R. v. Do, 2011 ABQB 135

Court of Queen ’ s Bench of Alberta Citation: R. v. Do, 2011 ABQB 135 Date: 20110603 Docket: 081441008Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Khanh Duy Do Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ Introduction [ 1 ] The Accused was tried on charges of trafficking in cocaine ( Controlled Drugs and Substances Act , s. 5(1)) and possession of proceeds of crime ( Criminal Code , s. 355(b)).

Evidence [ 2 ] On November 13, 2008, Cst. Countryman received a tip about a “dial-a-doper” scheme operating around Stony Plain Road in Edmonton. [ 3 ] At 20:05, Cst. Smith was directed to call the number provided. Prior to making the call, Cst. Smith took $60 from a pre- recorded $500 float. He had photocopied the bills comprising the float on November 7, 2008, and had signed the photocopy attesting to the time and date of the photocopy.

His practice was to identify the amounts he would most likely use on the street in his undercover capacity, and he would photocopy those bills, record the time and date, and sign the sheet. This enabled him to know exactly which bills were in his pocket. He followed the same procedure in this investigation. [ 4 ] When Cst. Smith called the number provided, a male with an Asian accent answered and asked what Cst. Smith wanted. Cst. Smith replied “an hour”. The male responded that the price would be 60 and Cst. Smith agreed to the same. The male then directed Cst.

Smith to meet him in 30 minutes at 149 Street and 87 Avenue. [ 5 ] At 20:27, Cst. Smith parked his vehicle in a parking lot at 149 Street and 87 Avenue. At 20:30, Cst. Smith received a phone call from possibly the same male. Cst. Smith advised where he was and the male said he would be there in about 5 minutes. The male again asked Cst. Smith what he wanted and asked if he had the money. Cst. Smith replied that he wanted “an hour” and that he had 60. The male said “good” and hung up. [ 6 ] At 20:37, Cst. Smith received a call on his cell phone from the same number.

The male told him that he was parked in a green Honda a couple of stalls from where Cst. Smith was parked. The call display showed these calls as coming from “Mark Pham”. [ 7 ] Cst. Smith hung up, exited his vehicle and entered the back seat of the Honda. He did not see anyone exit the Honda as he approached the vehicle. Two males seated in the front turned toward him. The driver, wearing a black coat, spoke with a heavy Asian accent. The passenger was an Asian male, approximately 25 years old, in a white hoodie with a black design. The passenger asked if Cst. Smith had $60.

The passenger had a strong Asian accent and was difficult to understand. Cst. Smith gave $60 to the passenger. The driver picked through what appeared to be pieces of cocaine or “spitballs” in his hand, and gave two of them to Cst. Smith. Cst. Smith told the two males to add his new cell phone number into their phone and they indicated they would do that. He did not recall which of the two men responded. He asked the men their names. Both replied, but he could not understand the passenger due to his accent. The officer exited the Honda which then departed. [ 8 ] Cst. Kingma was part of the surveillance team.

From his vantage point, he could only observe the driver as the Honda departed. He informed Cst. Countryman and Cst. Shelrud via radio that a successful undercover drug transaction had taken place. Cst. Countryman and Cst. Shelrud were instructed to stop the Honda. Cst. Kingma determined that the licence plate was registered to Duy Nguyen. He testified that no one entered or left the Honda from the time Sgt. Smith got out until the Honda left the parking lot. [ 9 ] Cst. Hickey was performing surveillance, and had a clear view of the parking lot.

He saw the Honda with the identified licence plate number leave the parking lot. It was the only vehicle on the road at that point. He followed behind it until it stopped. No one entered or left the Honda during that time, nor did it stop except at traffic signals. The occupants did not switch places. [ 10 ] Cst. Countryman and Cst. Shelrud followed the Honda down 87 Avenue to 165 Street and stopped the Honda. They arrested both occupants immediately for trafficking in cocaine. The driver was identified as Tuan Anh Nguyen. Cst.

Countryman found a Juicy Fruit gum container in Nguyen’s front vest pocket, containing numerous individually wrapped pieces of what was suspected to be crack cocaine. Nguyen was charged with drug related offences but has since disappeared from the jurisdiction. The Accused was the male in the passenger seat. Cst. Shelrud arrested and frisked him but found nothing of interest on his person. [ 11 ] Cst. Shelrud testified that he saw a black laptop bag fall from the Accused’s lap onto the pavement immediately adjacent to the Honda when the Accused was exiting the Honda after the stop. Cst.

Shelrud stated that he picked up the bag and placed it in the passenger side foot well of the Honda. Although he recalled having done this, he did not make a note of it in his notebook. He stated that this was the only black bag in the vicinity.

[ 12 ] Cst. Shelrud recognized the Accused, sitting behind defence counsel, as being the person he had arrested. He processed the Accused at West Division. Cst. Shelrud noted his name, address, phone number, date of birth, and a physical description. The Accused indicated he was from Vietnam and had a student visa. Cst. Shelrud stated that the Accused did not have documents on him at the time. Cst. Shelrud testified that it was his practice to get a driver’s licence. He testified that if he had reviewed a driver’s licence or student visa, he would have made note of that fact. [ 13 ] Cst.

Bitorajac was involved in the stop of the Honda, although she did not perform any arrest. She testified that she observed a black shoulder laptop bag lying on the pavement just outside the passenger door of the Honda. She stated that upon being advised by Cst. Shelrud that it had fallen from the Accused’s lap, she placed it on the front passenger seat and closed the door. She followed the Honda as Cst. Woronuk drove it to the station. [ 14 ] Cst. Woronuk drove the Honda to the West Division station; he did not recall seeing the black laptop bag in the vehicle. He only vaguely recalled a black bag.

No photos of the Honda's interior were taken to record where items relevant to the investigation were situated. Neither the laptop bag nor the wallet purportedly found in it were seized and produced as evidence. [ 15 ] One of the four cell phones rang while Cst. Woronuk was driving the Honda to West Division. Cst. Woronuk asked what the caller needed. A man who identified himself as “Rodney” said he wanted “a game” (which Cst. Woronuk understood - as confirmed by Det. Pilon - to refer to an 8 ball of cocaine) for 180. Cst.

Woronuk told the caller to meet him at a certain location in 10 minutes and the caller said “O.K.”. This was the cell phone sitting on the front passenger seat. Within two minutes, Cst. Woronuk got a second call, and again asked, “What do you need”. A female wanted him to come to her house, requesting “an hour”. Cst. Woronuk told her he would be there in 25 minutes and she agreed to that. Cst. Woronuk testified that the cell phones rang a lot. [ 16 ] At the station, Cst. Bitorajac was responsible for searching the passenger side of the vehicle.

She found a cell phone (which was on) in the black laptop bag, a wallet, and a bundle of three $20 bills and a separate $20 bill. The wallet contained a driver’s licence in the Accused’s name, and $85 in cash. She noted the driver’s licence number. She found a total of $520 in the search, excluding the $60 in buy money. She also found a second cell phone plugged into the cigarette lighter on the console and lying on the front passenger seat. That phone rang and she answered it. A male voice stated, “Garage in the back, 45 minutes ago, one hour”.

On the passenger floor mat, she found a green scribbler. [ 17 ] At West Division, Cst. Smith retrieved his signed photocopy of the money he used during the transaction and compared serial numbers with bills seized from the black laptop bag. Three of the bills were the same. Cst. Bitorajac also testified that she identified the three $20 bills in a bundle as being the buy money. Cst. Smith confirmed the bills with Cst. Bitorajac, comparing the serial numbers with his photocopies. Cst. Bitorajac signed Cst. Smith’s photocopy. Cst.

Smith testified that the $60 would then have been recycled for his future undercover use. A "control sheet" was entered as an exhibit at trial with respect to this evidence, showing a photocopy of three $20 bills with a "pre-investigation" record of the money and a "post-investigation" confirmation as to continuity. Cst. Smith and Cst. Bitorajac confirmed their initials as verifying officers. [ 18 ] Cst. Smith re-dialled one of the two phone numbers he had previously called to arrange the buy and one of the seized cell phones rang. He saw and heard Cst.

Bitorajac, who was standing next to him, answer that call on one of the seized cell phones. [ 19 ] Cst. Woronuk searched the driver’s side of the vehicle.

In total, the search of the Honda at the police detachment revealed: 1) a “Dial-a-Doper” how-to manual in the center console; 2) a machete, a metal pipe and a wooden stick in the trunk; 3) a notebook with an alleged “score sheet” on the front passenger floor; 4) twenty tablets of what appeared to be Ecstasy in the glove box; 5) four cellular phones; 6) the black laptop bag containing four $20 bills in the outside front zipper pocket, a further quantity of money in an outside front zipper pocket, and a black wallet that also held the Accused’s driver’s licence. [ 20 ] Cst.

Smith gave the two pieces of what appeared to be cocaine that he had received in the Honda to Cst. Woronuk at West Division. The two pieces had been in his continuous possession to that point in time. Cst. Countryman provided to Cst. Woronuk the Juicy Fruit container containing 40 pieces of individually wrapped suspected cocaine. Cst. Woronuk failed to submit the two spitballs from Cst. Smith for analysis. He testified that this was probably due to his inexperience, or being sidetracked. Two spitballs were sent for analysis from the 40 which were in the Juicy Fruit container.

The Certificate of Analysis for those two pieces confirms they are cocaine.

[21] Det. Pilon was qualified as an expert witness regarding drug trafficking, specifically with respect to the manner of use,packaging and distribution of drugs, prices, consumption patterns, paraphernalia, jargon, practices and habits of users, and practices andhabits of traffickers. Defence counsel objected to Det. Pilon being called in this matter given that his expert report expressly states hisopinion “that the cocaine was possessed for the purpose of trafficking”, when this Accused was not charged with possession for thepurpose (s. 5(2), CDSA) but rather with trafficking.

Defence counsel argued that the s. 657.3(2) notice is defective. [22] However, Det. Pilon’s evidence is relevant and the Accused was properly notified by the Crown of its intent to call him andthe purpose therefor. The Crown’s theory is that cocaine was in the personal possession of Nguyen, and that Nguyen and the Accusedwere jointly involved in trafficking such cocaine. The opinion evidence meets the criteria set out in R. v. Mohan, (SCC),[1994] 2 S.C.R. 9. It is necessary, relevant, it does not offend any exclusionary rule, and the expert has proper qualifications.

TheAccused was properly notified by the Crown. [23] Det. Pilon testified that the two pieces received by Cst. Smith resemble crack cocaine, and are very similar to the pieces in theJuicy Fruit container. He described them as appearing to be “standard, every day spitballs sold on the street”. He testified that “an hour”refers to two such spitballs, noting that they weigh approximately .35g each, and that $60 was the going rate for “an hour” at the time ofthe alleged offence. He testified that the scribbler seized from the Honda contained notations which looked like details of drug orders.Det.

Pilon stated that at the time of the offence, the standard price and quantity for methamphetamine on the street was $100 for 1gram.When a hypothetical scenario was put to him based on the evidence in this case, Det. Pilon concluded that the two occupants of theHonda were involved in a “dial-a-doper” operation involving sale of cocaine. Legislation [24] The CDSA provides: 2(1) ...“sell” includes offer for sale, expose for sale, have in possession for sale and distribute, whether or not the distribution is made forconsideration; “traffic” means, in respect of a substance included in any of Schedules I to IV, (

a) to sell, administer, give, transfer, transport, send or deliver the substance... 5(1) No person shall traffic in a substance included in

Schedule I, II, III or IV or in any substance represented or held out by that personto be such a substance... ... 51(1) Subject to this section, a certificate or report prepared by an analyst under subsection 45(2) is admissible in evidence in anyprosecution for an offence under this Act or the regulations or any other Act of Parliament and, in the absence of evidence to thecontrary, is proof of the statements set out in the certificate or report, without proof of the signature or official character of the personappearing to have signed it. ...

(3) Unless the court otherwise orders, no certificate or report shall be received in evidence under subsection (1) unless the partyintending to produce it has, before its production at trial, given to the party against whom it is intended to be produced reasonable noticeof that intention, together with a copy of the certificate or report.

[25] The Criminal Code provides: 21.

(1) Every one is a party to an offence who (

a) actually commits it; (

b) does or omits to do anything for the purpose of aiding any person to commit it; or (

c) abets any person in committing it. 354.

(1) Every one commits an offence who has in his possession any property or thing or any proceeds of any property or thing knowingthat all or part of the property or thing or of the proceeds was obtained by or derived directly or indirectly from (

a) the commission in Canada of an offence punishable by indictment... 355. Every one who commits an offence under

section 354 (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, where the subject-matter of theoffence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars; or (

b) is guilty (

i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or (ii) of an offence punishable on

summary conviction, where the value of the subject-matter of the offence does not exceed five thousand dollars. Cases cited by the Parties [26] R. v. Mohan, (SCC), [1994] 2 S.C.R. 9; R. v. Ballony-Reeder, 2001 BCCA 293, 152 B.C.A.C. 75; R. v.Finlay (1991), (BC CA), 65 C.C.C. (3d) 225, [1991] B.C.J. No. 3073 (C.A.); R. v. Jahns (1986), 1986 ABCA 131, 70 A.R. 247, [1986] A.J. No. 418 (C.A.); R. v. Cao, 1998 ABQB 25; R. v. Tran, 2010 ABCA 119, 477 A.R. 238; R. v. Rosene(1990), 1990 ABCA 213 , 107 A.R. 238, [1990] A.J. No. 511 (C.A.); R. v. Moore, (SCC), [1988] 1 S.C.R.1097; R. v.

Morozuk, (SCC), [1986] 1 S.C.R. 31; R. v. Kestenberg and McPherson, (ON CA), [1959]126 C.C.C. 387 at 395 (Ont. C.A.), leave denied [1960] S.C.R. x; R. v. Hoffmann-La Roche Ltd. (Nos. 1 & 2) (1981), (ON CA), 62 C.C.C. (2d) 118, [1981] O.J. No. 3075 (C.A.); R. v. Dean (11 December 2000), Edmonton 0003 1760C3 (Alta.Q.B.); R. v. Saunders, (SCC), [1990] 1 S.C.R. 1020; R. v. Aldrich, 2004 ABPC 69, 2004 A.J. No. 443; R. v. Henri, (BC SC), [1972] 3 W.W.R. 1, [1972] B.C.J. No. 76 (C.A); R. v. Boudreau, 2006 ABQB 386, 399 A.R. 199; R. v. McColm, 2008 BCSC 1330; R. c. Barthelemy, 2009QCCQ 2856, R. v.

Fehr, 2000 BCSC 1913; R. v. Auger, 1999 ABQB 953, 253 A.R. 201; R. v. Greyeyes, (SCC),[1997] 2 S.C.R. 825; R. v. Gordon, 2002 ABPC 139, 324 A.R. 94; R. v. Allen, 2005 MBQB 231, 196 Man.R. (2d) 304; R. v. Jackman,2008 ABPC 213, 452 A.R. 164.

Identity [ 27 ] The Accused argues that the Crown has not proven identity as there was no direct evidence as to the Accused having been present during the transaction in issue. Cst. Smith had a very limited interaction with the two individuals he encountered in the Honda. It was a hand-to-hand transaction which took place in a matter of seconds. He did not make any detailed notes of the person who gave him the drugs, nor of the person to whom he gave the money. Cst.

Smith was not able to identify the Accused in the dock as the individual in the passenger seat of the Honda during the transaction. [ 28 ] Further, Cst. Shelrud and Cst. Countryman who arrested the Accused neither observed nor participated in any drug transactions as undercover officers; rather, they were involved in the actual arrest of the Accused acting on the instructions of others. Neither Cst. Shelrud nor Cst. Countryman was able to identify the Accused as having been present during the purported transaction.

The buy money, which the police testified they found when the Honda was stopped, is not independent additional evidence of identification, but rests entirely on the credibility of the police witnesses and reliability of flawed investigative methods. There was a continuity gap in the handling of the laptop bag, and the "control sheet" on which was recorded post-transaction verification as to buy money pre-dated the transaction by several days. [ 29 ] The Crown argues that it does not solely rely on the dock identification of the Accused by Cst. Countryman and Cst.

Shelrud to establish the identity of the person who accepted payment for the drugs from Cst. Smith. Rather, their evidence is part of the totality of the evidence which when taken together establishes that the Accused was the passenger in the Honda, including: - the description of the passenger given by Cst. Smith which withstood the vigorous cross-examination of the Accused's counsel, including the fact that the Accused was wearing a "white zip-up hoodie with a black design", whereas Nguyen was wearing a black coat/jacket - the visual continuity of the vehicle maintained by Cst. Hickey and Sgt. Kingma; Cst.

Hickey picked up the vehicle as it turned westbound on 87th Avenue which is approximately where Sgt. Kingma lost sight of the vehicle - the identification of the vehicle's passenger as Khanh Duy Do, having a date of birth of February 21, 1988, by Cst. Shelrud - the description of the passenger by Cst. Shelrud, which corroborates that of Cst. Smith, including the fact that the Accused was wearing a "white number 32 track jacket" - the "dock identifications" of the Accused by Cst. Countryman and Cst.

Shelrud - the finding of the Accused’s driver's license in the black shoulder bag containing the buy money which was observed to fall from the passenger's lap. [ 30 ] The Crown notes that the buy money was photocopied prior to the transaction by Cst. Smith, and given back to Cst. Smith after the transaction by Cst. Bitorajac, who located it in the black shoulder bag which was observed by Cst. Shelrud to fall from the passenger's lap onto the ground.

There is no evidence suggesting that the investigating officers did not have control of the bag at any material time such that it could have been substituted or tampered with in any way. The black shoulder bag was the only bag seized in the investigation. [ 31 ] With respect to identification, I find the following evidence to be relevant. Cst. Smith noted that the Honda passenger was an Asian male in his mid-twenties wearing a white hoodie with a black pattern on it. The driver was wearing a black coat. Cst. Kingma testified that no one entered or left the Honda from the time Sgt.

Smith got out until the Honda left the parking lot. Cst. Hickey testified that no one entered or left the Honda from the time it left the parking lot until it was stopped, nor did the occupants switch places. Cst. Countryman and Cst. Shelrud stopped the Honda and arrested the occupants. Cst. Countryman identified the Accused in court as being the passenger whom they arrested.

[ 32 ] Although there is some confusion as to who placed the black laptop bag in the vehicle, the evidence establishes that Cst. Shelrud saw it fall from the passenger’s lap onto the pavement immediately adjacent to the Honda when the passenger was exiting the Honda after the stop. This was the only black bag in the vicinity or in the vehicle. Cst. Shelrud processed the Accused at West Division. He identified the Accused in court as being the person he had arrested. The physical description he had noted at West Division, particularly the white hoodie, matched Cst.

Smith’s description of the passenger. [ 33 ] Further, Cst. Bitorajac found a wallet in the black laptop bag, and three $20 bills identified as buy money. The wallet contained a driver’s licence in the Accused’s name. She noted the driver’s licence number. Cst. Smith retrieved his signed photocopy of the money he used during the transaction and compared serial numbers with bills seized from the black laptop bag. Three of the bills were the same. Cst. Bitorajac also testified that she, in conjunction with Cst. Smith, identified the three $20 bills in a bundle as being the buy money. Cst.

Smith explained his recording of the bills. Cst. Smith and Cst. Bitorajac confirmed their initials as verifying officers. [ 34 ] I recognize that dock identification merits little weight. However, in this case, the circumstantial evidence is overwhelming that the passenger in the Honda to whom Cst. Smith handed $60 is the Accused. Continuity of the vehicle is established. The black bag fell from the passenger’s lap. The wallet containing identification was located in the black bag.

The buy money was in the black bag. [ 35 ] Defence counsel points in particular to the conflicting testimony over who placed the black bag in the Honda, and the date on the "control sheet" record of the buy money. The credibility of the officers who testified in this case was not undermined in cross- examination. In my view, the confusion over the black bag does not detract from the uncontradicted evidence that it was seen to fall from the passenger’s lap when he exited the Honda. There was no other black bag in the vicinity, nor in the vehicle.

I accept that regardless of who placed the bag back in the Honda, it was the same bag which had fallen from the passenger’s lap. [ 36 ] As for the “control sheet”, Cst. Smith explained that he dated the photocopy at the time he photocopied the bills. He explained in detail how he kept track of buy money. He explained how he verified the serial numbers of the bills found in the black bag against his photocopy.

The evidence establishes that the three bills found in the black bag were the same three bills he handed over to the passenger in the Honda. [ 37 ] All of this evidence establishes beyond a reasonable doubt that the Accused was the passenger in the Honda to whom Cst. Smith handed $60. Trafficking [ 38 ] The Accused submits that the evidence does not establish that the Accused committed the offence of trafficking contrary to section 5(1) of the CDSA . First, there is no evidence that the two pieces given to Cst. Smith are in fact cocaine. Second, the mere fact of taking money from Cst.

Smith does not amount to trafficking in cocaine. [ 39 ] As a preliminary objection, however, the Accused argued that the Certificate of Analysis should not be received in evidence. The Accused was initially charged with trafficking in cocaine (s. 5(1), CDSA ) and possession for the purpose of trafficking in N-methyl- 3, 4-methylene-dioxyamphetamine (ecstasy) (s. 5(2), CDSA ). He was served with a Notice of Intention to produce a Certificate of Analysis with respect to charges under ss. 5(1) and s. 5(2).

The attached Certificate of Analysis confirms that the drug exhibit analyzed contained the controlled substance of cocaine. Given that only the s. 5(1) charge is alleged to involve cocaine, the Accused would reasonably assume that the Certificate of Analysis served upon him documented testing of the two items passed from Nguyen to Cst. Smith. However, those two items were not analysed. The Crown is not tendering the Certificate as direct evidence of the crime alleged, but rather is asking the Court to draw an inference from it.

"Reasonable notice" under s. 51(3) of the CDSA relates not only to time, but also to the substance of the notice; the notice must clearly bring home to an accused that a certificate of an analyst will be employed in establishing the nature of the substance in respect of which he is charged with an offence under the CDSA , and it must not be misleading or confusing or otherwise prejudicial to the accused.

Whether or not the Accused in this case has been prejudiced is not at issue; the Notice was misleading therefore the Certificate of Analysis is not admissible for any purpose, whether as circumstantial or direct evidence.

[40] The Crown acknowledges that cocaine from the Juicy Fruit container was the only drug exhibit sent for chemical analysis. Itargues that the Certificate of Analyst is admissible under s. 51 as the Crown has given the Accused reasonable notice of its intention toproduce the Certificate and a copy of the Certificate. The Accused does not dispute the fact that a "Notice of Intention" together with acopy of the Certificate were served on his former counsel on May 14, 2009.

The Accused maintained in the written submission that theCertificate is inadmissible because the "Notice of Intention" employed by the Crown was misleading in terms of which exhibit was sentfor analysis. The Accused in oral submissions at trial took the position that the Notice was misleading because of the inclusion of thewords "Additional Charge: Section 5(2) CDSA."

Section 51 does not require that the Accused be advised which exhibit the Certificate ofAnalyst relates to in the "Notice of Intention", and the Accused has not provided any case law to suggest this. Had Defence counselrequested that the Crown specify which exhibit the Certificate of Analyst relates to, the Crown would have become aware of the fact thatnot all of the drug exhibits had been analysed, and would have been given the opportunity to perfect its case.

Likewise, had defencecounsel requested an adjournment to deal with any alleged prejudice, Crown would have had an opportunity to perfect its case. [41] The case law establishes that in determining whether reasonable notice has been given, all of the circumstances must beconsidered. As La Forest J.A. noted in R. v.

Morrison (1982), (NB CA), 70 C.C.C. (2d) 193 (N.B.C.A.) at 197, thenotice must clearly bring home to the accused that a certificate of an analyst will be employed in establishing the nature of the substancein respect of which he is charged with an offence; once the essentials are met, mere technical objections will not avail to invalidate thenotice. Here, the Accused was given notice that a Certificate regarding a substance analysed as being cocaine would be produced by theCrown.

Although he was initially charged with possession for the purpose of trafficking in N-methyl-3, 4-methylene-dioxyamphetamine(ecstasy) under s. 5(2), he would be under no misapprehension that the analysis of cocaine would be produced in relation to the chargeunder s. 5(1). The Crown has indeed produced the Certificate in relation to the cocaine trafficking charge. Defence counsel failed toarticulate how the Accused could possibly be prejudiced or misled so as to invalidate the Notice.

The fact that the Crown can rely on theCertificate only as circumstantial evidence, rather than as direct evidence of the nature of the two pieces passed by Nguyen to Cst. Smithappears to be advantageous, not prejudicial, to the Accused. I find that the Accused received reasonable notice. [42] The Accused submits that even if the Certificate of Analysis could be considered as part of the Crown's case, thecircumstantial evidence tendered as a whole does not prove beyond a reasonable doubt that the two items passed by Nguyen to Cst.Smith were cocaine, and therefore the Accused cannot be found guilty of trafficking.

Circumstantial proof of a controlled substancemight be sufficient in relation to marijuana where the nature of the substance could be established by other means, but not in relation to asubstance such as cocaine due to its generic appearance. [43] The Crown refers to R. v. Tran, 2010 ABCA 119, in which the Accused was convicted of possession of cocaine for thepurpose of trafficking even though he swallowed all of the cocaine after pouring numerous "spitballs" from a candy container into hismouth.

The candy containers later found in the Accused's vehicle contained white residue which was later analysed to be cocaine. TheCourt inferred that in all of the circumstances the Accused could be found to have swallowed cocaine, which finding was upheld onappeal. [44] Defence counsel relied on R. v. Grant, 2001 ABCA 252, in which McClung J.A. held that a proper scientific analysis of asuspected substance is essential. However, McClung J.A. also indicated that the Court was not to be taken as foreclosing proof by othermeans in every possible case. Joyce J. in R. v.

Grunwald, 2008 BCSC 1738, aff'd 2010 BCCA 288, leave denied [2010] S.C.C.A. No.299 opined that McClung J.A.’s statement went too far in that while the CDSA provides a convenient method of proof by means of acertificate of analysis, nothing in the statute makes a certificate mandatory or precludes proof by other means.

I do agree with Defencecounsel that caution must be exercised with respect to drawing analogies with cases where other means have been relied upon to establishthat a substance was marijuana. [45] It is trite that in order to convict on circumstantial evidence, a court must be satisfied that guilt is the only reasonable andrational inference to be drawn from the proven facts: R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42 at para. 33. This is a very exactingtest. In the present case, the two items given to Cst. Smith were selected by Nguyen from a larger group of spitballs in his hand.

Cst.Smith was not able to observe where Nguyen obtained the spitballs, nor where he put them after the deal was complete. The onlyspitballs found in the car or on Nguyen or the Accused shortly after the transaction were the 40 spitballs in the Juicy Fruit containerlocated in Nguyen's vest pocket. I am satisfied that the analysis of the two pieces selected from the 40 in the container support theinference that the 40 pieces in the Juicy Fruit container were spitballs of cocaine. The two items sold to Cst. Smith were virtuallyindistinguishable from the spitballs of cocaine in the Juicy Fruit container. Det.

Pilon testified that cocaine dial-a-dopers commonly puttheir cocaine in containers like the Juicy Fruit container in this case. The cocaine transaction in this case was a dial-a-doper transaction.The items found in the Honda indicate an active dial-a-doper trafficking operation. [46] I conclude that the only rational inference to be drawn on the evidence in this case is that the larger group of spitballs inNguyen’s hand came from the Juicy Fruit container, and therefore I infer that the two selected from that larger group of spitballs andhanded to Cst. Smith were cocaine. As the two pieces given to Cst.

Smith were virtually indistinguishable from the other spitballs, itwould be irrational to conclude that Nguyen was able to visually select two pieces that were not cocaine from among the group ofcocaine spitballs in his hand which were, or were part of, a larger collection of 40 indistinguishable cocaine spitballs.

[47] Given my conclusion on this aspect of the case, it is unnecessary to consider the arguments of Crown and Defence counsel asto whether the act of “holding out” a substance as being a controlled drug can support a finding of guilt in this case given the wording ofthe indictment (“...he ...did unlawfully traffic in a controlled substance, To Wit: Cocaine”) and if not whether an amendment is in order. [48] The Accused also submits that the receipt of money is not an element of the offence of trafficking.

In my view, the cases citedby Defence counsel in this regard support the argument that exchange of money is not required in all cases for a conviction fortrafficking. However, they do not go so far as to establish that mere receipt of money, especially when physically and temporallyconnected with the provision of cocaine, cannot support a finding of trafficking: R. v. Neal, 2010 ONCA 281 at para. 29, leave denied[2010] S.C.C.A.

No. 212. [49] The Accused submits that the offence of trafficking was committed before the Accused is alleged to have become involved inthe investigation; the offer to sell and delivery of cocaine had already been agreed upon. The contraband was carried, transported anddelivered by Nguyen alone. The Accused argues that the Crown is not alleging that the Accused ever had actual, constructive or jointpossession of the purported cocaine, only that he trafficked the same.

He did nothing to facilitate the sale. [50] The Crown asserts that there are many cases in which persons have been convicted of trafficking in a controlled substancewhere money is exchanged for drugs but no drugs are actually delivered, citing as an example R. v. Rosene (1990), 1990 ABCA 213, 107 A.R. 238 (C.A.), [1990] A.J. No. 511. In this case, the Accused demanded and accepted payment for the cocaine whichwas subsequently delivered by Nguyen. The Accused was thus a joint participant as principal in the transaction, along with Nguyen.

TheAccused handled the money and Nguyen handled the drugs. [51] As noted in Neal at para. 26, the

definitions of "sell" and "traffic" in the CDSA cast a very wide net, the goal of which is tofacilitate prosecution of individuals who participate in or contribute to the trafficking of narcotics; even with penal statutes, the realintention of the legislature must be sought, and the meaning compatible with its goals applied.

In the CDSA, “traffic” means, inter alia,“sell” and the definition of “sell” includes various acts listed, many of which were performed by Nguyen in this case. [52] In my view, the resolution of the issue raised in this case requires only consideration of the basic definition of “sale”, whichaccording to Black’s Law Dictionary is, in simplest terms, transfer of property for consideration (in this case transfer of cocaine formoney).

No possible ambiguity arises in applying this definition to the evidence in this case. [53] The evidence establishes that in accordance with a pre-arranged agreement and meeting, the Accused turned toward Cst.Smith, asked if he had $60, and received $60 from Cst. Smith, upon which the driver gave two spitballs of cocaine to Cst. Smith. Nguyentransferred cocaine to Cst. Smith in exchange for money which had been given to the Accused. The cocaine would not have been givento Cst. Smith without money having changed hands. To find in this case that the Accused was not a joint participant in the sale of cocaineto Cst.

Smith would be to indulge in an artificial construct with no basis in reality. I am satisfied beyond a reasonable doubt that theAccused participated in the exchange of cocaine for money, and thus in the sale or trafficking of cocaine. I find the Accused guilty oftrafficking in cocaine. Proceeds of Crime [54] When arrested, the Accused was in possession of $60 which he had just received from Cst. Smith as consideration for cocaine.The evidence establishes that the Accused and Nguyen were involved in an active “dial-a-doper” operation. Det.

Pilon testified as to thenotations in the scribbler and the trafficker’s manner of dealing with money received for drugs. The cell phones found in the vehicle rangfrequently and the incoming calls related to purchase of drugs. I infer on all of the evidence that the remaining money in the black bag,with the exception of the money found in the Accused’s wallet, also constituted proceeds of drug sales.

I find that the charge ofpossession of proceeds has been established beyond a reasonable doubt in relation to this Canadian currency. [55] However, the Accused is charged that he “did unlawfully have in his possession property (or proceeds of property) Canadiancurrency and cell phones...knowing that all (or part) of the property (or proceeds of the property) was obtained (or derived directly or

indirectly) by the commission in Canada of an offence punishable by indictment...”. [56] The Accused states that the Crown has alleged that the Accused was in possession of proceeds of crime, being a cell phoneand Canadian currency, however there is no evidence that any cell phones in the vehicle were proceeds of crime. Therefore, the Crownhas not established possession of the cell phones, let alone as property derived from commission of an indictable offence. Further, anyapplication by the Crown to amend the proceeds charge under s. 355(b), should be denied as leading to irreparable prejudice.

The criteriain s. 601(4) would be applied as follows: a. There was no evidence as to cell phones being proceeds of crime during the preliminary inquiry, which should have alerted theCrown to the nature of its case; b. There was no evidence as to cell phones being proceeds of crime during the trial; c. Which in turn defined the approach employed by the Accused to challenge the Crown's case - in terms of both questions askedduring cross-examination and the decision on whether to call a defence; d.

Now that cases have been closed, any application by the Crown to amend the charge would deprive the Accused of anopportunity to lead his case accordingly, resulting in irreparable prejudice; e. To change the complexion of the case after the opportunity to present a defence has passed would constitute an injustice. [57] The Crown argues that the words "and cell phones" in Count 2 is a non-essential particular which can be severed from the restof the count.

An amendment to the Indictment to conform to the evidence is not necessary, although the Court can amend the count anddelete the words "and cell phones" at any stage in the proceedings. The amendment would not be prejudicial to the Accused as it reflectsthe fact that one of the listed items is not proceeds of crime. In similar cases involving stolen property, it has been held that the Crown isnot obliged to prove that all of the items specified in a charge have been stolen: R. v. Kestenberg and McPherson, (ONCA), [1959] 126 C.C.C. 387 at 395 (Ont. C.A.), leave denied [1960] S.C.R. x; R. v.

Hoffmann-La Roche Ltd. (Nos. 1 & 2) (1981), (ON CA), 62 C.C.C. (2d) 118 at 9 (Ont. C.A.). [58] I note at the outset that the wording of the charge as it currently reads is open to the

interpretation advanced by the Crown.The Crown has established that the Accused unlawfully had in his possession “property”, i.e. cell phones and Canadian currency,knowing that part of the “property”, i.e. in this case Canadian currency, was obtained by commission of an indictable offence. Thecharge itself contemplates that not all of the “property” particularized in the count constituted proceeds. [59] The Court in R. v. Lanteigne (1999), (NB CA), 215 N.B.R. (2d) 310, [1999] N.B.J.

No. 316 (C.A.), leavedenied [1999] C.S.C.R. no 480, 252 N.R. 400 held: 28 With respect to the lack of particulars relating to the property in question and to the obligation, according to the respondents, toparticularize this property in the indictment, here again, I believe the nature of the offence is an important factor in the appreciation ofwhat information is required to satisfy the requirements of subsection 581(3).

According to the principle set out in Tortone that theprosecutor is not bound to prove that a specified asset is derived from the commission of a specific act of narcotic trafficking, it followsthat the property or the proceeds of property that were allegedly, at one time or another, before June 1, 1994, in the possession of therespondents are simply elements used to prove the essential element of the offence, which is possession on June 1, 1994 of proceeds ofnarcotic trafficking and the knowledge of the respondents that they were effectively such proceeds.

Even if the identification of theproperty to be covered by the evidence of the prosecutor is necessary for the preparation of the respondents' defence and can be coveredby a request for disclosure, that does not make the information an essential element of the wording of the charge against the respondentswithin the meaning of subsection 581(3). [60] Accordingly, I find that “cell phones” is a non-essential element. I also find that its deletion would not prejudice the Accusedin any way.

Taking into account the evidence taken on the trial, the circumstances of the case, the fact that the Accused has not beenmisled or prejudiced in his defence by the wording of the count, and that the amendment can be made without injustice being done, I

amend the proceeds count to delete “and cell phones” under s. 601(4) of the Code . [ 61 ] I have found that the Crown has established beyond a reasonable doubt that the Accused was in possession of Canadian currency knowing that it was obtained by the commission in Canada of an indictable offence. I find the Accused guilty on the proceeds count. Conclusion [ 62 ] I thank both counsel for their assistance in this case. Despite Defence counsel’s vigorous defence of his client, I find the Accused guilty of trafficking in cocaine ( CDSA , s. 5(1)) and possession of proceeds of crime ( Criminal Code , s. 355(b)).

Heard on the 1 st to 3 rd days of March, 2011. Dated at the City of Edmonton, Alberta this 3 rd day of June, 2011. Donald Lee J.C.Q.B.A. Appearances: Patricia Giroux Public Prosecution Service of Canada for the Federal Crown Sid M. Tarrabain, Q.C. and Ali Moughel Tarrabain & Company For the Accused