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Penticton man wins appeal to overturn drug conviction

RCMP - Submitted
RCMP
— image credit: Submitted

A Penticton man had his conviction for possession of cocaine for the purpose of trafficking overturned and a new trial ordered.

Richard Edgar Graham said there was a number of rational and innocent circumstances that put him in a van at the Slack Alice's parking lot other than a drug transaction for which he was arrested on June 2, 2010.

RCMP Drug Task force officers testified they received a tip from a confidential source that Graham would be at the parking lot of Slack Alice's just before 11 a.m. Five minutes after observing Graham drive into the parking lot RCMP arrested him.

Cpl. Brad Myhre searched the van Graham was driving and seized a black leather vest from the front passenger seat. In it the officer found a single flap containing one gram of cocaine and $60 in the pocket. In a factory-made closed storage compartment, located in the rear side-panel on the passenger side, two baggies of cocaine weighing 13.2 grams was seized that officers believed had a street value between $1,136 to $1,420 if sold by the gram. A digital scale, paper flaps that matched the one found in the vest pocket and a cell phone was also recovered.

Shorty after the items were seized the cell phone rang and Myhre answered it. A female asked for "Rick" and said she wanted to "trade a recently stolen bicycle for one gram of soft."

During the trial there was not any forensic evidence that linked Graham to the items seized, there was no identification found in the vest and ownership to the van or the subscriber to the cell phone were not identified. Two RCMP officers testified that Graham has a son with the same name who had been involved in illegal drug activity and received a four-year custodial sentence in June 2009.

The trial judge said in the decision that Graham arrived at the parking lot at the same time officers had expected. The leather vest was lying on the passenger seat close enough to be accessible to Graham and there was no one else in the vehicle or evidence that anyone else had been in the vehicle. The trial judge decided Graham was the sole occupant and had sole control over the vehicle and its contents. In the decision the trial judge said on review of the whole of evidence, and there was no evidence to support any other reasonable inference, Graham was found guilty beyond a reasonable doubt.

In the appeal reasons given by Justice Kathryn Neilson on Feb. 21, she wrote the RCMP should not have testified about the confidential information that instigated the investigation and the trial judge should not have referred to it in reaching the decision because it was hearsay and irrelevant in the absence of a challenge to the lawfulness of his arrest. While Crown argued it was only part of the narrative and inconsequential to the verdict, Neilson said it is difficult to asses what, if any, impact the error had on the trial judge's reasoning.

Neilson also agreed that there was no direct evidence Graham had put the drugs in the van or knew someone else had placed them there.

"As earlier noted, the case against him was entirely circumstantial, and the evidence connecting him to the van and its contents was limited," said Neilson.

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