R. v. M.J. [Court of Queen’s Bench of Alberta, Calgary, December 2017]
The police initiated an investigation as a result of information received by the police from a confidential source that M.J. was dealing cocaine. After several weeks of surveillance the police believed they had observed multiple drug transactions involving two people, M.J. and a second person, O.M.. Police ultimately executed search warrants at the residence of both M.J. and O.M.. In the residence thought to be M.J.’s the police found two handguns with ammunition and a significant amount of cocaine (crack and powder), marijuana and cash. J.M. was depicted on video keying in and out of the residence a number of times and was arrested leaving the residence.
J.M. retained another lawyer for conduct of the preliminary inquiry and eventually retained Ms. Fagan to defend him at trial. At this time he faced six charges, including three charges relating to the handguns and one count of possession of cocaine for the purpose of trafficking. If unsuccessful, M.J. was facing a significant jail sentence. Ms. Fagan’s argument (and M.J.’s fate) hinged on her ability to successfully challenge the search warrant. Ms. Fagan filed a Charter notice alleging a breach of his rights as guaranteed by s. 8 of the Charter (his right to be free from unreasonable search and seizure). The week before the trial was scheduled to start, M.J.’s co-accused O.M. plead guilty. M.J. continued on to trial and argued that there was an insufficient nexus between M.J. and the residence. After six days of argument on the validity of the search warrant the trial judge ultimately agreed with Ms. Fagan. A breach of s. 8 was established and the items seized (all guns, drugs and cash) were excluded from evidence.
BOTTOM LINE: After six days of trial, Ms. Fagan secured verdicts of “not guilty” on all charges.
R. v. P.J. [Court of Queen’s Bench of Alberta, Calgary, December 2017]
P.J. was charged in Chestemere with a number of charges relating to the alleged discharge of a firearm at a house party. Witnesses claimed that P.J. had been showing off a handgun and then had left the house following an altercation. Witnesses then claimed that P.J. then returned and discharged his firearm at a group outside the house multiple times. Bullets were found lodged in vehicles and homes in the residential neighborhood. P.J. was apprehended by police and charged with nine criminal charges including:
- S. 91(1) of the Criminal Code – unauthorized possession of a firearm
- S. 87 of the Criminal Code – pointing a firearm
- S. 267(a) of the Criminal Code – assault with a weapon
- S. 88 of the Criminal Code – possession of a weapon for a purpose dangerous to the public peace
- S. 85(1)(a) of the Criminal Code – using firearm during commission of offence (which carries with it a mandatory jail sentence)
- S. 90 of the Criminal Code – carrying concealed weapon
His bail hearing was initially held in Strathmore Provincial Court and he was ordered detained by the Provincial Court Judge because of fears that he was an endangerment to the public and that his release would bring the administration of justice into disrepute. (NOTE: Ms. Fagan was not his lawyer for the initial bail hearing where he was ordered detained). P.J. then retained Ms. Fagan to conduct a bail review hearing to argue for his release.
BOTTOM LINE: Ms. Fagan successfully established that the Provincial Court Judge had made an error and she obtained bail for P.J. on reasonable terms.
R. v. S.K. [Alberta Provincial Court, Lethbridge, December 2017]
The police alleged that S.K. was crossing the border from the USA to Canada in a transport truck containing drugs. S.K. told Canada Border Service Agents (CBSA) that he was transporting fruit from California to Costco in Alberta. CBSA searched the truck and located 17 kilograms (over 37 pounds) of what they believed to be cocaine. S.K. was arrested and charged with importation of cocaine and possession of cocaine, both of which carry up to a life sentence. S.K. retained Ms. Fagan to secure his release from custody.
BOTTOM LINE: Ms. Fagan put together a compelling bail plan and secured the release of her client within days of his release.
R. v. A.I. [Alberta Provincial Court, Calgary, November 2017]
I.A. was under police surveillance after they received confidential source information that he was selling fentanyl and cocaine. Police observed I.A. engage in what they believed to be two “hand-to-hand” drug transactions and then followed him as he drove away from the scene. Police observed I.A. speeding down Deerfoot trail and periodically opening his car door to vomit. The police conducted a traffic stop of the vehicle and ultimately formed the grounds to arrest I.A. and search the vehicle. In the vehicle the police located 606 of believed to be fentanyl pills, methadone and a significant amount of cash. A warrant to search I.A.’s residence was obtained and upon execution the police located further drugs, money and body armour. I.A. was charged with eleven charges including:
Section 5(2) of the Controlled Drugs and Substances Act – Possession of fentanyl for the purposes of trafficking
Section 88(1) of the Criminal Code—possession of a weapon for a purpose dangerous to the public peace
Section 354 of the Criminal Code – possession of proceeds of crime.
Ms. Fagan entered pleas of ‘not guilty’ to all charges. The matter was scheduled for a seven day trial in Provincial Court. Ms. Fagan alleged the breach of her client’s right to make full answer and defence as a consequence of the Crown’s failure to disclose a number of items she had requested. She filed a Charter notice and was prepared to proceed to trial.
BOTTOM LINE: Ostensibly acknowledging the merit of Ms. Fagan’s position, the Crown entered a stay of proceedings (i.e. withdrew all charges) days before the trial was scheduled to commence.
R. v. A.J. [Alberta Provincial Court, Calgary, October 2017]
Police received information that A.J. was trafficking in cocaine. On the basis of that information they began investigating A.J. and conducting extensive surveillance on him. They were able to identify his residence using police records, and observed the individual they believed to be A.J. entering and exiting the house on several occasions. They also observed him in meets of short duration including several “hand to hand transactions”. The police ultimately sought a search warrant for the residence. When the police searched the residence they found approximately 190 grams of cocaine, 110 grams of marijuana, scales, packaging materials, fentanyl, cash and a handgun and a loaded 22 caliber rifle in a toddler’s bedroom. A.J. was arrested and charged along with his brother A.H.. A.J. faced 10 charges including possession of cocaine, marijuana and fentanyl for the purpose of trafficking, possession of proceeds of crime and 6 counts relating to the firearms. Ms. Fagan entered not guilty pleas on all charges and scheduled a week-long trial.
BOTTOM LINE: Ms. Fagan was successful in convincing the Crown that the Crown would not be able to prove the identity of her client beyond a reasonable doubt as the police had appeared to have struggled to differentiate between her client and his brother. All charges were stayed (ie. withdrawn) and A.J. incurred no criminal record.
R. v. S.A. [Alberta Court of Queen’s Bench, Calgary, September 2017]
911 dispatchers received a call from a woman screaming that her son and husband had been stabbed to death. Police, EMS and Calgary Fire arrived to confront a nightmarish scene. Three men were found with multiple stab wounds in the basement of a residential home, one partially disembowelled. Two of the men were deceased, one (the accused) was alive but suffered significant injuries. Witnesses told the police that the accused was the aggressor and he was arrested and charged with two counts of second degree murder under section 235 of the Criminal Code. The Crown sought the denial of S.A.’s bail and his detention in custody.
BOTTOM LINE: Ms. Fagan sought, and obtained her client’s release on reasonable terms.
R. v. A.S. [Alberta Provincial Court, Calgary, September 2017]
A.S. faced a multitude of charges and was out on bail on several matters. In June, 2017 he was arrested following a lengthy undercover investigation. Police alleged that A.S. had sold cocaine to a police officer on 6 different occasions. The police obtained a search warrant and seized a loaded firearm, 91 grams of cocaine and 58 fentanyl tabs from a residence associated to A.S. When A.S. was arrested he was allegedly holding a bag containing 65.4 grams of crack cocaine, 58 fentanyl pills and $6300 cash. Ms. Fagan obtained his release on bail. Two weeks later he was arrested again for breaching his bail conditions. Ms. Fagan again obtained his release on bail. Two months later A.S. was arrested for allegedly selling cocaine to another undercover police officer. He was arrested for trafficking cocaine (again).
BOTTOM LINE: Notwithstanding that the odds were stacked against the defence, and the Crown was vehemently opposed to release, Ms. Fagan was able to secure A.S.’s release on bail for the third time in a span in 3 months.
R. v. B.K. [Provincial Court, Calgary, July 2017]
The police were undergoing a murder investigation when they discovered a group of young men that they believed to be trafficking cocaine in the City of Calgary at the kilogram level. The organization was believed to be operating at a sophisticated level and the police conducted surveillance and extensive wiretaps to build a case against B.K. and three other young men. Ultimately the police executed more than a dozen warrants at multiple residences and of multiple vehicles discovering a significant amount of cocaine, marijuana, hundreds of thousands of dollars and various weapons including guns. The week before his arrest the police allegedly purchased cocaine from B.K. on three separate occasions. On “take down” day, B.K. was arrested with approximately 60 grams cocaine packaged in dozens of small baggies and a significant amount of cash in his vehicle. B.K. was initially charged with the three other young men with over 71 offences which included:
Section 467.11 of the Criminal Code — Participate in or contribute to the activities of a criminal organization
Section 465(1)(C) — Conspiracy to commit the offence of trafficking in cocaine
Section 5(2) of the Controlled Drugs and Substances Act – Possession of cocaine for the purposes of trafficking
B.K. faced some of the most serious charges in the Criminal Code and the Controlled Drugs and Substances Act, many of which were punishable by life in prison. B.K.’s only goal from the outset of the prosecution against him was to avoid being sent to jail. With this in mind, Ms. Fagan elected to proceed by way of Queen’s Bench Judge and Judge, with a preliminary inquiry. A four week preliminary inquiry was scheduled and over 40 witnesses were called by the Crown Prosecutor during this time. At the conclusion of the preliminary inquiry Ms. Fagan was successful in killing all but seven of the charges against her client. A seven week trial in Queen’s Bench was scheduled for the trial of the seven charges against her client and other charges relating to the three co-accuseds. Ms. Fagan filed a Charter notice attacking the search warrants and arguing that his right to a trial within a reasonable time had been violated.
BOTTOM LINE: Weeks before the commencement of the seven week trial the Crown agreed with Ms. Fagan that there were significant Charter issues and made B.K. an offer that he could not refuse. B.K. pleaded guilty to only three of the charges and received a conditional sentence of two years less a day to be served in the community (i.e. no jail time).
R. v. G.S. [Provincial Court, Cochrane, July 2017]
The truck driven by G.S. was seen swerving on the highway outside of Cochrane. The police stopped the vehicle and G.S. admitted to drinking. He was asked to provide a roadside sample of his breath. The in-car video system captured G.S. slurring his words, swearing and making several unsuccessful attempts to provide a breath sample. G.S. was charged with impaired driving, refusing to provide a breath sample and two traffic tickets for having an uninsured vehicle and no registration. Ms. Fagan noticed defects in the charging document and was ultimately successful in having the two criminal charges and the no registration ticket withdrawn in exchange for a guilty plea to the traffic ticket for having no vehicle insurance.
BOTTOM LINE: G.S. received the mandatory minimum fine for the traffic ticket and all criminal charges were withdrawn. G.S.’s driver’s license was reinstated immediately.
R. v. W.D. [Provincial Court, Calgary, June 2017]
W.D. was charged in a complex fraud investigation involving two complainants where the total losses alleged were approximately half a million dollars. W.D. had (unwisely) given a full confession to the police. Prior to trial the Crown took a firm position that it would ask for a lengthy federal penitentiary sentence (in the range of 3-4 years) whether the charges were resolved prior to trial or whether W.D. was convicted following trial. Ms. Fagan scheduled the matter for a 5 day trial. Following pre-trial applications the Crown very generously offered D.W. a conditional sentence order (i.e. house arrest, no jail) if he agreed to plead guilty. Ms. Fagan presented the resolution option to her D.W. along with a second option that they “go for broke” and argue that the Crown had failed to meet their disclosure obligations and therefore violated his section 7 Charter right to make full answer and defence. W.D. chose the second option.
BOTTOM LINE: The matter ultimately proceeded to the scheduled six day trial and Ms. Fagan was successful in securing a stay of proceeding on all charges (i.e. charges were withdrawn, W.D. incurred no criminal record).
R. v. D.J. [Provincial Court, Calgary, June 2017]
D.J. was observed by police slowing down to 10 km/hr in a vehicle traveling on a major road in Calgary. She was pulled over and she told the police that she had been drinking wine at a friend’s house. She failed the roadside breath test and was arrested. She later gave two samples of her breath that were analyzed at double the legal limit. Ms. Fagan filed a Charter notice alleging that the police breached her client’s right to counsel before taking breath samples from her and that because of this the breath samples should be excluded from evidence. Ms. Fagan argued that while the police had provided D.J. with access to a lawyer, they had not given her access to a criminal lawyer. Ms. Fagan was able to secure a trial date for her client less than 3 months after her arrest.
BOTTOM LINE: On the morning of trial Ms. Fagan convinced the Crown of the weaknesses in its case and the Crown agreed to withdraw all charges against D.J.
R. v. M.F. [Provincial Court, Calgary, June 2017]
The police observed M.F. driving with heavy damage to the driver side of his vehicle and was stopped. The police smelled marijuana and could see a plastic sandwich bag in the center console with marijuana “shake” visible from within in. M.F. was arrested for possession of marijuana and searched. While he was being searched a bag of cocaine was found in his pocket and a second bag fell to the sidewalk. He was charged with simple of possession of marijuana and of cocaine, contrary to section 4(1) of the Controlled Drugs and Substances Act.
BOTTOM LINE: Only a month and a half after F.M. was charged Ms. Fagan was successful in having his matter diverted to the Alternative Measures Program. The Crown Prosecutor agreed to withdraw all criminal charges against F.M. in exchange for 60 hours of community service.
R. v. M.A. [Provincial Court, Airdrie, April 2017]
M.A. was charged with impaired driving and operating a motor vehicle with a blood alcohol level in excess of the legal limit. The breath test revealed that M.A. had a blood alcohol level of 2.5 times the legal limit. The earliest date that the Court could hear M.A.’s trial was just shy of a year after she was charged. As M.A. was subject to an Alberta Administrative Driver’s License Suspension while awaiting trial this was an excessive delay and was interfering with M.A.’s ability to make a living. Ms. Fagan promptly brought the matter into Court several months before the proposed trial date and argued that her client’s right to a trial within a reasonable time had been violated. This was a novel argument on a point that had not yet been dealt with in reported case law.
BOTTOM LINE: Ms. Fagan was successful in having her client’s charges stayed (i.e. withdrawn) and her driver’s license re-instated months before she would have been able to proceed to trial. Believing that the Trial Judge had made a mistake, the Crown initially sought to appeal the decision to a higher court, but that appeal was ultimately abandoned.
R. v. L.G. [Alberta Court of Appeal, Calgary, April 2017]
L.G. retained Ms. Fagan to defend a Crown appeal from sentence. L.G. had been previously represented by other counsel (not Ms. Fagan). He had entered a guilty plea to section 5(2) of the Controlled Drugs and Substances Act – possession of marijuana for the purpose of trafficking and received a conditional sentence order (i.e. a period of house arrest with no jail time). The police had conducted an investigation which culminated in the seizure of more than 4.5 kilograms of marijuana, a loaded handgun and nearly $100,000.00 in Canadian currency. L.G. had previously been convicted of the same offence and had already received a conditional sentence order. At the time he was arrested on the second set of charges he was bound by a condition not to possess any firearms. The Crown had argued at sentencing that L.G. should not receive a conditional sentence order because he had re-offended after his last conditional sentence order for the same criminal conduct. The sentencing Justice disagreed with the Crown and instead granted the conditional sentence order that was sought by L.G.’s lawyer. The Crown argued on appeal that the sentencing Justice had committed an error of law, that the sentence imposed was not a fit sentence and that it did not adequately address denunciation and deterrence. The Crown asked the Court of Appeal to instead impose a sentence of actual jail time. Ms. Fagan argued that it was a fit sentence and that the Court of Appeal should defer to the decision of the sentencing Justice.
BOTTOM LINE: Ms. Fagan successfully defending the Crown’s appeal and the Court of Appeal declined to interfere with the sentencing Justice’s decision to grant a conditional sentence order. In other words, L.G. did not have to go to jail and remained in the community.
R. v. B.S. [Provincial Court, Fort McLeod, March 2017]
B.S. was charged with impaired driving and refusal to provide a breath sample. A concerned motorist contacted the police to report that a transport truck was all over the road and had nearly caused several accidents. She believed the driver to be impaired. The police conducted a traffic stop, made inquiries and arrested B.S. for impaired driving. He was brought back to the police detachment to give breath samples. B.S.’s first language was not English and he insisted on having an interpreter present and that he would not provide a sample until that time. According to the police, they provided him an interpreter at which point B.S. faked a seizure to avoid giving breath samples. He was charged with refusal/ failure to provide a breath sample. B.S. required his driver’s license to make a living and was subject to the Provincial driver’s license suspension. Ms. Fagan sought permission from the Court to schedule a “special sitting” so that the trial could be heard as soon as possible. Additionally, Ms. Fagan made several requests for disclosure from the Crown that by the trial date had gone unanswered. At trial, Ms. Fagan argued that she could not proceed to trial without the disclosure requested and that it would unfair to her client if the matter was rescheduled so that the Crown could provide the disclosure that ought to have been provided already.
BOTTOM LINE: Ms. Fagan provided extensive written materials to the Judge, who ultimately ruled in her favor by staying (i.e. withdrawing) the charges against her client. B.S.’s license was reinstated immediately and he did not incur a criminal record for the impaired driving or refusal charges.
R. v. P.J. [Provincial Court, Regina Saskatchewan, March 2017]
P.J. was charged on three separate files. First, he was charged with two counts of breaching his bail conditions (curfew and no alcohol) when he was allegedly found passed out in the driver’s seat of his vehicle late at night at a gas station. Second, he was charged with dangerous driving, evading police and breaching his bail condition to keep the peace and be of good behaviour. A high speed chase through the streets of Regina involving several police officers took place, which culminated in the arrest of P.J. Third, P.J. was charged with possession of a concealed weapon (a collapsible baton) and two counts of breaching his bail conditions. Ms. Fagan scheduled all three matters for trial.
BOTTOM LINE: Midway through her cross-examination of the first police witness in the first trial the Crown (who had previously been unwilling to resolve the matter for anything less than a significant penalty and criminal record) offered to withdraw all criminal charges against P.J. in exchange for him completing community service hours. No criminal record was incurred whatsoever for the three separate prosecutions that P.J. hired Ms. Fagan to defend.
R. v. R.K. [Provincial Court, Cochrane, February 2017]
R.K. was pulled over on a highway just outside of Cochrane after police saw her vehicle swerving just after 3:00am. Police smelled alcohol on R.K.’s breath and arrested her for impaired driving. She was taken to the police detachment where she provided samples of her breath that were almost triple the legal limit. Ms. Fagan filed a Charter notice arguing that R.K.’s right to full disclosure and her right to make full answer and defence were violated. She further argued that the police lacked the required reasonable grounds to demand a sample of her breath, and that therefore the breath samples that were taken from her should not be admitted into evidence.
BOTTOM LINE: The Crown agreed with Ms. Fagan and entered a stay of proceedings (i.e. withdrew) all charges against R.K. Her license was reinstated that day and she incurred no criminal record for the charges that she had hired Ms. Fagan to defend.
R. v. R.J. [Provincial Court, Medicine Hat, February 2017]
R.J. was pulled over outside of Brooks for a minor traffic infraction. During the course of their interaction with R.J. they discovered that he had a drug related criminal record and that he had recently been arrested for possession of proceeds of crime (approximately $75,000.00 cash was found in a bag in his vehicle a few months prior). A condition of his bail when he was released on that charge was he not leave the Province of Saskatchewan. The police arrested him for breaching his bail conditions and searched his vehicle. Police located approximately $82,000.00 cash in a bag in the backseat of the vehicle along with a small amount of marijuana and approximately 5g of what they believed to be cocaine. R.J. was charged with two counts of breaching his bail conditions contrary to section 145(3) of the Criminal Code, two counts of simple possession contrary to section 4(1) of the Controlled Drugs and Substances Act and possession of proceeds of crime contrary to section 354 of the Criminal Code. Ms. Fagan took the position that the police had unlawfully seized her client’s money and that he was not only entitled to be acquitted (i.e. found not guilty) but that the Court should order that the police return his money. The trial was scheduled for 3 days and the Crown indicated that he would be asking for a significant jail sentence if R.J. was convicted. Ms. Fagan made a number of Charter arguments, including that the police deliberately muted the in-car video recording and destroyed evidence and that they unlawfully searched the vehicle.
BOTTOM LINE: The Trial Judge agreed with Ms. Fagan and criticized the police. On the last day of trial R.J. was found not guilty of all charges and his money was directed returned by the Judge.
R. v. A.T. [Provincial Court, Calgary January 2017]
A.T. retained Ms. Fagan to defend ten serious criminal charges stemming from the police search of a vehicle that A.T. had been driving. In the center console of the vehicle the police located a handgun, methamphetamine, cocaine, crack cocaine, marijuana and a significant amount of cash. A.T. with the following offences, including:
Section 5(2) of the Controlled Drugs and Substances Act – Possession of cocaine for the purposes of trafficking
Section 5(2) of the Controlled Drugs and Substances Act – Possession of methamphetamine (“meth”) for the purposes of trafficking
Section 354 of the Criminal Code – Possession of proceeds of crime
Section 86(1) of the Criminal Code – Possession of a weapon for a purpose dangerous to the public peace
Section 91(1) of the Criminal Code – Possession of a firearm with a license
Section 129 of the Criminal Code – Obstruction of justice
Ms. Fagan alleged that there were significant breaches of her client’s Charter rights including breaches of his right to make full answer and defence, his right to a fair trial, his right to be tried within a reasonable time, his right not be arbitrarily detained and his right to be free from unreasonable search and seizure. This matter was scheduled for trial twice.
BOTTOM LINE: On the first day of the second scheduled trial date the Crown conceded the strength of Ms. Fagan’s Charter position and entered a stay of proceedings on all charges (i.e. all charges against A.T. were withdrawn).