R. v. Bisziel, 2012 ABQB 119

Court of Queen ’ s Bench of Alberta Citation: R. v. Bisziel, 2012 ABQB 119 Date: 20120224 Docket: 060466547Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Brian William Bisziel Accused _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J.E. Topolniski _______________________________________________________ I.

Introduction [ 1 ] The Accused is charged with eight counts of possession for the purpose of trafficking in a variety of controlled substances, including cocaine (Count 1), morphine (Count 2), codeine (Count 3), oxycodone (Count 4), lorazepam (Count 5), hydromorphone (Count 7), methylphenidate (Count 8), and diazepam (Count 9) contrary to s. 5(2) of the Controlled Drug and Substances Act , SC 1996, c 19 [ CDSA ], and with one count of possession of the proceeds of crime in an amount exceeding $5,000.00 (Count 6), contrary to s 355(

a) of the Criminal Code , RSC 1985, c C-46 [ Code ]. [ 2 ] A statement of agreed facts was submitted, outlining the admissions made by the Accused, including ones as to identity and continuity of the exhibits.

[ 3 ] The Crown ’ s position is that the totality of the evidence shows that the Accused operated a commercial venture, offering a wide variety of illegal drugs for sale to his clientele. The Crown contends that all of the items seized from the Accused ’ s residence are material and probative in relation to whether the Accused possessed the various drugs for the purpose of trafficking and whether the currency seized is proceeds of crime.

Its bid to have evidence relating to any one count charged in the Indictment as well as items seized for which no charges were laid applied to all other counts in the Indictment raises concerns about the cross-admissibility of evidence in a multi-count indictment. II. Background A. Items Seized in Search [ 4 ] The Edmonton Police Service (EPS) executed a search warrant on April 22, 2006 at 1:20 a.m. ( “ Search ” ) at premises which were registered in the name of the Accused and had been registered in his name since September 23, 2005. The police used a battering ram to gain entry into the premises (a bungalow).

Onside inside the premises, the police found the Accused in the living room, which was the first room past the front door. He was the only person present (other than the police). Residency documents establish that the Accused lived in the premises. No evidence suggests that any one else did so. [ 5 ] EPS seized a variety of drugs, drug paraphernalia (digital scales, score sheets, plastic baggies, a bong, pipes and flutes, tweezers), cell phones, a calculator, seven knives of varying sizes, ammunition, a potpourri of jewellery, money and coin rolling tubes.

Drugs seized from the house that required a physician ’ s prescription included oxycodone, lorazepam, zopiclone, morphine, hydromorphone, codeine, alprazolam, methylphenidate, diazepam, benzatropine and sidenofil. Ecstasy, oxazepam, methamphetamine, and cocaine also were seized. The amount of Canadian currency seized from the premises totalled $5,352.46. [ 6 ] Some further detail about the seized items and where they were located is required. [ 7 ] The search of the master bedroom yielded: ∙ 26 empty pill containers in the bottom drawer of a dresser.

Of those, nine had no markings and five bore labels indicating prescriptions made out in the Accused ’ s name by Dr. Loosmore (one dated July 26, 2005 for 60 ativan; one dated September 21, 2005 for 240 oxycontin 40 mg; one dated September 23, 2005 for 60 ativan; one dated January 27, 2006 for 240 oxycontin 40 mg; and one dated March 24, 2006 for 240 oxycontin 40 mg).

The prescription labels correspond to certain of the prescriptions listed in a pharmaceutical patient tax record from Parkdale Medicine Shop, which shows prescriptions for the Accused filled for the period January 1, 2005 through June 2, 2006 ( “ Prescription Record ” ). Ten containers had the prescription labels (for oxycontin 40 mg and 80 mg and hydromorphcontin 12 mg) completely or partly removed, while two bore prescription labels in the name of someone other than the Accused (one for oxycontin 80 mg, dated November 25, 2005, prescribed to JC by Dr.

Loosmore; and one for APO-naproyen 250 mg, dated November 18, 2005, prescribed for AZ by Dr. Brian Defresne). ∙ The top dresser drawer yielded $1,075 (all but $15 in twenty dollar bills); a pill bottle for ratio-oxycocet 5-325 mg with the label removed and holding two oxycodone tablets; 24 lorazepam pills in a container with a prescription label for same dated January 27, 2006, prescribed by Dr. Loosmore for the Accused; a second lorazepam pill vial holding 91 lorazepam (ativan) pills and bearing a prescription label dated March 24, 2006, again by Dr.

Loosmore for the Accused; and an empty pill vial with a prescription label dated December 2, 2002 for amoxicillin issued to AK by a Dr. Khan. ∙ A box found in the top drawer of the nightstand of the master bedroom produced one pill container with the label removed, containing 118 tablets of zopiclone; four tablets of ecstasy; one 8 mg tablet of hydromorphone; 5.5 purple morphine pills; three tablets of alprazolam; one of oxazepam; two more tablets of zopiclone; and two tablets of sildenofil. It also contained an empty pill bottle bearing a prescription label for lorazepam 1 mg prescribed by Dr.

Loosmore on November 3, 2005 for the Accused.

∙ Also in the top drawer of the nightstand was another pill container with 65 codeine 30 mg tablets, with a prescription label, dated October 12, 2005, for DW by Dr. Sandy Tamm. ∙ Four ms-contin (morphine) pills were found in the handle of a magnifying glass lying on top of the nightstand. ∙ A safe was found in the bedroom closet, covered by a carpet. It was opened by using a combination provided by the Accused. The safe held four pill containers holding 467 oxycodone tablets.

Three of the pill containers, each containing 100 ratio-oxycocet tablets (5 mg of oxycodone and 325 mg of acetaminophen), were unopened and bore a prescription label stating that the pills were prescribed to the Accused by Dr. Loosmore on March 24, 2006. The seal on the fourth container was open. It did not have a prescription label.

Also in the safe were a pill container with 86 diazepam 10 mg pills, a jewellery case containing money and a small quantity of methamphetamine, two cases containing a variety of jewellery, a variety of watches, various containers holding money, and various documents in the name of the Accused. The safe also held a set of locksmith lock picks in a black zipper case. [ 8 ] Also found in the master bedroom, on top of the dresser, was a digital scale with cocaine residue on it. Another digital scale and a vector balance scale were found in a sports bag in the closet.

On top of a speaker and on top of a magazine holder in the master bedroom were what Detective Pilon described as “ score sheets. ” Seven knives, including three throwing knives, were located in the magazine rack next to the bed in the master bedroom. [ 9 ] The search of a second room, identified as the “ computer room ” as there was no evidence to suggest it was used as a bedroom, yielded an unlabeled pill container with 121 ms-contin 100 mg pills found behind the coin box on the inside of a video game machine; two cell phones plugged in for charging sitting on the coffee table; and two disassembled cell phones located on top of the computer table.

Coin rolling tubes were found on top of the coffee table. Also recovered were three prescription receipts for 300 pills of ratio-oxycocet 5-325 mg, 360 oxycontin 40 mg pills and 100 ativan (lorazepam) tablets prescribed to the Accused by Dr.

Loosmore, dated March 24, 2006. [ 10 ] The search of the living room and hallway produced: ∙ one hydromorphone 8 mg pill in a lamp shade; ∙ the ends of plastic baggies with white powder residue found in a clay pot on the coffee table; ∙ apparatus (that could be used for smoking crack cocaine) made with a pop bottle with steel wool on the top and containing green liquid, located on the floor by the couch; ∙ a box of baggies beside the couch; ∙ a battery pack containing three hydromorphone 8 mg pills, 50 oxycontin 20 mg pills and nine ms-contin 100 mg pills, found in the pocket of a jacket draped over a chair; ∙ $940 in $20.00 bills found in the same pocket of the jacket draped over the chair; ∙ a black container with 0.15 grams of cocaine, plus a silver container with five “ spitballs ” of cocaine weighing 2.43 grams in total, found in the top drawer of a table in the living room; ∙ nine oxycodone pills with the marking TEC, and one hydromorphone pill, all in a brown container in the top drawer of the table;

∙ 25 oxycodone 20 mg pills in a gold container, pipes, torchlights, tweezers, calculator and pipe, all found in the top drawer of the living room table; ∙ tubes, flutes and tweezers that could be used for smoking crack cocaine, found in a whale sculpture in the hallway between the living room and the freezer; and ∙ a working cell phone on the top of a table. [ 11 ] The search of the basement yielded: ∙ A plastic bag discovered in a hole in the wall, containing the following: ∙ three unlabelled pill containers – one with 48 codeine pills in a bottle marked for codeine contin 100 mg, another with 49 oxycodone pills, and the third with 55 methylphenidate pills; ∙ 44 codeine pills in a pill container with a prescription label, dated April 18, 2005, for 60 codeine 30 mg, prescribed by Dr.

Lal for KG; ∙ 96 aspirin tablets; ∙ 58 benzatropine pills in a container with a prescription label, dated April 18, 2005, prescribed for KG by Dr. Lal; ∙ four diazepam tablets in a pill container labelled for oxycontin 40 mg tablets; ∙ six codeine pills, 14 morphine pills, one diazepam pill, and three oxycodone pills. ∙ Also found in a Rubbermaid tub in the bedroom area of the basement were ammunition, two empty magazines and two bolts from a bolt action weapon. B.

Documentary Evidence [ 12 ] The documentary evidence introduced at the trial includes: ∙ correspondence from the Accused ’ s personal injury lawyer to an insurance agent, dated October 11, 2004, noting that the Accused suffered a twisted hip, sore neck and shoulder, and thigh abrasions from a fall on October 12, 2003 and a report from Dr.

Loosmore to the Accused ’ s personal injury lawyer, dated July 14, 2004 mentioning that the Accused had a lower back problem before the hip injury in October 2003. ∙ the Prescription Record, which lists prescriptions filled by the Parkdale Medicine Shoppe for the Accused between January 1, 2005 and June 2, 2006 for ativan 1 mg tabs, zopiclone 7.5 mg tablets, ratio-oxycocet 5-325 mg tablets and oxycontin 40 mg tablets;

∙ a triplicate prescription program record for the Accused for the period April 1, 2005 through April 23, 2006 ( “ Triplicate Record ” ). The only prescriptions listed are for oxycontin 40 mg and ratio-oxycocet. They include those listed in the Prescription Record for the same period.

The Triplicate Record was attached as an exhibit to the affidavit of Janet Wright, an employee of the Alberta College of Physicians and Surgeons , who deposed that prescriptions filled for pharmaceuticals containing hydromorphone, morphine, oxycodone or methylphenidate were required to be registered with the College under the triplicate prescription program in 2005 and 2006, as they are now, but that no such requirement existed for codeine, diazepam, lorazepam, alprazolam, oxazapam, sidenofil and zopilcone. C. Expert Evidence [ 13 ] A number of police and expert witnesses gave evidence at the trial.

What follows is a

summary of the most germane evidence. 1. Leo Walter [ 14 ] Leo Walter, a forensic toxicologist, testified about typical analgesic dosages. consumptive patterns and lethal dosages for the controlled substances at issue. He identified codeine, morphine, oxycodone and hydromorphone as opiates and explained that they are used medically as pain killers. They also are sought after as recreational drugs. All of these opiates are addictive. A person taking them will build up a tolerance to the drugs. Opiates can be toxic. [ 15 ] Mr.

Walter explained “ progression doses ” as being a standard regime for analgesics that starts with a two to five day trial putting the patient on the weakest drug (in the present case, codeine) and building to the strongest drug (in the present case, hydromorphone), with adjustments in quantity and quality of the drug on an “ as required ” basis. He suggested that 24 to 36 dosage units would be adequate to determine if a drug was effective for an individual. He also discussed typical and lethal dosages for the opiate drugs at issue. [ 16 ] Mr. Walter testified that: (

a) Codeine ∙ Up to 8 mg is available without a doctor ’ s prescription; i.e. over the counter. ∙ Standard release codeine, available in 15, 30 and 60 mg tablets (all white), typically is prescribed for mild to moderate pain, as a cough suppressant, or as an anti-diarrheal. ∙ Sustained release codeine ( “ codeine contin ” ) is available in 50 (blue), 100 (yellow), 150 and 200 (orange) mg pills. ∙ The lethal dose for a naïve user, which is someone who has not developed a tolerance for the drug, is 500 to 1,000 mg. The maximum daily dose for a highly tolerant user is 1,800 mg. (

b) Morphine ∙ Ordinary morphine is available in 5, 10, 20 and 30 mg tablets (all white). It typically is prescribed at 10 to 30 mg every four hours.

∙ Sustained release morphine ( “ ms-contin ” ) is available in 15 (green), 30 (violet), 60 (orange), 100 (grey) and 200 (red) mg tablets, and typically is prescribed at 30 mg twice daily. ∙ The lethal dose of morphine for a naïve user is 120 mg. A highly tolerant user can take as much 4,000 to 5,000 mg per day. (

c) Oxycodone ∙ Oxycodone is a synthetic form of morphine. ∙ Ordinary oxycodone is available in 5, 10 and 20 mg doses. ∙ The sustained release version of the drug ( “ oxycontin ” ) is available in 5, 10, 20, 40 and 80 mg doses. ∙ Ratio-oxycocet is marked TEC. It is a combination of 5 mgs oxycodone and 300 mgs acetaminophen.

Typically, it is used for breakthrough pain when a person is on oxycontin. ∙ Curiously, the lethal dose of oxycodone for a naïve user is 500 mg, but a highly tolerant user can only take up to 100 mg per day. ∙ If the Accused was taking all of the oxycodone prescribed to him, his daily consumption up to March 24, 2006 was about 240 mg, which is indicative of a tolerant to highly tolerant user. (

d) Hydromorphone (dilaudid) ∙ Hydromorphone (commonly called “ dilaudid ” ) is the strongest of the seized opiates. ∙ Standard release dilaudid is available in 1 (green), 2 (orange), 4 (yellow) and 8 (white) mg tablets. ∙ Long acting dilaudid is available in 3, 6, 12, 18, 24 and 30 mg tablets. ∙ The minimum lethal dose for a naïve user is 100 mg. ∙ Mr. Walter could not say what the maximum daily dose is for a highly tolerant user. (

e) Methylphenidate (ritalin) ∙ Methylphenidate (more commonly known as “ ritalin ” ) is a stimulant that can produce euphoria and has a recreational use. ∙ The minimum lethal dose is 2,000 mg.

∙ The methylphenidate seized would be a five to seven day supply for a tolerant user. ∙ If taken at once, the amount of methylphenidate seized could be lethal. (

f) Lorazepam, alprazolam, and oxazepam ∙ Lorazepam ( “ ativan ” ), alprazolam, and oxazepam are prescription sedatives that can produce euphoria and can be used recreationally for that purpose. (

g) Zopiclone ∙ Zopiclone is a prescribed sleeping aid that has abuse potential. (

h) General [ 17 ] Mr. Walter testified that the pattern for the Accused ’ s dosages of oxycontin and ratio-oxycocet was consistent in that the prescriptions were for a similar amount of the drugs over similar intervals until March 24, 2006, when the quantity for both escalated. Mr. Walter postulated that the escalation could be for a variety of reasons, including the patient becoming tolerant of the drugs or going out of town, or the physician being inaccessible for a time. [ 18 ] He confirmed that of the types of opiates seized, it is only oxycontin that comes in tablets of 40 and 80 mg doses.

He noted that there were about 163 codeine tablets, 153.5 morphine tablets and six hydromorphone tablets seized and commented that these numbers seemed excessive as leftovers if there was experimentation to see if one drug would be effective and the patient was then started on another drug. He suggested that 153.5 tablets of morphine seemed a little unusual as leftover even if the patient had been stabilized on morphine prior to April 2005 and then was prescribed oxycodone.

He also opined that it seemed that the Accused was developing a tolerance for oxycodone (oxycontin 40 mg) since his prescription on March 24, 2006 increased from 240 to 360 tablets. Mr. Walter also made these observations and opinions: ∙ If in the 28 days between the last prescription and the April 22, 2006 seizure, the Accused consumed the 360 oxycontin 40 mg pills prescribed on March 24, 2006, he would have been consuming 514 mg of oxycodone per day, an amount considered by Mr.

Walter to be “ remarkable, ” and perhaps not possible. ∙ Finding all four opiates is an anomaly, since doctors strive to keep an analgesic regime as simple as possible by minimizing the number of drugs. ∙ He would not expect to see a new prescription given if a patient had a supply of analgesics. ∙ It is unexpected for a person to be prescribed the strongest analgesic (dilaudid), progressing to a less potent analgesic - the opposite would occur. ∙ The quantity of opiates seized would be a 24 to 50 day supply for a highly tolerant user, depending on whether consumption of oxycodone was 100 or 600 mg per day.

∙ The Triplicate Record does not show prescriptions for oxycodone 20 and 80 mg, hydromorphone or morphine, and the Prescription Record does not show prescriptions for those drugs or codeine. ∙ Despite labelling requirements for prescription drugs, the labels of several pill bottles were removed, and some others bore different patients ’ names, while others still had different doctors ’ names. ∙ Loose pills were seized. ∙ The number of ratio-oxycocet pills seized (467 seized) from the safe exceeded those prescribed by the last prescription (300 on March 24, 2006) by 167 pills. ∙ It would be unusual for a person to take the pills seized from the battery pack together for pain management given health risks and overdose potential. 2.

Detective Guy Pilon [ 19 ] Detective Pilon was qualified as an expert in practices employed in the trafficking of pharmaceutical drugs and cocaine; including prices, consumption patterns, paraphernalia, traffickers ’ jargon, the practices and habits of users and traffickers of the drugs involved in these proceedings, the observable effect of drugs involved in this case, and the packaging of such drugs. [ 20 ] Detective Pilon testified that cocaine typically is purchased from a distributor in bulk quantities, such as at the kilo level and then is broken down into ounces and separated down further.

There are a variety of levels of dealers between a kilogram level dealer and a street level dealer. At a certain point, the cocaine is weighed on a scale, and from .2 g to .5 g placed in the corner of a plastic sandwich baggie. The baggie is then twisted and knotted and cut off. That creates what is called a “ spitball ” or “ piece, ” which sells for $30 to $40 on the street. [ 21 ] Detective Pilon stated that the street level dealer generally acquires the cocaine from his supplier pre-packaged into spitballs.

There might be seven spitballs wrapped together, totalling about 3.5 g, which is referred to as an “ 8-ball. ” Alternatively, the street level dealer may purchase it in bulk, undivided, and may subdivide it himself into spitballs. [ 22 ] Detective Pilon explained that street level cocaine sales often occur by “ dial-a-dope ” operations (customers call a supplier for delivery), whether the customer collects the drugs from the trafficker ’ s home or it is delivered elsewhere.

He also explained that traffickers may stock a variety of drugs to serve a greater client base. [ 23 ] Detective Pilon observed that traffickers may use “ score sheets ” crafted in vague language to track their sales and supplies, and noted that the seized score sheets referenced cocaine, hydromorphone, ms-contin 100 mg pills ( “ greys or grays ” ) and oxycodone 40 and 80 mg pills ( “ 40s and 80s ” ). [ 24 ] As to the source of a pill traffickers ’ supply, Detective Pilon testified that the pills may be obtained by a personal prescription from a doctor, by obtaining pills from another user, or by theft.

Where the trafficker obtains pills from another person, the prescription label often is removed. Detective Pilon noted that the seized items included both categories of pill bottles. [ 25 ] Detective Pilon said that payment for illicit drugs may be by cash or valuables.

[ 26 ] Detective Pilon spoke about the jargon used by dealers and customers to describe various drugs. For example, oxycodone 80 mg pills are referred to as “ 80s ” or “ greens. ” Morphine pills are referred to by their colour, with each colour representing a different amount. Hydromorphone commonly is called “ dillies ” or “ dilaudid. ” [ 27 ] Detective Pilon testified that traffickers meet with clients to make their transactions and sometimes the client comes to the traffickers ’ home to make the purchase. He explained that traffickers often have a quantity of drugs in the front entryway or a room close by.

The trafficker may hide his additional stock to safeguard it - securing it in a variety of ways, including in safes, hidden compartments, and holes in a wall, and traffickers usually keep weapons on hand to protect themselves, their product and the proceeds of their trafficking. [ 28 ] Detective Pilon opined that certain of the seized items (scale with cocaine residue found in the main bedroom, scales found in bedroom closet, box of baggies found in the living room by the couch, and the knives found in the living room) and where they were found were consistent with cocaine trafficking.

He indicated that the plastic bag ends found in the pot on the living room coffee table were more consistent with use of cocaine rather than packaging for sale. He thought they were indicative of spitballs that had been opened, although it was possible they could have been larger baggies that were opened up, weighed and repackaged again. He opined that the .15 g of cocaine in the living room drawer may have been from a spitball that was being consumed.

The other cocaine was packaged as if for sale and, given the scale with cocaine residue and box of baggies, the score sheets, the money and weapons found, and totality of the circumstances, was consistent with trafficking. [ 29 ] He noted the following entries on the score sheets and interpreted them to mean the following: ∙ 3 pcs 120 three pieces of cocaine, for which the going rate is $120 ∙ + ½ + ½ + ½ half gm pieces of cocaine ∙ Jackie + ½ a half gm piece of cocaine ∙ Ball 3.5 gm of cocaine ∙ 90.3 pieces 90.3 pieces of cocaine ∙ two G.

Plus .5 two gm plus a half piece of cocaine ∙ .5 a half gm of cocaine. [ 30 ] Detective Pilon also noted what he believed to be references to other controlled substances on the scoresheets, including the following: ∙ 20 - dils 20 hydromorphone (dilaudid) ∙ 15-40s 15 oxycodone 40 mg ∙ two greys two morphine 100 mg

∙ 10-80 ten oxycodone 80 mg ∙ 10-40s 10 oxycodone 4o mg ∙ Dil 5, Dil 2, Dil 10 hydromorphone (dilaudid). [ 31 ] Like Mr. Walter, Detective Pilon noted that the number of pills in the open ratio-oxycocet bottle found in the safe exceeded the prescribed number.

He considered that there was a large amount of cash in the safe. [ 32 ] Detective Pilon considered the convenience of the battery pack found in the jacket draped on the living room chair, that it had segregated compartments, that oxycodone was found in it, and that money was found in the same pocket as supporting his view that the battery pack was used as a “ grab and go ” device for street deliveries and the cash was proceeds of same. I note, however, that Detective Countryman explained that when he found the battery pack he simply emptied the battery pack and counted the drugs.

He could not say if the drugs were segregated or organized by type in the battery pack. [ 33 ] Detective Pilon considered that there was no prescription for oxycontin 20 mg such as that found in the jacket pocket and that there were oxycodone pills hidden in the hole in the basement wall in a prescription bottle with no label. [ 34 ] He considered all of this evidence, the weapons and the notations on the score sheets as being consistent with trafficking in oxycodone. [ 35 ] In opining that the morphine seized from the house was possessed for the purpose of trafficking, Detective Pilon considered the morphine included in the battery pack, the morphine in the main bedroom, the four ms-contin pills in the handle of the magnifying glass, the morphine pills in the pill container with no label found in the video machine, the morphine pills in the hole in the basement wall, the fact there was no prescription for morphine listed in the Triplicate Record and the entries in the score sheets. [ 36 ] He also considered the dilaudid pill in the living room lampshade, the dilaudid pills in the battery pack and the dilaudid pills in the main bedroom nightstand drawer and living room table drawer and the fact there was no prescription for the Accused for that substance in the Triplicate Record, in opining that the hydromorphone was possessed for trafficking. [ 37 ] In opining that the codeine was possessed for the purpose of trafficking, he considered the codeine located in the main floor bedroom in a bottle with a prescription label for someone else, the codeine in the bag in the basement hole in the wall in a bottle with a prescription label for someone else, and that there was no prescription for codeine in the Prescription Record. [ 38 ] Detective Pilon opined that the seized jewellery and watches, money and weapons, score sheets, the location of hidden stashes of drugs and the presence of drug paraphernalia in this case all are consistent with drug trafficking.

However, as previously stated, he also acknowledged that the knotted bag ends seized from the living room also are consistent with a person using drugs. III. Analysis A. Evidentiary Issues 1. Direct or circumstantial evidence

[39] It is trite that the essential elements of an offence may be proven through direct or circumstantial evidence, or a combinationof both. If the case rests on circumstantial evidence, the trier of fact must be satisfied beyond a reasonable doubt that the accused’s guiltis the only reasonable inference to be drawn from the facts.

In making this assessment, the trier of fact must be satisfied that all theevidence, taken together, establishes the guilt of the accused and is inconsistent with any other rational conclusion (R v GLJ, [1997] BCJNo 2994 (QL) at para 29 (CA); R v Aylward (1993), (BC CA), 36 BCAC 14 at paras 5-7). 2. Similar fact evidence [40] Having chosen to proceed with a single multi-count Indictment, the Crown now asks that all of the evidence gathered duringthe course of the investigation be applied to all of the counts.

The Crown suggests that all of the evidence is material and probative as towhether the drugs listed in the Indictment were in the Accused’s possession for the purpose of trafficking and whether he possessedproceeds of crime from illicit drug activity. It submits that this is not a case where there is a serious question of who committed thecrimes charged. The fundamental question is whether the crimes charged were committed. [41] The Crown contends that the overall picture that develops from the evidence is that Mr.

Bisziel was operating a drugtrafficking venture in which he distributed a variety of controlled substances and obtained proceeds of crime. [42] In a multi-count indictment, the court must separate the evidence as it applies to each count and consider only the evidencewhich is relevant to each charge, unless evidence on one charge is admissible under the rules of evidence on another (R v Davis, 2003BCCA 679 at para 32, 192 BCAC 179, leave to appeal to SCC dism’d [2004] SCCA No 29). This statement applies where the chargesarise out of different incidents.

However, the situation is not as clear where the charges relate to one event, for instance a single search, asin this case. [43] In R v deKock, 2009 ABCA 225; 454 AR 102, the accused appealed his conviction on various fraud and theft-relatedcharges. The Crown alleged that, based on the totality of the evidence, there was a "pattern" by which the appellant was defrauding hiscustomers. The appellant conceded that this was more of a "pooled evidence" case than a "similar fact evidence" case, but noted that theCrown did not formally apply to use "similar facts" across all counts, nor did he agree with this procedure.

At paras 35-37, the Court ofAppeal commented: The appellant's contention is not supported on this record. The trial judge did not use a forbidden chain of reasoning to link the verdictson the counts. All of the evidence was admissible on all of the counts as the context of each event. This was an enterprise or businesscontext in which the financial dealings of the appellant throughout the period went directly to actus reus and mens rea, notably to thetruthfulness of his statements and the truthfulness of his capacity to fulfil his promises at each point in the range of events when he saidand did things.

Take the example of witnesses who identify a specific blue as the getaway car from a robbery. The Crown is able to lead evidence thatthe accused had possession of that car the day before the robbery and the day after the robbery. It is not 'similar fact' or propensityreasoning to infer continuity of possession. Similarly, evidence the ongoing condition of an accused's bank account as to deposits,withdrawals and payments, is evidence of a history of events and a context, not a forbidden chain of reasoning per se.

This is not to saythat a 'similar fact' argument may not arise, but the nature of the argument and the manner in which evidence would be said to beassociated for proof purposes would be distinctly different. In this case, the appellant's trial counsel invited the trial judge to consider the totality of the evidence during argument...

Indeed, the factthat the totality of the evidence included the fact that some of the appellant's customers received their boats, though not precisely as theyordered, was emphasized in both the appellant's non-suit application and during final argument as indicative of a lack of fraudulent intent.Accordingly, where the trial judge considered the evidence globally as the context of each event, even from the appellant's perspective,no forbidden chain of reasoning happened. [44] In the present case, the evidence pertains to one event or occurrence.

It is all part of the context or totality of thecircumstances and, in my view, is admissible on that basis on each count, although care must be taken to avoid propensity reasoning. TheDefence concedes this.

[45] However, in the event I am wrong and the direct evidence on one count is properly considered similar fact evidence inrelation to the other counts, I will proceed to analyze it on that basis. [46] Similar fact or, as it is otherwise called, evidence of discreditable conduct, is presumptively inadmissible.

To justify itsreception, the court must be satisfied that its probative value outweighs its prejudicial effect (R v Handy, 2002 SCC 56 at para 55, [2002]2 SCR 908). [47] The assessment of prejudicial and probative value is measured by identifying the issue in question and the cogency of theevidence in relation to that question, and by considering the following: ∙ similarities and dissimilarities between the facts charged and the similar fact evidence, including: ∙ proximity in time; ∙ the extent to which other acts are similar in detail to the charged conduct; ∙ the number of occurrences of similar acts; ∙ the circumstances surrounding or relating to the similar acts; ∙ any distinctive features unifying the incidents; and ∙ intervening events; ∙ the strength of the evidence that the similar acts occurred; and ∙ prejudice, including: ∙ moral prejudice; and ∙ reasoning prejudice (Handy at paras. 98-147) [48] In R v Arp, (SCC), [1998] 3 SCR 339 at para 75, 129 CCC (3d) 321, the Supreme Court of Canadaendorsed what has been termed the "pooling or cumulative approach" to dealing with similar fact evidence where the main issue isidentity.

This approach, adopted in R v Simpson (1977), (ON CA), 35 CCC (2d) 337 (Ont CA); R v Lawson (1994), (BC CA), 45 BCAC 14; and R v Eng (1995), (BC CA), 56 BCAC 18, requires the trier of fact toexamine the similarities between the counts charged in the indictment and decide, as a preliminary matter, whether on a balance ofprobabilities the offences likely were committed by one person. If so, the evidence of each count may be considered in determiningwhether the accused committed the other offences.

If not, the trier of fact must consider the evidence on each count separately indetermining the accused’s innocence or guilt (Arp at para 58). [49] Acquittal of one count of a multi-count indictment does not preclude consideration of the same evidence on another count ifthe test for admissibility of similar act evidence is met (Arp at para 79).

[50] As noted by the Crown, the primary issues in this case are whether the drugs listed in the Indictment were possessed for thepurpose of trafficking and whether the money possessed was proceeds of crime. Clearly, the facts alleged in relation to the possession forthe purposes of trafficking charges are similar, and the facts concerning the possession of proceeds of crime charge are related as themoney is alleged to be the proceeds of drug trafficking. [51] In my view, the probative value of the evidence outweighs its prejudicial effect.

In that regard, these similarities would berelevant: ∙ the controlled substances listed in the Indictment were all found during the search of the Appellant’s premises; ∙ the controlled substances were hidden from view; ∙ there were different types of prescription drugs in unlabelled bottles or bottles labelled for others; ∙ there were drugs requiring triplicate recording for which there was no record for the Accused; ∙ the quantity of certain of the drugs requiring triplicate recording for which there was a record exceeded the amount prescribed; ∙ the amount and types of jewellery and valuables; ∙ certain documents, which I accept on the basis of Detective Pilon’s testimony were score sheets referencing different types ofprescription pills; ∙ multiple cell phones. [52] The evidence goes to whether the Accused was operating a commercial drug selling venture.

The quantity of drugs is arelevant consideration. The Crown urges that an inference of possession for the purpose of trafficking can be drawn from the variety ofdrugs in this case, not simply the quantity of any one particular drug.

Consideration of the whole of the evidence also assists inaddressing the Defence suggestion that certain of the controlled substances listed in the Indictment may have been leftovers fromprevious prescriptions given in the course of a progressive regime of treatment for the Accused’s pain (R v Arason (1992), (BC CA), 78 CCC (3d) 1 (BCCA); R v Cook, 2010 ONSC 1188 at para 526). [53] In terms of prejudice, I note the observations of the Court of Appeal in deKock at paras 43 and 44: As to moral prejudice, in R v B (T.R.), (2009) 63 C.R. (6th) 197, [2009] O.J.

No. 751 (QL), 2009 ONCA 177, the court concluded that atrial judge reversibly erred in law in putting too much weight on the risk of moral prejudice in a trial before him without a jury. TheCourt said: 33 First, this was a non-jury trial, in which the danger that an accused would be convicted solely on the basis of his general badbehaviour was not a significant concern. Moral prejudice is not a significant risk in a judge-alone trial. Second, dismissal of theapplication to introduce similar fact evidence did nothing to address the probability of moral prejudice.

The trial judge had already heardthe evidence as part of the Crown's case. Thus, the trial judge's knowledge of evidence casting the respondent in a poor light was noteliminated by its exclusion as similar fact evidence. The only issue was whether the already admitted evidence could be used for anotherpurpose. Third, to the extent that there is a risk of moral prejudice in a judge-alone trial is possible, the trial judge failed to appreciate,with respect to counts one to nine, that prejudice was much reduced as none of the underlying incidents were more reprehensible than the

others. The allegations regarding each count that applied to M. were virtually the same, and were quite similar to the incidents related by R., especially those that took place in the respondent's truck. Those points apply here. As to reasoning prejudice, "In large measure, the practical realities of a trial by judge sitting alone in a case in which the allegedly similar acts do not extend beyond the counts of a multi-count indictment reduce significantly, if not to the vanishing point, the virus of reasoning prejudice.": see R v MacCormack , (2009) 245 O.A.C. 271, [2009] O.J.

No. 302 (QL), 2009 ONCA 72 , at para. 69 ; B. (T.R.) at para. 30. To this the Court in B. (T.R.) added at para. 27: 27 As the proposed similar fact evidence in this case was related to all the counts in the indictment and the evidence was already before the court, and because this was a non-jury trial, reasoning prejudice was not a real issue. Unlike cases such as Handy , this was not a case where the proposed similar fact evidence was extrinsic to the charges before the court and required extra witnesses to present it.

The only additional time needed as a result of the similar fact evidence was the time required to argue the motion to admit it. As trial judges are presumed to know the law and the proper and improper uses of evidence, it seems counterintuitive that similar fact evidence could be excluded in a non-jury trial based on the trial judge's determination that the evidence would confuse him or induce him to put more weight on it than is logically justified. [ 54 ] I conclude that the probative value of the evidence outweighs its prejudicial effect.

However, the weight to be accorded any similar fact or circumstantial evidence must be determined in relation to each count. B. Possession for the Purpose of Trafficking 1. General [ 55 ] The relevant provisions of the CDSA include: 5. …

(2) No person shall, for the purpose of trafficking, possess a substance included in

Schedule I, II, III or IV.

(3) Every person who contravenes subsection (1) or (2) (

a) subject to subsection (4), where the subject-matter of the offence is a substance included in

Schedule I or II, is guilty of an indictable offence … ; (

b) where the subject-matter of the offence is a substance included in

Schedule III, (

i) is guilty of an indictable offence … ; and (

c) where the subject-matter of the offence is a substance included in

Schedule IV, (

i) is guilty of an indictable offence … .

(4) Every person who contravenes subsection (1) or (2), where the subject-matter of the offence is a substance included in

Schedule II in

(4) Every person who contravenes subsection (1) or (2), where the subject-matter of the offence is a substance included in

Schedule II in an amount that does not exceed the amount set out for that substance in

Schedule VII, is guilty of an indictable offence … . 2(1) In this Act, … “ possession ” means possession within the meaning of subsection 4(3) of the Criminal Code . . . . “ sell ” includes offer for sale, expose for sale, have in possession for sale and distribute, whether or not the distribution is made for consideration; … . . . “ traffic ” means, in respect of a substance included in any of Schedules I to IV, (

a) to sell, administer, give, transfer, transport, send or deliver the substance, (

b) to sell an authorization to obtain the substance, or3 (

c) to offer to do anything mentioned in paragraph (

a) or (b), otherwise than under the authority of the regulations. [ 56 ] The relevant provisions of the Code include: 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 shallbe deemed to be in the custody and possession of each and all of them. [57] The Crown must prove beyond a reasonable doubt the following essential elements of counts 1 to 5 and 7 to 9: (1) the identityof the Accused as the offender; (2) the time and place of the offence as set out in the indictment; (3) the substance in question is acontrolled substance; (4) the Accused had possession of that controlled substance; and (6) his purpose in possessing that controlledsubstance was to traffic. 2.

Identity, time and place [58] The identity of the Accused as the offender and the time and place of the offences as described in the Indictment areadmitted. 3. Controlled substances [59] Forensic analysis establishes that the seized substances were cocaine, morphine, codeine, oxycodone, lorazepam,hydromorphone, methylphenidate, and diazepam as alleged. These are controlled substances, named in a

schedule to the CDSA. 4. Possession [60] The CDSA incorporates the Criminal Code definition of "possession" (CDSA, s 2(1); Criminal Code, s 4(3)). Knowledge andcontrol are the key elements of possession (R v Bauer, 2003 BCCA 138 , [2003] BCCA 138 at para 23, 180 BCAC 42).

For anaccused to be deemed to be "in possession" of an item, the Crown must prove the accused had the ability to exercise some power over it(R v Webster, 2008 BCCA 458 at paras 42-44, 238 CCC (3d) 270). [61] The Crown also must prove that the accused had knowledge that the drugs listed in the charge were controlled substances (Rv Beaver, (SCC), [1957] SCR 531; United States of America v Dynar, (SCC), [1997] 2 SCR 462, 115CCC (3d) 481). [62] Knowledge often is inferred (R v Jenner, 2005 MBCA 44 , [2005] MBCA 44 paras 19 and 20, 192 Man R (2d) 184,citing R v Larier (1960), (SK CA), 129 CCC 297, 33 WWR 600 (Sask CA).

The surrounding circumstances can beused to establish beyond a reasonable doubt that an accused knew that he had controlled substances in his possession and exerted controlover them. Each case must be determined on its own particular facts. [63] In the present case, there is evidence that the Accused was the registered owner of the premises and had been sinceSeptember 23, 2005. Residency documents establish that the Accused occupied the premises.

Nothing in the evidence suggests that anyother person resided there. [64] The majority of the controlled substances were hidden out of sight, some in furniture which it is reasonable to infer was usedby the Accused. For instance, the bottom drawer in the main bedroom contained empty pill containers bearing prescription labels madeout to the Accused. The top drawer had a pill container with a prescription made out in the Accused’s name.

An empty pill bottle bearinga prescription label prescribed for the Accused was found in the drawer of the nightstand in the main bedroom. [65] The safe in the main bedroom was opened using a combination provided by the Accused. It contained documents in the nameof the Accused and pill containers bearing prescription labels made out in his name.

[66] When the police entered the premised, the Accused was in the living room. No one else was in the house. A coat was founddraped over a living room chair. It is reasonable to infer that the coat belonged to the Accused. A battery pack containing a variety ofdrugs was found in the coat pocket. [67] Three receipts for prescriptions made out to the Accused were found in the computer room. Ms-contin was found behind thecash box of the arcade game in that room.

The morphine found in the game was the same strength of morphine (ms-contin 100 mg) asfound in the battery pack located in the pocket of the jacket in the living room and was the type of morphine which Detective Pilontestified was referred to on one of the score sheets (greys). [68] The plastic bag found in the hole in the wall in the basement held many of the same type of drugs as hidden in other areas ofthe premises. It also held a pill container bearing a prescription label in the name of someone else, dated April 18, 2005, which was priorto the date when the Accused obtained title to the premises.

While that otherwise might point to a third party having hidden the drugs inthe hole in the wall, I note that an empty pill vial with a prescription label dated December 2, 2002 and issued to someone else was foundin the top drawer of the dresser in the main bedroom.

As well, pill containers bearing prescription labels in someone else’s name werefound in other areas of the residence, evidencing a pattern on the part of the Accused of possessing drugs initially prescribed for someoneelse. [69] I conclude that the Accused had control of the substances listed in the Indictment. [70] It is evident from the Prescription Record and Triple Record that the Accused was familiar with controlled analgesics andlorazepam.

He kept an amount of oxycodone in the safe in his bedroom, along with money and jewellery, and more hidden away in thebasement hole in the wall, along with codeine, morphine, diazepam and methylphenidate. Some of the hydromorphone was hidden in alampshade. The cocaine was out of view and some of the drug paraphernalia was hidden in a sculpture in the hallway.

In thecircumstances, it is reasonable to infer that the Accused knew that the substances listed in the Indictment were controlled substances. [71] Based on all of this evidence, I conclude that the Accused had possession of the substances listed in Counts 1 to 5 and 7 to 9.Indeed, the Defence indicated that the Accused’s possession of the substances was not an issue. 5. For the purpose of trafficking [72] The Crown also must establish that the Accused possessed the controlled substances for the purpose of trafficking (CSDA, s5(2)).

A specific quantity of controlled substance or knowledge of a particular quantity is not an element of the offence.

However, thequantity of a controlled substance may play a role in determining if an inference of possession for the purpose of trafficking should bedrawn. [73] Section 2(1) of the CDSA provides a broader meaning for the word “sell,” which includes distribution without consideration. [74] In ascertaining whether drugs are possessed for personal use or for a commercial venture, the court may draw inferencesfrom evidence like the quantity, packaging and value of drugs involved; drug paraphernalia found; scales and records; any money foundand its denominations; statements of the accused; the accused’s association with known drug traffickers; and the accused’s unexplainedwealth (R v Chan (2003), (ON CA), 66 OR (3d) 577 at para 33, 178 CCC (3d) 269 (CA), leave to appeal to SCCref’d [2003] SCCA No 453; R v Peters, 2005 MBQB 146 at para 9; R v MacFarlane (1992), (PE SCAD), 76 CCC(3d) 54 at 65 (PEICA); R v Oakes (1983), (ON CA), 2 CCC (3d) 339 at 363 (Ont CA), aff’d (SCC),[1986] 1 SCR 103).

The court may consider the accused’s possession of cash and the price of narcotics in the illegal market (R v Cripps(1969), (BC CA), 68 WWR 456 at para 16 (BCCA)). [75] The Defence argues that there is a reasonable doubt that the controlled substances, or at least certain of them, were possessedfor the purpose of trafficking, as the police failed to obtain the Accused’s prescription records for the period following his accident inOctober 2003, nor was there an attempt made by the police to interview Dr. Loosmore prior to his death in the fall of 2007.

The Defencenotes that even after the arrest of the Accused, Dr. Loosmore again prescribed him 360 oxycontin 40 mg tablets and 300 ratio-oxycocet5-325 mg tablets, as evidenced by the Prescription Record. The Defence also suggests that a reasonable doubt is raised by the fact thatthe police failed to have the “score sheets” fingerprinted, they did not download the phones, and they did not follow up on any of theother persons named on prescription labels found in the premises.

[76] The investigative standard that must be met by the police is not one of perfection (R v Perlett (2006), (ON CA), 212 CCC (3d) 11 at para 62 (ONCA)).

As noted by the Crown, it is not obliged to gather evidence from third parties in regardto all defences that an accused might raise, and the Defence did not ask the Crown or initiate proceedings itself, such as an O’Connorapplication, to obtain third party records. [77] I agree with the Crown that the question in issue is whether it has proved its case beyond a reasonable doubt. [78] The Defence also submits that a reasonable doubt is raised that the controlled substances were possessed for the purpose oftrafficking since no calls were received on the operating cell phones found in the premises and no one came to the door of the premisesduring the search.

Evidence was given that entry to the premises was by the police using a battering ram. In the circumstances, it is notsurprising that no one came to the door. The lack of any calls received on the cell phones is a neutral fact, as there is no allegation by theCrown that the Accused was a high frequency trafficker, and the timing of the search (about 1:20 a.m. to about 3:40 a.m.).

Count 1 (Cocaine) [79] The police found 0.15 g of cocaine in a black container and five “spitballs” of cocaine weighing 2.43 g in total in a silvercontainer in the top drawer of a table in the living room. [80] Detective Pilon testified that the 0.15 g of cocaine was consistent with personal consumption, as were the bag ends with whitepowder residue in the clay pot on the living room coffee table and the drug paraphernalia found by the couch in the living room andhidden in the sculpture in the hallway near the living room. [81] He opined that the five spitballs in the silver container were packaged for sale and noted that they were found in the livingroom along with other pills that could have been for sale.

He observed that in his experience, when users go to a trafficker’s house inorder to purchase drugs, they are not given access to the entire house, but rather are restricted to the foyer and perhaps a close adjoiningroom – here, the living room. He went on to observe that: …So with that, with the fact that there is a scale there with cocaine residue on it, users don’t weigh small amounts of cocaine theyconsumed it, they know how much they are going to consume. Traffickers weigh it in order to bundle it up and divide it.

The baggiescould have been used to package it up. … It is consistent with the way it is distributed and in an area where it would be distributed from. [82] Under cross-examination, however, Detective Pilon did concede that the Accused may have purchased an “eight ball” andpart of it may have been consumed, resulting in the .15 gram piece remaining in the baggie. [83] He said that the large amount of cash in $20 denominations found in the residence, the various score sheet entries referring tococaine, and the weapons found in the house also were indicative of possession of cocaine for the purpose of trafficking. [84] In my view, the evidence leads to the irresistible conclusion that the Accused was a user and, at times, a trafficker of cocaine.The question is for what purpose did he possess the seized cocaine? [85] The total amount of cocaine seized was 2.58 grams, with a street value of $170 to $220.

Although it is a relatively smallamount, the law does not require a minimum quantity to infer possession for the purpose of trafficking (Chan at paras 23, 24, 27, 32-35).Liability may be justified even when the quantity of cocaine is small. For example, 2.66 g. was sufficient to lead to conviction in R vSaari, 2006 BCCA 288, 227 BCAC 160; 0.3 g in R v Lennartsson, 2006 ABCA 189; and 1 g in R v Kirwin, 2006 BCCA 78, 222 BCAC288.

[86] Despite the existence of scales and score sheets, which are consistent with trafficking, the totality of the evidence does notestablish beyond a reasonable doubt that the seized cocaine was possessed for the purpose of trafficking. Rather, the evidence isequivocal. Essentially, the Crown concedes this in its written submissions. [87] The Accused is found not guilty on this Count, but guilty of possession of cocaine. Count 2 (Morphine) [88] There were 121 ms-contin 100 mg pills found hidden behind a cash box in an arcade game in the computer room.

Another 14morphine pills were found in the bag located in the hole in the wall in the basement. In addition, 5.5 morphine pills were found in a boxin the top drawer of the nightstand in the main bedroom, four ms-contin pills in the handle of the magnifying glass that was lying on thenightstand, and nine ms-contin pills in the pocket of the jacket hanging on a chair in the living room. The approximate street value ofthis quantity of morphine would be about $4,320. [89] Morphine is a drug which requires a prescription and one which is involved in the triplicate prescription program.

There wasno morphine listed in the Prescription Record or Triplicate Record for the Accused. [90] Mr.

Walter conceded that although it would be unusual, it was not beyond the realm of possibility that the Accused mighthave been prescribed morphine previously and that the seized morphine was “leftover.” However, he also commented that it would beunusual for there to be 153.5 morphine tablets leftover from a trial and error if the doctor was attempting to find an appropriatemedication or drug combination to deal with the Accused’s pain, and also might or might not be a bit unusual as leftovers even if theAccused had been stabilized on morphine prior to April 2005 and then had been prescribed oxycodone. [91] The morphine seized was not found in pill containers bearing prescription labels for the Accused.

I also note that it washidden from view, inside the arcade game, in the basement hole in the wall, in the handle of the magnifying glass, and in the batterypack. [92] As Dr. Walter remarked, it would be unusual for a person to take the pills found in the battery pack together for painmanagement, given health risks and overdose potential. [93] I also consider the opinion of Detective Pilon that the battery pack was used as a “grab and go” device for street deliveriesand that cash also was found in the pocket of the jacket.

Further, I note that what were referred to by him as “score sheets” containedwhat he opined was a reference to ms-contin 100 mg. [94] This evidence, together with the amount and denominations of cash discovered and the presence of weapons in the bedroomconstitutes a “strong and cogent network of inculpatory facts” (R v Jenkins (1908), (BC SC), 14 CCC 221 at 230(BCCA), as quoted in R v Noble, (SCC), [1997] 1 SCR 874 at para 86), which leads me to the irresistible conclusionthat the seized morphine was possessed by the Accused for the purpose of trafficking.

That is the only reasonable inference that can betaken from the evidence. [95] The Accused is found guilty on this Count. Count 3 (Codeine) [96] A total of 163 codeine pills were seized, with an approximate street value of $163. There were 65 codeine pills found in thedrawer of the master bedroom nightstand, in a container with a prescription label, dated October 12, 2005, by Dr. Sandy Tamm for DW.Another 98 codeine pills were found in the plastic bag in the hole in the wall in the basement. Some of those were in a container bearinga prescription label, dated April 18, 2005, by Dr. Lal for KG.

[97] A prescription is required for codeine stronger that 8 m. The codeine found in the nightstand was for 30 mg. Some of thecodeine found in the basement hole in the wall was in an unlabelled pill bottle for codeine contin 100 mg. The Prescription Record forthe Accused does not list codeine. Dr.

Walter expressed the view that the number of codeine pills found seemed excessive as leftovers ifthere was experimentation to determine which drug would be most effective to combat the Accused’s pain. [98] Much of the codeine was found in pill containers bearing prescription labels in someone else’s name or with no label, whichsuggests that the codeine had not been prescribed for the Accused. There were 98 codeine pills secreted away in the hole in the basementwall.

In concluding that the codeine was not for personal consumption, I also consider that the Accused had other types of opiates withgreater pain management potential. [99] Given this evidence, the only reasonable inference is that the codeine was possessed for the purpose of trafficking. [100] The Accused is found guilty on this Count. Count 4 (Oxycodone) [101] A total of 605 oxycodone pills were found, with a street value of about $5,380.

Two pills were found in the top drawer of themain bedroom dresser, in a pill bottle with the label removed; 300 ratio-oxycocet, prescribed to the Accused, in unopened pill containers,and another 167 in a pill container with no label, were located in the safe in the master bedroom; 50 oxycontin were found in a batterypack in the pocket of the jacket in the living room, 34 oxycodon pills were in the top drawer of the living room table, and 52 oxycodonepills (49 of which were in an unlabeled pill container) were found in the plastic bag in the hole in the basement wall. [102] Where an addict is found in possession of an amount of drugs larger than is needed for his own immediate use, the court maydraw an inference that he had the drugs for sale or distribution (R v Wilson (1954), (BC CA), 11 WWR (NS) 282(BCCA). [103] The evidence establishes that the Accused sustained injuries in an accident in October 2003 and had suffered from back painbefore that.

As at July 14, 2005, was on analgesics for back pain prescribed by his physician, Dr. Loosmore. At the time of the searchand seizure, he was still being prescribed ativan and the analgesics ratio-oxycocet 5-325 and oxycontin. [104] The Accused’s March 24, 2006 prescription, dispensed 28 days before the seizure, included a prescription for 360 oxycontin40 mg, yet the search of the Accused’s residence yielded only 80 mg and 20 mg oxycontin pills. As explained by Mr.

Walter, had theAccused consumed all of the prescribed oxycontin pills in the period between March 24, 2006 and the date of the seizure, he would havebeen ingesting 514 mg per day, although the maximum daily dose is about 100 mg. [105] This and the following evidence and considerations lead to the irrefutable conclusion that the oxycodone pills, or at leastcertain of them, were possessed by the Accused for the purpose of trafficking: ∙ the Triplicate Record did not contain any reference to oxycontin 20 mg or 80 mg; ∙ some of the oxycodone pills were found in three different pill bottles with the labels removed; ∙ a quantity of the oxycodone was kept in the safe and some was hidden in the hole in the basement wall; ∙ 50 oxycontin pills were found in the “grab and go” battery pack, which was in the jacket in the living room, along with $940 in

$20 bills; ∙ Dr. Walter opined that it would be unusual for a person to take the pills seized from the battery pack together for pain management given health risks and overdose potential; ∙ the number of ratio-oxycocet pills seized (467 seized) from the safe exceeded those prescribed by the last prescription (300 on March 24, 2006) by 167 pills; ∙ despite the prescription for three of the bottles of ratio-oxycocet pills found in the safe, no pills were missing from those pill containers in the almost four weeks between when the prescription was filled and the date of the seizure; ∙ Dr.

Walter would not have expected to see a new prescription given if a patient had a supply of the same analgesics; ∙ the reference on the score sheets to “40 and 80”, which Detective Pilon explained is a common entry when referring to the dosage of oxycodone sold. [ 106 ] The Accused is found guilty on this Count. Count 5 (Lorazepam ) [ 107 ] There were 115 lorazepam pills seized with a total street value of about $575. The pills were found in two containers in the top dresser drawer of the master bedroom.

The containers had prescription labels in the name of the Accused. [ 108 ] The seized amount exceeds the Accused ’ s last prescription filled on March 24, 2006 by 15 pills. Given this small amount, and the location where the pills were found (anti-anxiety pills used as a sedative in a bedroom drawer alongside Viagra tablets), it is reasonable to infer that the Accused might have refilled his prescription before using all of the pills from the previous.

The fact that the Accused also possessed Zopaclone, another sleeping aide similar to lorazepam, in a number that exceeded his April 22, 2005 and May 24, 2005 prescriptions for the same does not alter my view in this regard. [ 109 ] The Accused is found not guilty on this count. Count 7 (Hydromorphone ) [ 110 ] Six hydromorphone pills were seized, with a total street value of about $180 to $240. Three were in the battery case in the pocket of the jacket in the living room.

The others were found in a living room lampshade and boxes in drawers in the living room and bedroom. [ 111 ] Although the quantity of drugs in a person ’ s possession is a consideration in ascertaining intent, the law does not require a threshold amount to make out the offence. [ 112 ] Hydromorphone is one of the drugs involved in the triplicate prescription program. The Triplicate Record for the Accused did not include a prescription for hydromorphone. As noted by Dr.

Walter, it would be unexpected for a person to be prescribed hydromorphone, the strongest of the opiates listed in the Indictment, and later to be prescribed a less potent analgesic. Generally, the opposite would occur.

[ 113 ] Hydromorphone was found in what Detective Pilon described as being consistent with a “ grab and go ” pack found in the coat in the living room, which also held $940 in $20 bills. [ 114 ] There were a number of references on the score sheets to “ dils, ” which Detective Pilon explained is jargon for dilaudid. [ 115 ] Weighing these factors, I am satisfied that the only reasonable inference is that the hydromorphone was possessed by the Accused for the purpose of trafficking. [ 116 ] The Accused is found guilty on this Count.

Count 8 (Methylphenidate) [ 117 ] There were 55 methylphenidate pills seized, all in an unlabelled container in the cornucopia of drugs found in the basement hole in the wall. These had an approximate street value of $825. [ 118 ] Methylphenidate is one of the drugs involved in the triplicate prescription program.

The Triplicate Record for the Accused did not include a prescription for this substance. [ 119 ] The lack of a prescription for this drug, the fact the pills were in an unlabelled pill bottle, the location in which the pills were found (in a bag in a hole in the basement wall), and the fact the same hole in the wall also contained a plethora of other types of controlled substances (codeine, oxycodone, diazepam, morphine), all support the overwhelming inference that the menthylphenidate was possessed by the Accused for the purpose of trafficking. [ 120 ] The Accused is found guilty on this Count.

Count 9 (Diazepam) [ 121 ] There were 86 diazepam 10 mg pills found in the bedroom safe. Five more diazepam pills were found in the basement hole in the wall, four of which were in a pill container labelled for oxycontin 40 mg. The total street value of all of this diazepam was about $91. [ 122 ] Many of the same factors come into play as with the methylphenidate. The Prescription Record for the Accused does not list diazepam. The pills were found hidden away in the safe and in the hole in the wall in the basement.

Cash and jewellery consistent with the proceeds of trafficking in smaller quantities of controlled substances also were found in the safe. The hole in the basement wall held a variety of controlled substances. Some of the diazepam pills were in an unlabelled pill bottle. [ 123 ] The evidence leads to the overwhelming inference that the diazepam was possessed by the Accused for the purpose of trafficking. [ 124 ] The Accused is found guilty on this Count. C. Count 6 - Possession of Proceeds of Crime

[ 125 ] Sections 354 and 355 of the Criminal Code read in part: 354(1) Every one commits an offence who has in his possession any property or thing or any proceeds of any property or thing knowing that all or part of the property or thing or of the proceeds was obtained by or derived directly or indirectly from (

a) the commission in Canada of an offence punishable by indictment; or (

b) an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment. 355. Every one who commits an offence under

section 354 (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, where the subject-matter of the offence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars... [ 126 ] In addition to the identity of the Accused as the offender and the time and place of the offence as set out in the Indictment, the Crown must prove on a possession of proceeds of crime charge that: (1) the cash seized was obtained by the commission of an indictable offence; (2) the Accused knew that it had been obtained by the commission of an indictable offence; and (3) the Accused had possession of the property. [ 127 ] For the same reasons noted above in the discussion on the possession for the purpose of trafficking charges, I find that the Accused had possession of the cash which was seized. [ 128 ] The circumstantial evidence which leads me to conclude the seized cash was the proceeds of crime from trafficking in various controlled drugs ( R v Castillo , 2004 MBQB 45 at paras 35 and 36 , 181 Man R (2d) 259 , upheld 2005 MBCA 28 , 192 Man R (2d) 161 ) and that the Accused knew it had been obtained by trafficking in such substances includes the following: ∙ the amount of cash found ($5,352.46), the majority of it being in $20 bills; ∙ $940 in $20 being found in the same jacket pocket as the divided battery pack containing three different controlled substances; ∙ the presence of score sheets with jargon referring to various controlled substances; ∙ the three operating cell phones, one of which was in the living room and the other two in the computer room being charged; ∙ some of the cash being found in the safe together with jewellery which Detective Pilon said was consistent with jewellery that might be traded for smaller amounts of controlled substances; ∙ the weapons found; ∙ the variety of controlled substances seized, the amounts of those substances, the hiding places in which they were found, the lack of prescription labels on some of the pill containers and others having labels for prescriptions made out to other persons; and ∙ the box of baggies and the three sets of scales, one set containing cocaine residue.

[ 129 ] The Accused is found guilty on this Count. Heard on the 18 th to 21 st day of October, 2011, the 20th day of January, 2012, and the 3 rd day of February, 2012. Dated at the City of Edmonton, Alberta this 24 th day of February, 2012. J.E. Topolniski J.C.Q.B.A. Appearances: J.A. (Sandy) MacDonald for the Crown Peter J. Royal, Q.C. for the Accused