R v White, 2013 ABQB 747

Court of Queen ’ s Bench of Alberta Citation: R v White, 2013 ABQB 747 Date: 20131217 Docket: 120900295Q1 Registry: St. Paul Between: Her Majesty the Queen Crown - and - Tamiko Iris White (aka Allen) Accused _ ________________________________________ ______________ Memorandum of Decision of the Honourable Mr. Justice K.D. Yamauchi _________________________________________ ______________ I. Introduction [ 1 ] The Crown charged Tamiko Iris White, also known as Tamiko Iris Allen, [the accused] that she: On or about July 16, 2012, at or near Bonnyville, Alberta, did unlawfully possess a substance included in

Schedule 1, to wit cocaine, for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act ; On or about July 16, 2012, at or near Bonnyville, Alberta did have in her possession currency of a value exceeding five thousand dollars knowing that all or part of the property or proceeds of the property was derived directly or indirectly by the commission in Canada of an offence punishable by indictment to wit, trafficking in a controlled substance contrary to section 5(2) of the Controlled Drugs and

Substances Act , and did thereby commit an offence contrary to

section 355 (

b) of the Criminal Code of Canada ; On or about July 16, 2012, at or near Bonnyville, Alberta did obstruct Cst Smeltzer a peace officer to wit a member of the Royal Canadian Mounted Police engaged in the execution of his duty by providing a false name contrary to

section 129 (

a) of the Criminal Code of Canada . [ 2 ] This Court heard this matter in a one-day trial on October 1, 2013, in St Paul, Alberta. II. Testimony [ 3 ] Four individuals provided testimony to this Court. This Court will summarize the testimony that each of the witnesses provided. Cst Kyle Chad Douglas Smeltzer [ 4 ] Cst Smeltzer was the lead investigator involved in the charges that the Crown eventually laid against the accused. He is a member of the Royal Canadian Mounted Police [RCMP] and was, on the day in question, stationed in Bonnyville, Alberta.

He dock- identified the accused. [ 5 ] At about 17:15 hours on July 16, 2012, Cst Smeltzer received through dispatch a complaint from an individual named Jonathan White. The nature of complaint, was that Mr White alleged that a person named Tamiko White had stolen some of his personal property. He also alleged that Ms White was driving a motor vehicle while impaired by drugs, possession of drugs and driving while disqualified. Mr White advised Cst Smeltzer that she was driving a blue Chevrolet Impala.

Mr White could not advise Cst Smeltzer where Tamiko White was headed, although he thought she was driving in the direction of the Bonnyville police station. [ 6 ] Cst White entered his police vehicle and began looking for the blue Chevrolet Impala. As he did not see it, he contacted Mr White again. While he was speaking with Mr White, he noticed a blue Chevrolet Impala parked on the east side of a Subway restaurant in Bonnyville.

He asked Mr White to provide Cst Smeltzer with a description of Tamiko White, as he believed that he had located the vehicle that she was driving. [ 7 ] Cst Smeltzer saw a woman he believed to be Tamiko White, as she matched the description that Mr White had given to him, so he started following her. She saw him, so she walked away from him and crossed the street. He continued following her, and asked her to stop. He asked her if she was “Tamiko,” she unequivocally said “no.” She said her name was “Tammy, not Tamiko.” She told Cst Smeltzer that knew Mr White, and advised Cst Smeltzer that they had just split up.

Cst Smeltzer noticed that she was uncomfortable when she was speaking with him and then she started quickly walking away from him. During cross-examination, he went on to describe her demeanour as agitated, worked-up and uncomfortable while the she was in his presence. As she started walking away from him, he placed her under investigative detention. He had not asked her for her identification, at that time, as things were happening quickly. [ 8 ] Cst Smeltzer handcuffed her, put her purse on his vehicle and placed her in the back seat of his police cruiser.

Once he had placed her in the back of the police cruiser, he opened her purse to obtain her identification. He noticed a large bundle of cash wrapped in rubber bands. He also immediately noticed the odour of fresh marijuana. He then told the accused that she was under arrest for possession of proceeds of crime. He then provided her with her Charter rights and a police caution. She advised him that she wanted to speak with a lawyer. [ 9 ] He was still looking in her purse for her identification. While so doing, he found small Advil pill bottle.

In his experience, he has found illicit drugs in pill bottles, so he examined the contents of the bottle. In it he found six corners cut out of plastic baggies tied at the top. Again, from his experience, he felt this was powdered cocaine. There was also one blue pill. He then placed the accused under arrest for possession of a controlled substance.

He re-read the accused her rights and gave her the police caution. [ 10 ] He then found a Nova Scotia Identification Card bearing the name “Tamielle Mahtina Allison.” He asked the accused whether this was her and she answered in the affirmative. [ 11 ] When they arrived at the RCMP detachment, Cst Smeltzer placed the accused in a telephone room. He advised her of the toll free number and provided her with yellow pages. He then asked her whether she had any questions. She said she did not. He told her that once she was done, she could knock on the door.

He then shut the door to the telephone room and locked it. [ 12 ] While she was in the telephone room, he emptied her purse so he could prepare a log of its contents. In it, he found several pieces of identification with different names. There were 2 Nova Scotia driver’s licenses bearing the name “Tamiko White.” They both had the accused’s picture on them. There were 2 social insurance cards; one bearing the name “Tamiko Iris Allen” and one bearing the name “Tamielle Mahtina Allison”. Finally, there was a Nova Scotia identification card bearing the name “Tamielle Mahtina Allison” bearing the accused’s picture.

Thus, Cst Smeltzer was having trouble identifying the person he had arrested. [ 13 ] Cst Smeltzer also found a violation ticket issued to “Tamiko White.” [ 14 ] Once the accused was finished in the telephone room, Cst Smeltzer charged the accused with obstruction. He again read the accused her rights and allowed her back in the telephone room so she could contact counsel. While she was doing that, he conducted computer checks on the various names and got positive hits on the name “Tamiko Allen.” Thus, he was able to confirm her identity.

His computer checks included the police reporting occurrence system (PROS) and the Canadian Police Information Centre (CPIC). [ 15 ] Cst Smeltzer then placed the accused in the cells. He eventually released her on her recognizance and $500 no cash deposit. He seized all exhibits, photographed them and placed them in his secure exhibit locker. He later counted Canadian currency that he had seized.

There was $5,160 in bundles that were secured with rubber bands, plus $235 in loose cash. [ 16 ] With respect to the items he suspected as being a controlled substance, he removed 2 of the small baggies and placed in health

services envelopes for analysis. He eventually received the certificates of analysis. One of them was made an exhibit in these proceedings. He served the original of the other one on the accused’s counsel. [ 17 ] He also seized a Blackberry cellular telephone from the accused’s purse. This contained “thousands of photographs and videos.” There were a few photographs of the accused holding bundles of money that were secured with plastic bands. [ 18 ] Before this incident, Cst Smeltzer was not familiar with the accused.

Cst Steven Ganes [ 19 ] After hearing Cst Ganes’ testimony on the subject and reviewing his curriculum vitae, this Court qualified Cst Ganes as an expert in the pricing, packaging, use, paraphernalia, habits and practices of users and traffickers, and the trafficking and distribution of cocaine. [ 20 ] Cst Ganes advised this Court that the average value of cocaine on the street was between $100 per gram and $130 per gram. A gram is never truly a “gram” but is in fact somewhere between .8 and .5 of a gram. [ 21 ] Cocaine users usually purchase ½ to 1 gram at a time.

Sometimes they would purchase 3.5 grams, or an “8-ball” but is very rare. Like a “gram,” an “8-ball” is rarely 3.5 grams. In fact they are usually between 1.5 grams to 2.8 grams. [ 22 ] A user will usually purchase ½ a gram or a gram of cocaine. A gram might last for several hours because 1/10 of that gram could last 30-90 minutes.

The user would buy in these relatively small quantities because they do not know what they are going to get and they do not want to spend a large amount of money and make a “bad investment.” The cocaine that they buy might be “cut” or “buffed” with, for example, corn starch, or something else that mimics cocaine. Traffickers do this to increase their profits. A user will not add buff to the cocaine. He gave the analogy that coffee drinkers would not add dirt to their coffee. It adds volume, but has no other desirable effects.

The only reason traffickers add buff is to add weight and increase their profits. [ 23 ] When presented with the hypothetical of the police finding 6 “spitballs,” being one-gram packages, located in a pill bottle, Cst Ganes testified that this is consistent with what a trafficker would have. This is common packaging for street level trafficking, as a user, or purchaser can easily see that it is one gram. A user would not buy 6 separately-packaged spitballs as they would be expensive; more expensive than buying an equivalent amount in bulk.

As well, this would be a bad investment for the user, as they do not know what they are getting in terms of quality, it is a big investment, there is a risk that they are going to be robbed and, simply, they usually do not have the money. This applies to heavy users and recreational users. A heavy user will just continue to contact their dealer. Again, he stated, even a heavy user will not buy spitballs.

They would buy in bulk because it is cheaper. [ 24 ] When Cst Ganes examined the Advil bottle containing the remaining spitballs, he said that the packaging of the cocaine was common packaging for street level traffickers. [ 25 ] As for the money that Cst Smeltzer seized, Cst Ganes testified that trafficking in drugs is a cash business. The more drugs that a trafficker is trafficking, the more cash they would have in their possession.

As for the quantum of the cash that was seized from the accused, Cst Ganes testified that if the accused purchased 2 ounces of cocaine in bulk and broke it down to grams, it would work out to 57 grams. Selling 51 grams at $100 per gram, the trafficker would end up with $5,100 in cash, plus the 6 grams. In other words, the mathematics works in this case. [ 26 ] Drug traffickers usually keep their personal cash separate from the proceeds of their drug sales.

Hence, they keep those proceeds wrapped with rubber bands, or bundled in some other way. [ 27 ] As for the cellular telephones Cst Ganes testified that drug traffickers usually keep at least two telephones; one for their business, one for their personal use. That way, they can “ditch” the business telephone if they are arrested. He said, this is not always done, but it is good business practice. Tamiko Iris White [ 28 ] Ms White is the accused. Allen is her maiden name. She is originally from Halifax and has lived in Alberta for about 2 or 3 years.

She lived in Bonnyville with her husband, Jonathan White, at the time of the alleged offences. She is separated from Mr White and currently lives in Calgary, where she is a crane operator. She has lived in Calgary for the last 7 months. She trained on the job for about one year and has been employed in her current position for about 60 days. [ 29 ] She and Mr White have substance abuse problems with cocaine and marijuana. She currently has no substance abuse problems. She and Mr White used to do cocaine and smoke marijuana with their friends in Bonnyville.

At the time of her arrest she was addicted to cocaine and used marijuana daily. Although her then employer did random drug testing, she would carry synthetic urine with her so that she would pass the tests. At the time she was arrested, she would use cocaine, not to get “high,” but simply to feed her addiction. [ 30 ] On July 12, 2012, she was hanging around her house. She got into an argument with Mr White, so she decided to leave the house at around 4:30 p.m. to drive to her friend’s house in Edmonton. She took Mr White’s gold chains that she had bought for him.

She was going to go to the RCMP detachment to see if the police would require him to leave their residence, so she would not have to go to Edmonton. The RCMP detachment was closed. She had money in her purse that Mr White had given her the previous Friday for her tuition to become a crane operator. The crane operator programme was going to take place in Nova Scotia, but she could not leave Alberta because she was bound by a recognizance that did not permit her to leave Alberta. She was going to deposit the money in the bank.

As she was driving into Bonnyville, Mr White telephoned her to tell her that there was no insurance on the car she was driving, so she pulled into the parking lot next to a Subway restaurant. She produced a letter from Operator Engineers Investment Ltd, which indicated that she had been accepted into the crane operator training program.

[31] After she parked by the Subway restaurant, she was going to walk to the TD Bank, which was about 2 or 3 blocks away. Butfirst, she wanted to get a bottle of water, so she crossed the street to get it from the Esso service station. The Subway restaurant did notsell sparkling water, which was her preference. [32] After she had purchased her sparkling water, she exited the Esso service station. She was confronted by Cst Smeltzer. Shetestified that Cst Smeltzer asked her whether she was “Tamiko White.” She responded by saying that she goes by “Tammy White” andasked the officer whether there was a problem.

He then told her that she was under arrest for theft of gold chains and handcuffed her. Hedid not ask her for identification. She denies that Cst Smeltzer ever asked her whether she was Tamielle Allison. In fact, she testified thatCst Smeltzer did not take out the identification until they were at the detachment. [33] As for the money that Cst Smeltzer found in her purse, she testified that she had just under $6000 to take to the bank. MrWhite had given her that money on the previous Friday night, and she had been “lazy” by not taking it to the bank earlier. July 12, 2012,was a Thursday.

She said it was for her tuition, but that Mr White will tell this Court that he gave her the money so she would leave himand return to Nova Scotia. She does not know where Mr White got the money. When asked why the money was bundled up, sheresponded by saying that that is how she used to keep money together when she worked at a liquor store. [34] With respect to the numerous pieces of identification that she had in her purse, she explained that she had lost one of herdriver’s licenses, so she had to get it replaced.

She then found the driver’s license she had lost, so she had two. [35] She explained that she had Tamielle Mahtina Allison’s identification card because she had been banned from a night club inHalifax. She needed 2 pieces of identification to enter the night club, so her friend, Tamielle Mahita Allison lent the accused her socialinsurance card so she could get false identification. [36] As for the cocaine, the accused acknowledges that she had cocaine in her possession. These were her drugs. Her friend fromEdmonton had given her one gram of pure cocaine and the accused had “cut” the drugs with baking powder.

The baking powder was notas strong, so it would not make her eyes water or cause her nose to run, but she could still taste the cocaine. She obtained the cocainefrom her Edmonton friend, because she had no friends in Bonnyville from whom she could buy drugs and she did not want Mr White toknow that she was still using cocaine. [37] She packaged the cocaine herself so she could easily scoop it out with her fingernail and use small portions. These smallpackets were all about the same size. She said she did this, so that she would know how much she was using.

She put the packets into theAdvil bottle, so Mr White would not see the cocaine, and she put the cocaine into packets because someone wanted Advil, she did notwant there to be cocaine on the Advil. However, she kept the Advil bottle in her purse. [38] She testified that she was not intending to sell this cocaine, she was not selling drugs at this time or any time, and she did notgive these drugs to anyone else. Jonathan Edward Lawrence White [39] Mr White is the accused’s husband, although they are now separated. He currently lives in Bonnyville, but is originally fromHalifax.

He and the accused have been married for about 2 or 3 years. He has not lived with her since December of 2012. [40] On July 16, 2012, he and the accused had been arguing. He gave her money that morning, as she was going to go back toHalifax. He was happy to do so, as he wanted the accused “out of his hair.” She was surprised when he gave her the money. They hadnot planned this. He was just annoyed with her so he gave her the money that morning. The money was not from the sale of drugs.

Hehad saved the money, and took the money out of his bank over a period of time, as he could only take it out in $500 tranches. [41] When she left the house, she took some of his things, so he contacted the police. He wanted his things back. This is also acurious comment inasmuch as she had taken the family car and she was going to fly to Halifax. Would he not want the car? [42] Mr White testified that they did cocaine together. As well, they used to use cocaine with others in the Bonnyville area. III. Discussion [43] The accused testified in her own defence. In

summary, although she acknowledges that she had cocaine and a great deal ofCanadian currency in her possession, she denies that she was trafficking in cocaine and that the Canadian currency was the proceeds ofcrime. [44] In circumstances where an accused has testified, the Supreme Court of Canada has established in R v W(D), (SCC), [1991] 1 SCR 742, 63 CCC (3d) 397 [W(D)], the way in which courts must analyze the accused’s testimony, as against otherevidence that the parties have presented. A W(

D) analysis has three steps: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. W(

D) at para 11. [45] The W(

D) analysis is necessary to ensure that the burden of proving an accused’s guilt beyond a reasonable doubt remainswith the Crown, and is not inappropriately shifted to the accused. The Supreme Court of Canada emphasized this in R v JHS, 2008 SCC30 at para 13, [2008] 2 SCR 152 [JHS], where it said:

W.(D.)’s message that it must be made crystal clear to the jury that the burden never shifts from the Crown to prove every element of theoffence beyond a reasonable doubt is of fundamental importance but its application should not result in a triumph of form over substance.... [Emphasis in original.] [46] Although a W(

D) analysis may seem relatively simple, application of this test has been the subject of much appellate review,commentary, and criticism. In fact, in JHS at para 8, the court noted that at that time, “W(

D) had been cited by Canadian courts at alllevels in no fewer than 3,743 subsequent reported cases.” Why? Cases commonly deal with conflicting testimony between the accusedand other witnesses, especially in crimes of opportunity. Often there are no other available witnesses, so the credibility of the parties isthe crucial, if not the ultimate, issue for a trier of fact. [47] The Nova Scotia Court of Appeal provides a useful roadmap for the application of a W(

D) analysis in R v Chittick, 2004NSCA 135 at paras 21-25, 228 NSR (2d) 81, where it said: ... A trial judge will be found to have erred, if upon review of the judge's reasons in light of the trial record, it appears that he or shesimply chose between alternative versions offered by the Crown and the defence and, having done so, convicted if the Crown's versionwas preferred ...

The question for the appellate court in a judge alone case is whether, upon consideration of the whole of the judge'sdecision and the evidence at trial, it appears that the judge did not apply the proper test and therefore did not apply his or her mind to thepossibility that despite having rejected the evidence of the [accused], there might nevertheless be a reasonable doubt ... It is not an error for a judge to make a finding of credibility as between the complainant and the accused, particularly where they providethe bulk of the evidence as to what happened. This is a necessary part of the judge's duty.

While it is not the end of the journey ofdecision-making, it is a necessary intermediate step along the way. Indeed, the first two elements in a proper jury instruction on thisissue as set out in W. (D.) assume that the jury should decide whether or not they believe the exculpatory evidence of the accused. ... Accordingly, it was not an error for the trial judge here to assess the credibility of the accused in relation to that of the complainant. ... An error under the W. (D.) principle is committed where the judge treats the matter as concluded once this assessment of credibility hasbeen completed.

To do so misses the third and critical step in the application of the burden of proof. [48] Thus, this Court simply cannot say, for example, that it believes Cst Smeltzer’s testimony over that of the accused. This Courtmust first review and weigh the accused’s testimony on its own merits. A choice to reject that testimony must be justified. Then, thisCourt must weigh her testimony in the context of the entire case, including the testimony of other witnesses.

As stated in R v Turmel,2004 BCCA 555 at para 11, 203 BCAC 236: The error lay in the trial judge's direct progression from a finding that the complainant was to be believed, to the conviction of theaccused. This logical jump does not satisfy the fundamental question required to be asked and answered by the finder of fact: does theevidence as a whole satisfy one as to the guilt of the accused beyond a reasonable doubt?

See also R v REM, 2008 SCC 51; R v Sheppard, 2002 SCC 26, [2008] 3 SCR 3; R v L(CJ), 2004 MBCA 126, 190 ManR (2d) 177. [49] In R v CLY, 2008 SCC 2 at para 7, [2008] 1 SCR 5, Abella J reinforced that a W(

D) analysis is, at a fundamental level,evaluated on a functional rather than a formal basis, when she said: The key is whether the correct burden and standard of proof were applied, not what words were used in applying them ... Its purpose wasto ensure that triers of fact – judges or juries – understand that the verdict should not be based on a choice between the accused’s and theCrown’s evidence, but on whether, based on the whole of the evidence, they are left with a reasonable doubt as to the accused’s guilt.

See also R v Dinardo, 2008 SCC 24 at para 23, [2008] 1 SCR 788. [50] The Crown’s counsel in this case said that this Court must decide this issue on the basis of credibility. A trier of fact’sevaluation of a witness’s credibility and reliability is one of the more difficult tasks that it faces. See e.g. White v R, (SCC), 1947 CarswellOnt 8 paras 8-10, [1947] SCR 268. [51] The multifactoral and contextual approach required to test witness credibility and reliability was offered by Brown J in R vJurado, 2007 ONCJ 44 at para 19, 73 WCB (2d) 93: ... I must consider the witness's perception, memory and sincerity.

I must consider the witness's ability to observe, store, recall and reportevidence accurately, reliably, and truthfully. I must consider the witness's interest or bias, if any, including animosity. I must consider thewitness's evidence in the context of its internal consistencies or inconsistencies, its consistencies or inconsistencies with other evidencefrom other witnesses and, finally, its consistency with reason and the probability of truth. The Court can expect discrepancies andinconsistencies from time to time. Such is the nature of our human personalities and frailties. These are to be expected.

Someinconsistencies and discrepancies have a need to be resolved and some do not. The evidence must be considered in totality as a whole. Iam able to accept some, all, or none of a witness's evidence. [52] The fact a witness may have a motive to lie so as to avoid criminal sanction is a factor of restricted weight. Rather, the finderof fact must have regard to all relevant factors when it assesses a witness’s credibility: R v Laboucan, 2010 SCC 12, 253 CCC (3d) 129. [53] The first step in a W(

D) analysis requires this Court to assess the accused’s credibility and the reliability of her evidence. Inbrief, this Court does not accept all of the accused’s evidence. She is not a credible witness. [54] There are many questionable aspects of her testimony. She testified that she and Mr White would use cocaine with theirfriends in Bonnyville. She later stated that she had no friends in Bonnyville from whom she could purchase cocaine. [55] She was bound by a recognizance that required her to stay in Alberta. Why would she enroll in a crane operator programme in

Nova Scotia if she was so bound? And the letter itself that accepted her into the Nova Scotia programme was dated October 2, 2012, almost 3 months after the date on which the alleged offences took place. [ 56 ] Mr White testified that when the accused left the house, she was going to fly to Nova Scotia. If she was returning to Nova Scotia, why would she take the car. What would happen to the car in the meantime? She testified that Mr White telephoned her to tell her that the car had no insurance. He was doing this while he was calling the RCMP dispatch to tell them that she had just stolen his gold chains.

There is no logic to this. [ 57 ] Mr White testified that he gave her the money that morning, but he recalled that he had to go to the bank several times, as his withdrawal limit was only $500. She had over $5,000 in her possession. She testified that he had given her the money the previous Friday, which was almost one week before she was going to take it to the bank. She had not taken it to the bank because she had been “lazy.” Neither of these stories is very convincing. She also said that she bundled up the money to keep it organized, as this is how she did it while working at the liquor store.

She added the additional $160 to the bundles. This lacks logic, when one considers that there was $235 in loose, unbundled cash in her purse. She testified that she had taken the $235 from the “piggy-bank” before she left and had just thrown it in her purse. [ 58 ] Her testimony concerning the various pieces of identification in her purse is also remarkable. As for Tamielle Mahita Allison’s identification card and social insurance card, there are two aspects of this testimony that this Court finds troubling.

First, the accused no longer lives in Nova Scotia, so why would she still have Ms Allison’s social insurance card. Second, she has not lived in Nova Scotia since 2010. Again, why would she still have Ms Allison’s social insurance card? She testified that she forgot to return it to Ms Allison. As for her 2 driver’s licenses, it is interesting to note that both driver’s licenses were issued by Nova Scotia. The most recent one was issued on May 24, 2012. By this time, the accused was living in Alberta, so why would she have a Nova Scotia driver’s license?

As well, it shows that she had a Halifax address. [ 59 ] She testified that she had “cut” the cocaine that Cst Smeltzer found in her possession so she could “taste the cocaine.” She also said that she packaged the cocaine herself so she would know how much she was using. When this Court looked at the packets, each packet was about the same size and was very neatly packaged. Coincidently, Cst Ganes said he thought these were neatly placed into one-gram packets, which were the size that typically are sold on the street.

Her explanation of why the packets were in an Advil bottle has no air of reality, and is contradictory. The Advil bottle was in her purse. She wanted to keep the Advil hidden from Mr White. And yet, she was concerned that if someone wanted Advil she did not want them to take an Advil that was “tainted” with cocaine. She did not testify that others went into her purse to get Advil. This simply makes no sense. [ 60 ] In short, this Court does not accept much of the accused’s testimony and therefore it cannot acquit her on that basis. That is the first step of the W(

D) analysis. [ 61 ] The second question is whether the accused’s evidence, in isolation, raises a reasonable doubt even if not believed. It does not. [ 62 ] The last step in the W(

D) analysis is for this Court to consider the accused’s testimony in conjunction with that of other witnesses. That evaluation will make up the remainder of this decision. [ 63 ] This Court has already commented on Mr White’s testimony while discussing the first step in the W(

D) analysis. Overall, Mr White was not a credible witness and was not helpful to this Court. What this Court found interesting were the contradictions between the accused’s testimony and Mr White’s testimony. Although most of them were not major contradictions, such as why he gave her the money, the timing of his giving her the money raises concerns in this Court’s mind. [ 64 ] The accused does not question the credibility of the police officers, Cst Smeltzer and Cst Ganes.

This Court has no difficulty with their testimony, and accepts it, with the exception of one issue that it will discuss later in these reasons. [ 65 ] Cst Smeltzer did the initial investigation and gathered evidence. The accused acknowledges that she possessed the drugs and Canadian currency that he found. No one challenges the fact that he received the telephone call from Mr White, or the details that Mr White provided during that telephone call. Finally, the accused does not challenge the accuracy of the certificates that Cst Smeltzer received from the Health Canada Drug Analysis Services. And why would she?

She acknowledges that the substance she was carrying was cocaine. [ 66 ] The evidence that the expert, Cst Ganes provided to this Court is extremely telling and important. The accused does not challenge his testimony and, in fact, when the accused cross-examined him on whether a user would “cut” or “buff” the drugs they were using, Cst Ganes explained why a user would not do this. This Court accepts unequivocally Cst Ganes’ testimony in this regard. The Health Canada Drug Analysis Services report does not tell us whether the samples they examined were “cut.” But would this make any difference?

If the accused was trafficking, then it would be logical that they might be “cut.” It would increase her profits. [ 67 ] Cst Ganes identified the packets of cocaine in the Advil bottle as common packaging for street-level traffickers. A purchaser could easily see the volume of the drug that they are buying, and they were packaged in typical one-gram packets. [ 68 ] The most telling of Cst Ganes’ testimony was the arithmetical calculation of what Cst Smeltzer found in terms of Canadian currency and cash.

In fact, if one were to add the $235 and the additional gram that the accused she said she had in her pocket that Cst Smeltzer did not discover, and take account of the fact that the accused might have further “cut” the cocaine before she packaged it, she likely did not sell the packets for $100. She likely sold them for more than that. [ 69 ] He also testified that it is typical for drug traffickers to keep the proceeds of their sales bundled with rubber bands or some other bundling methodology.

The Canadian currency that Cst Smeltzer found in the accused’s purse was so bundled. [ 70 ] The issue concerning the fact that the accused had only one cellular telephone is unusual, but not unheard of. This fact carries little weight with this Court, especially in the view of the fact that the Blackberry contained photographs of the accused with bundled cash.

[71] As with all cases under the Criminal Code, the central issue is whether the Crown has proved its case against the accusedbeyond a reasonable doubt. It is the Crown’s onus. The Supreme Court of Canada in R v Starr, 2000 SCC 40 at para 100, [2000] 2 SCR144, said this Court cannot find the accused guilty on a balance of probabilities. To find the accused guilty of the alleged offences, or anyone or more of them, this Court must not have any reasonable doubt about her guilt.

R v Lifchus, (SCC), [1997] 3 SCR320 at paras. 30-31, 39, 150 DLR (4th) 733, tells us that reasonable doubt must not be based on sympathy or prejudice. Nor must it beimaginary or frivolous. A reasonable doubt must be based on reason and common sense, and on the evidence or absence of evidence.What is not required is that the Crown prove its case to a standard of absolute certainty. [72] For this Court to find the accused guilty of possession of cocaine for the purpose of trafficking, the Crown is required to proveeach of the following essential elements beyond a reasonable doubt: (

a) That the accused was in possession of a substance; (

b) That the substance was cocaine; (

c) That the accused knew that the substance was cocaine; and (

d) That the accused had possession of the cocaine for the purpose of trafficking in it. [73] In this case, the accused concedes the first 3 essential elements. She denies the fourth element. The Crown’s counsel does nothave to prove that the accused actually sold, delivered, distributed or otherwise made the cocaine available to other persons. What isimportant and what the Crown’s counsel must prove beyond a reasonable doubt is that the accused had the cocaine for the purpose ofmaking it available in some manner to others.

Based on the way that the accused had packaged the cocaine, the quantity of the cocainethat Cst Smeltzer found in her possession, the quantity of the Canadian currency that he found in her possession and the indicia oftrafficking that Cst Ganes provided to this Court, this Court finds that the accused unlawfully possessed cocaine for the purpose oftrafficking contrary to section 5(2) of the Controlled Drugs and Substances Act. [74] For this Court to find that the accused possessed Canadian currency knowing that all or part of the Canadian currency wasderived directly or indirectly by the commission of an offence, namely trafficking in cocaine, the Crown’s counsel is required to proveeach of the following essential elements beyond a reasonable doubt: (

a) That the accused was in possession of the Canadian currency; (

b) That the Canadian currency was obtained by the commission of an indictable offence; and (

c) That the accused knew that the currency had been obtained by the commission of an indictable offence. [75] Again, the accused acknowledges that she had in her possession the $5,395. As for whether the currency was obtained by thecommission of an indictable offence, Mr White says that that money was not the proceeds of his selling drugs. However, that is not theissue before this Court. What is in issue is whether the proceeds are from the accused’s sale of the cocaine. This Court does not acceptthat she received the money from Mr White.

Given their relationship at the time, it was illogical for him to simply give her $5,000, forwhatever purpose. They had not spoken about her tuition, and he said he gave her the money that morning to “get her out of his hair.”She took the car. In fact, she said why he gave her the money mattered not to her; she just wanted the money. As well, why would she siton $5,000 for almost a week without doing anything with it? Her laziness was not a convincing explanation.

Interestingly, she did notprovide Cst Smeltzer with any explanation when he discovered the money in her purse. [76] The calculations that Cst Ganes provided to this Court are completely logical, and his explanation of how the money wasbundled was extremely telling. [77] If the currency that was in her possession and they were the proceeds of her sale of cocaine, this Court obviously finds that sheknew that it had been obtained by the commission of an indictable offence, namely, trafficking in cocaine. [78] As a result, this Court finds that the Crown’s counsel has proved beyond a reasonable doubt that the accused had in herpossession currency of a value exceeding five thousand dollars knowing that all or part of the property or proceeds of the property wasderived directly or indirectly by the commission in Canada of an offence punishable by indictment to wit, trafficking in a controlledsubstance contrary to section 5(2) of the Controlled Drugs and Substances Act, and did thereby commit an offence contrary to section355(

b) of the Criminal Code of Canada. [79] For this Court to find that the accused obstructed Cst Smeltzer who was engaged in the execution of his duty by providing afalse name, the Crown must prove the following essential elements beyond a reasonable doubt: (

a) That Cst Smeltzer was a peace officer; (

b) That he was acting in the execution of his duty; and (

c) That the accused wilfully obstructed Cst Smeltzer in the execution of his duty by providing him with a false name. [80] There can be no doubt that the Crown’s counsel has proved the first 2 essential elements beyond a reasonable doubt. He was amember of the RCMP who was investigating a theft. [81] There is some confusion with respect to the latter element.

From the testimony of Cst Smeltzer, when he first approached theaccused he asked whether she was “Tamiko White.” She then said that she was not and that she was “Tammy.” She testified that she toldhim she was “Tammy White.” In either case, Cst Smeltzer, based on the description that Mr White had given to him, felt that he had theaccused before him. This is why he detained her when she started to walk away from him. He later asked her whether she was “Tamielle

Mahtina Allison.” He testified that she answered in the affirmative. She denies it. All of this, along with the various pieces of identification that she was carrying with her required him to conduct various computer searches, where he definitively identified the accused. [ 82 ] In the end, Cst Smeltzer felt that he had found the accused when he first approached her. They had a discussion about Mr White and the accused’s relationship with him. This Court is not satisfied beyond a reasonable doubt that she had wilfully obstructed Cst Smeltzer in the execution of his duty.

With all the identification that she had, it certainly caused him extra work. Had she, in fact, answered his question in the affirmative, then the Crown might have charged her with identity fraud under Criminal Code s 403. It did not. [ 83 ] Accordingly, this Court is left in reasonable doubt as to whether she wilfully obstructed Cst Smeltzer in the execution of his duty by providing him with a false name. IV. Conclusion [ 84 ] In conclusion, this Court finds the accused, Tamiko Iris White, also known as Tamiko Iris Allen, guilty of Counts 1 and 2 contained in the indictment dated November 27, 2012.

It finds her not guilty of Count 3. Heard on the 1 st day of October, 2013. Dated at the City of Edmonton, Alberta this 17 th day of December, 2013. K.D. Yamauchi J.C.Q.B.A. Appearances: Donald R Smith Agent for the Attorney General of Canada for the Crown J Conlin for the Accused