R v Ammann, 2017 ABQB 784

Court of Queen’s Bench of Alberta Citation: R v Ammann, 2017 ABQB 784 Date: 20171218 Docket: 140408360Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Nicole Ray Ammann Accused _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice K.P. Feehan _______________________________________________________ I.

Overview [ 1 ] Nicole Ammann is charged that on March 19, 2014, in Edmonton, Alberta, she possessed methamphetamine, fentanyl, and 4-Hydroxybutanoic Acid (GHB), for the purpose of trafficking, contrary to s 5(2) of the Controlled Drugs and Substances Act , SC 1996, c 19 ( CDSA ); that she possessed cocaine, and cannabis marijuana in an amount not exceeding 30 grams, contrary to s 4(1) of the CDSA ; that she possessed Canadian currency of a value exceeding $5,000 knowing it was obtained by the commission in Canada of an offence punishable by indictment, contrary to s 355(

a) of the Criminal Code , RSC 1985, c C-46; and that she possessed a prohibited weapon: a conductive energy device (taser) without a license, contrary to s 92(2) of the Criminal Code . At the commencement of trial, she pled not

guilty to all seven counts. [ 2 ] In closing argument, counsel for the Crown submitted that it had not proven all of the elements of the count with respect to the conductive energy device, particularly that Ms. Ammann was not the holder of a license for that device, and therefore invited an acquittal on that count. [ 3 ] Counsel for Ms.

Ammann admitted she was in simple possession of cocaine, and cannabis marijuana in an amount not exceeding 30 grams, contrary to s 4(1) of the CDSA , and invited a conviction on those two counts. [ 4 ] Additionally, although defence counsel denied the charge of possession of methamphetamine and GHB for the purpose of trafficking, contrary to s 5(2) of the CDSA , he invited a conviction on those two counts for simple possession, contrary to s 4(1). II.

Elements of the Remaining Charges [ 5 ] For the Crown to obtain a conviction on the three charges of possession of a controlled substance for the purpose of trafficking, it must prove each of the following essential elements beyond a reasonable doubt: 1. Ms. Ammann was in possession of a substance; 2. The substance was as set out in the counts: methamphetamine, fentanyl, and GHB; 3. Ms. Ammann knew that the substances were as set out in the charge: methamphetamine, fentanyl, and GHB; and 4. Ms.

Ammann had possession of those substances for the purpose of trafficking. [ 6 ] With respect to the charge of possession of currency of a value exceeding $5,000, in order to obtain a conviction on that count, the Crown must prove each of the following essential elements beyond a reasonable doubt: 1. Ms. Ammann was in possession of currency; 2. The value of the currency exceeded $5,000; and 3. Ms. Ammann knew that the currency was obtained by the commission in Canada of an offence punishable by indictment. III. Nicole Ammann [ 7 ] Ms. Ammann admitted that she resided at 41 Warwick Road.

Her mother owned the property, but Ms. Ammann paid the mortgage on the home and was the only permanent resident. Under cross-examination, she admitted she had a surveillance camera mounted over the side door of the premises “recording times of people’s comings and goings”. She admitted that the white 2011 Land Rover seen regularly at those premises was her vehicle. [ 8 ] Ms. Ammann indicated she began smoking marijuana at age 13. She used crack cocaine on a daily basis at age 15 for four or five months.

She also used ecstasy, ketamine, Percocet, and oxycodone for approximately three to three and a half years on weekends, and began using methamphetamine at about age 18 or 19. [ 9 ] Ms. Ammann indicated she dated a methamphetamine trafficker for approximately three years until age 22 and would use an “8-ball”, approximately 3.5 grams, every few days and at times up to 3 grams a day. After that relationship ended, she reduced her use of methamphetamine to around 1 to 1.7 grams per day. [ 10 ] Ms. Ammann said she met Holly Dyck at about age 20 or 21. She said Ms.

Dyck was an active drug dealer at the time, but believes she is currently only a user. She said Ms. Dyck had supplied her with heroin at about age 23 or 24, which she only used three times. She said neither she nor Ms. Dyck consumed fentanyl. [ 11 ] Ms. Ammann indicated that she met Mark Crossley at about age 25. She also indicated that he was a well-known drug trafficker. She said by the time of her arrest in this matter, she had known him for about seven years.

After she stopped trafficking in drugs, she usually bought her drugs from Mark Crossley, approximately one and a half to two weeks at a time, or up to one month at a time. [ 12 ] Ms. Ammann admitted she had also sold marijuana beginning at about age 14 until about age 17, sold ecstasy from about age 18 to 22, and throughout sold “a little cocaine”. She also admitted that Ms. Dyck started her trafficking in methamphetamine by advancing her 3.5 grams on credit. She began selling methamphetamine at about age 22.

It was only for a very short time, at about age 28, when she did not sell drugs, until August 2013 when she said she ceased trafficking. [ 13 ] She said that 97% of her friends took or sold drugs. [ 14 ] At age 28, Ms. Ammann obtained a job shipping and receiving at a compressor company. After about eight or nine months, the company fired her for tardiness. She then secured employment at a machine shop for about three and a half to four years, but was let go in January 2014 for drug consumption.

She did not work between that date and her arrest on the present charges in March 2014. [ 15 ] While employed at the machine shop, Ms. Ammann said she made between $22 and $25 per hour and generally worked a night shift from 6 pm to 6 am. She said she smoked methamphetamine while working, usually in the afternoon and periodically throughout her shift, and estimated that while she was employed in that position she would smoke 0.5 to 0.7 grams per day. She said she

purchased up to an ounce of methamphetamine at a time for her personal use and that could often last her as much as a month. She said she took a cap of GHB, between 5 and 7 ml, every working day, and 2 or 3 caps on weekends.

She said it took her and Paul Niles about one month to consume a 500 ml bottle of GHB. [ 16 ] Under cross-examination, she admitted that although she had been unemployed for approximately two months, she was making monthly mortgage payments of $500, gave her mother a further $300 per month, and including the drugs that she was personally consuming, was spending up to $2,100 per month, before accounting for food, car operation, and leisure. IV. Searches and Surveillance [ 17 ] In February 2014, Sergeant Nayowski received information from Constable Parker that a confidential informant had reported that Ms.

Ammann was engaged in the trafficking of methamphetamines. He began conducting searches and found a 2010 drug sheet photograph, a driver’s license photograph, and a Facebook photograph for Ms. Amman. [ 18 ] Upon a search of vehicle registrations, it was determined that Nicole Ray-Anne Ammann of 41 Warwick Road, Edmonton was the registered owner of a 2011 Land Rover utility vehicle bearing license plate BCW 8265 (exh 1). A search of the Land Titles Office showed that Laura Ammann of 41 Warwick Road, Edmonton was the registered owner of those premises (exh 2).

The Surveillance [ 19 ] On February 10 and 13, 2014, Constable Parker began surveillance of 41 Warwick Road, Edmonton. [ 20 ] On February 17, 2014, Sergeant Nayowski took over surveillance and identified the white 2011 Land Rover arriving at the residence at 6:51 pm and leaving again at 8:08 pm. He could not identify the driver. At 8:15 pm, the white Land Rover returned and parked in the garage, and it was determined that the female driver of that vehicle was not Ms. Ammann. At 8:45 pm, a female inside the house came to the window and he identified that female as “a possible” for Ms.

Ammann. [ 21 ] On February 18, 2014, Sergeant Nayowski continued surveillance at 6:00 pm. At 7:43 pm, a dark Ford F150 was parked outside the residence. An unknown male got out, took a small box out of the tailgate, and carried it to the side door. Approximately one minute later, at 7:44 pm, the unknown male walked back to the truck and sat in the truck for about 14 minutes until 7:58 pm, at which time the white Land Rover arrived at the premises and the female driver, identified as “a possible” for Ms. Ammann, went into the yard through the garage.

The unidentified male got out of the Ford F150 truck, went into the side door of the residence and stayed inside until approximately 8:40 pm. He then left the house in the Ford F150. At 8:58 pm, Constable Dubray identified a black Volkswagen Golf, registered to Paul Niles, arriving at the residence, and an unknown male, later identified as Mr. Niles, entered through the garage. [ 22 ] At 10:36 pm, Ms. Ammann was identified walking a pit bull dog and looking into at least one, but possibly more, vehicles. Constable Parker thought she was looking for surveillance.

At 10:45 pm, the VW Golf, owned by Paul Niles, parked in the driveway of the residence. Mr. Niles got out of the vehicle and entered the residence carrying a heavy duffle bag, or a small hockey bag. [ 23 ] On February 19, 2014, surveillance was set up at 8:00 pm. At 9:12 pm, the 2011 white Land Rover arrived, and a female exited, again identified as “a possible” for Ms. Ammann. The female came out of the garage and put garbage on the curb. [ 24 ] Sergeant Nayowski and Constable Parker went through the garbage at 11:15 pm and located a WestJet travel label for Ms. Ammann and two WestJet luggage tags for Ms.

Ammann and Paul Niles, dated February 14, 2014, together with two medium sized Ziploc bags, one of which had a corner torn off, and each of which contained a white crystalline residue, field-tested as methamphetamine. Additionally, they located three smaller Ziploc bags, two clear and one pink, all of which were turned over to Constable Dubray, who acted as exhibit control. [ 25 ] On February 20, 2014, surveillance began at 7:05 pm. When the 2011 white Land Rover backed out of the garage, it was followed to a nearby Sobeys on Castledowns Road, and again a female got out, identified as “a possible” for Ms.

Ammann. [ 26 ] On February 25, 2014, Constable Willms observed the white Land Rover leave the premises shortly after 10:00 pm, arriving back at 10:57 pm. [ 27 ] On February 27, 2014 at 6:28 am, Sergeant Nayowski conducted a second garbage seizure.

It contained a Canada Post receipt slip addressed to 41 Warwick Road and signed “Ammann”, a large cellophane baggie containing a white crystalline substance, field tested to contain 0.2 grams of methamphetamine, and two separate cellophane baggies, both still tied closed at one end with a knot and torn open on the bottom. [ 28 ] On March 17, 2014, surveillance commenced at 7:01 pm. At 7:18 pm, the 2011 white Land Rover arrived and a female entered the residence. The officer identified the female as being Ms. Ammann. At 11:19 pm, Detective Scott identified Ms.

Amman in the front window smoking what appeared to be a marijuana cigarette. [ 29 ] On March 18, 2014 at 12:28 am, Constable Dubray noted the 1989 blue Ford F150 truck pull up at the residence and park across from the driveway. An unidentified male got out of the truck and went into the side door of the residence. He came out about ten minutes later and drove away.

Detective Scott followed this vehicle to a location at 123 Street and 162 Avenue where a one minute exchange was made with the female passenger of another vehicle. [ 30 ] At approximately 7:25 pm, Constable Parker observed an orange Dodge Nitro parked by the curb. A female entered the premises carrying a small bag, later identified as an Aveda bag. She stayed for approximately ten seconds, left the bag, and departed. [ 31 ] At about 11:30 pm, a Jeep pulled up at the residence. A female, later identified as Holly Dyck, got out and went in the side

door carrying a parcel. At approximately 12:04 am, on March 19, 2014, a black and blue Dodge Ram registered to Mark Crossley, parked across the street from the residence. A male, later identified as Mr. Crossley, got out of the vehicle, picked up a heavy, school- sized backpack, and went into the side door of the residence. At 12:40 am, the older blue Ford truck identified from previous surveillance arrived and another male, later identified as “Gerry”, walked up to the house. He stayed for approximately two minutes from 12:40 to 12:42 am, and then left. V.

Execution of the Search Warrant [ 32 ] On March 18, 2014, the Edmonton Tactical Unit, and Drug and Gang Enforcement Team of the Edmonton Police Service were assigned to execute a search warrant. The warrant was issued in the early morning hours of March 19, 2014, on 41 Warwick Road, Edmonton. [ 33 ] The Tactical Team’s plan was to enter the house through the side door, detain all persons found inside the house, and clear the residence so the Drug Investigation Team could complete a search.

Constable Tagg [ 34 ] Constable Tagg was the first person to enter the residence, assess the situation, and take a position. [ 35 ] In the early morning hours of March 19, 2014, the team attended at the side door of the residence. They found the inside wooden door open and the outside screen door closed but unlocked. Constable Tagg identified a dog in the back yard. At 12:48 am, he opened the outside screen door and stepped inside the residence into a hallway approximately eight feet long. He shouted, “police search warrant”. [ 36 ] In the middle of the hallway was Ms. Ammann, walking towards him.

She was approximately halfway down the hallway, equidistant between the kitchen table and the side door. Constable Tagg told her to show her hands and get down on the floor. Ms. Ammann appeared confused and surprised, and Constable Tagg put his hand on her head and directed her to the ground. [ 37 ] Constable Tagg immediately saw Mark Crossley seated at or standing directly beside the kitchen table and therefore stepped past Ms. Amman to engage Mr. Crossley who bolted from the kitchen table, out of view for a moment into the kitchen. In the kitchen, Mr. Crossley gave up and lay on the floor.

He was found holding a crack cocaine pipe in his hand. [ 38 ] Constable Tagg also identified a third person in the residence, seated in the living room; Holly Dyck. Constable Gogerla and Sergeant Pennie [ 39 ] Constable Gogerla was the second member into the residence. He said that as they approached the residence, a dog was barking in the back yard. He said that the first thing he saw upon entering the residence was Ms. Ammann about halfway down the hallway, possibly six feet from the kitchen table, and Constable Tagg was directing her to the floor.

He pushed past them into the kitchen and then into the living room where he found Ms. Dyck on the couch, located about 15 feet from the kitchen table. [ 40 ] Constable Gogerla, Sergeant Pennie, and Constable Parker all saw a “large amount of methamphetamine and cash on the kitchen table”. Sergeant Pennie located and seized a functioning HB50X weigh scale on the desk in a room at the end of the hallway, and two cell phones from the left front pocket of Mr. Crossley’s jacket. Constable Dubray [ 41 ] Constable Dubray’s role was to take photographs and collect exhibits from others.

He took a total of 28 photographs (exh 3): Photo 4: Aveda Beauty Products bag with reinforced handles and bottom, containing $1,517 cash; found in the pantry off the kitchen; Photos 5 & 21: blue and orange gym bag containing drugs, drug paraphernalia, and cash; found on the bed in the spare bedroom; Photo 6: several hundred small baggies, and a $100 bill taken from the gym bag in photo 5; found on the bed in the spare bedroom (see photo 21); Photo 7: Triton T3 digital weigh scale with loose fentanyl on a piece of white paper on the scale; found on the kitchen table; Photo 8: Coach purse containing a Gucci billfold, identification for Ms.

Ammann and a taser; found on the kitchen table; Photo 9: two one litre bottles of GHB and a bag of cannabis marijuana; found in the freezer portion of the kitchen refrigerator; Photos 25 & 26: two large cellophane bags containing methamphetamine, a stack of $20 bills, Triton digital weigh scale with loose fentanyl on white paper on the scale (photo 7), one ounce size baggie containing methamphetamine, black Coach purse, second large black purse, cellphone, methamphetamine pipe, two further sandwich bags containing methamphetamine, further $20 bills tucked under a potato chip bag, and a further baggie containing fentanyl; found on the kitchen table; Photo 27: three boxes of sandwich bags and Ziploc bags, the middle one of which contained a roll of bills; found in the pantry off the kitchen; and

Photo 28: tray containing $20 bills, a Ziploc baggie of methamphetamine, and a substance in tinfoil; found in the pantry off the kitchen. [ 42 ] During the course of the Search Warrant execution, Constable Dubray seized significant quantities of drugs and drug paraphernalia marked as property exhibits: CD1: two bags containing 746.1 grams of methamphetamine; 11.8 grams for sample analysis: CD1a (photos 25 & 26, found on the kitchen table); CD2: 381.4 grams of methamphetamine; 9.1 grams taken for sample analysis: CD2a; found on the kitchen table; CD3: iPhone with case; found on the kitchen table; CD4: 249 $20 bills worth $4,980; found on the kitchen table; CD5: a baggie containing 23.2 grams of fentanyl; 0.6 grams for sample analysis: CD5a; found on the kitchen table; CD6: 2.6 grams of fentanyl on white paper on the scale (see photos 7, 25 & 26); found on the kitchen table; CD7: Triton T3 digital scale, determined to be functioning at the time; found on the kitchen table; CD8: glass methamphetamine pipe; CD9: one half-size sandwich bag containing 12.6 grams of methamphetamine; 1.4 grams for sample analysis: CD9a; found on the kitchen table; CD10: Blackberry cell phone; found on kitchen the table; CD11: Samsung Galaxy computer found on kitchen table (photos 25 & 26); CD12: Ziploc baggie containing 24.2 grams of methamphetamine found inside the black Coach purse; 1.6 grams for sample analysis: CD12a; CD13: package of baggies two inches by two inches identified as “dime bags” (exh 4); CD14: small note pad used as a “score sheet” (exh 5); CD15: 27.8 grams of methamphetamine; 3 grams for sample analysis: CD15a; CD16: HD1800 conductive energy device found inside the black Coach purse (exh 6); CD17: Aveda bag found in the pantry containing $1,517 cash; CD18: beige plastic tray containing a $20 bill , “dime bag” of suspected methamphetamine; 0.3 grams removed but never analyzed; two shards of cocaine (0.5 grams), steel pipe and pre-paid credit card; CD19: three boxes of sandwich bags containing $1,360 cash (photo 27); CD20: TD Canada Trust envelope found on a shelf in the pantry containing $1,340; CD21: two 500 ml bottles of GHB; 40 ml for sample analysis; 915 total ml of GHB; (photo 9); CD22: small Ziploc bag containing 8.8 grams of marijuana; 1.4 grams for sample analysis: CD22a, found in the freezer; CD23: a number of “dime bags” containing 27.4 grams of methamphetamine; 4 grams for sample analysis: CD23a; found in a blue bag in the pantry; and CD24: correspondence addressed to Ms.

Ammann dated March 11, 2014 at 41 Warwick Road, Edmonton (exh 11), contained in the same plastic bag as the 27.4 grams of methamphetamine (CD 23 and 23a). [ 43 ] Additionally, Constable Dubray was provided with exhibits from other officers; Detective Dana Donald, Sergeant Thomas Pennie, Detective Gregg Scott, and Constable Robert Nayowski: DD1: a one litre SMART water bottle containing 945 ml of GHB; 20 ml taken for sample analysis; TP1, TP2 and TP3: a Rogers Blackberry cellphone, T-Mobile cellphone, and digital scale; GS1: TD Insurance documents dated June 1, 2013 addressed to Ms.

Ammann at 41 Warwick Road, Edmonton (exh 8); RN1, RN2 and RN3: WestJet travel labels and luggage tags for Ms. Ammann and Paul Niles; RN4: two Ziploc baggies containing methamphetamine residue; RN5: three small to medium Ziploc baggies containing methamphetamine residue; SP1: contents of the blue and orange duffle bag (photo 21) containing weigh scale, packaging materials, pepper spray, cash, drug user kit (containing spoon, “dime bags”, a paper flap, and swabs) and assorted drugs, not analyzed; and

SP3: various baggies containing 11 kinds of pills, not analyzed. Detective Donald [ 44 ] During the search of the premises, Detective Donald found the SMART water bottle containing GHB in the basement freezer. He seized it at approximately 3:44 am and provided it to Constable Dubray. Constable Parker [ 45 ] During the search of the premises, Constable Parker located the black and orange gym bag in the spare bedroom. He identified methamphetamine and baggies (photo 5), and $4,900, in $100, $50, and $20 denominations.

In addition, the gym bag contained what was suspected to be 36.3 grams of methamphetamine, 2.8 grams of cocaine, a large number of pills, digital scale, and hundreds of empty baggies. These drugs were not analyzed. [ 46 ] Constable Parker also examined the black backpack, earlier seen being carried into the residence by Mr. Crossley. The backpack contained papers, a sweater, cologne, keys and other objects, but no drugs. [ 47 ] He delivered the gym bag to Exhibit Control at 1:40 pm. Constable Parker then noticed Mr. Crossley’s Dodge Ram with a pit bull inside.

He removed the pit bull from the vehicle, and, in the process, noted a large amount of methamphetamine, estimated to be greater than one ounce, on the central console. As the Search Warrant did not authorize this search, the methamphetamine was merely seized and destroyed.

Detective Guy Pilon [ 48 ] The Crown called Detective Guy Pilon as an expert in the manner of use, packaging, distribution, prices, and paraphernalia utilized in the drug trade, drug jargon and common street terminology, the practices and habits of drug users and traffickers, and the observable effects of drug use, limited to methamphetamines, fentanyl and GHB.

The Court recognized his qualifications (curriculum vitae at exh 10, expert report at exh 11). [ 49 ] Detective Pilon’s opinion was that the methamphetamine, fentanyl, and GHB were possessed for the purpose of trafficking, based upon the amount of those drugs found on the premises, the lack of indicia of any impairment of the persons found in the premises, the significant amount of money, cellphones, scales, baggies, and the drug “score sheet” found on the premises (exh 11, p 3), all standard and necessary equipment for the successful distribution of drugs (exh 11, p 7). [ 50 ] Detective Pilon said the terminology found in the “score sheet” (exh 5) is indicative of trafficking: “window” being a reference to methamphetamine, “girl” to cocaine hydrochloride, “8 balls” to an amount of methamphetamine worth $280, and “zip” being a quantity of one ounce.

The “score sheet” (exh 5) contained entries tracking monies owed to the dealer, monies owed to the dealer’s boss, and amounts of drugs purchased or sold. He said the presence of a conductive energy device was also consistent with drug trafficking (exh 11, p 7). [ 51 ] It was his opinion that the 1,227 grams of methamphetamine found on the kitchen table would be worth $122,700 on the street (exh 11, p 4).

He was of the opinion that one ounce of methamphetamine would sell for between $1,200 and $1,600, and the various amounts of cash on the premises falling within that range would be consistent with sales of methamphetamine in one ounce amounts. In cross-examination, Ms.

Ammann agreed that one ounce of methamphetamine in 2014 would sell for between $1,200 and $1,300. [ 52 ] Detective Pilon said the street value of the 27.9 grams of fentanyl found on the kitchen table, depending upon purity and whether it was represented to be heroin upon sale, would be between $4,480 and $16,800. [ 53 ] It was Detective Pilon’s opinion that the 500 ml of GHB located in the kitchen freezer had a wholesale value of $500 and the 300 ml of GHB in the 500 ml bottle had a wholesale value of $350 if undiluted (exh 11, p 5). In cross-examination, Ms. Ammann admitted that this GHB was pure and undiluted.

Detective Pilon said GHB pricing was approximately $1/ml, with a normal dosage being 3 to 5 ml. A significant user could re-dose over the day, perhaps utilizing as much as 35 to 50 ml over a week. [ 54 ] In total, Detective Pilon said that $9,197 in cash was found on the premises; $4,980 in cash on the kitchen table, $1,517 in cash in a brown paper bag in the pantry, $1,360 in cash in the sandwich bag in the pantry, and $1,340 in cash in the TD envelope (exh 11, p 6). He did not mention the $4,900 found in the gym bag in the bedroom. [ 55 ] As to the three individuals in the premises on March 19, 2014, Ms.

Ammann, Mr. Crossley, and Ms. Dyck, Detective Pilon could not provide an opinion as to which of them possessed the drugs found on the kitchen table, nor which of them had possession for the purpose of trafficking. [ 56 ] Detective Pilon also discussed average consumption rates of methamphetamine and fentanyl by a user, the packaging, as well as the distribution and sales of methamphetamine in Ziploc baggies. He testified that sales usually occur in one-tenth, one-half or one gram amounts, such as seen in exhs 4 & 9, or in new unused baggies in smaller sizes, such as seen in exh 4.

He said these baggies were typical of street level packaging. He particularly said a sandwich bag found without a corner indicated re-sizing for street sale. VI. Ms. Ammann’s Explanation

[ 57 ] Ms. Ammann said that in about May 2012 she began dating Paul Niles, the owner of the VW Golf seen on numerous occasions during the police surveillance. She said she often did his laundry, and he would carry it into her premises in a large army green or dark duffle bag, or gym bag. She said she made sandwiches for him to take to work and she used Ziploc bags and snack bags from the pantry, which she said explained the large number of sandwich bags on the premises.

She admitted that sometimes she used those sandwich bags for methamphetamine, but then only for her own personal use. [ 58 ] With respect to the Aveda Beauty Products bag found on the premises during the seizure, Ms. Ammann agreed it was her bag. She said that the $1,517 found in that bag upon search was a result of her emptying rolled coins and small bills from her change jar so she could take it to the bank. She said that the bag was reinforced on the handles and bottom because she often carried significant amounts of money, including coins, to the bank.

She said some of the money found on the premises; $20 in the beige plastic tray, $1,360 in the sandwich bag boxes, and $1,340 in the TD Canada envelope, were to be used to purchase methamphetamine for her own use (exh 3, photo 27). [ 59 ] She admitted the blue and orange gym bag found in the spare bedroom was her bag and that it was full of drug paraphernalia and baggies. She said this was left over from when she had been trafficking in drugs approximately 6 months earlier and it was her intention to dispose of those items.

She agreed she kept a set of scales, US and foreign currency, old Canadian currency, and $5,000 (Constable Parker said $4,900) in crisp bills in the blue and orange gym bag. She said the crisp $100 bills were a cash “under the table” bonus from her employer for putting in overtime during the busy machining season. [ 60 ] She also said that the marijuana found in the house was for Paul Niles’ personal consumption and had only been brought into the premises by a friend, “Gerry”, about 15 minutes before the police arrived. [ 61 ] When questioned about the cocaine found in the pantry, Ms.

Ammann said she did not recall that there even was cocaine in the pantry. [ 62 ] Ms. Ammann said the GHB in the freezer was for her and Paul Niles’ consumption. She could not recall the various pills found in the residence but she said she did take heart medications and insulin. She said the bags of methamphetamine in the kitchen pantry were for her personal use or for sharing with friends. VII. Ms. Ammann’s Description of the Events of March 18 & 19, 2014 [ 63 ] Ms.

Ammann said that on the evening of March 18, 2014, she asked her drug dealer, Mark Crossley, to come by and it was her intention to buy one ounce of methamphetamine from him. She also said Holly Dyck had indicated she would be coming by that evening. [ 64 ] Ms. Ammann said Holly arrived first that evening, and Mark showed up at about midnight. She said Mark came into the premises with a backpack and put it on the floor. She said it was closed at the time he put it on the floor but she later saw that it had been unzipped and opened. Gerry arrived at about 12:30 am on March 19, 2014. [ 65 ] Ms.

Ammann said they were all sitting at the kitchen table, she was on the computer checking out dog breeders from British Columbia, and they were all smoking methamphetamine. When shown exh 3, photos 25 & 26, she denied that any of the $20 bills, large Ziploc bags containing methamphetamine, laptop, or smaller bags of methamphetamine and fentanyl, were on the table when she was at the table. She did admit that the black Coach purse, containing both her wallet and the taser borrowed from Holly, and the other black purse on the table were her purses. [ 66 ] Ms.

Ammann said approximately 15 minutes before the police arrived, she went into the bedroom and then down into the basement to fold laundry. She said she was in the basement for eight minutes or less. She said at about that time, Holly Dyck moved into the living room. [ 67 ] Ms. Ammann said when she was downstairs she heard her dog barking and growling, and she ran upstairs. She said Mark Crossley was standing at the table and he had a “really big bag of drugs on the table”. She assumed it was methamphetamine and expressed surprise.

She immediately turned and walked down the hallway, where she pushed the door open and was then rushed by three police officers at the door. She said the inside wooden door was open and the outside screen door was closed but that she pushed it open before the police entered. VIII. Holly Dyck’s Evidence as to the Events of March 18 & 19, 2014 [ 68 ] Ms. Dyck was a drug user, including methamphetamine and heroin, and at one time a drug trafficker. She said that in 2001 or 2002 she had “fronted” Ms. Ammann methamphetamine to sell.

She also has a significant criminal record including credit card fraud, multiple convictions for other frauds, and breaches of recognizance. [ 69 ] Ms. Dyck indicated that she attended at the residence of Ms. Ammann uninvited on the evening of March 18, 2014, between 11:15 and 11:30 pm. She said Ms. Ammann was “up and down doing housework”. She said Mark Crossley arrived about 20 minutes later. He came in, took off his jacket, and put his backpack on the bench where she was sitting. However, on cross-examination, she admitted that in the previous trial of Mr.

Crossley, she had testified she did not see whether he was carrying a bag. [ 70 ] Ms. Dyck recalled that Mr. Crossley’s backpack looked heavy but had no recollection as to whether it was open or closed, and

she specifically said she did not see him open the backpack that evening. [71] She then told Ms. Ammann that she would move to the living room to “give them space”. In cross-examination, she said shethought they were going to conclude a drug deal. Also during cross-examination, she admitted that at the Crossley trial she had testifiedboth she and Mr. Crossley were seated at the table in the kitchen when the police arrived. [72] Ms. Dyck said that at the time she went into the living room the table had no drugs on it; merely a laptop, ashtray, cigarettes,Ms. Ammann’s purses, and an alcohol bottle.

She specifically said the baggies containing methamphetamine, the weigh scale, and thestack of $20 bills were not on the table. She said she never saw who placed those objects on the table, but Mark Crossley was sitting atthe table immediately before the police arrived. [73] Ms. Dyck said she was not really paying attention to what was happening in the kitchen, but said Ms. Ammann wentdownstairs at one point in time. However, on cross-examination, she admitted that in the Crossley trial she had said nothing about Ms.Ammann being in the basement at any time.

She said she “only remembered that over the last few days” and remembers things now thatshe did not remember during the Crossley trial. [74] Ms. Dyck said the dog began barking while Ms. Ammann was downstairs and she called out to her advising that the dog wasbarking. She said Ms. Ammann “whizzed by her” and went towards the door. IX. W(D) [75] As Ms. Ammann took the stand in her own defence, I approach the evidence according to the framework set out in R v W(D), (SCC), [1991] 1 SCR 742 at 758: 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. [76] Steps one and two must be undertaken in the context of all of the evidence, cumulatively and not in isolation: R v JJRD(2006), (ON CA), 215 CCC (3d) 252 at para 53 (ONCA); R v Hoohing, 2007 ONCA 577 at para 15. [77] The purpose of the W(

D) approach is to ensure that the burden never shifts from the Crown to prove every element of theoffence beyond a reasonable doubt. When faced with competing stories, the Court must not simply prefer one to the other. In otherwords, if, after a careful consideration of all of the evidence, the Court is unable to decide whom to believe, it must acquit: R v JHS,2008 SCC 30 at para 12, citing R v H(CW) (1991), (BC CA), 68 CCC (3d) 146 (BCCA).

If the Court is unable toresolve conflicting material evidence, it has a reasonable doubt as to guilt and must acquit: R v Hogg, 2013 PECA 11 at para 140(dissent), rev’d 2014 SCC 18 (dissent upheld), citing R v Edwards, 2012 ONSC 3373. [78] It is convenient at this point to address the first and second steps of W(

D) together, leaving the third step to examination afterconsideration of the law on possession, including constructive and joint possession. [79] On the first and second step of W(D), I do not believe the evidence of Ms. Ammann nor of Ms. Dyck and am not left inreasonable doubt by that evidence. [80] Ms. Ammann’s explanation as to the events of March 18 and 19, 2014 is not credible. She explained that Paul Niles broughtduffle bags into her premises to carry in his laundry. She explained the hundreds of sandwich and Ziploc bags as being largely to makesandwiches for him.

She explained the Aveda bag, with its reinforced handles and bottom, as being her usual bag for carrying largeamounts of money, including coins, to the bank. She explained the blue and orange gym bag containing drugs and drug paraphernalia asbeing left over from approximately six months earlier when she was trafficking in drugs. She explained the $5,000 (or $4,900) in crispbills as being a cash “under the table” bonus from her employer. She explained the significant amounts of methamphetamine and GHBfound around the premises as being for personal consumption.

She explained the significant quantity and variety of pills found in theresidence as being her heart medications and insulin. She explained methamphetamine residue in numerous baggies as being left overfrom her own use. [81] She had no explanation for the significant comings and goings from the residence at all hours of the night, often for very shortperiods, and then the subsequent transactions between her visitors and others, lasting only minutes. She had no explanation for why sherequired a video camera over her side door.

She had no explanation for being unemployed and yet meeting significant monthly expenses.She had no explanation for the drug “score sheet” and taser found in her purse. She had no explanation for why she would walk her pitbull dog down the block, looking into one or more vehicles. She had no explanation for the significant amounts of cash found around herpremises, remarkably close to the street value of one ounce of methamphetamine. [82] Likewise, the explanations of Ms. Dyck are not credible. She repeatedly contradicted her earlier testimony in the MarkCrossley trial.

In the Crossley trial, she said she did not see whether Mr. Crossley was carrying a bag. In this trial, she described theappearance of the backpack, where it was placed, and that it looked heavy. In the Crossley trial, she said that when the police arrived, sheand Mr. Crossley were sitting at the kitchen table. In this trial, she said that she had left the kitchen table and had gone to the living roomto allow Ms. Ammann and Mr. Crossley to conclude a drug deal. In the Crossley trial, she said nothing about Ms. Ammann being in the

basement at any time. In this trial, she said that immediately before the police arrived, Ms. Ammann was in the basement. [83] Wherever the evidence of Ms. Ammann or Ms. Dyck conflicts with any other evidence, I reject it as untruthful. X. Possession, Constructive and Joint Possession Possession [84] Section 4(3) of the Criminal Code (which applies to these offences by operation of s 2(1) of the Controlled Drugs andSubstances Act) provides:

(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 ofanother person; and (

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession,it shall be deemed to be in the custody and possession of each and all of them. [85] Section 4(3) therefore defines possession in three alternative ways: 1. personal possession (s 4(3)(a)); 2. constructive possession (s 4(3)(a)(

i) and (ii)); and 3. joint possession (s 4(3)(b)). [86] The language of s 4(3) of the Code indicates Parliament’s intent that it is not necessary to establish personal possession tomake out constructive or joint possession. It is also clear that knowledge, as a state of mind, can be inferred from circumstances: R vPham, (2005) (ON CA), 203 CCC (3d) 326 at para 18 (ONCA), aff'd 2006 SCC 26.

Constructive Possession [87] In R v Nguyen, 2009 ABQB 234, Graesser J reviewed the law of constructive possession of drugs for the purpose oftrafficking, and the role that circumstantial evidence plays in establishing possession. He said: [65] These cases establish a number of basic principles applicable to constructive possession: 1. This is a very fact specific area. 2. Constructive possession under s. 4(3) of the Criminal Code can be and often is established by circumstantial evidence. 3. The inferences to be drawn from the circumstantial evidence must be reasonable. 4.

An inference drawn which establishes an essential element of an offence must be the only reasonable inference that can be drawn. 5. The trier of fact must look at the totality of the evidence. 6. Constructive possession requires knowledge and control. 7. Control in the context of constructive possession means consent with the power to affect the location of the item. 8.

Occupancy can be evidence of possession. [88] The elements of knowledge and control, including the concept of consent, have been repeated since R v Caldwell, 1972ALTASCAD 33 , [1972] 7 CCC (2d) 285 at 290-91 (ABCA); see also R v Pokojoy, 2013 ABQB 69 at paras 22-23, a decisionof McCarthy J of this Court. [89] In R v Cantrill, 2011 ABQB 273, Manderscheid J also reviewed the law of possession of controlled substances for thepurpose of trafficking.

At para 56, he said: Knowledge of illegal material forms the mens rea for possession, while control of the illegal material is the actus reus: R v Terrance, (SCC), [1983] 1 SCR 357, 147 DLR (3d) 724; R v Beaver, (SCC), [1957] SCR 531, 118 CCC 129.Control is typically an active process, for example a passenger in a stolen vehicle does not control that vehicle: R v Terrance. “[M]ereindifference or passive acquiescence” is not sufficient to establish control: R v Piaskoski, (ON CA), [1979] OJ No.1183, 52 CCC (2d) 316 (Ont CA).

Rather, possession requires at a minimum evidence that “... suggests such co-operation and activeassistance, going beyond mere indifference or negative conduct ...”: R v Hung, (ON CA), [1946] OR 187, [1946] 3DLR 111 (Ont CA).

[90] The Court in Pham agreed that constructive possession requires “knowledge which extends beyond mere quiescentknowledge and discloses some measure of control over the items to be possessed” (at para 15). [91] No firm rule is to be prescribed for inferring knowledge from occupancy, and occupancy alone may be insufficient toestablish knowledge: see Nguyen (Graesser J at para 48). Joint Possession [92] The Court in Pham addressed the essential elements of joint possession: [16] In order to constitute joint possession pursuant to s. 4(3)(

b) of the Code there must be knowledge, consent, and a measure ofcontrol on the part of the person deemed to be in possession. See Terrence (SCC), [1983] 1 SCR 357, 147 DLR (3d)724; R v Williams (1998), (ON CA), 40 OR (3d) 301, [1998] OJ No 2246 (CA); R v Barreau, (BCCA), [1991] BCJ No 3878, 19 WAC 290 (CA); and R v Chambers, (ON CA), [1985] OJ No 143, 20 CCC (3d) 440(CA). Circumstantial Evidence [93] The proof of constructive possession or joint possession, and particularly the elements of knowledge, consent, and control,must often be established by circumstantial evidence.

These elements can often be inferred from the context of the surroundingcircumstances: finding of narcotics in plain view or in common areas of the residence, the presence of a scale in a bedroom occupied bythe accused, or the evidence of trafficking occurring from a location under one’s control: R v Sparling, [1988] OJ No 107 (Ont HC) at 6,aff’d [1988] OJ No 1877; R v Aiello [1978] 38 CCC [2d] 485, (SCC), 30 NR 558 at 559 (ONCA), aff’d [1979] 2 SCR15; R v Nguyen, 2008 ABPC 286 at para 57 (Kerby PCJ). [94] Additionally, wilful blindness to the possession of narcotics is not an excuse: Nguyen (Graesser J at para 117); see also R vHan, 2006 ONCJ 427 at paras 45 & 47; R v Pearson, 2014 ABCA 379 at para 14, an appeal from Jones J of this Court; and Pokojoy atpara 36. [95] However, when relying upon circumstantial evidence, the determination reached by the Court must be “the only reasonableinference” of knowledge and possession: R v Jenner, 2005 MBCA 44 at para 11; R v Dipnarine, 2014 ABCA 328 at paras 2, 12;Nguyen (Graesser

J) at paras 53, 65); Pearson at paras 10, 21; R v Medhin, 2016 ABCA 214 at para 26; Pham at para 30. [96] A description of what might constitute “the only reasonable inference” was set out in Dipnarine at paras 22-24: [22] Circumstantial evidence does not have to totally exclude other conceivable inferences. If the trier of fact infers guilt because thealternatives do not raise a doubt in his or her mind, the verdict is not thereby unreasonable, ipso jure.

It is still fundamentally for the trierof fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt in the mind[s] of that trier. [23] The circumstantial evidence test is simply a category of analysis used to reach a conclusion regarding proof beyond a reasonabledoubt [citations omitted]. [24] Alternative inferences must be reasonable and rationale, not just possible… [97] In agreement, the Court in Pham said (at para 30): In assessing inferences for each piece of evidence, the reasonable doubt standard is not to be applied each time. [The Court is] to considerthe inference suggested against any other reasonable inference that can be drawn and attribute weight accordingly.

All of the evidencethat [the Court]...determine[s] merits weight is then assessed on the reasonable doubt standard. [98] In Medhin, our Court of Appeal confirmed that in considering whether circumstantial evidence supports an inference of guiltbeyond a reasonable doubt, it is not necessary to examine each individual circumstance in isolation; a trial judge is entitled to bring ameasure of common sense to bear on the analysis (at para 30). XI.

For the Purpose of Trafficking [99] Cantrill also addressed proof of intention of trafficking, indicating that such proof can be accomplished by the evidence ofnotebook pages as drug “score sheets”, the presence of multiple cell phones, firearms, and significant bundles of cash in appropriatedenominations (at paras 94-97, 111). [100] Generally, intention to traffick is inferred from the quantity of drugs seized, as being more than an average user would consumein a reasonable period of time. XII. Analysis of Possession, Joint and Constructive

Possession [ 101 ] It is clear that at the time the police arrived at the residence on March 19, 2014, Ms. Ammann had knowledge, control, and consent with respect to all of the drugs, drug paraphernalia, and cash located in her premises, except perhaps that found on the kitchen table. [ 102 ] Ms. Ammann clearly controlled the premises at 41 Warwick Road, Edmonton, as she was the only permanent resident. Drugs, drug paraphernalia, cash, the taser, and the drug “score sheet” were found in her Coach purse. Ms.

Ammann clearly had knowledge and control of the cash found in the Aveda bag, which she said she often took to the bank. She admitted that the contents of the blue and orange gym bag containing drugs, drug paraphernalia, and cash were hers. She admitted that the two one-litre bottles of GHB found in her kitchen refrigerator were hers. There were multiple scales and cell phones, and hundreds of baggies and Ziploc bags found in the house, on not only the kitchen table, but also elsewhere around the premises. [ 103 ] Not only did Ms.

Ammann have knowledge and control over all of those substances, but she clearly consented to those drugs, drug paraphernalia, and cash being on her premises. [ 104 ] With respect to the intention to traffick the drugs found on the premises, excluding the drugs on the kitchen table, that is clearly proven as well. Surveillance of her premises showed numerous comings and goings, with persons making deliveries to the side door of the premises over short periods of time, and at least in one instance, then making a delivery to another vehicle for a very short exchange. I accept that when Ms.

Ammann walked her pit bull dog down the block looking in one or more vehicle windows, she was looking for surveillance.

I accept that the Ziploc bags with the corners torn off and the knots tied in them, were evidence of repacking larger amounts of drugs into smaller amounts. [ 105 ] I accept Detective Pilon’s opinion that the methamphetamine and GHB found on the premises, other than perhaps that found on the kitchen table, were possessed for the purpose of trafficking based upon the amount of those drugs, the lack of any indicia of impairment from the persons found on the premises, the significant amount of money, cell phones, scales, baggies and the drug “score sheet” found on the premises.

I accept that the “score sheet” contained terminology consistent with drug trafficking. [ 106 ] I note that the various collections of cash found around the premises were consistent with the street value of one ounce of methamphetamine.

I note, with interest, that the stack of $20 bills on the kitchen table totalled $4,980, and that the stack of crisp bills in the gym bag amounted, according to Constable Parker, to $4,900, each roughly equivalent to the price of three ounces of methamphetamine at street value. [ 107 ] I accept the opinion of Detective Pilon that the amounts of methamphetamine and GHB on the premises were sufficiently significant to evidence trafficking rather than being used merely for personal consumption. [ 108 ] On the other hand, I have a reasonable doubt as to whether the methamphetamine and fentanyl found on the kitchen table were possessed by Ms.

Ammann with her knowledge, consent, and control. Detective Pilon said in relation to the three individuals in the premises on March 19, 2014, he could not provide an opinion as to which of them possessed those drugs nor which of them had possession for the purpose of trafficking. [ 109 ] The evidence of the police officers on surveillance was that Mr. Crossley arrived at approximately 12:04 am and carried a heavy, school-sized backpack into the residence, and that it was Mr. Crossley who was sitting at the table when the police entered the residence at 12:48 am. [ 110 ] The evidence of Ms. Ammann and Ms.

Dyck was that Ms. Ammann did go into the basement and at the time she did so, the large amount of methamphetamine and fentanyl found on the kitchen table by police was not present. Ms. Ammann’s evidence was that when she came back up the stairs to attend at the door, she was surprised at those drugs being displayed on the table. Although I have found the evidence of Ms. Ammann and Ms.

Dyck not to be credible, it is the only evidence on this point and it is not necessarily inconsistent with the police surveillance evidence. [ 111 ] As a result, on the third step in W(D) , I am not left in doubt by the evidence of Ms. Ammann, but on the basis of the evidence which I do accept, particularly that of the surveillance officers in the early morning hours of March 19, 2014, I do have a reasonable doubt as to whether the significant amount of methamphetamine and fentanyl found on the kitchen table was in the possession, knowledge, control, and with the consent of Ms. Ammann. Mr.

Crossley clearly could have brought the drugs into the premises and I have a reasonable doubt as to whether Ms. Ammann may have gained joint possession of those drugs over the short period of time from Mr. Crossley’s entry into the premises and the arrival of the police. XIII. Conclusion [ 112 ] Given the invitation of counsel for the Crown to acquit Ms.

Ammann of the charge that she was in possession of a prohibited weapon, a conductive energy device, while not being the holder of a license for that device, contrary to s 92(2) of the Criminal Code , I find her not guilty and acquit her on that charge. [ 113 ] Given the concession of counsel for Ms.

Ammann that she was in simple possession of cocaine, and cannabis marijuana in an amount not exceeding 30 grams, contrary to s 4(1) of the CDSA , I find her guilty on those two counts of simple possession of 0.5 grams of cocaine and 8.8 grams of cannabis marijuana. [ 114 ] Although defence counsel invited a conviction on simple possession of the methamphetamine and GHB contrary to s 4(1) of the CDSA , I find that the possession of those substances contained in the purses of Ms. Ammann and the rest of the house of Ms.

Ammann, but not those substances loose on the kitchen table, were for the purpose of trafficking, contrary to s 5(2) of the CDSA . I convict Ms.

Ammann of those offences for those quantities of methamphetamine and GHB for the purpose of trafficking, which I calculate to be 92grams of methamphetamine and 915 ml of GHB. I do not include in these quantities the 1,127.5 grams of methamphetamine found looseon the kitchen table. [115] No concessions in final arguments were made by counsel for the Crown or the defence with respect to possession of fentanyl forthe purpose of trafficking, contrary to s 5(2) of the CDSA, or possession of Canadian currency exceeding $5,000, knowing it wasobtained by the commission in Canada of an offence punishable by indictment, contrary to s 355(

a) of the Criminal Code. I find Ms.Ammann not guilty of the offence of possession for the purpose of trafficking of the 23.2 grams of fentanyl found loose on the kitchentable. I do find Ms. Ammann guilty of possession of Canadian currency in the amount of $9,137 knowing it was obtained by thecommission in Canada of an offence punishable by indictment.

I do not include in that amount the $4,980 found loose on the kitchentable. [116] This matter is set over for sentencing, and I would remind counsel to take into account on sentencing submissions the principalin R v Kienapple [Kienapple v R, (SCC), [1975] 1 SCR 729]. Heard on the 20th through 24th days of November, 2017. Dated at the City of Edmonton, Alberta this 18th day of December, 2017. K.P. Feehan J.C.Q.B.A. Appearances: Donald MacCannell Public Prosecution Service of Canada for the Crown Gary Strangway Strangway & Hennig for the Accused, Nicole Ray Ammann