R. v. Keilty

In the case R.v.Keilty the accused, 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?

Crown arguments
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, or (b) 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.v.Mancuso he should be found guilty. Also the actual
physical possession is not necessarily needed to be proven as was in R.v.Russo
where the defendant was convicted of possession and trafficking even though he
did not posses at any time the narcotics. In the case R.v.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.

Appellant arguments
A person should not be stigmatized by conviction for a criminal offense
they did not actually commit.. The case R.v.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.v.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.v.Oakes it 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.v.Oakes the reverse onus clause was declared ultra viries 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?

Decision
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 which states

4.(1) For the purposes of this Act,

(a)a person who has anything in possession when he has it in his personal
possession knowingly

(I) has it in the actual possession or custody of another person, or

(ii)Has it in any place, wether or not that place belongs to or is occupied
by him, for the use or benefit of himself or of another person...

Possession does not have to be proven in order for a conviction in trafficking
to be upheld. The appeal is dismissed

a