A Yukon territorial court judge has dismissed drug-related charges against a Toronto man arrested following a 2017 Whitehorse fentanyl bust after the Crown failed to authenticate a piece of evidence that was crucial to its case.
Jibril Hosh Jibril, 28, had been on trial earlier this week for possession of fentanyl for the purpose of trafficking in relation to a package seized from the Whitehorse Greyhound station in April 2017 that contained hundreds of fentanyl tablets.
However, on May 23 — the third and last day of the trial — Judge Michael Cozens dismissed the case after Crown attorney Benjamin Eberhard conceded the fingerprint evidence the Crown had built its case on was essentially worthless.
That was because the fingerprint expert, while testifying during the trial, unexpectedly pulled out a document she had based her work on but that neither the Crown nor defence had seen before — a set of Jibril’s fingerprints, taken by Saskatoon police in 2013, that she had matched to a partial print found on a bag inside the package.
The sheet of Saskatoon fingerprints, however, was missing information like the name of the person who made the prints, rendering it little more than hearsay. That, in turn, had a domino effect on the value of the work that used the sheet as its foundation.
It was an unexpected end to a trial that had gotten off to a fairly mundane start, with Eberhard and Jibril’s lawyer, David Chow, agreeing on a few key details:
Jibril had been arrested in Whitehorse’s Riverdale neighbourhood in June 2017 after police seized a package that, two months earlier, had stirred the suspicion of the Whitehorse Greyhound station manager.
The package’s contents included six plastic sandwich bags holding a total of 535 green pills, a handful of which were tested and found to contain fentanyl.
Investigators called in a fingerprint expert, Whitehorse RCMP reserve Const. Shelley Massey, to test the package. She collected three partial prints, two of which she entered into a national database.
One, lifted off a sandwich bag, matched a set of prints Saskatoon police had taken of Jibril in 2013; that, in turn, led investigators to track down a picture of Jibril and conduct surveillance around the city for him until his arrest.
The Crown had hinged its case on that match; the Greyhound station manager, Kevin Jack, testified May 21 that he would not be able to recognize the person who had dropped off the package, recalling only that he had given his name as “Jamal Ali.”
As well, under cross-examination, all three Whitehorse RCMP officers that had worked on the case besides Massey said they did not obtain any security camera footage of “Jamal Ali.”
Massey was the Crown’s final witness and had written a report on how she had analyzed the sandwich bag and Saskatoon prints.
During her testimony, she pulled a copy of the Saskatoon prints themselves out of her files, to the apparent surprise of both the Crown and defence.
Eberhard asked for the prints to be entered as an exhibit, but Chow objected, arguing that the sheet had not been disclosed to the defence prior to the trial, as is standard practice.
As well, Chow noted, the Saskatoon prints did not identify who had taken them, meaning that person could not be cross-examined on the validity of the work.
Also at issue was the fact that Massey had not compared the sandwich bag print to Jibril’s fingerprints taken by Whitehorse RCMP after his arrest. She had compared the Saskatoon prints to the Whitehorse prints, determining that they came from the same person, but had not provided documentation on her analysis.
Eberhard told the court May 22 that he had contacted Saskatoon police and identified the person who had taken Jibril’s prints. He then made a two-part application argued on May 23 — first, that the Crown be allowed to reopen its case, and second, that the trial be adjourned so that the Saskatoon police employee had time to submit an affidavit authenticating the prints.
Massey also wished to submit an “addendum” to her report, Eberhard added, after being extensively cross-examined on why she had not documented her work in comparing the Saskatoon and Whitehorse prints.
Chow objected to the application, arguing that it would result in “manifest unfairness” accruing on the defence. Among other things, he said, the Crown should have anticipated he would be raising issues about the fingerprint evidence and been more diligent.
“(This is) not a case where no human ingenuity could have foreseen these problems,” he said.
Cozens ultimately denied the Crown’s application after a short break on May 23.
Eberhard conceded then that, as the fingerprint evidence would now be given little weight from the court, there was now little prospect of a conviction and asked for the case to be dismissed.
Cozens said the request was “appropriate.”
Jibril, who was smiling as he left the courtroom with his mother and sister, declined to comment to reporters on the turn of events, saying only, “Be nice, be nice.”
Speaking to media briefly, Chow said that Cozens had made the right decision in declining to allow the Crown to reopen its case, and that Jibril was “satisfied and grateful for the outcome.”
Contact Jackie Hong at firstname.lastname@example.org