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| John L. Hill |
A police officer spotted the suspected vehicle and pulled it over. The officer observed empty cans of an alcohol-based beverage littering the seats. As the policeman approached Hartnell, a sweet smell that the officer suspected to be methamphetamine was detected.
Hartnell was asked to leave his car and walk to the police cruiser so that a breathalyzer test could be administered. En route to the police car, Hartnell dropped a glass drug pipe and crushed it with his foot. Hartnell was placed under arrest, and a search of the Hartnell vehicle incident to arrest was made. Police found methamphetamine tables and bottles containing 4-hydroxybutyric acid (GHB), scales, cash and plastic bags. He spent until June 16, 2022, in custody awaiting trial.
Hartnell was tried in Saskatoon Provincial Court for possession of a controlled substance for the purpose of trafficking. Three witnesses played significant roles in the trial. Two were Crown witnesses who testified on the production, packaging and trafficking of the street drugs and their street value. The defence called Brittany Albers.
Albers testified that Hartnell had come to stay with her after winning $1,600 at a casino. The following day, Albers’s ex-wife offered to pay Albers to deliver a package, which Albers agreed to do. Hartnell had no knowledge of the package in which police found the drugs. Albers also tried to describe the packaging and the meaning of a notebook that police refer to as a debt list. However, the trial judge found Albers’s statements inconsistent and found her to be an unreliable witness.
Hartnell was convicted and sentenced to 28 months for the methamphetamine and 24 months concurrent for the GHB but credited with 610 days pre-trial custody.
Hartnell appealed both his conviction and sentence. He drafted a prisoner’s Notice of Appeal and was self-represented on the appeal, which was heard in May 2024. He asked the appeal court to allow him to present fresh evidence. The Saskatchewan Court of Appeal handed down its decision on Sept. 20 (R. v. Hartnell, 2024 SKCA 93).
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Of the 12 grounds for appeal that Hartnell presented, two deserve to be discussed because they are frequently raised by people who have been convicted of drug offences. It is often suggested that a court’s reliance on a certificate of analysis misleads a court because the expert who tested the substance found to be a drug does not comment on the potency of the substance. The Saskatchewan Court of Appeal found no merit in that argument. Section 51 of the Controlled Drugs and Substances Act deems the certificate to be admissible and proof of the statements set out in it unless evidence to the contrary is presented. In Hartnell’s case, the certificate identified a substance found in his car as GHB. The substance’s potency is not essential to prove a charge of possession. Furthermore, Hartnell’s lawyer did not bring up the issue at trial.
A more serious ground of appeal was Hartnell’s complaint of ineffective assistance at trial. The Saskatchewan Court of Appeal in R. v. Belcourt, 2920 SKCA 73, had adopted the principles summarized in R. v. G.D.B., 2000 SCC 22, where the Supreme Court of Canada applied the standards identified by American jurisprudence (Strickland v. Washington, 466 US 668 (1984)) that places the onus for establishment of ineffectiveness on the claimant to show that the competence of counsel fell below what could be reasonably be expected of professional assistance, and that such incompetence resulted in a miscarriage of justice.
Here, the thrust of Hartnell’s submission was that counsel did not adequately deal with Albers as a witness such that she was found to be inconsistent and unreliable. In hindsight, perhaps she could have been handled differently. But hindsight has no bearing in consideration of this ground of appeal. Factual guilt was established; there was no miscarriage of justice.
There were other complaints such as Hartnell’s absence when his lawyer requested an adjournment of his case when the jail forgot to transport him during one morning of trial. That is an exception to the rule that an accused must be present throughout the trial.
The Court of Appeal found no merit in Hartnell’s appeal and dismissed it. With his sentence already served, a consent dismissal of the sentence appeal was appropriate.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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