R. v. Krafczyk, 2011 ABQB 200

Court of Queen ’ s Bench of Alberta Citation: R. v. Krafczyk, 2011 ABQB 200 Date: 20110324 Docket: 100393701Q1 Registry: Calgary Between: Her Majesty The Queen Crown - and - Joshua James Krafczyk Accused _______________________________________________________ Reasons for Judgment (Edited Oral Judgment delivered March 21, 2011) of the Honourable Mr. Justice J.T. McCarthy _______________________________________________________ [ 1 ] The Accused, Mr.

Krafczyk, is charged with alleged possession of cannabis marihuana in an amount exceeding three 3 kg for the purpose of trafficking on or about April 1, 2010 contrary to s. 5(2) of the Controlled Drugs and Substances Act that is Count 2 of the Indictment. The Accused is also charged for allegedly escaping from lawful custody on or about April 1, 2010: Count 3 of the Indictment. The Crown is no longer proceeding with respect to the charge under Count 1 of the Indictment. [ 2 ] In the ruling on the voir dire , I dismissed the Charter challenges and the evidence of the Crown was admitted.

[ 3 ] With regard to the facts, the following facts have been admitted by the accused in the Agreed Statement of Facts: 1. On April 1, 2010 the accused was stopped by Constable Frost at or near Canmore, Alberta. 2. The accused admits his identity for the purpose of trial. 3. The accused was driving a grey Buick Regal with a British Columbia licence plate. 4. The substance seized from the accused’s vehicle has been tested and was found to be cannabis (marihuana). Specifically, counsel for the accused admits the following: a.

That the substance described as 23 pounds of marihuana found in a backpack in the grey Buick Regal driven by the accused was sent for analysis and determined to be cannabis (marihuana). b. There are no issues as to continuity of the contraband in question. 5. The accused admits the evidence of Constable Ortega-Caceres. 6. Constable Ortega-Caceres attended the scene as back-up for Constable Frost. 7. Constable Ortega-Caceres witnessed the accused running away from Constable Frost toward a wooded area and Constable Frost running after him. 8.

Constable Ortega-Caceres let Constable Hine know that members were on foot pursuit and then proceeded to park his vehicle to run after the accused as well. 9. The accused had jumped over a barbwire fence and entered a wooded area. 10. After some 500 metres of chasing the suspect, Constable Frost requested that Constable Ortega-Caceres return to the vehicle to secure same. 11. Constable Ortega-Caceres advised Constable Hine that the accused was still at large and requested that he attend the scene as the vehicle needed to be secure. 12.

Constable Ortega-Caceres and Constable Hine took strategic positions around wooded areas to keep the accused contained as Constable Frost had requested the tracking of the accused by PDS Gus. 13. Constable Ortega-Caceres took a position at Spring Creek Trailer Park and other members took other positions. 14. PDS Gus attended the scene and tracked the accused all the way to Millennium Park.

15. The accused was not found and was later apprehended in British Columbia. 16. The qualifications of the Crown’s expert witness, Constable Tim Fralick, are admitted along with his opinion. The accused admits that the quantity of the drugs alone constitutes possession for the purposes of trafficking. 17. Constable Fralick is an expert qualified to provide opinion evidence with respect to the packaging, consumption, pricing, methods of distribution and tracking and personal consumption of marihuana. 18. The photos to be tendered by the Crown are accurate representations of that which they depict. 19.

Continuity of all exhibits. 20. All events occurred in the Town of Canmore in the Province of Alberta. [ 4 ] With regard to the evidence in this case, Constable Frost is the only witness who testified. He is a member of the RCMP and was on duty on April 1, 2010 at and near Canmore, Alberta. It is clear from Constable Frost’s testimony that he has received pertinent training with respect to drug-related investigation and that he has acquired pertinent experience in working on several drug-related investigations.

I find that Constable Frost’s testimony was forthright and consistent. [ 5 ] An in-car DVD was presented as evidence. It contained a video of the initial stop up to and until a few minutes after the Accused fled the scene. [ 6 ] Constable Frost testified in a forthright and professional manner. His testimony was consistent with the video. I find his evidence to be credible and reliable. [ 7 ] Constable Frost testified that he activated his emergency lights and then his siren. As it is possible to see on the video presented, it took quite a few seconds before the Accused finally decided to stop his vehicle.

On the video one can see Constable Frost going to the Accused’s window on the passenger’s side. Constable Frost said that he noticed that the backseat had a pillow and a large blanket almost like a comforter sitting on it. Constable Frost explained that people who transport large quantities of drugs or other contraband commonly sleep in the vehicle with their product. [ 8 ] On the video, it is clear that the Accused lowers his window, although not all the way down. Constable Frost then asked the Accused to roll it all the way down. Constable Frost said that the Accused asked him why he was pulled over.

Constable Frost testified that the Accused asked that question in an overtly tense or aggressive way. He told the Accused that when he ran the licence plate it did not match his vehicle, but then realized that there was one letter off, and in fact it matched the vehicle. Constable Frost added that he was checking if the Accused was tired or drinking and driving because he noticed that he was driving 90 km/h in a 110 km/h zone, which Constable Frost observed was considerably slower than the rest of the moving traffic. Constable Frost said that he noted that there was a single key in the ignition.

He explained that in his experience, a single key is more associated to business-related vehicles than domestic vehicles. [ 9 ] Constable Frost asked the Accused for his driver’s licence. The Accused said that he was waiting for new ID and did not have it. The Accused gave Constable Frost an ATM card with his name on it. Constable Frost asked the Accused if he had a valid driver’s licence and the Accused said that he did. He said that his licence was a British Columbia licence. He told Constable Frost that he had lost his wallet.

When Constable Frost asked the Accused where he was coming from and where he was headed, he said that he was coming from the Kootenays and was driving to Saskatchewan to look at some horses. The Accused spelled his name and gave his date of birth.

[ 10 ] Following the initial stop, Constable Frost performed a licence check.

He had observed a number of factors which in his opinion could relate to drug offences, but were not yet conclusive to him i.e. the slow moving vehicle, the single key in the ignition, the blanket and pillow on the back seat, the Accused being standoffish and that there was lessening of tension and aggressiveness and a subsequent increase in the tension, the Accused only partially rolling down his window, the Accused having lost his ID and the fact that he was coming from the Kootenays to go to Saskatchewan to see some horses. [ 11 ] Constable Frost noted that when he ran the licence plate check, the vehicle was registered to a third party who was not present in the vehicle.

Constable Frost explained that through both his training and experience, this was consistent with someone transporting contraband because it protects the vehicle from being seized. Constable Frost found out that, in fact, the Accused had lied to him because according to a computer check he did not have a valid driver’s licence, but a cancelled driver’s licence. He explained that when he enters a person’s name in his computer it will query the name for the licence plate or for a driver’s licence in the province.

The computer also performs a “29 NCNI” which is a criminal name index check which looks as to whether there are any outstanding warrants as well as any outstanding criminal record. As the information came up, the CNI also came up on his screen and he noted that the Accused had a drug-related criminal history, no outstanding warrants at that time and an associate FPS number which is the way that fingerprints are tracked.

Constable Frost testified that he saw the Accused had previous convictions for possession for the purpose of trafficking and a conviction for production of a scheduled substance which had occurred in Manitoba and Saskatchewan, and the production conviction was in British Columbia. He said once he had that information it solidified and brought his focus to a drug investigation. [ 12 ] Constable Frost then went back to the vehicle in which the Accused was waiting. He said the Accused looked very tense and his body language was not that of being cooperative.

He told the Accused to step out of his vehicle advised him about his driver’s licence being cancelled and said to him that he needed to talk to him. Constable Frost then noted that the Accused “relaxes very slightly, enough that he takes his seat-belt off, starts to exit the vehicle”. As the Accused was walking to the back of the vehicle, Constable Frost advised the Accused that he was under investigative detention under the Controlled Drugs and Substances Act and asked the Accused to face the vehicle.

Constable Frost said that immediately that tension is back in his body and he says something to the effect of, What, are you kidding me? Constable Frost answered that he was not. When Constable Frost tried to handcuff the Accused, and as seen in the video, the Accused faced him, acted as if he was going to hit Constable Frost and fled the scene. Constable Frost started running after the Accused but could not catch up.

He yelled a number of things including that he would use his taser, yelled at him to stop, that he was under arrest, yelled the word “Police”, yelled that he was under arrest for fleeing and that the dog was coming. In fact, the Accused was not apprehended until some time later. [ 13 ] A narcotics dog was deployed around the exterior of the vehicle. The dog indicated a positive confirmation to the presence of a controlled substance. The vehicle was then searched.

Twenty-three pounds of marihuana were seized from the vehicle. [ 14 ] The Crown presented the expert report of Constable Fralick who is an expert qualified to provide opinion evidence with respect to the packaging, consumption, pricing, methods of distribution and tracking and personal consumption of marihuana. The qualifications of the Crown’s expert witness, Constable Fralick, were admitted along with his opinion.

In the Agreed Statement of Facts, the Accused admitted the quantity of the drugs alone constitutes possession for the purposes of trafficking. [ 15 ] In his expert report, Constable Fralick noted that the cannabis marihuana was found in 4 bags and packaged in 46 half pound bags. He noted that half pound bags is a common weight purchased by drug traffickers. He wrote that a drug trafficker will buy large quantities to increase their profit margin as it is more cost effective to purchase illicit drugs in bulk quantities.

He was of the opinion that if the quantity found in the vehicle were to be sold at the joint level, the profit would be approximately $154,000 and if sold at pound level, the profit would be approximately $40,000. He concluded that simple users would not have such a quantity of marihuana in their possession and that the Accused was in possession of the marihuana for the purpose of trafficking and not solely for personal use. [ 16 ] We will now move to issues and analysis.

At trial, the Accused argued that considering the finding in the ruling on the voir dire that there was no reasonable expectation of privacy with respect to the vehicle or the trunk and given the hearsay evidence given by Constable Frost that the Accused did not own the vehicle or the lack of evidence as to whether the Accused had permission to drive the vehicle, consent, knowledge and control were not proven under s. 5(2) of the Controlled Drugs and Substance Act .

The Accused submits that the only evidence with respect to knowledge or lack of knowledge is that the vehicle was owned by a third party and that the Accused said to Constable Frost What, are you kidding me? right after he had told him that he was under investigative detention under the Controlled Drugs and Substances Act . The Accused submits that based on that evidence, knowledge is not proven. The Accused notes in this case, the drugs were not in the vehicle or in plain view, but in the trunk. The Accused submits that the intent or consent to have the drugs is also not proven.

The Accused also argues that there is no evidence that the Accused had control over the drugs. Counsel for the Accused submits that the Accused must therefore be acquitted under Count 2.

[17] The Crown argues that it has proven beyond a reasonable doubt that the Accused was in constructive possession of thecannabis marihuana. In this case, the cannabis marihuana was packaged in half pound bags, which according to the expert, is a commonweight purchased by drug traffickers. Crown argues that this particular quantity would be worth over $71,000 because it is likely that theAccused bought at the pound level to resell it at the lower level. Crown submits this is an important factor to take into account todetermine whether the Accused had knowledge, intention or control over the item.

Moreover, the Crown submits that based on ConstableFrost’s evidence, it is a normal practice to use a third-party vehicle to transport drugs. In any event, the evidence is that the Accused toldConstable Frost that he was coming from the Kootenays going to Saskatchewan, not a short trip. The Crown argues there is no otherreasonable inference to be drawn from the facts than that the Accused was in possession of drugs that were in that vehicle.

The Crownadds that the Accused’s subsequent behaviour reinforces that he had knowledge and that his knowledge was the reason for his flight. [18] The legal principles of constructive possession are summarized in R. v. Johnson, 2008 BCSC 1272 as follows: [14] Section 5(2) of the Controlled Drugs and Substances Act provides that “No person shall, for purposes of trafficking, possess asubstance [included in

Schedule I, II, III or IV].” The substances are identified, and there is no issue in this trial that the substances foundin the vehicle that Mr. Johnson was travelling in are the substances identified in the two counts of the Indictment. [15] The definition of “possession” in the Criminal Code is incorporated into the Controlled Drugs and Substances Act by s. 2(1). Therelevant portions of the definition of “possession” in s. 4(3) of the Criminal Code are as follows: For the purposes of this Act, (

a) a person has anything in “possession” when he has it in his personal possession or knowingly (

i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person ... [16] In order to be in constructive possession, as the definition set out in s. 4(3)(a)(ii) is sometimes referred to, a person must haveknowledge of the nature of the substance possessed, and have or be able to exercise some measure of control over it (see generally R. v.Fisher, 2005 BCCA 444 , [2005] B.C.J. No. 1955 (C.A.), and the cases cited therein).

The Crown must establish both of theseelements beyond a reasonable doubt. [17] Where constructive possession is said to rest on circumstantial evidence, as is frequently the case, the proven facts must be suchthat the constituent elements, namely knowledge and a measure of control on the part of the accused, are the only reasonable inferencesto be drawn (see generally R. v. Cooper (1977), (SCC), 34 C.C.C. (2d) 18, and R. v. To, (BC CA),[1992] B.C.J. No. 1700 (C.A.)). [18] This is simply an expression of the concept of proof beyond a reasonable doubt in the context of a circumstantial case.

While thestandard is high, it is not a standard of absolute certainty. The task of determining whether it has been met must be approached with ameasure of common sense. As McEachern C.J.B.C. put it in R. v. To: It must be remembered that we are not expected to treat real life cases as a completely intellectual exercise where no conclusion can bereached if there is the slightest competing possibility.

The criminal law requires a very high degree of proof, especially for inferencesconsistent with guilt, but it does not demand certainty ... [19] Similarly, when the Crown’s case relating to the purpose of any proven possession rests on circumstantial evidence, the inferencethat the possession was for a particular purpose must be the only reasonable inference arising on the proven facts.

[19] Recently in R. v. Morelli, 2010 SCC 8 , [2010] 1 S.C.R. 253, Fish J., writing for the majority of the Court, definedconstructive possession as follows at paragraph 17: [17] Constructive possession is established where the accused did not have physical custody of the object in question, but did have it“in the actual possession or custody of another person” or “in any place, whether or not that place belongs to or is occupied by him, forthe use or benefit of himself or of another person” (Criminal Code, s. 4(3)(a)).

Constructive possession is thus complete where theaccused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not thatplace belongs to him, and (3) intends to have the object in the particular place for his “use or benefit” or that of another person. [20] In order to establish constructive possession, knowledge, intention to possess and control must be proven beyond a reasonabledoubt by the Crown.

The Accused argues that none of the three elements have been established. [21] In this case, the issue to be determined is constructive possession, particularly whether the Accused knew there was cannabismarihuana in the trunk of the vehicle, had the intention to have the drugs located in the trunk for his use or benefit, and whether heexercised control over the drugs. [22] The evidence shows that the Accused was driving the vehicle and was the sole occupant. The observations made byConstable Frost lead me to believe that the Accused was not going on a short trip.

There is no evidence that he was the owner, but he hadphysical possession and control over the vehicle by driving it. The trunk of the vehicle contained 4 bags which were filled with 46 halfpound bags of cannabis marihuana. [23] Constable Frost said that after doing some computer verifications, he walked back to the vehicle and that the Accused lookedvery tense. He said the Accused’s body language was not that of being cooperative. The vehicle was left running and the Accused stillhad his seat belt on.

It must be also noted that the Accused had not been very cooperative at first by only partially rolling down hiswindow and by being standoffish. He told the Accused to step out of the vehicle and advised him about his driver’s licence beingcancelled and said to him that he needed to talk to him. Constable Frost then noted that the Accused relaxed very slightly, enough that hetook his seat-belt off and started to exit the vehicle.

As the Accused was walking to the back of the vehicle, Constable Frost advised theAccused that he was under investigative detention under the Controlled Drugs and Substances Act and asked the Accused to face thevehicle. Constable Frost testified that “immediately that tension is back in his -- his body and he says something to the effect of, ‘What,are you kidding me?’” The Accused’s demeanour went from being slightly more relaxed to tense right after being advised that he wasunder investigative detention under the Controlled Drugs and Substances Act. As shown on the video, only moments later the Accusedran away.

The behaviour of the Accused leads me to conclude that the only reasonable rational inference to be made on the proven andrelevant and admissible facts of this case, and the reason he ran away was that the Accused had possession of drugs for the purpose oftrafficking. [24] I find that the Crown has proven the elements necessary to prove that the possession for the purpose of trafficking of the 23pounds of cannabis marihuana by the Accused beyond a reasonable doubt.

The Accused controlled the vehicle and its contents and hisbehaviour leads me to rationally infer that he had knowledge of its contents and that he intended to have the drugs for his “use orbenefit”. The Accused admits that the quantity of the drugs alone constitutes possession for the purpose of trafficking.

The onlyreasonable inference arising on the proven facts of this case is that the Accused had possession of the drugs for the purpose oftrafficking. [25] I find the Accused is guilty of Count 2. [26] At trial, Counsel for the Accused agreed that the charge of escaping from lawful custody has been made out. [27] In any event, based on Constable Frost’s testimony and the video that shows that the Accused was in lawful custody and ranaway, the Crown has proven the escaping from lawful custody charge and each element of the charge beyond a reasonable doubt.

I findthe Accused guilty of Count 3. [28] In conclusion, the Court finds the Accused guilty of the charges pursuant to s. 5(2) of the Controlled Drugs and Substances

Act and s. 145 (1) (

a) of the Criminal Code of Canada . Heard on the 24th and 25th day of January, 2011. Dated at the City of Calgary, Alberta this 24 th day of March, 2011. J.T. McCarthy J.C.Q.B.A. Appearances: A. Szabo for the Crown T. Roulston and D. Chow for the Accused