Provincial Court report, SCC and a strip search, and a 6 year fentanyl sentence

 

This week on Legally Speaking with Michael Mulligan:

The Provincial Court in British Columbia handles 95% of criminal cases, as well as many family law cases, youth, small claims, and ticket disputes.

The 2020 / 2021 annual report from the court is discussed on the show. Significant changes during this time include that 77% of all appearances in Provincial Court were technology-enabled: at least one party appeared remotely.

To facilitate the COVID-19 motivated increase remote appearances, the court spent an extra $442 thousand dollars on information technology systems. This was, however, more than offset by a $1.4 million savings on travel costs. Without the increased capacity to handle remote appearances, judges, court clerks, and others spent more time and money travelling.

An example of technology-enabled appearances that began prior to COVID, but has expanded in response if the Justice Centre which uses telephone and video conferencing to connections to permit judicial justices to conduct bail hearings and to review search warrant applications. In 2020 / 2021 the Justice Centre handled 17,682 bail hearings and 24,803 search warrant and production order applications.

Also on the show, the Supreme Court of Canada considered a case involving a warrantless strip search.

To arrest someone for a criminal office, without a warrant, a police officer must have reasonable grounds to believe they committed a criminal offence. An arrest on this basis also permits the officer to search the person, and their surroundings, for weapons, means of escape, and evidence of the offence for which the person is being arrested. Typically this will take the form of a pat-down search.

To conduct a more intrusive strip search, the police officer would also need to have reasonable and probable grounds to believe that such a search would reveal a weapon, means of escape or evidence of the office for which the person is being arrested. The strip search must also be conducted in a reasonable way. This would ordinarily mean in a location that can afford privacy.

In the case discussed, the search was found to be reasonable because when the accused person was being arrested for drug trafficking their pants were partially down and the officer saw the accused reaching towards the back of his pants. A strip search revealed drugs concealed in and around the accused person’s buttocks.

Finally, on the show, a 6-year sentence for a man convicted of possessing fentanyl and carfentanil, in Nanaimo, for the purpose of trafficking, is discussed.

While the man plead guilty, the case involved a “Gardiner” hearing, which takes its name from a Supreme Court of Canada Case: R. v. Gardiner. This is a hearing, as part of a sentencing hearing, where there is a dispute about an aggravating or mitigating fact.

In this case, the accused was found with a bag containing more than $20,000 and a large quantity of drugs. The accused man was homeless: sleeping in parks and eating at soup kitchens. His evidence on the Gardiner hearing was that he was not the owner of the cash and drugs but was rather holding the bag for a higher-level drug dealer in anticipation of receiving some drugs in return.

The judge found that the Crown had not proven that the homeless man was the owner of the money and drugs but that, despite this, his moral culpability was high because the drugs were so dangerous. The homeless accused man testified that he had known many people who died of drug overdoses. As a result, a six-year jail sentence was imposed.

 

Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am. It’s also available on Apple Podcasts, or wherever you get your podcasts.