R. v. Cantrill, 2011 ABQB 273

Court of Queen ’ s Bench of Alberta Citation: R. v. Cantrill, 2011 ABQB 273 Date: 20110420 Docket: 090606583Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Kenneth P. Cantrill Accused _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Don J. Manderscheid _______________________________________________________ I. Introduction [ 1 ] Kenneth P. Cantrill [the “Accused”] is charged with four criminal offences, that on or about May 20, 2009 in Edmonton, Alberta: 1. he unlawfully possessed a controlled substance, less than three kilograms cannabis marihuana, for the purpose of trafficking:

Controlled Drugs and Substances Act , S.C. 1996, c. 19, s. 5(2); 2. he unlawfully had possession of over $5,000.00 in Canadian currency, and knew all or part of that money (or proceeds of the money) was obtained (or derived directly or indirectly) by the commission in Canada of an offense punishable by indictment: Criminal Code , R.S.C. 1985, c.

C-46, s. 355(a); 3. he without lawful excuse, used in a careless manner (carried, handled, shipped, transported or stored) a handgun: Criminal Code , s. 86(1); and 4. he had possession of a loaded prohibited or restricted firearm: Criminal Code , s. 95(1). [ 2 ] These charges flow from the May 20, 2009 Edmonton Police Service [“EPS”] surveillance, and search and seizure of a residence located at 7918 - 166A Avenue, in Edmonton, Alberta [the “Residence”].

On that date, the EPS located and seized: 1. $8,510.00 in Canadian currency (being inclusive of the $8,335 located in a safe in the Residence); 2. 489.3 grams of marihuana; 3. two working cell phones; 4. packaging material; 5. one scale; 6. a marihuana grinder; 7. a 4.5 millimetre “Walther” model BB gun with a CO2 cartridge; 8. a Lorcin Model L380 .38 calibre semi-automatic handgun, serial number 495606, which contained a magazine loaded with six bullets; 9. a black suitcase; 10. an opened box of medical examination latex gloves; 11. two pages from a ‘Hilroy’ brand coil notepad; 12. one court document in the name of the Accused. [together, the “Seized Property”]

[3] In addition to the Accused, three other persons (two males, one female) were at the Residence when the EPS conducted theirsearch of the Residence and located the Seized Property. [4] The Crown called six police and four civilian witnesses and entered 17 full exhibits.

The Accused did not testify and did notcall any evidence in his defence. [5] There are two questions of fact and law before the Court; on May 20, 2009: 1. who was in possession of the Residence; and 2. who was in possession of the Seized Property which is the basis of the charges against the Accused? [6] My conclusion on these two questions effectively determines the Accused’s guilt on all four charges. II. The Burden of Proof [7] The Crown is required to prove beyond a reasonable doubt that the Accused is guilty of the offences with which he has beencharged.

An accused person is presumed innocent and the burden is on the Crown to prove each of the essential elements of the offencebeyond a reasonable doubt: R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, 150 D.L.R. (4th) 733. Absolute certainty is notnecessary to convict, but something more than probable guilt is required: R. v. Starr, 2000 SCC 40 at para. 242, [2000] 2 S.C.R. 144. [8] A finding of guilt in a criminal proceeding requires proof beyond a reasonable doubt of the illegal act (the “actus reus”), andthe knowledge and the intention of the accused to commit the alleged offence (the “mens rea”).

However, it is not essential that there bedirect evidence of either the actus reus or mens rea. As with any fact in a criminal proceeding, these may be established bycircumstantial evidence: R. v. Pham (2005), (ON CA), 77 O.R. (3d) 401, 204 O.A.C. 299 (Ont. C.A.), affirmedwithout comment 2006 SCC 26, [2006] 1 S.C.R. 940. In that case the majority of the Ontario Court of Appeal at para. 18 emphasized theclassic English common-law approach to a reasonable inference, stated by Lord Wright in Caswell v.

Powell Duffryn AssociatedCollieries Ltd., [1940] A.C. 152 at p. 169: ... that inference must be carefully distinguished from conjecture or speculation and there can be no inferences unless there are objectivefacts from which to infer other facts which it is sought to establish. [9] Indeed, in almost any criminal matter the finder of fact will have to necessarily have to resort to circumstantial evidence toaccess the mens rea component of an offence. [10] Where the case of the Crown is based on circumstantial evidence the standard of proof remains “beyond a reasonable doubt”.The test to be applied is whether “... before basing a verdict of guilty on circumstantial evidence... ” is the trier of fact “... satisfiedbeyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts.” [emphasisadded]: R. v.

Cooper, (SCC), [1978] 1 S.C.R. 860, 74 D.L.R. (3d) 731. III. Analysis

A. Did the Accused Possess the Residence? [ 11 ] In order to convict the Accused for the charges he now faces, the Crown must link the Accused to the Residence from which the Seized Property was recovered. If the Crown does not prove the Accused’s “residency” in regards to the Residence, then that fact may undermine some, if not all of the charges against the Accused. For example, the reasonable inference may be that the Seized Property is in possession of someone other than the Accused. 1.

Evidence [ 12 ] During the trial, the Court heard evidence which linked the Accused to the Residence where the Seized Property was found. a. Ms. Sara Marchuk [ 13 ] Ms. Marchuk was a roommate and cousin of the Accused. Ms. Marchuk testified that on May 20, 2009, she had been living at the Residence with the Accused. She explained that although her personal belongings may have been located in the spare bedroom of the Residence, she was not living full-time at the Residence. [ 14 ] Ms. Marchuk explained she received a cheque from Ms.

Judith Heffner for rent, and testified that, “I gave [the cheque] to my cousin when I got there, to his house”. Ms. Marchuk said when she moved into the Residence a few weeks before May 20, 2009, the Accused was present. No one else was living at the Residence at the time that she moved in, just her and the Accused. [ 15 ] She testified that the only bed in the Residence was located in the bedroom where the Accused slept. She said there was no bed in the bedroom where she kept her personal belongings. [ 16 ] On cross-examination by Defence counsel, Ms.

Marchuk testified that as far as she knew there were other people coming and going, or staying at the Residence. b. Kevin Correia [ 17 ] The Accused was a tenant of Mr. Correia. Mr. Correia testified he rented the Residence to the Accused, but that “eventually, over time, Kenny and about three or four other people moved into [the Residence]”. Mr. Correia indicated the rental arrangement was a verbal agreement, operated on a month-to-month basis, and involved a total monthly rent of $2,500.00 for all persons in the Residence. [ 18 ] Mr.

Correia says the rental arrangement with the Accused had gone on for approximately 12 to 18 months, and that during this time Mr. Correia collected the monthly rent directly from the Accused on six occasions. He explained other persons who stayed at the Residence paid on other occasions, and that at one time or another Mr. Correia received his rent payment from all four of the individuals who stayed regularly at the Residence. c. Joseph Heffner [ 19 ] Mr. Joseph Heffner is an uncle of the Accused, and grandfather of Ms. Sara Marchuk. He says he knew the Accused and Ms.

Marchuk planned to live together in Edmonton. He testified that his wife gave Ms. Marchuk a $550.00 cheque for the Accused. That was to pay for one month of Ms. Marchuk’s rent.

d. Judith Heffner [ 20 ] Ms. Judith Heffner is Mr. Heffner’s wife. She confirmed she wrote the $550.00 cheque, gave it to her granddaughter, Ms. Marchuk, but says the cheque was never cashed. e. Constable Carmen Krischanowski [ 21 ] Constable Carmen Krischanowski is an officer with the EPS. On May 20, 2009, he compiled the arrest report following execution of a Search Warrant for the Residence. [ 22 ] He was also involved in the pre-search surveillance at the Residence.

In para. 3 of his report he states: During surveillance of 7918-166A Avenue prior to execution of the CDSA search warrant at 2219 hours a number of vehicles arrived at the residence, including a 2002 Dodge Ram truck, licence plate SVA 018 Alberta, from which the lone occupant/operator was identified as the accused Cantrill, who exited the vehicle and went into the residence by opening the front door with a key. f. Constable Lance Parker [ 23 ] Constable Lance Parker is another EPS officer involved in this matter. He too observed the Residence, and reports he began watching the Residence at 6:05 p.m.

At 10:19 p.m. he observed two vehicles arrive at the Residence. The first was “a white Chevrolet, or Cadillac Denali”, and the second was a black Dodge pickup truck. Three males left the white Denali, while the Accused was the driver of the black Dodge truck. [ 24 ] The Accused walked first to the group of three, and then all four approached the front door of the Residence. The passengers in the white vehicle walked behind the Accused. The Accused appeared to use a key to unlock the door, and all four persons entered the Residence.

It was Constable Parker’s impression that the three males from the white vehicle had waited for the Accused to arrive, and then followed the Accused to the door. [ 25 ] When the Search Warrant was executed Constable Parker entered the Residence. He located in the kitchen numerous court papers, arrest warrants, and PTA’s that named the Accused. g. Constable Richard Thomas [ 26 ] Constable Richard Thomas also participated in the search of the Residence on May 20th, 2009. When the Accused opened a safe in the Residence he recovered a personal cheque from Mr. and Mrs. Heffner that was made out to the Accused.

He recalled the cheque amount was $500.00. h. Admitted Facts [ 27 ] The parties admit the registered owners of the vehicles observed at the Residence: the white Denali was owned by Teodor Burtic; Sarah Marchuk owned the black Dodge truck. Furthermore, the parties admit that the expert witness report of Detective Pilon which was entered as Exhibit number 17, was to be amended to state on page 3 of the report under the heading: Amount of Marihuana,

that the 489.3 grams, which is the corrected total amount, was found in two bags, one in the bathroom cabinet and one at the kitchen table. 2. Law on Witness Testimony [ 28 ] A useful and recent review of the principles and factors that apply to the Court’s evaluation of witness credibility is found in R. v.

Plews , 2010 ONSC 5653 at paras. 320 : The court may believe all, none or some of a witness' evidence ... ... a trier of fact is entitled to accept parts of a witness' evidence and reject other parts, and similarly, the trier can accord different weight to different parts of the evidence that the trier of fact has accepted. ... [ 29 ] The decision in R. v. T.J.A. , 2008 BCPC 289 at paras. 60-66 provides an additional valuable commentary on the process by which witness credibility is evaluated. While evaluation of credibility is an ordinary component of judicial responsibilities: ...

Judges are neither clairvoyant nor omniscient. Judges must, however, follow a structure of decision-making to allow others to know how judges arrive at decisions and to give reasons in a way that litigants understand why we have come to the decision reached. ... ... It is of course true that the assessment of credibility of a witness is more of an art than a science. ... ... The facts are not to be examined separately or in isolation with respect to the criminal standard.

A criminal trial is not a credibility contest. ... the test is not which side I believe but whether on the totality of the evidence viewed as a whole, the Crown has proven the events charged beyond a reasonable doubt. ... The issue of credibility is one of fact and cannot be determined simply by following a set of rules. I must look not only at the desire of a witness to be truthful but also at the opportunities of a witness to acquire knowledge, powers of observation, judgment and memory. ...

I must assess the capacity of a witness to remember, the care taken by a witness in answering questions from both police officers and counsel appearing before this Court. I observe the sincerity in the manner of a witness, frankness in attitude as well as evidence of motive, bias or evasive responses. ... I am not permitted to simply accept the testimony of the most believable, persuasive or credible witness. It is the version of the evidence most favourable to the accused that is entitled to the benefit of a reasonable doubt ...

The decision that I must make is to consider all of the evidence as a totality, not simply to prefer A over B. 3. Witness and Evidence Credibility [ 30 ] Prior to my analysis of whether the evidence established that the Accused was in possession of the Residence, there are some aspects of the relevant testimony that deserves further comment. [ 31 ] Ms. Marchuk’s evidence was suspect, particularly in relation to the Accused and his relationship to the Residence. I do however accept her account of how the cheque from her grandparents came into the Accused’s possession.

That said, I reject her denial (discussed later in more detail) that she had no knowledge of the safe where the cheque was found. On that point I found Ms. Marchuk to be less than a credible witness.

[ 32 ] The testimony of Mr. and Mrs. Heffner was honest and unequivocal. I found both these individuals to be highly credible witnesses. Their testimony supports the account by Ms. Marchuk regarding the origin and purpose of the cheque found in the safe. [ 33 ] I conclude Mr. Correia was for the most part a credible witness. He acknowledged that he had previously dealt in illegal drugs. That said, he provided a clear explanation on his relationship as landlord with the Accused and his co-tenants, and the rental arrangement for the Residence.

In particular, his testimony in regards to how the rent was paid and as to who had access to the safe was not evasive. I have less confidence on his testimony on his knowledge of the activities that took place in the Residence. On that topic he was evasive and I conclude not credible. In short, I think he knew more than he let on, and is now trying to distance himself from the Accused. 4. Analysis [ 34 ] There is no real dispute that the evidence shows the Accused rented the Residence from Mr.

Carreia on a month-to-month basis, and that the Accused had personally paid rent to his landlord. [ 35 ] I also think it is significant that Constable Krischanowski observed the Accused entering the Residence using a key. This fact was corroborated by Constable Parker when he observed the Accused use a key to unlock the Residence’s front door and allow him and the three other males to enter. I note the other males seemed to need the Accused’s assistance to enter, and so waited for his arrival. That implies the other males, unlike the Accused, did not have free access to the Residence.

Others may also have had the same kind of access control for the Residence as the Accused, but that does not diminish the fact that the Accused had the ability to keep most persons out. [ 36 ] I accept the testimony of both Mr. Heffner and Msr. Heffner that they supplied their granddaughter with a $550.00 cheque; that was a one-month sublet rent payment to the Accused. This was the cheque recovered by Constable Thomas from the safe in the Residence.

The Accused opened that safe. [ 37 ] Lastly, I note substantial documentary evidence, including numerous court papers, arrest warrants, and PTAs, that named the Accused were located in the Residence when the Search Warrant was executed by EPS. That too links the Accused to this location. [ 38 ] Based upon this evidence I am satisfied that the Crown has proven beyond a reasonable doubt that the Accused was in possession of the Residence. He was its chief tenant, and other persons ‘sublet’ from him. He also had a substantial ability to control access to the property. B.

Did the Accused Possess the Seized Property? [ 39 ] The critical issue for this matter is whether the Accused had knowledge and control of the Seized Property. All charges require that the Accused possess certain of those items. As a consequence, to prove its case the Crown must establish beyond a reasonable doubt that the Accused had control and knowledge of the items in question. [ 40 ] “Possession” is defined by legislation. Criminal Code , s. 4(3) defines possession, while Controlled Drugs and Substance Act , s. 2(1) simply imports the definition from the Criminal Code .

That means there is one standard that applies across the charges against the Accused: 4(3) 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; and (

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them. [ 41 ] The Criminal Code thus provides for three kinds of possession: 1. personal possession: Criminal Code , s. 4(3)(a); 2. constructive possession: Criminal Code , s. 4(3)(a)(i)-(ii); and 3. joint possession: Criminal Code , s. 4(3)(b). [ 42 ] Other than an LG cell phone found between the Accused’s legs, and the $175 cash found on his person, the Seized Property was not found in the direct physical possession of any one person.

The Accused can only have possessed the Seized Property by one or both of the latter two alternatives. 1. Evidence [ 43 ] A useful place to start is to review what the police observed, what items they located, and where those items were found. a. Constable Lance Parker [ 44 ] Constable Parker made an interesting observation prior to the Search Warrant being executed. Shortly after the arrival and entry of the Accused and the three males that I have previously described (paras. 23-24), a turquoise car arrived and parked on the street directly in front of the Residence.

A lone white female exited the driver’s seat, went to and opened the rear driver-side door of the car, and took out a white plastic grocery bag. This person then entered the Residence.

The door did not appear to be locked, she just turned the doorknob and walked in. [ 45 ] When Constable Parker later entered the Residence during execution of the Search Warrant he recovered the following items: 1. a ziplock freezer-style bag of marihuana (244.5 grams) in the cupboard under the sink in the bathroom attached to the northeast bedroom; 2. a black suitcase that contained sleeves of empty ziplock freezer-style bags, on the floor in a bedroom closet in the northeast bedroom; 3. an opened box of medical examination latex gloves on top of a safe located in the main bedroom;

4. a digital scale, a Fuzion FV-350, in the upper cupboards on the west side of the stove in the main kitchen area; 5. four ziplock baggies with markings and marihuana residue in the top drawer of the lower cupboards on the east side of the stove in the main kitchen area; 6. a single ziplock baggie with markings and marihuana residue in the cupboards below the drawer that contained the baggies described in item 5; 7. a grinder, Model 37 TSK928S, on the top of the kitchen counter on the north side of the sink in the main kitchen area; 8. a ‘Motorola’ brand cell phone (number (780) 902-4688)) that stored text messages that were determined to potentially represent drug orders; 9. two pages from a ‘Hilroy’ brand coil notepad on the main floor kitchen table; the pages had multiple entries written on them, each of which listed:

a) dates

b) what appears to be monetary values, and

c) the name of a person; 10. a large ziplock bag containing marihuana (244.8 grams), the ziplock bag was inside two plastic Safeway-brand shopping bags; the bags were on top of a chair in the main floor kitchen area; 11. a 4.5 millimetre “Walther” model BB gun with a CO2 cartridge, on the top glass shelf of a china cabinet located on the north wall of the main living room area; 12. a Lorcin Model L380 .38 calibre semi-automatic handgun, serial number 495606, which contained a magazine loaded with six bullets, located in a safe; 13. an ‘LG’ brand cell phone (number (780) 289-1702)) was located between the legs of the Accused; 14. $8,335.00 in Canadian currency located in a safe; and 15. one of the numerous court papers, arrest warrants, PTAs, in the name of Kenneth Patrick Cantrill, and being located on the kitchen table. b.

Constable Richard Thomas [ 46 ] Constable Thomas searched the Residence and a vehicle parked outside. In the Residence he located a combination style safe sitting on a dresser in the master bedroom in the northeast corner of the Residence main floor. He observed the Accused open the safe.

Inside was: 1. a large pile of Canadian cash in a couple different stacks (later found to total $8,335.00); 2. a handgun (the Lorcin semi-automatic); 3. a cheque (the cheque to the Accused from the Heffners); 4. some jewelry, including watches and other items; and 5. six inoperable and inactive cell phones. [ 47 ] After the search of the Residence was complete, Constable Thomas investigated the vehicle in which the Accused had arrived. Constable Thomas located a set of brass knuckles and some small bags of marihuana. No charges flow from these items. c.

Constable Kris Bombier [ 48 ] Constable Kris Bombier is another EPS officer who participated in the investigation of the Residence and another individual named Vladimir Svic. Constable Bombier testified Mr. Svic was seen entering the Residence on May 20, 2009. When he entered the Residence he did not have any items on his person or any bags in his hand. Constable Bombier further testified that a short time later Mr. Svic was seen by Sergeant Bruni-Bossio; Mr. Svic exited the Residence with a yellow and green medium sized duffel bag which Mr. Svic then placed in his vehicle. [ 49 ] Mr.

Svic was followed by members of EPS to a house in Morinville where Mr. Svic drove his vehicle onto the driveway, left his vehicle, and then placed the yellow and green bag into a boat in the garage. Subsequently, Mr. Svic is arrested. At that point EPS located numerous illegal drugs in his vehicle and a scale, baggies, and cigarette rolling papers. A subsequent EPS search of the Morinville residence located two ounces of cocaine on a counter, and two half pound bags of marihuana in the yellow and green bag which Mr.

Svic apparently acquired at the Residence. [ 50 ] Several civilian witnesses testified at trial on how the Accused was linked (or not linked) to the various items seized. d. Ms. Sara Marchuk [ 51 ] Ms. Marchuk denied she knew of the safe or its contents. She says she did not know there was an illegal firearm in the Residence.

She does, however, acknowledge there was marihuana in the Residence, however she says the drugs she knew about were only “... the stuff that I smoked personally ...”, and that was “... [a] small stash, probably a few joints”. [ 52 ] She did admit she had previously seen marihuana in the Residence and she had seen the Accused smoke marihuana in the Residence. They had sometimes smoked marihuana together. e. Mr. Kevin Correia [ 53 ] The landlord Correia testified that he was paid his rent by the Accused, the other two male tenants, and the female tenant. The

[53] The landlord Correia testified that he was paid his rent by the Accused, the other two male tenants, and the female tenant. Thetenants other than the Accused retrieved rent funds from a safe located in a bedroom in the Residence. However, Mr. Correia had seenthe Accused open that same safe. Mr. Correia therefore concluded that all four residents had access to the safe and its contents. 2. Witness and Evidence Credibility [54] I accept the evidence of the EPS officers. As I have previously noted, I am highly sceptical of the evidence Ms. Marchuk gavein relation to the safe and its contents.

I accept that she and the Accused smoked marihuana in the Residence. 3. The Law [55] Proof of possession is a key issue in many criminal matters, and as a consequence the law on this issue is well developed.Possession does not mean ownership, the language of Criminal Code, s. 4(3) is much broader than that. [56] Knowledge of illegal material forms the mens rea for possession, while control of the illegal material is the actus reus: R. v.Terrance, (SCC), [1983] 1 S.C.R. 357, 147 D.L.R. (3d) 724; R. v. Beaver, (SCC), [1957] S.C.R. 531,118 C.C.C. 129.

Control is typically an active process, for example a passenger in a stolen vehicle does not control that vehicle: R. v.Terrance. “[M]ere indifference or passive acquiescence” is not sufficient to establish control: R. v. Piaskoski, (ON CA), [1979] O.J. No. 1183 (QL) 52 C.C.C. (2d) 316 (Ont. C.A.). Rather, possession requires at a minimum evidence that “...suggests such co-operation and active assistance, going beyond mere indifference or negative conduct ...”: R. v. Hung, (ON CA), [1946] O.R. 187, [1946] 3 D.L.R. 111 (Ont. C.A.). [57] More recently, the same principles were reviewed in R. v.

Pham, at paras. 15-17: 15 In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledgewhich extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. See R. v.Caldwell (1972), 1972 ALTASCAD 33 , 7 C.C.C. (2d) 285 (Alberta Supreme Court, Appellate Division); R. v. Grey (1996), (ON CA), 28 O.R. (3d) 417 (C.A.). 16 In order to constitute joint possession pursuant to section 4(3)(

b) of the Code there must be knowledge, consent, and a measure ofcontrol on the part of the person deemed to be in possession. See R. v. Terrence, (SCC), [1983] 1 S.C.R. 357 (S.C.C.);R. v. Williams (1998), (ON CA), 40 O.R. (3d) 301 (C.A.); R. v. Barreau, (BC CA), 9 B.C.A.C. 290,19 W.A.C. 290 (B.C.C.A.) and Re: Chambers and the Queen (1985), (ON CA), 20 C.C.C. (3d) 440 (Ont. C.A.). 17 The element of knowledge is dealt with by Watt J. in the case of R. v. Sparling, [1988] O.J. No. 107 (Ont. H.C.) at p. 6: There is no direct evidence of the applicant's knowledge of the presence of narcotics in the residence.

It is not essential that there be suchevidence for as with any other issue of fact in a criminal proceeding, it may be established by circumstantial evidence. In combination,the finding of narcotics in plain view in the common areas of the residence, the presence of a scale in a bedroom apparently occupied bythe applicant, and; the applicants apparent occupation of the premises may serve to found an inference of the requisite knowledge. The court of appeal decision in R. v. Sparling, [1988] O.J.

No. 1877 upheld the above passage as being sufficient evidence to inferknowledge. [Emphasis added.] [58] The passage of Watt J. cited in R. v. Pham illustrates a principle clearly enunciated in R. v. Aiello (1978), (ON CA), 30 N.R. 559, 38 C.C.C. (2d) 485 (Ont.

C.A.), affirmed without comment (SCC), [1979] 2 S.C.R. 15, 30 N.R.558, “... it was not necessary for the prosecution to prove the required knowledge by direct evidence, but that it could be inferred fromthe surrounding circumstances ...” For example, it is a reasonable inference that an accused would presumably have knowledge of anarcotic or weapon left in plain view in a residence.

[59] Similarly, allowing trafficking to occur from a location under one’s control can be a basis for a criminal sanction.

In R. v.Nguyen, 2008 ABPC 286 at para. 57, Kerby P.C.J. expressed that concept in this manner: A lawful tenant of a residence who has lawful control of the premises and has knowledge of illegal possession of drugs for the purpose oftrafficking by the occupant of the premises and fails to take steps to remove the drugs or person dealing in drugs from the premises, andwho in fact providing a base of operations for the unlawful activity is in constructive possession of the drugs and is a party to theunlawful activity of the occupant.

There being knowledge, consent and a measure of control. [Emphasis added.] [60] However, where the links between a person and a residence are less tangible, control and knowledge may not be so easilyinferred. R. v. Egresits, 2002 BCCA 163, 165 B.C.A.C. 63 provides another example of where weak evidence did not link a person to aresidence. Here, a house had two separate residences (upstairs and downstairs), each with different keys (para. 1). The upper propertywas apparently unoccupied (para. 6), while the lower area contained a marihuana grow-op (paras. 1-2).

The Court of Appeal noted that atleast four people could be linked to the grow-op (paras. 7-8). The trial judge inferred the accused was the one who had operated thegrow-op, but that inference was based on tenuous evidence. In other words, the investigation had failed to exclude other plausiblealternative offenders (para. 8). A related situation was addressed in R. v.

Nguyen, 2005 ABQB 544, 379 A.R. 244, where Veit J.observed where at least two persons who had a plausible connection to a basement marihuana grow-op one cannot simply infer one hadcontrol (para. 24), though Justice Veit had no doubt the accused was well aware the grow-op existed (para. 24). [61] A visitor or guest usually would not have the degree of control that would establish possession. In R. v. Chambers (1985), (ON CA), 9 O.A.C. 228, 20 C.C.C. (3d) 440 (Ont. C.A.) Martin J.A. contrasted the degree of control exerted by guestsvisiting the narcotic using tenant of a rented room discussed in R. v.

Colvin, (BC CA), [1943] 1 D.L.R. 20, 58 B.C.R.204 (B.C.C.A.) and an accused who had a more significant capacity to influence activities in a particular residence: The respondents in R. v. Colvin ... being mere visitors, had no power to withhold their consent to Harmann Singh, the tenant, having themorphine in his possession. The mere consorting with Singh knowing that he had possession of morphine did not constitute "consent"within s. 5(2) of the Code. In contrast, the respondent in the present case had the power to either consent or withhold her consent to herroom being used to store cocaine. [62] See also R. v.

Anderson-Wilson, 2010 ONSC 489, at paras. 72-73. [63] Knowledge can also exist where a person should have known of the existence of the illicit property. In R. v. Nguyen, 2009ABQB 234, affirmed 2010 ABCA 145, 487 A.R. 168, Graesser J. reviewed the implications of “willful blindness” in the context ofpossession of property. The relevant rules are provided in R. v.

Briscoe, 2008 ABCA 327 at paras. 19-20, 437 A.R. 301, affirmed 2010SCC 13, [2010] 1 S.C.R. 411, a judge may impute knowledge where an accused has more than a suspicion but “... virtually knew thecritical fact, and intentionally declined to secure that knowledge ...”. [64] Justice Graesser emphasized at para. 117 that in certain circumstances people have an obligation to investigate: Here, the bag in the kitchen cupboard called out for scrutiny by the residents.

Failure to find out exactly what was in her kitchen, in aneasily accessible bag, can only be willful blindness if indeed Miao had no actual knowledge of the contents. The circumstances put heron inquiry. Otherwise, they risk criminal liability. [65] Beyond these general principles it is also helpful to review certain instances where the courts have been required to inferpossession from facts that have parallels to the present matter. [66] In R. v. Grey; R. v. Escoffery (1996), (ON CA), 28 O.R. (3d) 417 89 O.A.C. 394 (Ont. C.A.), Grey and his

[66] In R. v. Grey; R. v. Escoffery (1996), (ON CA), 28 O.R. (3d) 417 89 O.A.C. 394 (Ont. C.A.), Grey and hisgirlfriend Escoffery were charged with possession of crack cocaine for the purpose of trafficking. The cocaine was found by the police inan apartment where Escoffery had lived as a tenant for five years. Her boyfriend Grey intended to move in with her, and slept at theapartment three or four nights a week, but still maintained his own separate rented premises. Grey was an occasional occupant; Escofferycontrolled the premises. The drugs in Grey were all hidden.

Some were in a cassette player on a dresser and some were under a flowerarrangement on a bedside table. A substantial amount of cash was found in the girlfriend’s skirt hanging in the closet. A set of scales wasfound but an innocent explanation of that item was accepted. The door to the apartment was left unlocked during the day and severalpeople were known to come in and out. [67] The at-trial conclusion that both Grey and Escoffery possessed the drugs was rejected on appeal.

Laskin J.A. at para. 22concluded that it was unreasonable to infer “knowledge from occupancy”, as in that case, “no other evidence connected the appellant tothe drugs, there was no direct evidence of knowledge, the drugs were hidden”. [68] Similarly, in R. v. Anderson-Wilson, the court emphasized at para. 75 that physical proximity has little meaning where anitem is concealed. [69] In R. v. Bertucci (2002), (ON CA), 165 O.A.C. 7, 169 C.C.C. (3d) 453 (Ont. C.A.), cocaine was found ina house occupied by the accused and his brother.

The cocaine was concealed near a basement bedroom, hidden in the ceiling and in acloset (para. 14). There was conflicting evidence as to whether the accused or his brother lived in this particular basement bedroom. [70] The trial judge charged the jury “as if the drugs had been found in the basement bedroom” (para. 15) and to the effect that theissue of possession turned on whether “the appellant was responsible for the bedroom” (para. 17) [emphasis added].

The Court as re-trialas the jury instruction was both factually and legally in error. [71] O’Connor A.C.J.O. at para. 20 emphasized control is location specific: ... more than mere responsibility for a room in which drugs are found is required in order to establish possession ... Although there wasevidence to connect the occupier of the bedroom to the cupboard, the trial judge should have carefully instructed the jury that the issueof possession turned on the control of the cupboard and ceiling area and the drugs found there and not simply on responsibility for theadjacent bedroom. [72] R. v.

Pham emphasizes that knowledge is inferred from occupancy and where illegal materials are not concealed. Cocainewas found in plain view in a room used by Pham, and also in her personal toiletries (para. 25). Control was established by the conclusionthat Pham had “... an ability to withhold consent to the keeping of any drugs in her home ...” (para. 25). [73] Both elements of possession, control and knowledge, can be established by a wide variety of relevant facts. R. v. Han, 2006ONCJ 427, 71 W.C.B. (2d) 775 involved illegal firearms and ammunition found in a storage locker.

These items were not in plain view,more than one person had access to that area, and when searched by police the locker was open (para. 45). While firearms were found inassociation with personal communications (cards and letters), that did not prove the accused knew the firearms had been placed withthose items (para. 47). [74] The fact others could access that location without the accused was highly relevant (para. 49). If there had been evidence thatthe accused had regularly visited that location, for example a logbook of locker activities (see R. v.

Jenner, 2005 MBCA 44, 192 Man.R.(2d) 184), that would have provided meaningful evidence on which to infer knowledge, but here no such evidence was available (para.50). [75] Justice Wong concluded: 51 The entirety of the circumstantial evidence in this case does not support as the only reasonable inference, the conclusion that FanHan had knowledge and, therefore, possession of the contents of the locker. It is tempting to conclude that Mr. Han must be hidingsomething because he was so blatantly dishonest during his testimony. However, such an inference would be an improper application of

the law and the burden of proof. I strongly suspect that Mr. Han knew what was in the locker and with others had possession of the guns and ammunition. However, criminal cases cannot be decided on strong suspicion, but proof beyond a reasonable doubt. Perhaps with a more thorough police investigation, the Crown may have been able to meet the standard of proof. [ 76 ] R. v. Anderson-Wilson , also involves possession of illegal firearms.

Hill J. at para. 74 provided a useful list of relevant factors: (1) the physical proximity of the firearm to the accused ... (2) the degree of visibility of the firearm ... a sawed-off rifle can be easily concealed because of its reduced length ... (3) the degree of communal use of a vehicle containing the firearm ... (4) the size, nature and number of weapons in a particular space ... (5) the nature of other items located proximate to the firearm capable of providing context for inferences of knowledge and control ... [Citations omitted.] [ 77 ] A useful

summary of the relevant principles is provided by Graesser J. in R. v. Nguyen , at para. 65: 1. This is a very fact specific area. 2. Constructive possession under s. 4(3) of the Criminal Code can be and often is established by circumstantial evidence. 3. The inferences to be drawn from the circumstantial evidence must be reasonable. 4. An inference drawn which establishes an essential element of an offence must be the only reasonable inference that can be drawn. 5. The trier of fact must look at the totality of the evidence. 6. Constructive possession requires knowledge and control. 7.

Control in the context of constructive possession means consent with the power to affect the location of the item. 8. Occupancy can be evidence of possession. [ 78 ] What remains is to apply these principles to the facts. 4. Analysis

[ 79 ] Illegal possession ( Criminal Code , s. 4(3)) here relates to three kinds of property, possession of: 1. the marihuana, 2. the loaded Lorcin semi-automatic handgun, and 3. the cash which is alleged to be proceeds of crime. a. Possession of Marihuana [ 80 ] The Accused clearly had access to all the locations where the Seized Property was found.

However, the Crown did not provide any evidence of direct handling of the Seized Property, for example the Crown did not report that the Accused’s fingerprints were found on the packaged drugs. [ 81 ] Some of the marihuana that was located at the Residence was out of sight, concealed in the bathroom cupboard. However, the other large amount was in, effectively, a common area: in one Safeway bag and on a chair in the kitchen.

Furthermore, the plastic baggies which contained marihuana residue were also located in a common area, either in a closet or a cupboard in the kitchen. [ 82 ] Although such evidence is best characterized as circumstantial, an inference may be drawn which establishes that the Accused had knowledge or is presumed to have had knowledge of the fact that marihuana was present in the Residence.

In particular, the drugs in the Safeway bag cannot be described as hidden away from view or detection. [ 83 ] I previously concluded that while the Accused can be described as the primary tenant of the Residence, that was more a formality than an indication of direct or administrative control. Mr. Correia testified that, in addition to the Accused, about three or four other people moved into the Residence. He further testified that one of these individuals was a female who went by the name of “Onnia or Onion, or something really close like that”.

The precise identity of “Onion” or the other residents was not established at trial. [ 84 ] The Crown also did not establish the identity of the other persons in the Residence when it was searched, or whether those persons were some of the other tenants. [ 85 ] There is some evidence on which I could infer that the marihuana found in the Safeway bag was in the possession of an unidentified female. Constable Parker testified that he observed a white female arrive at the Residence on May 20, 2009 and carry a white plastic grocery bag into the Residence.

That could have been the marihuana recovered from the kitchen, sitting on a chair. Perhaps so, but if that is the case, then that does not exonerate the Accused. I can and do infer that if any person felt comfortable leaving a substantial amount of marihuana in a common area of a house where it was very readily detected, then that meant the person who left the marihuana was comfortable and accepted that the persons who possessed the Residence would know of the existence of that marihuana. [ 86 ] Ms. Marchuk provided some evidence that marihuana was used at the Residence and that the Accused was one of the users.

While I have limited confidence in this witness (I think she is understating her involvement and knowledge) that is direct evidence that the Accused knew and controlled marihuana located in the Residence. I accept Ms. Marchuk’s evidence on this point. [ 87 ] I fail to see a basis by which the Accused can characterize his interaction with marihuana in the Residence as “merely passive acquiescence”. He consumed marihuana - use indicates control. He knew (or was willfully blind) to the presence of large amounts of marihuana in the Residence.

Drug-related paraphernalia and evidence of drugs was found in common areas in the Residence.

[ 88 ] I also note that the Accused may have been observed allowing others to carry marihuana into the Residence. On May 20, the Accused unlocked the door to the Residence and left it open, which allowed the unidentified woman to enter carrying a white plastic grocery bag. I do not know for certain that was the kitchen chair marihuana, but that is possibly the case. [ 89 ] At best, the Accused is a tenant in control of the premises who took no steps to remove drugs or drug dealing from a premises he controlled: R. v. Nguyen .

There, Kerby P.C.J. concluded that a tenant in control of premises who permits unlawful activity may be found to have constructive possession of illegal drugs (para. 57). Here, the Accused was not entirely passive, as I have observed previously, he used marihuana in the Residence. [ 90 ] The Accused was a co-tenant. I can and do infer he knew of the activities within the Residence which were conducted openly. In particular, with respect to the Safeway bag which contained marihuana and which was openly placed on a chair in the kitchen of the Residence, I infer in parallel to R. v.

Nguyen that the Accused either knew what the contents of such bag was or was willfully blind to the presence of illegal narcotics: R. v. Briscoe . The Accused entered no evidence to counter that inference, or to indicate he did not know about the other marihuana located in the Residence, or the drug related paraphernalia, including the scales, grinder, and plastic bags.

Where evidence of illegal conduct is open or very readily observed, a logical inference is that the Accused knew what was going on. [ 91 ] Therefore, from the evidence, I conclude that the Accused had knowledge, control and had consented to the presence of the marihuana in the Residence. The Crown has proven knowledge and control beyond a reasonable doubt and I therefore find that the Accused was in possession of the marihuana contrary to Controlled Drugs and Substances Act , s. 5(2). b. Trafficking [ 92 ] Was the Accused’s possession of such marihuana for the purpose of trafficking? Ms.

Marchuk testified she did not know any drug-dealing going on at the Residence. Marihuana use - yes, but no trafficking. Some of the evidence seized counters that claim. [ 93 ] Substantial amounts of marihuana were recovered from the Residence. Yet more appears to have been removed by Mr. Svic from the Residence prior to the execution of the Search Warrant. These quantities suggest drug trafficking rather than personal use. [ 94 ] A cell phone was recovered with messages that seem to be drug purchase orders.

For example, Constable Lance Parker testified that one message found on the cell phone read “Yo, can I get a ’G’?” He explained a “G” represented a gram of some narcotic. Similarly, the Hilroy notebook pages are consistent with what drug investigators call “score sheets”, documents that record drug purchases and debts. These pages were sitting in the kitchen with substantial documentation relating to the Accused, including court documents. [ 95 ] The safe was found to contain six inactive cells phones, which would be a very unusual collection for most persons.

However, court’s have inferred that the presence of multiple cell phones are indicative of drug trafficking, R. v. Bishop , 2006, BCCA 101 at paras. 9 and 13 . See also, R. v. C.S.T ., 2008, ONCJ 157 at paras. 11 and 20 , and R. v. Stahr , 2009, BCSC 1003 at paras. 26-27 . [ 96 ] There is evidence consistent with the proposition that marihuana was measured, processed and re-packaged in the kitchen of the Residence (ziplock bags, latex gloves, a scale, a grinder, empty bags with marihuana residue).

I note as interesting that the two bags of marihuana recovered weighted almost exactly the same amount - 244.5 and 244.8 grams. That is slightly more than half a pound. That fact alone does not prove that marihuana was being processed for distribution and/or sale at the Residence, but the two nearly exactly equal amounts of marihuana suggests these lots were not simply the drugs produced by the persons in the Residence and for their own use. [ 97 ] I believe I can take judicial notice that firearms are often associated with drug dealing, see for example. Slatter J.A. in R. v.

Cornell , 2009 ABCA 147 , 454 A.R. 362, affirmed R. v. Cornell , 2010 SCC 31 , [2010] 2 S.C.R. 142 said: The police are entitled to reasonably believe, from their experience, that drug trafficking is a violent business, often involving weapons.

I note here the weapon recovered was an illegal and easily concealed handgun, rather than a shotgun or rifle which have alternative and legal potential uses. [ 98 ] Mr. Svic appears to have acquired a substantial amount of marihuana from the Residence. He apparently entered the Residence carrying nothing but left with a duffel bag that contained two ziplock bags of marihuana. Once more those bags of marihuana each weighed half a pound; this marihuana was measured and packaged in the same amounts as the two bags recovered from the Residence. This creates the appearance that Mr.

Svic engaged in a commercial purchase of marihuana from one or more persons in the Residence. [ 99 ] When the evidence is looked at as a whole, the only rational inference is that the Accused was in possession (joint or constructive) of the marihuana seized on May 20, 2009, and that the marihuana in the Residence was there for the purpose of trafficking. I conclude that the Crown has proven beyond a reasonable doubt that the Accused was in possession of the marihuana for the purposes of trafficking: Controlled Drugs and Substances Act , s. 5(2). c.

Possession of the Firearm and Ammunition [ 100 ] The loaded Lorcin semi-automatic handgun is a restricted firearm for which no permit had been issued and it was in the safe in the bedroom. Who had access to the safe? Mr. Correia testified all four individuals who occupied the Residence, including the Accused, knew the safe’s combination and implicitly therefore could access both the safe and its contents. Furthermore, Ms. Marchuk testified that the Accused slept in the bedroom that had a bed.

She further testified that as far as she knew there were other people coming and going or staying at the Residence. [ 101 ] Several individuals, including the Accused had access to the safe and its contents. Other individuals came to and went from the Residence from time to time. Furthermore, there is no evidence that any one of the co-tenants had the primary physical control of the area in the Residence that contained the safe.

The safe was closed and locked when it was searched - its contents were not obvious to each resident, including the Accused. [ 102 ] Factually, here the situation has significant resemblance to that in R. v. Han . The link between the Accused and the safe is not exclusive. It is reasonable to infer that at any given time, any one of the individuals who had access to the safe could have placed the illegal gun and ammunition in the safe, and not told the Accused. This was a ‘communal safe’, in parallel to the ‘communal vehicles’ in R. v.

Anderson-Wilson . [ 103 ] In that sense the matter here is very different from the scenario in R. v. Switucka , 2009 SKQB 260 , cited by the Crown. In that case two persons were linked to an apartment where police found a safe that contained illegal drugs, however the apartment owner did not have the key to open the safe. Instead, all evidence indicated the second suspect was the only one who controlled access to the safe and its contents.

That raised a powerful inference on possession. [ 104 ] I therefore have a reasonable doubt that the Accused knew, or ought to have known, that the illegal firearm and ammunition were present in the safe in the Residence. [ 105 ] Similarly, no evidence was before the Court to indicate that the Accused ever used the Lorcin semi-automatic handgun. That defeats the Criminal Code , s. 86(1) careless use charge. d. Possession of Proceeds of Crime [ 106 ] The $8,335.00 which was located in the Residence safe was found with other items.

Constable Thomas testified that when the Accused opened the safe it contained the $8,335.00, the illegal handgun, the personal cheque made out to Mr. Cantrill from Mr. and Mrs. Heffner, jewellery, watches, collector coins, sunglass case and six cell phones.

[ 107 ] I have no evidence of whether the Accused or the other residents were employed. The safe clearly included some legal proceeds, the $550.00 personal cheque made out in the name of the Accused was the personal cheque that the Accused’s aunt, Mrs. Heffner, had testified she gave to Ms. Marchuk to give to the Accused to pay for one month’s rent for Ms. Marchuk while she was staying at the Accused’s residence in Edmonton. [ 108 ] Unlike the Lorcin semi-automatic handgun I do conclude that the Accused knew of the funds in the safe. Mr.

Correia testified that he had been paid repeatedly using funds removed from that location. I therefore conclude that all persons who were living in the Residence, including the Accused, knew that funds were stockpiled at that location. Money had been there for a long time. [ 109 ] Except for the presence of the Lorcin semi-automatic handgun, all other items in the safe were potentially and plausibly contents that one would find in a house that was occupied by four young individuals not engaged in illegal activities, though admitted the six cell phones seems quite unusual.

Depending upon their kind of employment, it is conceivable that four young working individuals could easily together collect $8,335.00. [ 110 ] As well, it seems rational that the Accused and his co-tenants would want to keep their money and valuables in a secure location, given the apparently intransigent nature of the various individuals who would come and go from the Residence. A safe would be practical for that purpose. [ 111 ] But were those funds the result of marihuana sales? The potentially illegal character of cash was the focus of R. v. Abdulgany , 2006 ABCA 349 , 401 A.R. 37.

Slatter J.A. commented on $7,240.00 located in an apartment safe. While the Court accepted that cocaine trafficking frequently occurred at that location (paras. 3-8), the link between that trafficking and the funds was not obvious or direct. 10 The trial judge convicted the appellant of possession of the proceeds of crime, based on the money found in the safe with the appellant's identification.

Apart from his finding that the townhouse was habitually used to traffic cocaine, there was no evidence to support the inference that the money was the proceeds of crime, and the trial judge did not expand in his reasons on how he drew the inference . To compound the problem, the trial judge stated that the appellant was unemployed, and there was no other explanation for the money.

The Crown concedes that the only evidence of his unemployment was hearsay on the voir dire, that was specifically not admitted for the truth of its contents . [Emphasis added.] [ 112 ] The facts here are similar to those that existed in R. v. Abdulgany . There was no basis to conclude beyond a reasonable doubt that the funds were the proceeds of crime. After review of all the evidence, I have a reasonable doubt that the $8,510.00 which was located in the Residence at the time the Search Warrant was executed were the proceeds of crime.

That is not to say I do not have very strong suspicions about the origin of those funds, but they are just that - suspicions. [ 113 ] Accordingly, the Crown has not met its onus to prove beyond a reasonable doubt that the funds in the safe are the proceeds of crime. III.

Conclusion [ 114 ] I find the Accused guilty of indictment charge 1 - “unlawful possession of a controlled substance, To Wit: cannabis marihuana in an amount not exceeding three kilograms, for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act .” [ 115 ] I find the Accused not guilty of the remaining three charges: 1. possession of over $5,000.00 in Canadian currency, and knowing all or part of that money (or proceeds of the money) was obtained (or derived directly or indirectly) by the commission in Canada of an offense punishable by indictment: Criminal Code , R.S.C.

1985, c. C-46, s. 355(a); 2. without lawful excuse, use in a careless manner (carried, handled, shipped, transported or stored) of a handgun: Criminal Code , s. 86(1); and 3. possession of a loaded prohibited or restricted firearm: Criminal Code , s. 95(1). Heard on the 7 th day of March, 2011. Dated at the City of Edmonton, Alberta this 20 th day of April, 2011. Don J. Manderscheid J.C.Q.B.A. Appearances: Adam C. Halliday Public Prosecution Service of Canada for the Crown Paul L. Moreau Moreau & Company for the Accused