Brandon Harder
Regina Leader-Post
As a number of cases relating to significant fentanyl seizures slowly work their way through Saskatchewan’s justice system, the lawyers involved may have been studying a recent decision from the province’s top court.
The June 13 Saskatchewan Court of Appeal decision written by Justice Jeff Kalmakoff, with Justices Neal Caldwell and Meghan McCreary in agreement, adds to the body of case law, and may guide future decisions in cases involving the deadly drug.
On Dec. 17, 2019, Emile Laird and Christian Mukele were travelling east along the TransCanada highway in a rental car when they caught the attention of an RCMP officer near Swift Current.
Const. Alexandros Giannoulis stopped the car, questioned the occupants, became suspicious and arrested the men for possession of a controlled substance. A subsequent search revealed 310 grams of fentanyl separated into 11 baggies.
The trial for the two men was “lengthy and convoluted,” according to the appeal decision.
But they were ultimately both found guilty of possessing fentanyl for the purpose of trafficking, and were each sentenced to eight years in prison, less credit for time served on remand.
They appealed both their convictions and sentences, and ultimately failed to convince the Appeal Court judges to intervene on either front.
The men argued on appeal, as they did at trial, that police didn’t have the grounds necessary to arrest them without a warrant. An unlawful arrest and subsequent search would violate constitutional rights.
“It is fair to say that, generally, a set of observations that are all individually innocuous will not, without something more, symbiotically satisfy the standard of reasonable grounds to arrest,” the appeal decision notes.
Kalmakoff goes on to cite another decision from his court, where the conviction of Jeffery Santos — also stopped by Giannoulis in a similar fashion while toting a kilogram brick of cocaine near Swift Current — was overturned due to constitutional rights violations.
In the Santos case, Kalmakoff wrote, “the evidence fell short of providing an objective basis to believe he was committing that offence.”
In the Lair He wrote: “the factors upon which Cst. Giannoulis formed his belief in this case were not all innocuous. Far from it, in fact. “
The officer’s observations, including that one of the men had a criminal conviction for trafficking (as opposed to “mere police intelligence or source information as was the case in Santos”) satisfied the appeal judges that he’d made “reasonable” inferences about Laird and Mukele possessing drugs.
As a result, Kalmakoff wrote, the rights of the men were not infringed.
The men also sought to have their case thrown out for taking too long, violating their right to be tried within a reasonable time frame. While the appeal decision states the trial judge erred in his calculations, Kalmakoff noted the delay in the case was not “presumptively unreasonable, albeit by the slimmest of margins.”
With regard to sentence, the appeal decision rejects arguments from the men that the sentencing judge failed to properly consider mitigating factors and failed to properly apply the principle of parity, which holds that similar sentences should be given for similar offences committed by offenders in similar circumstances.
Kalmakoff wrote he rejected their argument that, because theirs was not a “large-scale trafficking operation,” the trial judge was mistaken in considering cases that included large operations, when determining an appropriate sentence.
One of those cases was from the Supreme Court, and set the sentencing range for large-scale fentanyl trafficking at 8-15 years. Justice Michael Moldaver,writing for Canada’s top court for that decision, called fentanyl “public enemy number on “As grave a threat as drugs such as heroin and cocaine pose, that threat pales in comparison to the one posed by fentanyl,” he wrote.
Moldaver suggested “heavy penitentiary sentences” should be imposed for large-quantity trafficking in the drug.
Kalmakoff wrote that the range decided on by the Supreme Court was based on cases involving a variety of circumstances, some more serious and some less serious than those in the Laird-Mukele case.
“I see nothing in the trial judge’s reasons that reveals an error in his understanding or application of the parity principle,” Kalmakoff wrote.
The Appeal Court judge continued that he found “no merit” in the argument that the sentences imposed on Laird and Mukele were “demonstrably unfit.”
“In my view, the sentences were on the mark.”
