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A new trial has been ordered for a man convicted of drug trafficking-related charges, after the Manitoba Court of Appeal ruled the sentencing judge misapplied a key credibility test.
Eli Zachary Lewin was convicted of possession of methamphetamine for the purpose of trafficking and possession of proceeds of crime after police, searching him for an unrelated probation breach, found 14 grams of meth hidden in the shaft of a bicycle he was riding and a small amount of meth and cash in his pocket.
At trial, Lewin testified he had no knowledge of the meth hidden in the bicycle, which had been reported stolen, and claimed the meth in his pocket was for personal use.
Lewin told court he had borrowed the bicycle from a drug dealer to run personal errands.
In a written decision released this week, the high court ruled the sentencing judge was entitled to find Lewin was aware of the drugs hidden in the bicycle, but found the judge’s dismissal of Lewin’s claim the drugs in his possession were for personal use was "problematic."
"The trial judge acknowledged that there might have been a plausible theory of personal use to be drawn from the evidence," Justice Barbara Hamilton wrote on behalf of the appeal court.
"In my view, the trial judge erred in relying on the accused’s denial of knowing about the meth — evidence she had previously rejected — to find that possession for personal use was not a reasonable alternative inference."
The effect of the judge’s error was to shift the burden of proof from the Crown to the accused to prove his claim he possessed the meth for personal use, the appeal court said.
A new trial date has not been set.
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