Docket: CACR 2010 Her Majesty the Queen Appellant - v. -, 2012 SKCA 9

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 9 Date: 20120206 Between: Docket: CACR 2010 Her Majesty the Queen Appellant - and - Darcy Germain Respondent Coram: Cameron, Smith and Caldwell JJ.A. Counsel: Douglas G. Curliss, Q.C. for the appellant Michael R. Weger for the respondent

Appeal: From: The Provincial Court Heard: February 6, 2012 Disposition: Appeal Allowed Oral Reasons: February 6, 2012 By: The Honourable Mr. Justice Cameron for the Court CAMERON J.A. [ 1 ] We are of the respectful opinion the trial judge erred in staying the convictions of the accused on the ground of police entrapment.

In our judgment the error lay in the trial judge having incorrectly concluded that the suspicion upon which the police acted in going to the home of the accused and purchasing marijuana from him did not amount to a reasonable suspicion. [ 2 ] It was upon the following information that the police acted in furthering an undercover investigation by going to the home of the accused in Alida to see if he would sell them some marijuana.

In general, they had known for some time that the accused lived in the nearby village of Alida and was licensed to grow marijuana in his home for his personal use in connection with a medical condition. The accused had told them this. Indeed he had invited them to his home to observe his grow operation, though they had not done so, but that is neither here nor there.

The point is that the police had known for some time that the accused was growing marijuana under license and was in possession of it for his personal use. [ 3 ] The police then received information from an anonymous source informing them that the accused, who was identified by name and was said to be living in Alida, was licensed to grow marijuana for his own use but was selling it to kids in town and anyone else who came to his door.

The police received information of this kind on two occasions, though perhaps from the same person, a matter of some uncertainty. [ 4 ] Sometime later the police confirmed with Health Canada that the accused held a current licence to grow and use marijuana in his home. They also ran a criminal record check and discovered that he had a criminal record, including a dated conviction for possession of a restricted drug. [ 5 ] This, then, is the body of fact and information upon which the police acted in going to the home of the accused and purchasing marijuana from him.

It was sufficient in our respectful opinion to furnish the police with reasonable cause to suspect the accused was implicated in the criminal activity under investigation, namely trafficking in marijuana. Hence, w e concluded that the trial judge erred in holding that the suspicion upon which the police acted did not amount to a reasonable suspicion and that in consequence their conduct in purchasing marijuana from the accused amounted to entrapment. [ 6 ] For these reasons we have decided to allow the appeal, enter the convictions recorded at trial, and remit the case to the trial judge for sentencing.

There will be judgment accordingly.