R v Au Yeung, 2016 ABQB 504

Court of Queen’s Bench of Alberta Citation: R v Au Yeung, 2016 ABQB 504 Date: 20160912 Docket: 140514126Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Kin Wa Au Yeung Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice K.D. Yamauchi _______________________________________________________ I. Introduction [ 1 ] The Crown charged Kin Wa Au Yeung with the following: On or about the 9 th day of April, 2014, at or near the Village of Lake Louise, in the Province of Alberta, did unlawfully possess a

substance included in

Schedule II to wit: cannabis marihuana in an amount exceeding 3 kg for the purpose of trafficking contrary tosection 5(2) of the Controlled Drugs and Substances Act. II. Background [2] On April 8, 2014, shortly before midnight, Royal Canadian Mounted Police Cpl. Ryan Frost stopped Mr. Au Yeung’svehicle, as the vehicle was speeding through Banff National Park. Cpl. Frost’s police vehicle pulled up behind Mr. Au Yeung’s vehicle.Cpl. Frost approached the vehicle from the passenger’s side and spoke with Mr. Au Yeung, who was driving, and his passenger, MichaelYee. Mr. Yee was later identified as Mr.

Au Yeung’s nephew. Cpl. Frost told them why he had stopped their vehicle, and asked Mr. AuYeung for his driver’s license and vehicle documentation. [3] Mr. Au Yeung provided Cpl. Frost with his vehicle documents and his driver’s license, which was a British Columbiadriver’s license. The vehicle registration was an Alberta vehicle registration. [4] As Cpl. Frost was returning to his police vehicle, he looked into the rear compartment of Mr. Au Yeung’s vehicle, with hisflashlight. He noted that there was “lots of luggage.” [5] Cpl. Frost returned to Mr. Au Yeung’s vehicle and asked him and Mr.

Yee to exit the vehicle. He advised them that he wasdetaining them for a drug investigation. Cpl. Frost explained their Charter rights and “caution.” By this time, another officer, Cst.Cutcliffe had arrived on the scene. Cpl. Frost placed Mr. Au Yeung in the back seat of his police vehicle and Cst. Cutcliffe placed Mr.Yee in the back seat of his police vehicle. [6] Cpl. Frost then deployed his service dog, Police Service Dog Gus, to “search” the perimeter Mr. Au Yeung’s vehicle. Cpl.Frost observed that PSD Gus provided a positive "hit" (PSD Gus sat), indicating that there were drugs in the vehicle.

As a result, at12:15 a.m., Cpl. Frost formed the belief that Mr. Au Yeung and Mr. Yee were in possession of a controlled substance and arrested them. [7] This Court ruled previously that Cst. Frost did not breach Mr. Au Yeung’s rights under sections 8, 9 and 10 of the CanadianCharter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (UK), 1982, c 11,reported as R v Au Yeung, 2016 ABQB 313. [8] Cst. Cutcliffe and Cpl. Frost seized 13.648 kilograms (approximately 30 pounds) of bulk packaged marihuana from a blackduffel bag found in the rear cargo area of Mr. Au Yeung’s vehicle, and 225 grams of marihuana from a black garbage bag foundunderneath the middle rear seat of the vehicle. Health Canada conducted tests on the materials that the officers seized from the vehicleand determined them to be cannabis marihuana, a substance listed in

Schedule II of the Controlled Drugs and Substances Act. The valueof the marihuana ranges from between $48,098 and $136,480, depending on whether the seller sells by the pound or by the gram. Mr.Au Yeung concedes that if this Court finds that he possessed the marihuana, he did so for the purpose of trafficking. III. Discussion [9] In the case at bar, the crux of the issue before this Court is whether Mr. Au Yeung had possession of the marihuana.

Section2 of the Controlled Drugs and Substances Act, SC 1996, c 19, defines “possession” as “possession within the meaning of subsection 4(3)of the Criminal Code.” Section 4(3) of the Criminal Code RSC, 1985, c C-46 [Criminal Code] provides as follows: 4.

(3) For the purposes of this Act, (

a) a person has anything in possession when he has it in his personal possession or knowingly (

i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person;and (

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall bedeemed to be in the custody and possession of each and all of them. [10] For the purposes of this decision, this Court will focus on Criminal Code ss 4(3)(a)(ii) and 4(3)(b), the former of whichembodies the concept of “constructive possession” and the latter of which embodies the concept of “joint possession.” [11] To begin this portion of the discussion, this Court is guided by the oft-quoted statement concerning possession from Beaver vThe Queen, (SCC), [1957] SCR 531 at 541, where the court said the following: The essence of the crime is the possession of the forbidden substance and in a criminal case there is in law no possession withoutknowledge of the character of the forbidden substance. [12] In R v Caldwell (1972), 1972 ALTASCAD 33 , 7 CCC (2d) 285 at 290-91 (Alta CA) [citations omitted] Allen JAsaid the following: … [W]hile possession under the definition prescribed by the Criminal Code is a matter to be determined on the facts of each case, whenthe goods in question are not in the physical possession of an accused, in order to constitute constructive possession it must extendbeyond quiescent knowledge and disclose some measure of control or right of control over the goods.

[13] More recently, the Supreme Court of Canada described “constructive possession” in R v Morelli, 2010 SCC 8 at para 17,[2010] 1 SCR 253, where Fish J said the following: Constructive possession is established where the accused did not have physical custody of the object in question, but did have it “in theactual possession or custody of another person” or “in any place, whether or not that place belongs to or is occupied by him, for the useor benefit of himself or of another person.” (Criminal Code, s. 4(3)(a)).

Constructive possession is thus complete where the accused: (1)has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that placebelongs to him, and (3) intends to have the object in the particular place for his “use or benefit” or that of another person. [14] Criminal Code s 4(3)(

b) deals with joint possession. In R v Pham (2005), (ON CA), 77 OR (3d) 401(CA) at para 16, 203 CCC (3d) 326 (CA), the Ontario Court of Appeal said that to constitute joint possession, “there must be knowledge,consent, and a measure of control on the part of the person deemed to be in possession.” [Citations excluded].

In that case, the majorityof the court upheld the trial judge’s decision, and said that “the trial judge was entitled to find on the evidence as he did, that [theaccused] had constructive possession of the cocaine either alone or jointly ...” In other words, whether the possession was that of theaccused alone, or jointly with another, it mattered not as she nonetheless had possession, which grounded the charge. [15] Although the Crown is required to prove knowledge of, and control over, the substance beyond a reasonable doubt, it could doso through direct or circumstantial evidence: R v Aiello, (ON CA), 1978 CarswellOnt 1182 at para 8, [1978] OJ No373, 38 CCC (2d) 485 (CA), aff’d (SCC), [1979] 2 SCR 15, where the Ontario Court of Appeal said the following: In our view the trial judge should have directed the jury that if they were satisfied beyond a reasonable doubt that the respondentassumed control of the package, knowing that it contained a drug, the trafficking in which was prohibited, or was wilfully blind to itbeing such a drug or was reckless as to whether it was such a prohibited drug, then the knowledge necessary to constitute the offence wasestablished.

The trial judge in our view should have further directed the jury that it was not necessary for the prosecution to prove therequired knowledge by direct evidence, but that it could be inferred from the surrounding circumstances, such as, for example, thefinding of the drug on the accused's person in his trouser pant leg, his evidence that he figured that it must be a drug, the circumstancesin which, and the place where he had picked up the package. [16] The question before this Court is whether the totality of the evidence that the Crown has presented to this Court supports aninference that Mr.

Au Yeung “possessed” the marihuana that Cpl. Frost and Cst. Cutcliffe found in his vehicle. Of course, the inferencesthat this Court draws from the evidence must satisfy it beyond a reasonable doubt that Mr. Au Yeung committed the offence with whichthe Crown has charged him, based on the Supreme Court of Canada’s exhortation in R v Lifchus, (SCC), [1997] 3SCR 320, 9 CR (5th) 1, 118 CCC (3d) 1. [17] The Crown bears the onus of proof. That onus must never shift to Mr. Au Yeung such that he must disprove his guilt. Mr.

AuYeung might choose to proffer evidence to challenge the Crown, once the Crown has provided evidence sufficient to prove beyond areasonable doubt that he has committed the offences with which the Crown has charged him. He has no obligation to do so. Thispotentially two-stage process must not shift the onus of proof on to Mr. Au Yeung. In the case at bar, Mr. Au Yeung chose not to call anyevidence. [18] Recently, the Supreme Court of Canada had an opportunity to frame how a trier of fact can use circumstantial evidence in R vVillaroman, 2016 SCC 33 [Villaroman].

Cromwell J, for the court, quoted from another case from the Supreme Court of Canada, R vGriffin, 2009 SCC 28, [2009] 2 SCR 42 at para 33, which said the following: The essential component of an instruction on circumstantial evidence is to instill in the jury that in order to convict, they must be satisfiedbeyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused isguilty.

Villaroman at para 18. [19] Cromwell J also provided a quotation from the Ontario Court of Appeal decision in R v Fleet (1997), (ONCA), 120 CCC (3d) 457 (Ont CA) at para 20, which said the following, among other things: … Thus, the trial judge, reviewing the evidence and setting out the position of the defence and relating the substantial parts of theevidence to that position, may frame the requisite instruction in the manner he or she considers most appropriate in the circumstances, forexample, by: (

a) charging the jury in accordance with the traditional language of proof beyond a reasonable doubt (per Laskin C.J.C. in Cooper); (

b) charging the jury in accordance with that language and pointing out to the jury the other inferences that the defence says should bedrawn from the evidence and the necessity to acquit the accused if any of those inferences raises a reasonable doubt (as the trial judgedid in Cooper in the final portion of his recharge); or (

c) charging the jury that it must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference tobe drawn from the proven facts (per Ritchie J. in Cooper and Dubin J.A. in Elmosri). Villaroman at para 20 [emphasis added]. [20] Of course, this Court cannot rely on speculation to support any inferences it might draw. As Cromwell J said, “The inferencesthat may be drawn … must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light ofhuman experience and common sense”: Villaroman at par 30.

As Cunningham ACJSCJ said in R v Latif, [2004] OJ No 5891 at para 4,2004 CarswellOnt 6494 (SCJ), aff’d (2005), 66 WCB (2d) 327, [2005] OJ No 2952 (CA): ... [T]here is a considerable difference between speculation and inference, inference being “a truth or proposition drawn from another

which is supposed or admitted to be true. A process of reasoning by which a fact or proposition sought to be establish [sic] is deduced asa logical consequence from other facts or a state of facts already proved or admitted.” [21] Speculation, on the other hand, involves the process of “forming a theory or conjecture without factual basis”: R v Mullings,[2005] OJ No 2962, 2005 CarswellOnt 3022 (SCJ) [Mullings] at para 33.

As Ducharme J said in R v Munoz (2006), (ON SC), 86 OR (3d) 134 at para 31, (2006), 205 CCC (3d) 70 (SCJ): Supposition or conjecture is no substitute for evidence and cannot be relied upon as the basis for a reasonably drawn inference.Therefore, it is not enough simply to create a hypothetical narrative that, however speculative, could possibly link the primary fact orfacts to the inference or inferences sought to be drawn. As Fairgrieve J. noted in R. v. Ruiz, [2000] O.J. No. 2713 (Ont.

C.J.) at para. 3,“Simply because a possibility cannot be excluded does not necessarily mean that a reasonable trier could be justified in reaching such aconclusion on the evidence.” [22] These cautions cut both ways. In other words, the Crown cannot ask this Court to rely on suppositions or conjecture to drawinferences that Mr. Au Yeung committed the offences with which it has charged him. Similarly, Mr.

Au Yeung cannot ask this Court torely on supposition or conjecture, which flows from a purely hypothetical narrative to conclude that the Crown has not proven he isguilty of the offences with which the Crown has charged him.

In R v Paul (1975), (SCC), [1977] 1 SCR 181 at 191,(1975), 27 CCC (2d) 1, the Supreme Court of Canada said the following: I do not think that the burden resting upon the Crown to establish the guilt of the accused beyond a reasonable doubt includes the addedburden of negativing every conjecture to which circumstantial evidence might give rise and which might be consistent with theinnocence of the accused. See also R v Richer (1993), (AB CA), 82 CCC (3d) 385 at para 29, 141 AR 116 (CA).

In Villaroman, Cromwell Jreinforced this by saying the following: When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities”which are inconsistent with guilt …I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, butcertainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with theinnocence of the accused”: R. v.

Bagshaw, (SCC), [1972] S.C.R. 2, at p. 8. “Other plausible theories” or “otherreasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. Villaroman at para 37 [citations excluded]. [23] From where does the court draw the inferences and how does it draw them? In Mullings at para 23, Durno J said: Where the evidence is circumstantial in regards to some elements of the offence, the judge’s task is different.

The question is whetherthe elements the Crown seeks to establish by circumstantial evidence may reasonably be inferred from the circumstantial evidence. Itrequires the judge to engage in a limited weighing of the circumstantial evidence, to determine whether it is capable of bridging theinferential gap between the evidence and the matter to be established, whether it is reasonably capable of supporting the inferences theCrown will ask the jury to draw. [24] In other words, it is evidence that “bridges” the inferential gap; not conjecture or speculation.

McRuer CJHC said thefollowing in R v McIver, (ON SC), [1965] 1 OR 306 at 309, [1965] 1 CCC 210 (HC), aff’d (ON CA),[1965] 2 OR 475, [1965] 4 CCC 182 (CA), aff’d (SCC), [1966] SCR 254: ... [T]he case is to be decided on the facts, that is, the facts proved in evidence, and the conclusions alternative to the guilt of the accusedmust be rational conclusions based on inferences drawn from proven facts. No conclusion can be a rational conclusion that is not foundedon evidence. Such a conclusion would be a speculative, imaginative conclusion, not a rational one.

See also United States v Huynh (2005), (ON CA), 200 CCC (3d) 305, 66 WCB (2d) 680 (Ont CA). [25] In R v Doan and Nguyen, 2012 ONSC 3776 at para 121(7), Hill J said the following: … [C]ircumstantial evidence is not to be evaluated piece by piece but rather cumulatively – with circumstantial evidence based onreasoning or inference-drawing through probability (R. v.

Arp (1998), (SCC), 129 C.C.C. (3d) 321 (S.C.C.), at para.64), a trier of fact's application of logic, common sense and experience to the evidence engages consideration of both inherentprobabilities and inherent improbabilities and, not infrequently, eliminating the unlikelihood of coincidence: C. (R.) v. McDougall, 2008SCC 53 , [2008] 3 S.C.R. 41 (S.C.C.), at paras. 33-40, 47-8; R. v. Yousif, [2011] A.J. No. 42 (Alta. C.A.), at para. 5; In re B(Children), [2009] 1 A.C. 11 (H.L.), at paras. 5, 15, 70 [26] Did Mr. Au Yeung have “control” over the substance?

In R v Nguyen, 2009 ABQB 234 at para 65, 84 WCB (2d) 577, aff’d2010 ABCA 145, 88 WCB (2d) 47, Graesser J said: “Control in the context of constructive possession means consent with the power toaffect the location of the item.” In the earlier case of R v Savory, (ON CA), 1996 CarswellOnt 4029 at para 7, [1996]OJ No 3811 (CA), the Ontario Court of Appeal said the following: Control for the purpose of constructive possession does not require that the accused did in fact exercise control over the object inquestion. In R. v. Terrence (1980), (ON CA), 55 C.C.C. (2d) 183 (Ont.

C.A.), aff’d (1983), (SCC), 4C.C.C. (3d) 193 (S.C.C.), the Supreme Court accepted that control means power or authority over the object in question.

[27] Whether one is dealing with constructive possession or joint possession, the Crown must establish that the person hadknowledge of, consents to, and has control of the impugned items. In R v Colvin, (BC CA), 1942 CarswellBC 59 atpara 20, [1942] 3 WWR 465 (CA), O’Halloran JA described “control” as follows: ... ‘[K]nowledge and consent’ cannot exist without the co-existence of some measure of control over the subject-matter. If there is thepower to consent there is equally the power to refuse and vice versa.

They each signify the existence of some power or authority which ishere called control, without which the need for their exercise could not arise or be invoked. [28] Similarly, in R v Roan, 1985 ABCA 24 , 1985 CarswellAlta 450 at para 11, 57 AR 296 (CA), Harradence JA saidthe following: In R. v. Terrence (1983), (SCC), 4 C.C.C. (3d) 193 (S.C.C.), Ritchie, J., speaking for the entire Court, held that aconstituent and essential element of possession under S. 3(4)(

b) is a measure of control on the part of the person deemed to be inpossession by that provision. He adopted a passage by O’Halloran, J.A. in R. v. Colvin and Gladue (1942), (BC CA),78 C.C.C. 282 (B.C.C.A.), which states: ‘Knowledge and consent’ which is an integral element of joint possession in s. 5(2) [now our s. 3(4)(b)] must be related to and read withthe definition of ‘possession’ in the previous s. 5(1)(b) [our s. 3(4)(a)].

It follows that ‘knowledge and consent’ cannot exist without theco-existence of some measure of control over the subject matter. [29] In R v Piaskowski, (ON CA), 1979 CarswellOnt 1349 at para 6, 52 CCC (2d) 316 (CA) Martin JA saidthat consent “requires more than mere indifference or passive acquiescence.” [Citation excluded].

In R v Hung, (ONCA), [1946] OJ No 582 at para 36, [1946] OR 187, 85 CCC 308 (CA), Roach JA said the following: I should think that, where one of two persons has opium in his custody or possession, another who knows that fact, even though he hasno measure of control over it, but nevertheless co-operates with the person who has such custody in an effort to prevent detection,thereby ‘consents’ within s. 5 (2). [30] In the case at bar, Mr. Au Yeung was driving his vehicle, where Cpl. Frost and Cst.

Cutcliffe located the marihuana. [31] As Conrad JA said in R v Grant, 1999 ABCA 211 at para 3, documents that tie a person to a location is an important factor inestablishing possession. In the case at bar, there is no doubt, based on the vehicle that Cpl Frost stopped, that it belonged to Mr. AuYeung. The certificate issued under the Traffic Safety Act, RSA 2000, c T-6, which was made an exhibit in these proceedings, confirmsthis fact. Does this establish possession?

In R v Vatour, (NB CA), [1970] 1 CCC 324 at 327, 1 NBR (2d) 735(NBCA), Bridges CJNB said the following: In my opinion, the finding of a narcotic or drug concealed in a car owned and driven by an accused at the time of the seizure is evidencefrom which the inference may be drawn that the accused knowingly had such narcotic or drug in a place for the use or benefit of himself,which constitutes possession under Section 3(4)(a)(ii) of the Criminal Code. [32] Bridges CJNB was following an earlier decision of that same court in Gallant v The Queen (1962), (NBCA), 46 MPR 78 at 82 (NBCA).

In the more recent Alberta Court of Appeal decision in R v Nicholson, 2011 ABCA 218, 510 AR 308[Nicholson], the court followed Gallant in upholding the conviction of an accused person, who was the sole occupant and owner of avehicle in which cocaine was found in a bag which was within arm’s reach of the accused person. It said, “[t]he finding of a prohibiteditem within a motor vehicle owned and operated by an accused is prima facie proof of possession by the accused”: Nicholson at para 9.

Similarly, in R v Szczerba, 2005 ABCA 189, 162 CCC (3d) 298, 50 CR (5th) 68, Paperny JA for the court held that where an accusedperson owned and controlled the vehicle, and had actual control of the vehicle and the briefcase in which the police found cocaine, fromthe day before, until his arrest, the accused person had possession. [33] The Ontario Court of Appeal takes a different view of the strength of this type of evidence.

In R v Lincoln, 2012 ONCA 542,106 WCB (2d) 58 [Lincoln], the trial judge found that anything found in the motor vehicle is prima facie in the driver’s possessionbecause he had control of the motor vehicle and its contents “unless there is evidence indicating otherwise.” The Ontario Court of Appealfound that this reasoning constituted a reversible error in law.

It said the following: No rebuttable presumption of knowledge and control for purposes of determining possession, based solely on the fact that a person is theoperator with control of the vehicle, exists at common law or under the Controlled Drugs and Substances Act, S.C. 1996, c. 19. To giveeffect to such a premise would constitute an impermissible transfer of the Crown’s burden of proof to the accused.

While the fact that aperson is the operator with control of the vehicle, together with other evidence, may enable a trial judge to infer knowledge and control inappropriate cases, it cannot, standing alone, create such a rebuttable presumption.

Lincoln at para 3. [34] Thus, it is critical that the court examine the totality of the circumstances when deciding whether the vehicle’s operator haspossession and control of contraband found in the motor vehicle they are operating: R v Caldwell, 2001 BCSC 1313 at para 31, (2001),51 WCB (2d) 121. [35] In R v Young, 2006 ABPC 36 [Young], Fraser PCJ said the following: I do not find that ownership of the vehicle is mandatory to make a finding of possession, but is a factor that would strengthen theCrown’s case.

I say that bearing in mind the definition of “possession” in 4(3)(a)(ii), says, “whether or not the place belongs to theperson”. Young at para 18.

[36] Certainly, Nicholson is binding on this Court. That case, however, involved a situation where the accused person was the soleoccupant of the vehicle. In the case at bar, the vehicle was occupied by Mr. Au Yeung and Mr. Yee, which makes Nicholsondistinguishable. The fact that Mr. Au Yeung was the registered owner and that he occupied the vehicle at the time Cpl.

Frost stopped itis a factor that this Court can take into account to “strengthen the Crown’s case.” [37] However, the fact that a person who is driving, or is a passenger, in a vehicle containing forbidden items “necessarily knowsthe presence or nature of those objects”: R v Amado (1996), 32 WCB (2d) 156 at para 33, is not definitive. There must be more. [38] Mr. Au Yeung argues that this Court can draw a reasonable inference that the marihuana that Cpl. Frost and Cst. Cutcliffefound in the vehicle belonged to Mr. Yee alone. That may be so, but it is equally likely that Mr. Au Yeung and Mr.

Yee jointlypossessed the marihuana. This is contemplated by Criminal Code s 4(3)(b), which provides, “where one of two or more persons, with theknowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession ofeach and all of them.” [39] Mr. Au Yeung also argues that if the marihuana belonged solely to Mr. Yee, he did not have knowledge of it, even though itwas in his vehicle. The sheer volume of the marihuana in the duffle bag belies that explanation.

It weighed 13.684 kilograms, and theduffle bag took up a large portion of the cargo area of the vehicle. The duffle bag was readily visible the moment the police officersopened the cargo area of the vehicle. Is this a “reasonable possibility” that is inconsistent with guilt? As Cromwell J said in Villaroman,the Crown may need to negative reasonable possibilities, but it does not need to “negative every possible conjecture, no matter howirrational or fanciful,” which might be consistent with Mr.

Au Yeung’s innocence. “Other plausible theories” or “other reasonablepossibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. It is, as thisCourt finds, illogical, based on the evidence, that Mr. Au Yeung had no knowledge of the extensive contents of the duffle bag. [40] Equally important is the 225 grams of marihuana found in a garbage bag under the rear seat of the vehicle.

This could nothave been placed there by accident, and it would be difficult, if not unfathomable, for the garbage bag to be placed under the rear seat ofthe vehicle without the vehicle’s owner, Mr. Au Yeung, being aware of the placement. There is no evidence before this Court that Mr.Au Yeung left the vehicle unattended, such that Mr. Yee or another person could have placed the garbage bag under the rear seat of thevehicle without Mr. Au Yeung’s knowledge. Such a theory, based on the evidence before this Court, is speculative. [41] There were also other items that Cpl.

Frost identified in the vehicle as being marihuana, some of which were within arms’length of Mr. Au Yeung. These were not tested by Health Canada, although Cpl. Frost identified the items as marihuana. This Courtplaces some, but little weight on these items. [42] Mr. Au Yeung argues that the Crown might have called Mr. Yee to testify as to Mr. Au Yeung’s knowledge, or awareness, ofthe marihuana in the vehicle. Equally, Mr. Au Yeung might have called Mr. Yee to testify as to Mr. Au Yeung’s lack of knowledge. ThisCourt finds that Mr.

Yee’s not testifying has no bearing on its decision. [43] In the totality of the circumstances, this Court finds beyond a reasonable doubt that Mr. Au Yeung had control over thecontents of his vehicle, including the marihuana in the duffle bag and the garbage bag. As well, this Court finds beyond a reasonabledoubt that Mr. Au Yeung had knowledge of the contents of the duffle bag and the garbage bag, or was wilfully blind or recklessconcerning his knowledge.

Accordingly, it finds that he “possessed” the marihuana. [44] Inasmuch as this Court has made these findings, it agrees with the following comment that Sopinka J for the majority said inR v Lepage, (SCC), [1995] 1 SCR 654 paras 33-34, 36 CR (4th) 145, 95 CCC (3d) 385: Although I have concluded above that Pardu J. did not draw any adverse inference from the respondent's failure to offer an explanationfor the presence of his fingerprints, I note that once the Crown had proved a prima facie case, the trial judge would be entitled to drawsuch an inference in any event. The following passage from R. v.

Johnson (1993), (ON CA), 12 O.R. (3d) 340 (C.A.),at pp. 347-48, is on point: No adverse inference can be drawn if there is no case to answer. A weak prosecution's case cannot be strengthened by the failure of theaccused to testify. But there seems to come a time, where, in the words of Irving J.A. in R. v. Jenkins (1908), (BC SC),14 C.C.C. 221 at p. 230, 14 B.C.R. 61 (C.A.), "circumstantial evidence having enveloped a man in a strong and cogent network ofinculpatory facts, that man is bound to make some explanation or stand condemned".

That point, it seems to me, can only be the pointwhere the prosecution's evidence, standing alone, is such that it would support a conclusion of guilt beyond a reasonable doubt. Viewedthat way, it would be better said that the absence of defence evidence, including the failure of the accused to testify, justifies theconclusion that no foundation for a reasonable doubt could be found on the evidence. It is not so much that the failure to testify justifiesan inference of guilt; it is rather that it fails to provide any basis to conclude otherwise.

When linked in that fashion to the strength of theCrown's case, the failure to testify is no different than the failure to call other defence evidence ... If the Crown's case cries out for anexplanation, an accused must be prepared to accept the adverse consequences of his decision to remain silent: R. v. Boss (1988), (ON CA), 46 C.C.C. (3d) 523, 68 C.R. (3d) 123 (C.A.), at p. 542 C.C.C., p. 42 C.R. But the failure to testify cannot be usedas simply one of the circumstances from which the guilt of the accused can be inferred: R. v. Armstrong (1989), 52 C.C.C. (2d) 190 ... AsDoherty J. pointed out in R. v.

Manchev, an unreported judgment of the Ontario High Court, August 23, 1990, the accused's failure totestify is not an independent piece of evidence, to be placed on the evidentiary scale. It is rather a feature of the trial which may assist indeciding what inferences should be drawn from the evidence adduced. [Emphasis added.] I note that the Johnson decision was cited with approval by this court in R. v. François, (SCC), [1994] 2 S.C.R. 827.

In this case, since the totality of the evidence enabled the trial judge to infer guilt beyond a reasonable doubt, the absence of anyexplanation from the respondent merely failed to provide any basis to conclude otherwise. [45] Mr. Au Yeung conceded that if this Court were to find that he possessed the marihuana, he did so for the purpose oftrafficking in it.

[ 46 ] As a result, this Court finds Mr. Au Yeung guilty of the charge of possessing marihuana for the purpose of trafficking. Heard on the 9th day of May, 2016 to the 11th day of May, 2016, and the 3 rd day of June, 2016. Dated at the City of Calgary, Alberta this 12 th day of September, 2016. K.D. Yamauchi J.C.Q.B.A. Appearances: Sarah Curtis Public Prosecution Service of Canada for the Crown Andrew Fong Mah and Company for the Accused