TERRITORY CAN'T TRY DRUG POSSESSION CASE - JUDGE

Judge Gail Maltby has ruled that the Yukon has no jurisdiction to try a
youth accused of possession of drugs for the purposes of trafficking.

The case was scheduled to go to trial in Whitehorse this morning, but
defence counsel Malcolm Campbell argued the Yukon does not have the
jurisdiction for the case.

"The offence was not committed here," Campbell told the court.

The alleged offence stems from an incident at a Kelowna, B.C. bus station.
Kelowna RCMP arrested the youth after being informed by Whitehorse RCMP that
he was believed to be bringing cocaine into the territory for the purposes
of trafficking.

The youth and the older man he was with were arrested at the bus station
after a kilogram of cocaine was found in a backpack.

Crown counsel Narissa Somji submitted the agreed statement of fact, a number
of court and police documents and the backpack that was seized as evidence
in the case.

While no charges were laid in Kelowna, Whitehorse RCMP re-arrested the youth
after he returned to the territory. He was charged with possession for the
purposes of trafficking. Another charge was stayed.

Somji pointed to the Controlled Drugs and Substances Act. It states that the
trial can take place where the offence was committed or where the process
arose or the accused was apprehended or are located.

She noted that the process arose in the Yukon in the form of the RCMP
investigation.

While no one contests that the young man was found in Kelowna, she submitted
that because his residency is in the Yukon, the trial should be here.

She also contended that the youth had the intention of trafficking the
cocaine in the Yukon.

There is a general rule that an accused should be tried in the place where
the crime was committed, but there is also a provision which enables the
case to be tried elsewhere.

There is no indication that a trial in Whitehorse is problematic for the
youth or shows any prejudice to the youth, Campbell said.

He argued that cases where a trial takes place in another jurisdiction from
where the arrest happened generally occurs because the offence was in more
than one jurisdiction.

"You have to look at the purpose," he told the court of the section which
allows for a person to be tried in an area other than where the arrest took
place.

There are also situations where a person would have be tried in a number of
jurisdictions, so it is left to be dealt with in one area. "That's not the
case we have here," Campbell said.

He disputed the Crown's claim that location can mean a place of residency.
In other parliamentary acts, the term "residency" is used specifically
rather than location.

The Controlled Drugs and Substances Act would have have used that term or
something similar if that were the interpretation.

He argued that because the offence was not committed in the territory and
because it is not a complicated case involving interprovincial boundaries,
the Yukon court cannot go ahead with the matter.

"This is not the place where (the youth) happened to be located for the
purposes of section 47.2," Campbell said.

Maltby noted that she "reluctantly" agreed with defence on the matter.

The youth is a resident of the Yukon, but that can't be stretched to mean
that is where he was located for arrest.

In other acts, she said, the term "residency" is set out.

Maltby also took issue with the information provided by the Crown which
stated the youth possessed drugs for the purposes of trafficking in "the
Yukon".

In other jurisdictions, Maltby pointed out where the drug is going is
neither here nor there.

Under the circumstances, the Yukon does not have the jurisdiction to hear
the matter, she said.