of simple possession, even where the person was an addict. There were no reported (written and published) decisions in the Province of Alberta where Defence counsel had successfully argued for a discharge for their client (i.e. the withdrawal of all charges on the completion of certain conditions, typically one of which is drug treatment). Ms. Fagan was able to obtain this result for her client.

BOTTOM LINE: The charge against E.K. was withdrawn upon the completion of conditions pursuant to a conditional discharge.

R. v. S.T. [Provincial Court of Alberta, Calgary, March 2019]

S.T. was pulled over for failing to signal and for apparently swearing at the police as he drove by. The police smelled fresh raw marijuana and proceeded to ask S.T. questions relative to the existence and quantity of same. This was all captured on the police in-car audio-visual recording system and disclosed to defence. The police found what was described as a “moving pharmacy” – S.T. was charged with illegal possession of clonazepam, diazepam, oxycodone, oxycontin, apo-oxycodone-aceaminphen, morphine, oxycocet and novo-pheniram. He was also charged with possession of marijuana for the purpose of trafficking. Ms. Fagan scheduled the matter for trial before a Provincial Court Judge. A pre-trial conference was also scheduled. Ms. Fagan had the audio-visual recording transcribed and provided a copy to the Judge presiding over the conference and to the Crown Prosecutor. Ms. Fagan argued that the questioning by police about the marijuana was an illegal search by police and provided cases where Judges had found in favor of the Defence on similar facts.

BOTTOM LINE: Ms. Fagan was successful in having all 10 drug charges against S.T. withdrawn pursuant to a conditional discharge.

R. v. M.J. [Provincial Court of Alberta, Calgary, March 2019]

For the third time in two years M.J. was charged with a litany of offences relating to the alleged possession of and trafficking in cocaine. Each time Ms. Fagan successfully secured his release on bail. For M.J.’s third arrest he retained the services of another lawyer for the purposes of bail and was ordered detained in custody by the presiding Justice of the Peace. He then retained Ms. Fagan to conduct a bail review.

BOTTOM LINE: Ms. Fagan successfully obtained M.J.’s release on bail.

R. v. C.A. [Provincial Court of Alberta, Calgary, February 2019

C.A. was charged with robbery contrary to section 344 of the Criminal Code; aggravated assault under s. 268 of the Criminal Code and uttering death threats contrary to s. 264.1 of Criminal Code. The complainant alleged that C.A., who he knew socially, attacked and robbed him in an alley leaving him with devastating and permanent damage to his face. C.A.’s position was that the fight was consensual and there was no robbery.

BOTTOM LINE: Ms. Fagan was able to get all charges against C.A. withdrawn pursuant to a 12 month peacebond (i.e. C.A. agreed to keep the peace and be of good behaviour for a year). No conviction was entered.

R. v. M.J. [Provincial Court of Alberta, Calgary, February 2019]

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).