R. V. Keilty Essay, Research Paper

R. v. Keilty

In the case R.v.Keilty the accused, Keilty, was charged and convicted of

trafficking in narcotics. He then appealed to the Supreme Court of Canada on

the grounds that the trial judge erred in law. The facts in the case were not

disputed but the actual definition of possession under section 2 of the

Narcotic Control Act was the issue. The appellant never actually did sell the

narcotics nor did he at anytime have possession. It is illogical to convict a

person of possession when they don’t actually have possession as defined in the

Criminal Code. Therefore is it logical to convict a person of trafficking if

there were no narcotics?

Crown arguments

The actual possession is irrelevant because section 2 of the Narcotic

Control Act states that trafficking means: (a) to manufacture, sell, give,

administer, transport, send, deliver, or distribute, or (b) offer to do anything

referred to in paragraph (a) otherwise than under the authority of this Act or

the regulation The appellant obviously offered to sell the narcotics to the

officer and as in R.v.Mancuso he should be found guilty. Also the actual

physical possession is not necessarily needed to be proven as was in R.v.Russo

where the defendant was convicted of possession and trafficking even though he

did not posses at any time the narcotics. In the case R.v.Piscopo it was

demonstrated that an accused can be convicted upon circumstantial evidence. The

accused can be convicted using all of the aforementioned cases. Another issue

is that if this case becomes precedent it would open a “floodgate” or loophole

in the law where other criminals may escape through. This would allow for more

dangerous dealers of narcotics, who operate their business “long distance” to

escape prosecution because they never actually had the narcotics in their

possession.

Appellant arguments

A person should not be stigmatized by conviction for a criminal offense

they did not actually commit.. The case R.v.Vallancourt illustrates the use of

the “stigma” test. A person who is convicted of possession should not be also

branded as a trafficker of narcotics also. Another principle brought to the

court from the R.v.Vallancourt case is that a crime requires a minimal state of

mental blameworthiness. This means that the person must bear a certain degree

of moral fault for what he did. To convict the accused of trafficking in

narcotics when everyone acknowledges that there were no narcotics would seem to

violate this principle. Using the rational connection established in the

R.v.Oakes it would appear as if the government of Canada is trying to reduce

trafficking but if a person who did not posses or sell any narcotics is

convicted that conviction does not further that objective. In the case

R.v.Oakes the reverse onus clause was declared ultra viries and gave great

weight to the rational connection test. The accused, who was convicted of

possession for a small amount of narcotics, was acquitted of trafficking. If a

small amount of narcotics cannot support a conviction how can a conviction be

made where there was no narcotics?

Decision

After hearing both the Crown’s and Appellant’s arguments I have decided

that the trial judge was correct. The floodgate argument by the Crown was a

major point to consider because a loophole in the law would have been created.

More dangerous offenders could traffic in narcotics without being in possession

of them at any time. The appellant offered to sell the narcotics to the officer

even though he did not actually make the narcotics available to the officer the

law states that he is guilty because he offered to get them for the officer..

However by law he cannot be convicted of possession because he did not have

possession as defined in the Criminal Code which states

4.(1) For the purposes of this Act,

(a)a person who has anything in possession when he has it in his personal

possession knowingly

(I) has it in the actual possession or custody of another person, or

(ii)Has it in any place, wether or not that place belongs to or is occupied

by him, for the use or benefit of himself or of another person…

Possession does not have to be proven in order for a conviction in trafficking

to be upheld. The appeal is dismissed

a