Nicholas Gregory Kernaz v. Her Majesty the Queen

(Saskatchewan) (Criminal) (As of Right)


Criminal law - Appeals - Criminal law - Appeals - Right of Attorney General to Appeal - Question of law alone - Possession of a controlled substance for the purpose of trafficking - Definition of “traffic” in s. 2(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 - Whether the Crown’s ground for appealing the appellant’s acquittal, namely whether the trial judge applied the wrong legal test as to possession for the purpose of trafficking to the facts of the case, raised a question of law for the purpose of s. 676(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46.


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The appellant was arrested after parking a borrowed vehicle outside a house in Regina. The police found methamphetamine on the appellant and methamphetamine, cocaine, pipes, cash, marijuana, cell phones, scales, baggies, three guns and ammunition in the vehicle. He was charged with possession of methamphetamine and cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, and possession of the proceeds of crime over $5,000, contrary to ss. 354(1)(a) and 355(a) of the Criminal Code, R.S.C. 1985, c. C-46. At trial, the appellant admitted he possessed the methamphetamine found in his pocket, a pipe and some of the cocaine in the vehicle and stated that he intended to share the drugs with a woman residing in the house in front of which he had parked the vehicle. The appellant also maintained that he did not expect money for sharing the drugs. The trial judge convicted the appellant of simple possession, the lesser included offence. The Crown appealed the acquittal on the possession for the purpose of trafficking charge, arguing that the trial judge either applied the wrong test for the offence or did not correctly apply the right one to the facts. The Crown noted that the definition of trafficking includes “giving” and that the jurisprudence has held that if an accused admits to intending to share with others drugs in his or her possession, then he or she possesses it for the purpose of trafficking. The appellant argued that the Crown was barred from appealing the acquittal because its ground for appeal did not raise a question of law. The Court of Appeal allowed the appeal, set aside the acquittal and entered a conviction on the possession for the purpose of trafficking charge.