The Yukon Court of Appeal sided with a territorial judge who acquitted a B.C. man accused of trafficking cocaine in the Yukon, ruling the time and location of the offence had to be proven beyond a reasonable doubt.
Jason McMillan, 43, was arrested in November 2013 during Yukon RCMP’s Operation Monolith, which was aimed at dismantling a drug trafficking ring operating in the Yukon.
McMillan was acquitted in September 2015.
He was accused of being in charge of packaging and transporting cocaine to the territory.
Territorial judge Karen Ruddy found the Crown didn’t prove beyond a reasonable doubt McMillan was in Whitehorse around Aug. 30, 2013, the date he was accused of possessing cocaine.
The bulk of the Crown’s case relied on McMillan’s fingerprints that were found on a bag used for a one-kilogram brick of cocaine a police agent retrieved.
The Crown appealed the verdict, arguing it didn’t matter whether McMillan trafficked in Whitehorse or in B.C. The Crown also argued the time and date were not crucial to the defence.
Most of the convictions connected with Operation Monolith relied on direct knowledge of trafficking provided by a police agent who testified at multiple trials.
The police agent was a drug dealer turned informant, who wanted out of the business but didn’t believe his associates would let him leave. His identity is protected by a publication ban.
At trial, the agent testified he was not aware McMillan being involved in the Aug. 30, 2013, transaction.
He didn’t identify McMillan as somebody who had previously delivered drugs, the Court of Appeal noted, though he testified they had met once, two to four weeks before the alleged transaction.
On Aug. 30, the police agent drove to a home in Porter Creek and found a kilo of cocaine in the bottom drawer of a stove.
Kuntoniah Graham, who was eventually sentenced to two years and half in prison for trafficking, was present during the raid. McMillan was not.
Time and place are not usually considered essential elements of an offence, the court of appeal noted.
It is the case however, when those information are crucial for the defence to mount its case.
“Amongst other things, his counsel focused much of his cross-examination and argument on the poor quality of the evidence placing Mr. McMillan in Yukon at the time and place specified,” Justice Gail Dickson wrote on the behalf of the three judges.
“It is obvious both were critical to the defence strategy that was adopted.”
The time and date were also crucial to identifying the exact transaction McMillan was accused of.
“The Crown’s submission at trial that Mr. McMillan was also involved in trafficking cocaine in a separate transaction in Whitehorse some weeks earlier highlighted the need to particularise time and place of the transaction at issue with specificity,” Dickson wrote.
On Nov. 17, 2013 the RCMP arrested five people in B.C.’s Lower Mainland and one in Yukon.
Of those five people, MacMillan is the only one who wasn’t convicted.
A sixth suspect, Alfred Marques, wasn’t arrested until December, 2015.
Contact Pierre Chauvin at pierre.chauvin@yukon-news.com