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The ‘Fantastic’ Test in Drug Law

  • November 28, 2017
  • Clayton Rice, K.C.

Near a motel. You know the kind of place. Night. Rain. A cigarette lighter flicks in the dark and a pickup pulls out of the parking lot. Two blocks later the police come from nowhere.

Maybe a broken tail light? Some kind of infraction. Driver and passenger. No operator’s licence. A lie. An arrest. A search. Drugs in a baggie under the front passenger seat. A duffle bag on the floor behind the driver. More drugs in the duffle bag. Glock in the glove compartment. Driver has some cash. It plays out every other day anywhere from Musquodoboit to Chilliwack. Who is in possession of what?

On November 12, 2014, Justice J.E.L. Cote delivered brief oral reasons for a unanimous court in R v Yalahow, 2014 ABCA 371 in a similar case. Mustafa Hassan Yalahow was arrested in Edmonton. He was a passenger in the front seat of a car rented in Calgary. There was a plastic bag on the floor by his feet containing cocaine and a loaded handgun wrapped in some shirts. Yalahow had about $950 on him. In dismissing his appeal from convictions for possession for the purpose of trafficking and possession of the handgun, Justice Cote said this, at para. 4: “The idea that the bag and contents were possessed by neither man, in those circumstances, would be fantastic.” And, with that, the fantastic test seeped into the judicial lexicon.

Possession in Canadian drug law is defined in sub-sec. 4(3) of the Criminal Code. The leading case on the elements of possession is now R v Morelli, [2010] 1 SCR 253 where Justice Morris Fish held, at paras. 15-6:

“On an allegation of personal possession, the requirement of knowledge comprises two elements: the accused must be aware that he or she has physical custody of the thing in question, and must be aware as well of what that thing is. Both elements must co-exist with an act of control (outside of public duty): Beaver v The Queen, [1957] SCR 531, at pp. 541-42.

Constructive possession is established where the accused did not have physical custody of the object in question, but did have it ‘in the actual possession or custody of another person’ or ‘in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person’…Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his ‘use or benefit’ or that of another person.”

Let’s get to another motel.

On February 1, 2015, two police officers responded to a complaint in the high crime area around the Royal Western Motel in Edmonton. One of the officers saw a parked Ford F-150 with a burned out tail light and a man leaning inside. After dealing with the unrelated complaint the officers headed down Stony Plain Road when they saw the F-150 again. They decided to conduct a traffic stop near a 7-Eleven store. Bradley Gay was the driver and Buddy Underwood was a passenger in the front seat. Gay lied about his name and it all went downhill from there.

Gay was arrested for obstruction and Underwood was told to take off. After Underwood left the vehicle, one of the officers saw some “flakes” that he suspected to be marijuana and a closed eyeglass case under the passenger seat. When he opened the case he thought it contained methamphetamine. He went after Underwood and arrested him for drug possession. The police then found a cornucopia of drugs and other items in various places – a bag on the floor in the back seat containing a loaded sawed-off .30-30 rifle and pill bottles with fentanyl, cocaine and methamphetamine, a meth pipe under the passenger seat, bullets in the passenger door cubby and more drugs under the rear seat. They were jointly charged with multiple drug offences and possession of a prohibited firearm. Gay was also charged with obstruction, fraudulent impersonation and breach of recognizance.

They went to trial before Justice Robert A. Graesser in the Court of Queen’s Bench without a jury. On November 1, 2017, Justice Graesser rendered his verdict in reasons for judgment reported as R v Gay, 2017 ABQB 664. The evidence at trial established that the only substances proved to be drugs were in the bag with the sawed-off rifle in the back of the truck and in the compartment under the rear seat. There was nothing in plain view and the suspected methamphetamine in the eyeglass case was never analyzed.

After instructing himself on the law of possession – and cases such as R v Nguyen, 2009 ABQB 234, R v Ta, 2010 ABCA 145, R v Heiberg, 2011 ABQB 211 and Yalahow – Justice Graesser turned his attention to various scenarios posed to counsel during argument. All of the scenarios were hinged on the fact that the truck was registered to a corporation linked to a man named Cody Patzer. Justice Graesser put the scenarios this way, at para. 86:

“The first was that the truck was owned by Mr. Patzer’s corporation. Mr. Patzer loaned the truck to Mr. Gay and Mr. Underwood to they could sell drugs for him. The second scenario was that the truck was owned by Mr. Patzer’s corporation, but Mr. Gay and Mr. Underwood borrowed or stole it, loaded it up with drugs and weapons, and started out to sell drugs. The third scenario was that Mr. Patzer loaned his truck, complete with drugs and weapons, to Mr. Gay and Mr. Underwood to go to 7-Eleven or to do some other errand not related to drugs. The fourth scenario implicates Mr.Gay in either Mr. Patzer’s drug operation or his own drug operation, but that Mr. Underwood was an unsuspecting and non-participating hitch-hiker or friend Mr. Gay picked up along the way.”

Underwood’s lawyer posed a scenario of his own that Justice Grasser set out, at para. 87: “Mr. Underwood was a purchaser of drugs, and the transaction was interrupted by the traffic stop either before the transaction was concluded, or that the transaction had concluded and Mr. Underwood had already consumed the purchased drugs.” Justice Graesser thought that belonged in the fantastic category, at para. 88:

“I would have to put that scenario in the ‘fantastic’ scenario, as no drugs were found on Mr. Gay or Mr. Underwood, no money was found on either of them, and it would be risky and potentially dangerous for a dial-a-doper to invite a customer into a truck containing weapons within reach of the passenger seat. If Mr. Underwood had actually consumed the drugs he supposedly bought, there was no observation of any ‘flash’ or drug use by the constables leading up to the stop, and one would expect money to be found on Mr. Gay if a transaction had occurred.”

In grappling with reasonable doubt, Justice Graesser then went on to make these findings, at paras. 89-90:

“The challenge for the Crown here is that none of the other scenarios is ‘fantastic’. Mr. Gay and Mr. Underwood were only in the truck for a few minutes before they were stopped for a vehicle equipment violation. Mr. Gay and Mr. Underwood had done nothing suspicious before they were stopped, they were not found with any of the ‘indicia’ of a drug dealer on their persons such as multiple cell phones, or a frequently ringing cell phone. No drugs, money, or weapons were found on either of them.

The only thing suspicious in plain view was the flakes of what Constable Thompson believed to be marijuana. We will never know what those flakes were. The only substances identified as illegal were in a kit bag in a larger black bag in the back seat and in the back seat cubby, which was well hidden. Nothing in the black bag was in plain view to anyone in the front seat. It may have been within reach, but the black bag was not under anyone’s feet or in a place where it could easily be seen.”

The jeopardy Underwood faced was in relation to the eyeglass case under the passenger seat. But there was no evidence proving what the contents were. He may have been suspicious about the bullets in the passenger door cubby but it was not safe to infer that a passenger in a truck for ten minutes, at night, would have seen them. Gay’s jeopardy was anchored in control of the truck. But he was only in control for a brief period of time and nothing fixed him with actual or constructive knowledge of the contents. There was nothing suspicious in the driver’s area.

So Justice Grasser threw up his hands and found both of them not guilty on the drug and firearm charges.


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