Drug charges dismissed because of continuity gap after drugs seized.

R. v. Tran 2013 ABPC 312 – a Provincial Court Judge in Alberta has acquitted two accused for possession of cannabis marihuana for the purpose of trafficking because of a void in the continuity of over 9 kilograms of cannabis marihuana.  An officer made the traffic stop of the Honda Civic at 8:10 PM September 22, 2011.  He then opened the trunk of the vehicle and effectively searched and seized the bags which he believed contained cannabis marihuana. He turned continuity of the motor vehicle and bags over to a second officer at 8:50 PM, approximately 40 minutes later.  In his evidence, the second officer stated that he turned continuity of the bags over to a Detective, the exhibit handler at 9:00 PM, 10 minutes later.

As exhibit handler, he opened the bags and extracted all the Ziploc bags, took samples from each bag, including the white plastic bag, for the purpose of sending samples to the analyst to ascertain the substance. He did not confirm the evidence of the second officer that he received continuity of the bags at the scene when the bags were in the trunk of the motor vehicle. He stated in evidence that he did not receive the bags until 10:57 PM in the property room.  The detective testified that he was involved in surveillance on the vehicle where the drugs were seized from, but that he did not take custody of the exhibits on scene, but back in the property room.  The detective also could not recall from whom he took continuity of the drugs.

The judge said from this evidence, the court could only surmise that the Detective did not take custody of the seized bags at the scene from the trunk of the motor vehicle. The Detective did not take custody of the seized items until he was at the property room where he says he was provided with the seized items at 10:57 p.m. from an unknown person. This left a void of continuity between 9:00 p.m. and 10:57 p.m., almost two hours between the second officer and the Detective. The judge ruled the court does not know which officer is correct in their evidence or neither. The court only knew there is no evidence where the seized items were between 9:00 p.m. and 10:57 p.m., who they were with, or how they got from the trunk of the motor vehicle to the property room, if they did. More importantly, because there is no continuity between those times, the court had no evidence the substances examined by the Detective in the property room and sent off for analysis were the same substances seized from the trunk of the motor vehicle.

The judge ruled that the court was satisfied each accused placed a bag into a Honda Civic motor vehicle trunk that was subsequently stopped and those bags were seized from the trunk of that vehicle. When seized police officers smelled an odour of fresh marihuana emanating from the bags. The two duffle bags when opened contained large garbage bags that held numerous Ziploc sealed bags that appeared to contain cannabis marihuana when viewed by the police officers.  However, there was no evidence the notice of certificates given to counsel for the accused pursuant to Section 51(3) of the CDSA related to the certificates entered in evidence to prove the substance was cannabis marihuana because police lost continuity of the seized bags between the time of seizure from the trunk of the vehicle and the time it was prepared for sending to an analyst to certify if the substance was in fact cannabis marihuana.  In light of the void in the continuity of the seized substances, the judge ruled the court must acquit both accused, as there is no evidence they were in possession of cannabis marihuana.

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