R. v. Phinney

R. v. Phinney

The court found the Crown proved possession of the stun gun, that it was a prohibited weapon and that the accused concealed it and was an occupant of a vehicle in which it was present, and proved personal possession of cannabis and cannabis resin and breach of probation; however the Crown failed to prove beyond a reasonable doubt that the bat or stun gun were possessed for a purpose dangerous to the public peace and failed to prove trafficking (CDSA s.5) because the police expert's opinion lacked sufficient objective foundation and did not account for the accused's medical use explanation and the absence of usual indicia of trafficking.

Citation
2012 NSPC 68
Parties
Prosecution: Her Majesty the Queen; Defendant: Kimball Carl Phinney
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
31 July 2012
Procedural Posture
Criminal / Trial Judgment
Outcome
Convicted: Criminal Code s.91(2) (possession of prohibited weapon), s.90 (carrying concealed weapon), s.94 (occupant knowledge in vehicle), Controlled Drugs and Substances Act s.4(1) (personal possession of cannabis and cannabis resin), Criminal Code s.733.1(1) (breach of probation). Acquitted: Criminal Code s.88...
Legal Topics
Possession, Constructive Possession, Trafficking, Weapons Offences, Probation Breach, Expert Evidence, Hybrid Subjective Objective Test
Source Language
English
Criminal Law Drugs Weapons Possession Constructive Possession Trafficking Weapons Offences Probation Breach +2 more

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Parties

Her Majesty the Queen

Prosecution

Kimball Carl Phinney

Defendant

Procedural Posture

Criminal / Trial Judgment

Legal Issues

  1. 1 Whether the accused had possession of the bat, stun gun and drugs
  2. 2 Whether possession of the bat and stun gun was for a purpose dangerous to the public peace (s.88)
  3. 3 Whether 113 grams of cannabis was possessed for the purpose of trafficking (CDSA s.5)

Ratio Decidendi

The court found the Crown proved possession of the stun gun, that it was a prohibited weapon and that the accused concealed it and was an occupant of a vehicle in which it was present, and proved personal possession of cannabis and cannabis resin and breach of probation; however the Crown failed to prove beyond a reasonable doubt that the bat or stun gun were possessed for a purpose dangerous to the public peace and failed to prove trafficking (CDSA s.5) because the police expert's opinion lacked sufficient objective foundation and did not account for the accused's medical use explanation and the absence of usual indicia of trafficking.

Court Disposition

Convicted: Criminal Code s.91(2) (possession of prohibited weapon), s.90 (carrying concealed weapon), s.94 (occupant knowledge in vehicle), Controlled Drugs and Substances Act s.4(1) (personal possession of cannabis and cannabis resin), Criminal Code s.733.1(1) (breach of probation). Acquitted: Criminal Code s.88...

Orders

  • Convictions entered on counts: s.91(2), s.90, s.94, CDSA s.4(1) (marijuana and resin), s.733.1(1).
  • Acquittals entered on counts: s.88 (bat and stun gun), CDSA s.5 (trafficking).