R. v. S.S. (CDSA Importation of Cocaine)

May 2019

Charge: Importation of a schedule I drug (330 g total of Cocaine)

Location: Brampton Superior Court of Justice

BACKGROUND

Client was intercepted by Custom Boarder and Search Agents at Pearson Airport returning from Jamaica. Flagged for search agents found a small quantity of cocaine “Pellets” in her luggage. After conducting a strip search, more cocaine pellets were located in a special device in her vagina. After questioning her, CBSA learned that the accused had orally ingested further pellets. The accused was placed under arrest, for importing 330 grams of cocaine. The accused had no criminal record and was simply acting as a “mule” for drug dealers yet the crown was seeking a penitentiary sentence on a finding of guilt. This harsh position on sentence is backed up by the courts who have stated that they must impose harsh sentences, even for “mules”, to act as a deterrent to those thinking of importing drugs into Canada.

THE ISSUE

After RCMP took control of the accused, she began complaining that she did not feel well and was transported to hospital. At the hospital she was scanned where pellets were seen inside of her stomach. She questioned the doctor as to what may happen should one of the pellets burst and learned the implications could be severe. She asked if she could stay at the hospital until the pellets had passed and the doctor said he would admit her. Subsequently, the officers informed her that there was a “super loo” at the station that would wash her feces to locate the pellets. They said that if she wanted to stay in the hospital she would have use a bed pan and go through her own feces, as they were not willing to do so. Afraid for her health, the accused agreed and subsequently spent a day and a half being forced to go through her own feces while police were in the room observing.

THE STRATEGY

At the preliminary hearing the officers provided a very different version of events in their examination in chief. Through the use of officers notes, and with skillful cross examination, defence counsel was able to have the officers commit to very damaging testimony giving rise to a strong Section 7 charter argument in relation to the accused having to endure the humiliation she experienced at the hospital. After the preliminary hearing, there was a Judicial Pre-Trial where defence counsel expressed their intention of bringing a Section 7 application to have the charges stayed. The Application was scheduled for 3 full days, with a 5 day trial to follow.

THE RESULT

Once transcripts of the preliminary hearing were ordered, discussions continued with the office of the Public Prosecution Service of Canada, whereby they eventually agreed to stay the charges against the accused. The client was thrilled to avoid a penitentiary sentence as well as avoiding a criminal record. Also, as the accused has extensive family in the United States, this was a very important result for her as a serious criminal record like this for drugs would have impeded her ability to see her family.