R. v. Clouden, 2011 ABQB 285

Court of Queen ’ s Bench of Alberta Citation: R. v. Clouden, 2011 ABQB 285 Date: 20110524 Docket: 091152397Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Christopher Clouden Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice S.D. Hillier _______________________________________________________ Introduction [ 1 ] Edmonton Police Service (EPS) undertook surveillance of a suspected kilo level drug trafficker, Kevin Chau, over a period of six months.

On September 17, 2009, they observed Chau remove a package from a Toyota 4Runner operated by the Accused, and then placed the package in his own vehicle. A package containing roughly 1 kg of cocaine was subsequently seized from Chau’s vehicle.

The Accused was charged with possession of cocaine for the purpose of trafficking, and trafficking in cocaine contrary to ss. 5(2) and (1) respectively of the Controlled Drugs and Substances Act , S.C. 1996, c. 19. [ 2 ] The Accused’s defence is that the Crown has not proven beyond a reasonable doubt his identity as the individual in question, nor his possession of the cocaine. Allegations of Charter breaches were abandoned at trial as relates to proof of the charges.

[ 3 ] Defence counsel has admitted that all events occurred in Edmonton, the drug seized is cocaine, and the weight of the single brick of cocaine and packaging totals 1023 g. Further, there is no issue regarding continuity of exhibits seized by police. Evidence [ 4 ] EPS began investigating Chau as a kilo level drug trafficker in the Spring of 2009. Detective Donna Cole was the Chief Investigating Officer assigned to coordinate surveillance and investigation of Chau. Det. Cole had a surveillance team primarily assigned and reporting to her under the direct supervision of Sgt.

Bruni-Bossio, recognized as one of the most knowledgeable EPS drug and surveillance investigators. [ 5 ] Actual surveillance on Chau was initiated in July. On at least four occasions between August 4 and September 15, 2009, Chau was observed engaging in what Det. Cole interpreted to be drug transactions involving exchange of cash or product, or at a minimum clandestine discussions with one or more other drug traffickers. [ 6 ] On September 17, 2009, Sgt. Hunter’s team was providing supplementary daytime surveillance of Chau. At around 15:45, Sgt. Bruni-Bossio advised Det. Cole of the active status of Sgt.

Hunter’s ongoing surveillance. The team had reported that Chau had recently left his residence, stopped at his parent’s place and then parked around 106 Avenue east of 98 Street. Chau had exited his black 2002 Ford Explorer and went into a video/sound shop. Shortly thereafter a black Toyota 4Runner (Alberta licence EVD 578) pulled up behind the Ford Explorer. Chau came out of the shop and was observed by Cst. Abbott to approach the passenger window of the 4Runner and speak with the driver for approximately one minute.

The two vehicles then departed westbound in tandem and were tracked back to a parking lot east of 97 Street between 106 and 106A Avenue. Both vehicles parked on the north side of the small parking lot facing the Taipan Café, a few car positions apart from each other in a nearly full lot. [ 7 ] Cst. Abbott parked his unmarked police vehicle in a residential driveway across the alley, approximately 90 feet south and east of the 4Runner, in order to observe Chau and the driver. The officer deliberately placed himself in the back seat of his vehicle for this purpose.

Chau and the driver were observed by various officers to enter the King Noodle House at approximately 15:32 hours. This is the building on the south west end of the small gravel parking lot. [ 8 ] Chau and the other driver were seen coming out of the King Noodle House together at approximately 16:05 hours and heading towards the black 4Runner which Cst. Abbott stated was in the closest (east) spot facing north. The driver entered through the driver’s door of the vehicle and was seated while Chau came around to the front passenger door, leaned inside and was observed by Cst.

Abbott grabbing what was described as a small black bag with lots of white on it from the passenger side floor area. Chau folded the bag in half and placed the package under his left arm. Cst. Abbott had no direct view of the driver except to note that he remained seated and did not appear to move during this time. No discussion was observed. Chau closed the door, walked around the 4Runner and headed west towards the Ford Explorer.

He opened the hatch of the Ford Explorer, removed the bag from under his left arm and placed it in the back right area in the rear hatch of the vehicle. [ 9 ] All of these observations including a detailed description of the bag and its approximate dimensions were called out as part of the radio linked surveillance. Det. Cole concluded that they had just observed a drug transaction, based on the observations of that day as well as the surveillance over the prior months and source information. Accordingly, she ordered the arrest of both drivers for possession of cocaine for the purpose of trafficking. Det.

Cole testified that she believed that Chau as a kilo level cocaine dealer had just obtained a quantity of cocaine in a parking lot exchange consistent with many of the hundreds of transactions that she has observed during her career. [ 10 ] Chau was arrested in the parking lot almost immediately by Sgt. Hunter and Cst. Henning. A black and white bag matching Cst. Abbott’s broadcast description and containing a brick of cocaine was retrieved by Cst. Abbott from the tool compartment in the rear right wheel area in the hatch of the Ford Explorer.

The dimensions of the package he retrieved were approximately the same as those he had called over the radio. Cst. Abbott also identified the seized bag at trial as being the same black and white bag he saw Chau fold and carry from the 4Runner to the Ford Explorer.

[ 11 ] The 4Runner had already departed and officers were directed to follow and arrest the driver of that vehicle. The officers who followed the 4Runner described heavy rush hour traffic as they followed it across to the south side and up Connor’s Road to a plateau area near 93 Street where the 4Runner was boxed in and stopped. The sole occupant driver exited the vehicle as directed, and was arrested by Cst. Graham at approximately 16:25 hours, on a charge of possession of cocaine for the purpose of trafficking. [ 12 ] Cst. Lewis handcuffed the driver. Cst.

Lewis testified that the driver was initially “stiff-arming”, resulting in some difficulty getting handcuffs onto him. However, he stated the driver’s behaviour thereafter was very cooperative. [ 13 ] Cst. Lewis then initiated a search of the vehicle, locating a Sony cell phone and a new Blackberry phone in the front of the vehicle along with a wallet from which he extracted identification. Cst. Lewis stated in evidence that the identification matched the driver as Christopher Clouden. Cst. Lewis also filed a seizure report which identified the driver as Mr. Clouden with a birth date of July 17, 1977.

The driver was found to have $110 on his person. He also located a T-Ball bat with a knob that was fully encased in black hockey tape tucked between the right side of the driver’s seat and the console of the 4Runner. The registered owner of the vehicle was noted to be Merle Chan of Calgary. [ 14 ] At trial, Det. Pilon was qualified as an expert entitled to give opinions on distribution methods, practice and habits of traffickers including suppliers and purchasers, as well as pricing of cocaine.

This was all done in the context of the Accused’s admission that the quantity of cocaine was indicative that it was for the purpose of trafficking, and no real dispute as to the value of the cocaine. Det. Pilon confirmed that the quantity of drug in single brick form was worth between $45,000 to $52,000 at that time. Det. Pilon explained that a supplier would typically distribute kilo quantities through the use of a courier and would often defer, or involve separate delivery of the product, from payment.

In the hands of the kilo level trafficker the product would then be broken down into smaller ounce packages provided to one or more food bosses who would further break down the product into spit balls or eight balls of 3.5 grams or less for street distribution by dial-a-dopers. This all certainly supports the inference that possession of this package would be for the purpose of trafficking. [ 15 ] Det. Pilon explained that a “blind mule” is someone who acts as a courier with no knowledge (perhaps willful blindness), and who does what is required by a supplier.

He opined that the occurrence in this case was an unusual transaction in which the two parties went into the restaurant for a period, indicating that they knew and trusted each other. Use of a public parking lot for a kilo level transaction is taken to be more inconspicuous than choosing an isolated location that might raise suspicions if observed. Although no hypothetical scenario based on trial evidence was put to Det. Pilon, he opined from his understanding of the file that the Accused was a courier. [ 16 ] Det.

Pilon also testified that while leaving a kilo of cocaine unattended in a vehicle is risky and unusual, a vehicle is seen by traffickers to be the safest storage spot, second only to actually staying with the drugs. Asked to comment on the significance of a taped bat, Det. Pilon described it as protection not only for the courier but also for the valuable drug package. Acknowledging that the bat was not illegal, when asked whether it was similar to a fish bonker, Det. Pilon described those tools as being wooden and stated that he had never seen one wrapped with black tape for fishing. Finally Det.

Pilon commented that cell phones are a tool of the trade at all levels of drug trafficking, and a kilo transaction would not involve frequent calls such as would be experienced by a dial-a-doper. [ 17 ] The registered owner of the Toyota 4Runner, Merle Chan, testified. She resides in Calgary. She stated that she had registered her daughter Cynthia's 4Runner in her own name for insurance purposes. Cynthia is also a Calgary resident. Merle Chan testified that she was aware that Cynthia and the Accused had been girlfriend and boyfriend.

She had no knowledge of any cocaine being in her 4Runner and was a very credible witness. [ 18 ] Counsel, in the end, agreed that all evidence received in the voir dire would constitute evidence in the trial proper, subject only to assessment of weight. In particular, Defence urged the Court to place no weight on hearsay evidence of the various officers as they related communications received from others during the surveillance. Parties’ Positions [ 19 ] The Crown argues that the circumstantial evidence in this case establishes beyond a reasonable doubt that the Accused

“gave”, “transferred” or “transported” the cocaine, each of which constitutes trafficking as defined in s. 2(1) of the Controlled Drugs and Substances Act . [ 20 ] The Crown submits that the following evidence establishes identity: 1) dock identification of the Accused by Cst. Abbott; 2) continuity in tracking the 4Runner from the parking lot where the transaction occurred up to the point of arrest at the top of Connor’s Road; 3) evidence at trial of arresting officers, Cst. DeJong and Cst.

Graham, who obtained the Accused’s driver’s licence; and 4) the seizure immobilization notice (Exhibit 2). [ 21 ] As to possession, Crown points to the following evidence as supporting a finding of control by the Accused: the bag containing the cocaine was right beside the driver in plain view; there was no evidence whatsoever that anyone came to the vehicle prior to the arrival of the Accused and Chau so the only reasonable inference is that the Accused himself brought it to the scene in the 4Runner; the two drivers drove in tandem to, and went into, the restaurant for approximately a half hour; the time frame of the actual removal of the drug package is very short; there is no evidence of any discussion to support that the Accused objected or resisted removal of the bag from the vehicle he was driving; and the taped bat, a weapon of protection, was tucked between the driver’s seat and the console.

The Crown urges that the following supports knowledge and control: the Accused was the operator of the Toyota; he was in the driver’s seat at the time of removal of the product; and he raised no objection to such removal. [ 22 ] Referring to the three elements of possession as set out in R. v. Heiberg , 2011 ABQB 211 at para. 22 , the Crown argues that the only reasonable inference to be drawn from all of the circumstantial evidence viewed in its entirety is that the Accused had knowledge, intention and control over the cocaine.

Overall, in assessing the Accused’s role in the transaction, it is irrelevant that the police had not targeted him for surveillance. Similarly his cooperation with police is not a relevant factor. [ 23 ] Defence counsel argues that the Crown has simply not met its onus of proof in this case. As to identification, there is no reference to any distinguishing features (clothing, distinctive marks, ethnic background, height, weight, hair colour, etc.) in any of the officer’s surveillance notes. The dock identification evidence of Cst.

Abbott in Court was totally undermined in cross-examination when he agreed that his own basis for recognition was having seen the Accused at the preliminary inquiry. The arresting officer said that he checked identification without noting which identification documents were checked and that the individual was one and the same. This was not linked into trial evidence in any way. [ 24 ] Defence counsel acknowledges that Chau was a kilo level dealer but argues that there is no connection to the Accused except a one time attendance in a restaurant captured during surveillance of Chau. Cst.

Abbott confirmed that when Chau was at the back of his vehicle bending forward into the hatch area for a few seconds, the officer could not see the bag specifically. Therefore, it is at least conceivable that the drugs may have been put into the bag at that time. Defence also urges that it is not sensible to leave a kilo package in a vehicle if the courier knows that the drugs have significant value. Both Det. Bruni-Bossio and Det. Pilon conceded that this would be unusual and risky. The Accused was merely a driver who did not own the vehicle.

There was no evidence of fingerprints linking the Accused to the package, nor any evidence that he handled the drugs at any time. Analysis [ 25 ] Regarding identification of the Accused, the evidence establishes beyond a reasonable doubt that the 4Runner which left the parking lot in question is the same 4Runner which was stopped at the top of Connor’s Road. The evidence also establishes beyond a reasonable doubt that the 4Runner remained in road traffic with a sole occupant from the time it left the parking lot until point of arrest.

It was plate identified and remained under four vehicle police surveillance for that entire pursuit time, except perhaps momentarily just as it left the parking lot. [ 26 ] The arresting officers testified to confirming the Accused’s identification at the scene of his arrest with reference to the contents of his wallet retrieved by Cst. Lewis. Inability to recall the exact type of ID card does not detract from the reliability of this evidence. Although dock identification is of limited weight, Cst. Parker identified the Accused at trial. He had observed the arrest.

Merle Chan testified to the Accused’s relationship with her daughter, motioning in her evidence toward the Accused. I find that the absence of police notes describing the Accused does not undermine the ability of the Crown in this case to prove this element of the charge. Based on all of the evidence, I conclude that the Crown has established beyond a reasonable doubt that the individual observed with Chau, followed in the 4Runner until his arrest, and the Accused are one and the same person.

[27] I turn then to the fundamental question of possession by the Accused as driver of the 4Runner. The Crown must prove threethings to support a finding of possession: that the Accused had actual physical possession of the cocaine; that he knew that he had actualphysical possession of cocaine, and that he exerted control over the cocaine while he had actual physical possession of it. [28] Was the Accused in physical possession of the cocaine when Chau retrieved the bag from the 4Runner? The black and whitebag was not concealed within the 4Runner. According to Cst.

Abbott’s evidence, it would have been in plain view of the driver. Thecocaine was in clear plastic wrapping within the black and white bag. Defence counsel made much of the suggestion that Chau himselfmay well have packaged the cocaine found in his Ford Explorer. Similar plastic packaging materials were found in Chau's condominium.Chau might have placed the cocaine in the black and white bag while leaning into the rear hatch of his Ford Explorer. [29] Crown has established that the Ford Explorer contained only one bag matching Cst.

Abbott’s fairly detailed description.Given the specific description of the dimensions of the bag when it was taken from the 4Runner, placement under his arm and the verybrief time Chau took to conceal it deep in the rear right tool compartment, I am satisfied beyond a reasonable doubt that Chau did not putthe cocaine in the bag while placing it in the Ford Explorer. The description of the bag as broadcast by Cst. Abbott during surveillancedoes not match that of an empty bag.

Further, I find the suggestion that Chau, out of the blue, intentionally removed an empty black andwhite bag from the floor of the 4Runner which he would then immediately use for hidden storage of a brick of cocaine already in hisvehicle to be fanciful on these facts. [30] From the entirety of the evidence, I find that the Crown has proven beyond a reasonable doubt that the bag seized fromChau's Ford Explorer was the same bag that Chau retrieved from the passenger side of the 4Runner, and that it contained the brick ofcocaine at all material times.

The Crown has established beyond a reasonable doubt that the cocaine was in the 4Runner at the time oftransfer which led to arrest. [31] Given the continuous surveillance which occurred, the inevitable conclusion on the evidence is that the cocaine was in the4Runner from the time the Accused pulled up to talk with Chau, when he proceeded to the restaurant, and while the two were in therestaurant.

Throughout this relevant period up to his arrest, the Accused was the driver in control of the 4Runner including the contentsof the bag on the floor in front of the passenger seat. [32] Defence counsel asserts that the evidence does not establish beyond a reasonable doubt that the Accused knew there wascocaine in the bag, nor that he exerted any control over it because it came into Chau’s possession entirely through Chau’s actions.Among the cases defence counsel highlighted in argument were R. v. Osmani (1992), 1992 ABCA 151 , 131 A.R. 56, [1992]A.J. No. 464 (C.A.), R. v.

Iturriaga (1993), (BC CA), 43 B.C.A.C. 161, [1993] B.C.J. No. 2901 and R. v. Anderson, (BC CA), [1995] B.C.J. No. 2655 (C.A.). The facts in Osmani are so different as to be of little help. In Iturriaga,there were two occupants of a vehicle. Cocaine was found concealed under the passenger seat, occupied by the co-accused. Some waswrapped in a shirt the co-accused acknowledged was his. The Court found there was no evidence the driver had knowledge or controlover the drugs.

In Anderson, search of a van in which the accused had been riding revealed an electronic scale inside a closed blueplastic bag in the middle of a bed at the back of a van, and drugs in two plastic bags located in a closed gym bag on the floor behind thedriver's seat. Although somewhat instructive on general principles as to proof of knowledge and control, the conclusions in these casesare, of course, very fact driven. [33] Given my findings above, the Crown in this case has established beyond a reasonable doubt that the Accused in factfacilitated delivery of the cocaine in question.

The question is whether the Accused had possession of the cocaine in the sense that heknew the cocaine was in the 4Runner and had control over it. In many cases, knowledge cannot be proven as a fact but can only beinferred from facts which are proven: R. v. Larier (1960), (SK CA), 129 C.C.C. 297 at 312, 35 C.R. 61 at 75 (Sask.C.A.). In R. v. Pham (2005), (ON CA), 203 C.C.C. (3d) 326 at para. 15 (Ont.

C.A.), aff'd 2006 SCC 26, the Courtemphasized that there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control overthe item to be possessed. [34] In order to convict, I must be satisfied beyond a reasonable doubt that the only reasonable inference to be drawn from theproven facts is that the Accused had knowledge of and control over the cocaine: R. v. Griffin, 2009 SCC 28, [2009] S.C.R. 42. [35] I turn first to the vehicle in this scenario. Merle Chan who resides in Calgary had registered her daughter Cynthia’s 4Runnerin her own name for insurance purposes.

Cynthia, who also lives in Calgary was acknowledged to have been the Accused’s girlfriend.The only person identified with care and control over the 4Runner at any material time in Edmonton was the Accused. There were no

possessions seized from the interior of the 4Runner which would indicate anyone else had recently occupied it. [ 36 ] I am mindful that the EPS had no prior knowledge of the Accused, the 4Runner or Merle Chan as the registered owner. Further, no money approaching the value of the cocaine was found on the Accused nor in the 4Runner. Nonetheless, I accept Det. Pilon’s evidence that it is not unusual for transactions of this magnitude to involve pre-payment or payment at a different time. This was reinforced by Sgt.

Bruni-Bossio in explaining that it is uncommon to leave a kilo of cocaine unattended in a vehicle for a half-hour, “careless ... not the way business should be done.” However, he testified that it does happen in sophisticated deals where there have been pre-negotiations and in cases where money is not exchanged at the same time as the product. Where there is a level of trust in kilo level transactions, that trust may involve fronting or “cuffing” where the money is delivered at another time. [ 37 ] The Accused was the sole operator and occupant of the 4Runner at all material times.

Defence counsel submitted that the Court should infer that the Accused had no knowledge of the cocaine because it would be unusual to leave a kilo of cocaine in a vehicle for half an hour. I have already considered this in assessing the trust relationship. However, I will further review the point in the full context of what occurred. Chau is acknowledged to be a kilo level cocaine dealer. He had an initial curbside discussion with the Accused followed by in tandem attendance at a restaurant. The surveillance establishes that neither individual took any package into the restaurant.

They spent half an hour together prior to transfer of the cocaine. The Accused accompanied Chau and got back into the driver’s seat of the 4Runner before Chau opened the passenger door to remove the bag and put it under his arm. [ 38 ] Given the absence of any discussion when Chau retrieved the cocaine, and the fact that Chau immediately secreted the cocaine in his vehicle, the only reasonable conclusion is that Chau knew at some point in the restaurant, if not before, that the cocaine was in the bag in the 4Runner.

If the Accused did not know there was cocaine in the 4Runner then Chau acquired that information elsewhere. Yet as an experienced high level drug dealer expecting to take delivery, he disclosed by his own conduct that he allowed the cocaine to remain in that vehicle while they were in the restaurant. The alternate story put forward by defence would have Chau, an experienced dealer, leaving the cocaine in his own vehicle for the same length of time prior to placing it in the bag and hiding it. [ 39 ] Nothing about cocaine trafficking is without risk.

The evidence supports that leaving the cocaine in the vehicle was unusual and risky. So too, taking the bag into the restaurant would have entailed its own set of risks. Here, not only does Chau condone that the cocaine remain in the 4Runner while they were in the restaurant, he also heads straight to the passenger side and is permitted to remove the bag immediately, without any conversation.

I conclude that the fact the cocaine was left in the 4Runner while the two men talked in a restaurant does not in this case support any rational inference of ignorance on the part of the Accused. [ 40 ] Other factors further inform the context of whether the Accused had knowledge and control. The exchange unfolded in two stages: at the curbside and then at the restaurant parking lot. The Accused had two cellphones in the 4Runner with his wallet on the console. The concealed bat would serve as a weapon in the hands of someone acting as a courier of valuable drugs.

The Accused permitted Chau to remove the bag and put it under his arm while the Accused sat in the driver’s seat. If that was not intended by the Accused, he had immediate access to the bat at the side of his seat. [ 41 ] I accept that cocaine deals at the kilo level involve a high level of trust. This is a matter of common sense given the value of the quantities involved, the consequences of detection by police and the violence associated with the drug trade. The brick of cocaine in question had a value of $45,000 to $52,000.

I am asked to infer that someone placed the cocaine in the vehicle without apprising the Accused of its nature and value. It is virtually inconceivable that any kilo level dealer would take that risk on these facts. The steps required to manage the risk of failure are profound. Such a dealer would have to underline to the Accused the importance of ensuring that the package found its way safely to Chau. That person would also have been very concerned that the Accused avoid police detection. The presence of the bat is consistent with a perceived need for protection.

From the perspective of the Accused, if the point of the meeting was merely to transfer a bag, why would this not simply occur at the curbside or in the parking lot without the meeting in the restaurant? [ 42 ] I simply find no air of reality to the suggestion that the Accused would be entrusted with this cocaine and the task of delivering it in a two step rendezvous and half an hour in a restaurant, while remaining oblivious to the nature of the contents of the package.

In my view the only rational explanation for this fairly prolonged exchange is that the Accused knew what the bag contained and helped to manage the risk associated with that exchange. [ 43 ] In R. v. Jenner , 2005 MBCA 44 , 195 C.C.C. (3d) 364 , Monnin J.A. stated:

16 The accused’s argument is based not on attempting to rebut the evidence tendered by the Crown, but on raising questions and issues that, although valid in a rhetorical sort of way, add nothing to the issues that the trial judge had to address, and the manner in which he did so. Such a manner of attack was dealt with by this court in R. v. Drury (2000), 150 Man. R. (2d) 64 , 2000 MBCA 100 . Huband J.A. addressed the issue as follows (at para. 92): This is a question that only the accused Drury could answer, but he elected not to testify.

Raising the question and inviting the court to speculate as to the answer does nothing to overcome the body of evidence which overwhelmingly points to guilt. … [ 44 ] To similar effect in R. v. Heiberg , the Court stated: 35 It was incumbent on the Crown to prove this [knowledge, intent and control] beyond a reasonable doubt and there was no obligation on Mr. Heiberg to testify or lead evidence. However, without any other evidence, I am left with no evidentiary basis for an innocent explanation for the established facts nor does a rational explanation come to mind.

Mere speculation is insufficient to create a reasonable doubt.... [ 45 ] I find that defence counsel in this case did not put forward any rational, much less reasonable, alternate explanation in this case for the situation in which the Accused found himself. In my view, there is no reasonable explanation which would support a rational inference consistent with innocence. I am satisfied beyond a reasonable doubt that the Accused had possession, knowledge and control of the cocaine and that he knowingly delivered the cocaine to Chau.

Given all of the facts, the steps taken by the Accused simply defy his role as even a wilfully blind mule. He had to know what was going down. Given all of the evidence, I simply cannot conclude that there is another rational explanation for this scenario. [ 46 ] However, if I am wrong in concluding that the only reasonable inference on the proven facts is that the Accused actually knew the bag contained cocaine, then I conclude that the Accused was willfully blind to the presence of cocaine in the vehicle.

A court may infer from the facts and the manner in which an accused conducted himself that he deliberately refrained from making inquiries because he chose not to know the truth: R. v. Briscoe , 2010 SCC 13 , [2010] 1 S.C.R. 411 . Again, this quantity of cocaine would not be entrusted to just anyone. Nor would it be entrusted without some fairly specific information regarding its value and significance, the intended recipient, the manner of transfer, and the importance of avoiding police detection. Such information as is required to ensure successful delivery would raise the suspicions of any reasonable person.

Although the cocaine was in the black and white bag, within that open bag it was not camouflaged. Rather, the contents were wrapped in clear packaging. If the Accused did not know the bag contained cocaine, then it was because he chose to remain ignorant and deliberately refrained from making inquiries, despite the existence of facts that would lead any reasonable person to be highly suspicious. In other words, if he did not know, then the Accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge.

Conclusion [ 47 ] Accordingly, I find the Accused guilty of possession of cocaine for the purpose of trafficking, and by virtue of having transferred or transported the cocaine to Chau, I also find him guilty of trafficking in cocaine. Heard on the 28 th to 31 st days of March, 2011. Dated at the City of Edmonton, Alberta this 24 th day of May, 2011.

S.D. Hillier J.C.Q.B.A. Appearances: Adam Halliday for the Crown Sid Tarrabain/Adam Karbani for the Accused