R. v. Heiberg, 2011 ABQB 211

Court of Queen ’ s Bench of Alberta Citation: R. v. Heiberg, 2011 ABQB 211 Date: 20110329 Docket: 090946831Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Gunnar William Heiberg and Samuel Hudson Kelleher Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________ I. Introduction [ 1 ] Gunnar William Heiberg and Samuel Hudson Kelleher are jointly charged with possession of cocaine for the purpose of trafficking.

Heiberg stands further charged that he was unlawfully in possession of property obtained by the commission in Canada of an offence, that he had in his possession a weapon for a purpose dangerous to the public peace and that he had in his possession a prohibited weapon. [ 2 ] I have set out the background facts in the Reasons for Judgment issued March 25, 2011 with respect to the accused’s Charter

rights and whether evidence seized should be excluded under s. 24(2) ( R. v. Heiberg 2011 ABQB 203 ). However, I will highlight a few of the facts relevant to the issues now before the Court which include whether the two accused were in possession of the cocaine found in the motor vehicle, whether Heiberg was unlawfully in possession of property obtained by the commission of an offence and whether Heiberg was in possession of a weapon for a purpose dangerous to the public peace and a prohibited weapon. II.

Facts [ 3 ] Detective Camp stopped a vehicle in which Kelleher was the operator and Heiberg was the passenger on August 4, 2009 shortly before 4:20 a.m. in the vicinity of 111 Avenue and 157 Street in Edmonton. He initially stopped the vehicle as part of a Traffic Safety Act violation which then turned into a criminal investigation due to a suspicion by Detective Camp that the vehicle had been stolen. [ 4 ] Detective Camp became suspicious because of a number of factors. He had previously determined through a licence plate check that the vehicle was owned by a woman, Stella Stevenson.

Neither Kelleher nor Heiberg seemed to know the name of the owner of the vehicle, Kelleher was fumbling while looking for registration and insurance, Kelleher appeared nervous, there was a single key seen in the ignition and Kelleher then advised him that the vehicle was not stolen. Once he formed the suspicion that the vehicle may be stolen, Camp placed Kelleher and Heiberg in investigative detention. [ 5 ] As a result of a pat-down search while under investigative detention, a knife was found on Heiberg .

He was placed under arrest for possession of a prohibited weapon and possession of a weapon dangerous to the public peace. Camp conducted a search of the vehicle incidental to the arrest of Heiberg. [ 6 ] On searching the vehicle, Camp found a plastic Juicy Fruit container in the inside pouch on the passenger side door of the vehicle. Heiberg had been sitting in the passenger seat at the time the vehicle was stopped by Camp. The Juicy Fruit container was opened by Camp and found to contain 34 individually wrapped pieces of crack cocaine. [ 7 ] This occurred at 4:31 a.m.

Heiberg and Kelleher were placed under arrest. [ 8 ] Detective Camp also found three cell phones in the vehicle. Between 4:31 a.m. and 4:59 a.m., Camp answered six different calls on one of the cell phones found in the vehicle. The cell phone on which these calls were received was a cell phone that Kelleher had previously answered shortly after the vehicle stopped. On answering the telephone at that time, Kelleher simply told the caller he would call back or told the caller to call him back. No other discussion took place.

Camp testified that there were a total of about 20 calls between 4:31 a.m. and 4:59 a.m. though he only answered the six. He testified that the brief discussions in the six in which he was involved related to the purchase of drugs. [ 9 ] Detective Pilon was qualified to give expert opinion evidence in the area of drug trafficking and, particularly with respect to cocaine, its use, packaging, distribution, prices, consumption patterns, paraphernalia, jargon, practices and habits of users, practices and habits of traffickers, and observable effects. His expertise was acknowledged by the defence.

His evidence at the preliminary inquiry was then introduced as evidence at trial. [ 10 ] Detective Pilon gave evidence on what is commonly referred to as a “dial-a-doper”scenario. He said it usually involves a vehicle commonly registered to a third party so as to provide anonymity. It typically has one or two occupants each tasked with certain responsibilities involving the taking of money, the handing out of drugs and driving. There is a cell phone involved from which orders are taken for drugs from clients.

Often they will have weapons, within the occupants’ reach, for protection. [ 11 ] Detective Pilon testified that crack cocaine is usually sold in half gram weights which usually weigh in fact about .3 of a gram. They are usually individually packaged and sell for between $30 and $40. In this case, he estimated the value of the cocaine seized to total between $900 and $1,360. [ 12 ] He also testified that a person trafficking in cocaine normally stores the individual pieces in a small plastic container which makes the contents readily accessible. By popping open the lid, one or two pieces can be removed.

He further indicated that it was

normal for that container to be placed in a front door pocket in the vehicle, as it is readily accessible. [ 13 ] With respect to the use of cellular phones, Detective Pilon said it is normal for individuals involved in the trafficking of drugs to have personal telephones which would not be used in the business of selling drugs. However, there would usually be one “drug phone” and if it rings constantly, it would be indicative of a phone used by a “street level dial-a-doper”.

Customers would regularly call on that phone. [ 14 ] With respect to the cash found on Heiberg , Detective Pilon opined that large amounts of cash, if predominantly in small bills, would be consistent with previous drug sales of small quantities.

He opined that the $805 found on Heiberg , in denominations of one $100 bill, 34 $20 bills, two $10 bills, and one $5 bill, would be consistent with prior street level sales as the majority of the bills were $20 bills and the pieces found would sell for $30 or $40. [ 15 ] Finally, with respect to the knife found on Heiberg , Detective Pilon testified that individuals involved in the sale of cocaine often have a knife or a weapon in order to protect themselves, the drugs and the cash as they are often dealing with addicts and are putting themselves at risk each time they meet up with such a purchaser. [ 16 ] In all of the facts presented to him, it was the opinion of Detective Pilon that a person found in possession of the cocaine would be in possession of it for the purpose of trafficking.

III. Issues [ 17 ] The sole issue with respect to the drug charge against both accused is whether either or both were in possession of cocaine. The defence has acknowledged that if this Court finds that either or both were in possession of cocaine, then the possession was for the purposes of trafficking. [ 18 ] With respect to the cash found on Mr. Heiberg, the issue is whether it was obtained by the commission in Canada of an offence. [ 19 ] With respect to the weapon, the defence made no submissions regarding Mr. Heiberg’s possession of it or that it was a prohibited weapon.

The remaining issue is whether it was in his possession for a purpose dangerous to the public peace. IV. Positions of the Parties [ 20 ] The evidence against each accused is circumstantial. In order to convict on circumstantial evidence, I must consider all of the evidence and be satisfied firstly that the evidence is consistent with the accused having committed the act in question, that is, the accused in this case were in possession of cocaine; and secondly, that the evidence is inconsistent with any other rational conclusion except that the accused are guilty (see R. v. Pawlick , 2007 ABCA 9 ).

The evidence must be considered with respect to each accused separately. [ 21 ] The crack cocaine was found in the Juicy Fruit container located in the pouch on the inside door of the vehicle which Mr. Kelleher was driving and in which Mr. Heiberg was riding as a passenger. Heiberg was closest to it. The Crown is relying on circumstantial evidence as well as the expert evidence of Detective Pilon with respect to the element of possession. [ 22 ] In order to establish personal possession, three elements must be established: i. knowledge of the thing; ii. intention to possess the thing; and

iii. control over the thing. In this case, the mere presence of Kelleher and Heiberg in the vehicle in which the crack cocaine was found does not prove beyond a reasonable doubt that either or both had knowledge of the cocaine that was located there, the intention to possess it or control over it. The question is whether the additional circumstantial evidence introduced by the Crown establishes beyond a reasonable doubt the requisite degree of knowledge, intention and control on the part of the accused.

Before convicting I must be satisfied that the only reasonable and rational inference to be drawn from the proven facts is that either or both of the accused had knowledge, intention and control over the cocaine ( see R. v. Griffin , 2009 SCC 28 , [2009] 2 S.C.R. 42 at para. 33 ). [ 23 ] It must first be emphasized that neither accused owned the vehicle in which they were riding.

Kelleher had control over the key to the vehicle as he was driving it when first seen by Detective Camp. [ 24 ] The Crown submits that the cumulative effect of all of the circumstantial evidence establishes beyond a reasonable doubt that Kelleher and Heiberg had knowledge of the cocaine in the vehicle, the intention to possess the cocaine and control over the cocaine and were involved in a joint venture. The Circumstantial Evidence [ 25 ] There were two occupants in a vehicle owned by a third party which Detective Pilon says is usual for individuals involved in the drug trade to ensure a degree of anonymity.

The cocaine was found in a Juicy Fruit container which was both within the reach and likely in the view of the passenger, Heiberg. Heiberg was found with $805 in his pocket in denominations that Detective Pilon suggests were consistent with the previous sale of individuals pieces of cocaine. Three of the cell phones found did not ring but the one cell phone that did ring did so constantly, again indicative of involvement in the drug trade. Kelleher had answered that phone and arranged with the caller to speak together later.

Detectives Camp and Pilon both confirmed that the nature of the comments made during the six calls answered by Detective Pilon suggested involvement in the drug trade. Mr. Heiberg was found with a knife, something Detective Pilon says is also consistent with involvement in the drug trade. [ 26 ] The Crown says that all of these factors, when taken together, establish possession of the cocaine by the two occupants, Kelleher and Heiberg.

When considered as a whole, they establish that the two occupants had knowledge that the cocaine was in the vehicle, they intended to possess the cocaine and they had control over the cocaine. The Crown says that this is the only reasonable and rational inference to be drawn from the proven facts. These facts further lead to the reasonable and rational inference that the cash found on Heiberg was proceeds from the sale of cocaine. [ 27 ] The accused Heiberg argues that the knowledge that the drugs are in the vehicle must be greater than passive acquiescence.

The evidence only establishes that the vehicle belongs to a third party and there was no evident drug activity by the occupants when the vehicle was stopped for a traffic violation. [ 28 ] Both accused point out that the drugs were found in a container which was then located in a compartment between six and ten inches deep in the passenger door. As such, the container, and particularly its contents, would not necessarily be seen by Heiberg and clearly would not be visible to Kelleher.

Further, it is usual or ordinary for a container, such as the Juicy Fruit container in this case, to be in a vehicle so they had no reason to suspect its presence or its contents. [ 29 ] The accused say that there is no evidence as to how long either of them was in the subject vehicle and there is nothing to necessarily tie the ringing cell phone to the two accused in the car. That is, it could have belonged to the actual owner or someone else. [ 30 ] The accused Heiberg further points out that he was not the one who answered the telephone when it rang but rather, it was Kelleher.

With respect to the cash, Heiberg acknowledges that it may be suspicious, but there can be another logical explanation and sometimes individuals do carry large amounts of cash.

[31] Both accused argue that there was no fingerprint analysis done on the Juicy Fruit container and there was no other indicia oftrafficking in the vehicle such as score sheets, baggies, air fresheners, or swallow bottles. [32] The accused Kelleher emphasizes again that the drugs were not visible from the driver’s seat of the vehicle and that, althoughhe answered the phone, the Crown has not established that Kelleher had a blameworthy intent when he did so. V. Analysis [33] Counsel for Heiberg is correct when she says that each of the individual factors referred to by the Crown may have aninnocent explanation.

It is not unusual for there to be two individuals in a vehicle. There is no evidence as to how long Heiberg was inthe vehicle before it was stopped by Camp. The constant ringing of the phone may have been a wrong number and the calls answered byCamp may have been intended for Kelleher or someone else entirely. Heiberg may have simply been carrying a large quantity of cash onhim for some other reason. Perhaps he had just been paid by an employer.

Finally, the Juicy Fruit container may have been left there bysomeone else and, even if aware of the container, he had no idea of its contents. [34] The difficulty with this position is that it requires the Court to speculate on a possible innocent explanation for each separateproven fact. It was not necessary for the Crown to call evidence to disprove all of these possible explanations nor was it necessary for theaccused Heiberg to testify. However, in drawing an inference, the Court considers the constellation of facts in evidence.

While eachpuzzle piece on its own might look as though it could fit in another puzzle, when all of the pieces in this case are assembled and taken asa whole, the resulting puzzle rationally illustrates only one picture: Heiberg had knowledge of the presence of the cocaine, he intended topossess it and he had control over it. [35] It was incumbent on the Crown to prove this beyond a reasonable doubt and there was no obligation on Mr. Heiberg to testifyor lead evidence.

However, without any other evidence, I am left with no evidentiary basis for an innocent explanation for theestablished facts nor does a rational explanation come to mind.

Mere speculation is insufficient to create a reasonable doubt.Accordingly, I am satisfied beyond a reasonable doubt that he was in possession of cocaine and as it has been acknowledged that afinding of possession would lead to a finding that he was in possession for the purposes of trafficking, I find him guilty of possession ofcocaine for the purposes of trafficking. [36] The established facts relating to Kelleher are not as extensive as those relating to Heiberg. Again, Kelleher was one of twooccupants in a third party vehicle.

He was not found in possession of either cash or a weapon but importantly, he was the one whoanswered the telephone when it rang shortly after he was stopped. It cannot be said that the discussion that was overheard related in anyway to a drug transaction, though it would have been surprising for there to have been such an incriminating discussion in the presence ofa police officer.

This, however, was the same telephone which rang approximately 20 times between 4:31 a.m. and 4:59 a.m., six ofwhich calls were answered by Detective Camp and each of the six involved a conversation relating to drug trafficking. [37] This is not a situation such as that described in the case of R. v. York, 2005 BCCA 74, 208 B.C.A.C. 184, submitted byKelleher. In that case, the accused’s evidence was accepted that he did not intend to possess stolen property though he had knowledgethat it was in his vehicle and he was exercising control over it so as to remove it from his property.

It is also unlike the case of R. v.Iturriaga (1993), (BC CA), 43 B.C.A.C. 161, [1993] B.C.J. No. 2901 where the appellant’s co-accused had admittedownership of a shirt in which the illicit drugs were found. [38] Mr. Kelleher was nervous when stopped by Detective Camp. I do not consider his nervousness alone to be a factor suggestiveof any guilt on his part.

People often get nervous when stopped by the police regardless of whether they are involved in any illegalactivity. [39] However, the fact that he was driving a third party vehicle, had ready access to, and had actually used, the telephone laterestablished to be the “work phone” or “drug phone”, together with all of the other established facts referred to earlier, lead me to theinference that he was involved in a joint venture with Heiberg. While the cocaine may not have been visible to him from his seat, it wasin the car and I believe beyond a reasonable doubt that he knew it was there.

I further believe he knew that the funds found on Heibergwere from the sale of small quantities of crack cocaine and that he, as the driver of the car, was directly involved in the transportationand sale of the drugs. The circumstantial evidence does not establish that he was aware that Heiberg was carrying a knife but, in myview, that does not detract from my findings.

[ 40 ] Again, I can envision innocent explanations for isolated proven facts as they relate specifically to Kelleher such as his being the driver of a third party vehicle, the owner’s name of which he did not know, answering a cell phone in a manner which, on its face, would be inconclusive and being with another individual who, as I have found, was in possession of cocaine. However, all of the circumstances, including the opinions expressed by Detective Pilon, lead me to the inference that the two accused were involved in a joint venture which included the possession of the cocaine.

That is, I am satisfied beyond a reasonable doubt that Kelleher too had knowledge of the cocaine, the intention to possess it and control over it. [ 41 ] Again, it was incumbent on the Crown to prove this beyond a reasonable doubt and there was no obligation on Mr. Kelleher to testify or lead evidence. As in the case of Heiberg , without any other evidence, I am left with no evidentiary basis for an innocent explanation for the established facts. Nor does one come to mind as a rational explanation for this set of facts. Simply put, mere speculation is insufficient to create a reasonable doubt in this case.

Accordingly, I also find that Kelleher was in possession of the cocaine and his possession of it was for the purpose of trafficking. [ 42 ] There is no direct evidence that Mr. Heiberg’s possession of the knife was for a purpose dangerous to the public peace. Taking the facts as a whole, one rational explanation for possession of the knife in the circumstances was for self-defence if needed. Therefore, I find Mr. Heiberg not guilty of the offence of possession of a knife for a purpose dangerous to the public peace. VI.

Conclusion [ 43 ] I find Gunnar William Heiberg and Samuel Hudson Kelleher guilty of the offence of unlawful possession of a controlled substance, to wit: cocaine, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act . [ 44 ] I further find Gunnar William Heiberg guilty of the unlawful possession of Canadian currency of a value not exceeding $5,000, knowing that it was obtained by the commission in Canada of an offence punishable by indictment, contrary to ss. 354(1)(

a) and punishable pursuant to s. 355 (b)(

i) of the Criminal Code of Canada . [ 45 ] The charge against Gunnar William Heiberg of possession of a weapon for a purpose dangerous to the public peace is dismissed. However, I find Gunnar William Heiberg guilty of possession of a prohibited weapon, to wit: a knife, contrary to s. 91(2) of the Criminal Code of Canada . Heard on the 21 st , 22 nd and 25 th days of March 2011. Dated at the City of Edmonton, Alberta this 29 th day of March 2011. Eric F. Macklin J.C.Q.B.A. Appearances: Ms. Monique Dion

for the Crown Ms. Anna Konye Pringle MacDonald & Bottos for Gunnar William Heiberg Mr. Jordan Stuffco Davidson Gregory Danyliuk Stuffco for Samuel Hudson Helleher