In the case R versus Keilty the accused was Keilty. Keilty was charged and convicted of trafficking in narcotics. He then appealed to the Supreme Court of Canada on the grounds that the trial judge erred in law. The facts in the case were not disputed but the actual definition of possession under section 2 of the Narcotic Control Act was the issue. The appellant never actually did sell the narcotics nor did he at anytime have possession. It is illogical to convict a person of possession when they don't actually have possession as defined in the Criminal Code. Therefore is it logical to convict a person of trafficking if there were no narcotics?
The actual possession is irrelevant because section 2 of the Narcotic Control Act states that trafficking means…
(a) To manufacture, sell, give, administer, transport, send, deliver or distribute
(b) To offer to do anything referred to in paragraph (a) otherwise than under the authority of this Act or the regulation - the appellant obviously offered to sell the narcotics to the officer and as in R versus Mancuso he should be found guilty.
Also the actual physical possession is not necessarily needed to be proven as was in R versus Russo where the defendant was convicted of possession and trafficking even though he did not posses at any times the narcotics.
In the case R versus Piscopo it was demonstrated that an accused can be convicted upon circumstantial evidence. The accused can be convicted using all of the aforementioned cases. Another issue is that if this case becomes precedent it would open a floodgate or loophole in the law where other criminals may escape through. This would allow for more dangerous dealers of narcotics who operate their business long distance to escape prosecution because they never actually had the narcotics in their possession.
A person should not be stigmatized by conviction for a criminal offense they did not actually commit. The case R versus Vallancourt illustrates the use of the stigma test. A person who is convicted of possession should not be also branded as a trafficker of narcotics also. Another principle brought to the court from the R versus Vallancourt case is that a crime requires a minimal state of mental blameworthiness. This means that the person must bear a certain degree of moral fault for what he did. To convict the accused of trafficking in narcotics when everyone acknowledges that there were no narcotics would seem to violate this principle. Using the rational connection established in the R versus would appear as if the government of Canada is trying to reduce trafficking but if a person who did not posses or sell any narcotics is convicted that conviction does not further that objective. In the case R versus Oakes the reverse onus clause was declared ultra virus and gave great weight to the rational connection test. The accused, who was convicted of possession for a small amount of narcotics, was acquitted of trafficking. If a small amount of narcotics cannot support a conviction how can a conviction be made where there was no narcotics?
After hearing both the Crown's and Appellant's arguments I have decided that the trial judge was correct. The floodgate argument by the Crown was a major point to consider because a loophole in the law would have been created. More dangerous offenders could traffic in narcotics without being in possession of them at any time. The appellant offered to sell the narcotics to the officer even though he did not actually make the narcotics available to the officer the law states that he is guilty because he offered to get them for the officer... However by law he cannot be convicted of possession because he did not have possession as defined in the Criminal Code.
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