R v Johnstone, 2019 ABQB 965

Court of Queen’s Bench of Alberta Citation: R v Johnstone, 2019 ABQB 965 Date: 20191217 Docket: 171500242Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Samantha Johnstone Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice W.N.

Renke _______________________________________________________ This is an edited version of an oral judgment. [ 1 ] Samantha Johnstone faces a five count Indictment, alleging that she, on or about the 21 st day of December 2017, at or near Edmonton, Alberta, did 1. unlawfully possess a controlled substance, to wit: methamphetamine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act ; 2. unlawfully possess a controlled substance, to wit: methamphetamine, contrary to s. 4(1) of the Controlled Drugs and Substances Act ; 3. unlawfully possess a controlled substance, to wit: cannabis marihuana in an amount less than thirty grams, contrary to s. 4(1) of the Controlled Drugs and Substances Act ; 4. unlawfully possess a controlled substance, to wit: N-methyl-3,4 methylenedioxyamphetamine, contrary to s. 4(1) of the Controlled Drugs and Substances Act ; and 5. did have in her possession (or carry) a weapon …, to wit: a knife, for a purpose dangerous to the public peace or for the purpose of

committing an offence, contrary to s. 88(1) of the Criminal Code of Canada . [ 2 ] Ms. Johnstone conceded guilt on count 2. The Crown did not proceed on count 3. [ 3 ] The controlled substances referred to in the counts 1 and 4 were found in a purse in a car. Ms. Johnstone had been in the driver’s seat of that car. Todd Yeomans was the passenger. The main issues are whether there are reasonable doubts about whether Ms. Johnstone possessed the purse found in the car, whether Ms.

Johnstone possessed the items found in her purse, and whether the contents of that purse supported the finding that the possessor of those items had the purpose of trafficking in a controlled substance; and whether Ms. Johnstone possessed a knife and, if she did, whether she possessed it for a purpose dangerous to the public peace. [ 4 ] All events occurred in Edmonton, Alberta on December 21, 2017.

The nature of the controlled drugs seized was not contested. [ 5 ] I will review the burden and standard of proof in the context of the nature of the Crown’s case, before turning to the assessment of the evidence bearing on the elements of the offences. There were no Charter applications. Table of Contents I. Burden and Standard of Proof and the Nature of the Crown’s Case . 3 A. Nature of the Crown’s Case . 3 B. Proof Beyond a Reasonable Doubt 4 C. Circumstantial Evidence . 5 II. Background . 7 III. Reliability of Cst. Feser’s Testimony . 10 A. Sincerity and Reliability . 10 B. Reliability Concerns . 10 C.

Assessment of Reliability . 11 IV. Personal Possession . 12 V. Possession of the Purse . 12 A. Pre-Arrest Observational Evidence . 12 B. Absence of the Identification Card from the Evidence . 13 C. Reliability of the Observations Concerning the Identification Card . 14 D. Significance of the Identification Card . 14 VI. Possession of the Contents of the Purse . 15 A. Statutory Provisions . 15 B. Exculpatory Evidence . 16 C. Criminal Record . 18 D. Assessment of Mr. Yeomans’ Testimony . 19 1. Consistency of Mr. Yeomans’ Account with Other Evidence . 20 2. Inconsistencies between Mr.

Yeomans’ Account and Other Evidence . 20 (

a) Failure to Cross-Examine . 21 (

b) Inconsistencies . 25 E. Conclusion respecting Possession of Contents of the Purse . 27 VII. Contents of the Purse and Trafficking . 27 A. The Offence . 27 B. Testimony of Sgt. Campeau . 27 C. Assessment 29

D. Conclusion respecting Possession for the Purpose of Trafficking. 32 VIII. Possession for a Purpose Dangerous to the Public Peace. 32 A. Statutory Provisions. 32 B. Possession of the Knife. 33 C. Purpose of Possession. 33 IX. Conclusion. 34 I. Burden and Standard of Proof and the Nature of the Crown’sCase A. Nature of the Crown’s Case [6] The Crown’s case against Ms. Johnstone was circumstantial. The Crown relied on no admissions, no observations oftrafficking. The Crown relied primarily on evidence linking Ms.

Johnstone to the purse found in the car and to the contents of that purseto support the conclusions that Ms. Johnstone possessed the purse and its contents and that she possessed the methamphetaminerecovered from the purse for the purpose of trafficking. Proof of dangerous purpose for the possession of the knife relied on yet furtherinferences. I must bear in mind two linked sets of principles when considering the circumstantial evidence, those concerning proofbeyond a reasonable doubt and those concerning the assessment of circumstantial evidence. B.

Proof Beyond a Reasonable Doubt [7] Circumstantial case or not, the reasonable doubt standard confirmed in s. 11(

d) of the Charter applies unaltered. Ms.Johnstone may be convicted of an offence only if, on all the evidence in the case, there is no reasonable doubt or reasonable possibilitythat she is innocent of that offence. See R v Villaroman, 2016 SCC 33, Cromwell J at para 25. [8] Ms. Johnstone relied not merely on the contention that the Crown’s evidence, taken as a whole, does not exclude reasonabledoubts relating to her innocence for some offences. As will be seen, through Mr.

Yeomans, she has tendered evidence to rebut theinferences required for her to be found in possession of any of the items in the purse relevant to counts 1, 4 and 5. This case, then, is avariant of a “W(D)” case (R v W(D), (SCC), [1991] 1 SCR 742).

While this case does not involve the inconsistenttestimonies of a complainant and an accused, it does involve a set of inferences the Crown seeks to establish through circumstantialevidence and testimony from a defence witness tendered to rebut the inferences sought by the Crown: R v Ryon, 2019 ABCA 36, PMartin JA at para 49. [9] In Ryon at para 51 and in R v Achuil, 2019 ABCA 299 at para 18 (respecting (ii) below), Justice Martin recently andhelpfully recast the elements of the assessment of the totality of trial evidence under the reasonable doubt standard (with somequalifications omitted): [51] [T]he charge [or a judge’s self-instruction] should impart the following information: (

i) The burden of proof is on the Crown to establish the accused’s guilt beyond a reasonable doubt and that burden remains on the Crownso that the accused person is never required to prove his innocence, or disprove any of the evidence led by the Crown …. (ii) In that context, if the accused’s evidence denying complicity or guilt (or any other exculpatory evidence to that effect) is believed, oreven if not believed still leaves the jury with a reasonable doubt that it may be true, then the jury is required to acquit .... (iii) While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not acredibility contest requiring them to decide that one of the conflicting versions is true.

If, after careful consideration of all the evidence,the jury is unable to decide whom to believe, they must acquit. (iv) Even if the jury completely rejects the accused’s evidence (or ... other exculpatory evidence), they may not simply assume theCrown’s version of events must be true. Rather, they must carefully assess the evidence they do believe and decide whether thatevidence persuades them beyond a reasonable doubt that the accused is guilty.

Mere rejection of the accused’s evidence (or ... otherexculpatory evidence) cannot be taken as proof of the accused’s guilt. [10] I have reminded myself of further aspects of proof beyond a reasonable doubt: (

a) When deciding whether the Crown has proven its case beyond a reasonable doubt, the evidence must be considered as a whole: R vMorin, (SCC), [1988] 2 SCR 345, Sopinka J at 361 - 362. (

b) The reasonable doubt standard applies to elements of the offence or “vital issues:” W(

D) at 757. The reasonable doubt standard doesnot otherwise apply to individual items of evidence: R v Campbell, 2015 ABCA 70 at para 44; R v BD, 2011 ONCA 51 at para 96.

(

c) The requirement that the Crown prove its case “beyond a reasonable doubt” does not require proof beyond “any” doubt - it is not astandard of absolute certainty - but the standard is one that excludes all “reasonable” doubts about innocence, doubts that are not merespeculation, or imaginary or frivolous, or based on sympathy or prejudice: R v Lifchus, (SCC), [1997] 3 SCR 320,Cory J at para 31. (

d) A reasonable doubt may be derived from the evidence or the absence of evidence: Lifchus at para 36; R v Balla, 2016 ABCA 212 atpara 52. [11] I have kept in mind that all, some, or none of the evidence of a particular witness may be accepted: R v JHS, 2008 SCC 30,Binnie J at para 10.

When applying the reasonable doubt standard I must apply the same level of scrutiny to Crown and Defenceevidence: R v Wanihadie, 2019 ABCA 402 at paras 33-36; R v Howe, , 192 CCC (3d) 480; [2005] OJ No 39 (ON CA),Doherty JA at paras 59 - 64; R v Norman, , 87 CCC (3d) 153, [1993] OJ No 2802 (ON CA), Finlayson JA at 24 - 25;R v Schell, 2013 ABCA 4 at para 34; R v MJB, 2015 ABCA 146 at para 33; R v McGown, 2016 ONCA 575 at para 96. C.

Circumstantial Evidence [12] When assessing circumstantial evidence, as Justice Cromwell warned in Villaroman, I must take care not to draw inferencesthat the evidence does not support. Justice Cromwell wrote as follows at paras 26, 27, and 30 of Villaroman: [26] .... There is a special concern inherent in the inferential reasoning from circumstantial evidence. The concern is that the jury mayunconsciously “fill in the blanks” or bridge gaps in the evidence to support the inference that the Crown invites it to draw. BaronAlderson referred to this risk in Hodge’s Case.

He noted the jury may “look for - and often slightly . . . distort the facts” to make them fitthe inference that they are invited to draw: p. 1137. Or, as his remarks are recorded in another report, the danger is that the mind may“take a pleasure in adapting circumstances to one another, and even straining them a little, if need be, to force them to form parts of oneconnected whole”: W.

Wills, Wills’ Principles of Circumstantial Evidence (7th ed. 1937), at p. 45; cited by Laskin J. in John, dissentingbut not on this point, at p. 813. [27] While this 19th century language is not suitable for a contemporary jury instruction, the basic concern that Baron Aldersondescribed - the danger of jumping to unwarranted conclusions in circumstantial cases - remains real .... [30] It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantialevidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt.

No particular language isrequired.

Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that suchevidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of “filling in the blanks” by tooquickly overlooking reasonable alternative inferences .... [13] As for the need to consider “reasonable alternative inferences,” Justice Cromwell warned in Villaroman at para 37 that [37] When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonablepossibilities” which are inconsistent with guilt: R v Comba, (ON CA), [1938] O.R. 200 (C.A.), at pp. 205 and 211, perMiddleton J.A., aff’d (SCC), [1938] S.C.R. 396; R. v.

Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v.Mitchell, [2008] QCA 394 (AustLII), at para. 35 .... [14] Justice Cromwell confirmed, though, that the alternative inferences, possibilities, or theories must be reasonable: [37] .... I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not needto “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of theaccused”: R. v.

Bagshaw, (SCC), [1972] S.C.R. 2, at p. 8. “Other plausible theories” or “other reasonable possibilities”must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

At para 42, Justice Cromwell clarified this point with a reference to R v Dipnarine, 2014 ABCA 328 at paras 22, 24-25: [22] Circumstantial evidence does not have to totally exclude other conceivable inferences .... [24] Alternative inferences must be reasonable and rational, not just possible .... [25] But the logic of the circumstantial evidence analysis is that if a trier of fact considers a postulated alternative

interpretation of thecircumstances taken as a whole to be unreasonable or irrational, the trier of fact is not bound to give effect to that alternative just becauseit is impossible to exclude it entirely. The law does not require such proof to absolute certainty .... [15] Finally, as in any case, the evidence must be considered as a whole. In circumstantial cases, the whole may be greater than theparts. The interaction between the elements of the case and the sheer improbabilities associated with the co-existence of the elements ofthe case with the innocence of the accused must be considered.

See R v Uhrig, 2012 ONCA 470 at para 13. However, as JusticePomerance warned in R v Wuschenny, 2018 ONSC 6765 at para 77, the improbability of coincidence (itself a basis for circumstantialinference) of two or more items of unreliable evidence cannot transform unreliability into proof beyond a reasonable doubt: [77] Logically, one piece of unreliable evidence cannot lend cogency to another piece of unreliable evidence. To hold otherwisewould be to allow the most dangerous form of bootstrapping.

Where evidence is of some probative value, it can combine with otherevidence of probative value and cumulatively amount to proof. When the evidence has been determined to be unreliable (as is the photolineup) or irrelevant (as is the accused’s semen on a T-shirt not shown to be connected to the crime), there is no utility in combining it. Ifevidence is unreliable or irrelevant it is of no probative value. Zero plus zero equals zero. In the worst case scenario, the equation mightyield something other than zero. It might prompt an erroneous conviction.

II. Background [ 16 ] On December 21, 2017 at about 9:40 p.m., Cst. Carina Correia and Cst. Callan Feser, both members of the Edmonton Police Service, were patrolling in a marked police vehicle near 118 Avenue and 79 Street in Edmonton. This is a high crime area. Cst. Feser was driving. [ 17 ] Cst. Feser (but not Cst. Correia) saw two individuals walking down an alley towards a lone car parked in a parking lot. It had been backed into the parking stall. The individuals got into the car. According to Cst.

Correia, the parking lot was “darker,” not lit by many street lights. [ 18 ] The police vehicle was “plainly visible,” in Cst. Correia’s words. Cst. Feser testified that the individuals would “most definitely” have seen the police vehicle approach. [ 19 ] Cst. Feser drove the police vehicle into the parking lot behind the car. Cst. Correia ran the licence plate on CPIC. The plate was recorded as stolen and Cst. Correia so advised Cst. Feser. Cst. Feser drove the police vehicle in front of the car and activated the emergency lights. The officers ordered the occupants to get out of the car. Cst.

Correia dealt with the driver, Ms. Johnstone. Cst. Feser dealt with the passenger, Mr. Yeomans. [ 20 ] Cst. Correia took Ms. Johnstone into custody, arresting her for possession of stolen property. [ 21 ] The time from the police vehicle driving into the parking lot to Ms. Johnstone’s arrest was short, in Cst. Feser’s estimation, only about a minute. Ms. Johnstone was arrested at 9:43 p.m. [ 22 ] After questioning Mr. Yeomans briefly near the car and searching him, Cst. Feser released Mr. Yeomans at the scene without charges. He walked away. [ 23 ] Upon arrest, Cst. Correia handcuffed Ms.

Johnstone and searched her. Cst. Correia testified that in Ms. Johnstone’s left jacket pocket she found a pink and white folding knife and a small amount of a substance in plastic wrap. Cst. Correia believed the substance to be a controlled drug, methamphetamine. Cst. Correia then arrested Ms. Johnstone for possession of a controlled substance. Cst. Correia put Ms. Johnstone in the rear of the police vehicle. [ 24 ] Cst. Correia’s recollection was that she gave the items she seized from Ms. Johnstone to Cst. Feser, who was serving as exhibit handler for this arrest. Cst. Feser recalled that Cst.

Correia handed him the substance in plastic wrap. The officers’ notes did not state the time that Cst. Correia gave any items to Cst. Feser. [ 25 ] Ms. Johnstone had identified herself but did not have an identification document on her person. Cst. Correia asked Cst. Feser to check for identification in the car. [ 26 ] Cst. Feser observed a cellphone in the car. It was “at the feet of where the driver would have been.” It was ringing, chiming, making noise, buzzing. It was seized. No evidence was tendered respecting communications received or made with the cellphone. [ 27 ] Cst.

Feser observed a black “purse” hanging from the headrest of the passenger seat. Cst. Feser confirmed the black colour several times in his evidence. At various points, he described the item as a purse, a satchel, a bag, a “normal purse,” and a “floppy leather purse.” Cst. Feser did not consider it to be a “murse” or man-purse. This item was not seized and no photograph was taken of it. The item, which I’ll refer to as a purse, was slung by its strap over the headrest of the passenger seat, hanging to the side of the seat (not behind the seat). [ 28 ] Inside the purse, Cst. Feser found a wallet/cellphone case.

Inside the wallet/cellphone case he observed an identification card with a photograph on it and Ms. Johnstone’s name. Cst. Feser told Cst. Correia that Ms. Johnstone’s name was confirmed. Cst. Feser did not compare the photograph to Ms. Johnstone. The identification card was not seized and no photograph was taken of it. [ 29 ] Cst. Feser could not recall whether the identification card was a driver’s licence or an Alberta identification card. He said that these “look identical.” He made no notes respecting the identification card. Cst.

Feser explained that he looked at the identification card just to confirm that Ms. Johnstone was who she said she was. He hadn’t seen the card as having any evidential value. Ms. Johnstone had not been charged with personation or obstruction. In re-direct, he stated that he was satisfied of her identity because her name matched the name on the identification card. [ 30 ] Cst. Feser searched the purse. He referred to his notes when providing the following testimony about the contents of the purse. [ 31 ] In the purse, Cst.

Feser found a Coach brand zippered wallet, a silver latch box, a knife, a marijuana grinder, rolling paper, Q- tips, and a blue coil notebook. Cst. Feser did not make note of and did not recall where in the purse these items were located in relation to one another – he didn’t know what was on top of what, what “order” things were in. The items were all in the purse. [ 32 ] Inside the Coach wallet was a working digital scale. It had a crystalline substance on it, but that substance was not analyzed.

Also inside the Coach wallet was $155 cash in four denominations. [ 33 ] Inside the silver latch box were (among other things), some clear baggies or plastic bags (about 20), a corner of a clear plastic bag containing a substance, a larger clear bag containing a white substance, a blue vial, and a green vial, and a baggie containing 1.6 grams of loose marijuana. The green vial contained about 1.6 grams of methamphetamine (exhibit 7). This substance was brown rather than white. Cst. Feser thought this was burnt methamphetamine. Sgt.

Campeau, whose expert evidence will be reviewed below, stated that this substance was not likely methamphetamine residue chipped from a pipe. That would be black. The brown colour of this substance could have resulted from the methamphetamine not having been washed in acetone. The blue vial contained 0.86 grams of

methamphetamine (exhibit 9). The larger clear bag contained 5.3 grams of methamphetamine (exhibit 11). The bag corner contained 0.79grams of MDMA (exhibit 13). [34] The notebook, however, was not listed as seized in Cst. Feser’s handwritten notes. Cst. Feser testified that he rememberedtaking the notebook out of the purse. He was “certain” that he had done so. He later testified concerning several loose documents andtheir connection to the notebook. He confirmed that the notebook was taken from the purse and the loose documents were found insidethe notebook.

Two loose pages were a handwritten letter to “Sammy.” Another document was a “card” with the word “Sammy” on thefront as well as the words “Dirty 13” and “a half STD.” Inside were the words “I’ll love you forever and for always,” and “Will loveyour dirty STD.” [35] Cst. Feser initially testified that he recovered a pink and white folding knife from the purse and that there was no knife otherthan this one. A pink and white folding knife was in evidence. In cross-examination, an entry in Cst. Feser’s handwritten notes was put tohim, indicating that he had seized a silver knife. Cst.

Feser did not know where the silver knife had gone. An “R6-A” property reportprepared and signed by Cst. Feser was put to him. The R6-A referred to the pink knife and the silver knife. One knife was sent fordestruction. In re-cross examination, Cst. Feser said that he remembered taking a knife from the purse but he does not know what colourit was. [36] Cst. Feser did not know whether Cst. Correia gave him a knife seized from Ms. Johnstone. She could have handed it to himbut he did not know.

He did not know if both knives (two knives) had been in the purse. [37] The marijuana grinder and rolling paper were not in evidence. Cst. Feser initially testified that these may have been returnedto Ms. Johnstone. The grinder may have been submitted for destruction along with the Q-tips. The R6-A confirmed that the grinder wassubmitted for destruction. [38] Cst. Feser said that if he had seized methamphetamine pipes, he would have noted the seizure. He had noted no pipes. TheR6-A, however, listed two glass pipes as having been recovered. Cst. Feser then confirmed that he did seize two pipes.

He did not knowwhere the pipes came from, whether from the purse or a person. The pipes were not tested or swabbed but, as indicated on the R6-A,were submitted for destruction. [39] Cst. Correia identified Ms. Johnstone in court as the person she had arrested. Cst. Correia had not made notes of thedescription of the person she arrested or the passenger. [40] Cst. Feser identified Ms. Johnstone in court as the person arrested by Cst. Correia. Cst. Feser referred to Ms. Johnstone’s hair,which was shaved on one side. He said that her hair was like that when she was arrested. However, in cross-examination, Cst.

Feserstated that when reviewing the file “leading up to trial” but “not within this year,” he had looked at a photograph of Ms. Johnstone in thepolice photograph database. III. Reliability of Cst. Feser’s Testimony A. Sincerity and Reliability [41] A credibility assessment concerns two sets of factors – on the one hand, a witness’s sincerity or commitment to tell the truth;on the other, the witness’s reliability or accuracy. A witness’s strength of belief that his or her account is true is not necessarilycorrelated with the accuracy of that account.

According to Justice Doherty in R v Morrissey, , 97 CCC (3d) 193 (ONCA) at 205: When one is concerned with a witness’s veracity, one speaks of the witness’s credibility. When one is concerned with the accuracy of awitness’s testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannotgive reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.

Justice Doherty indicated that the assessment of a witness’s reliability involves considering “the witness’s ability to accurately observe,recall and recount the events in issue.” See also R v HC, 2009 ONCA 56, Watt JA at para 41. [42] Cst. Feser’s sincerity or commitment to tell the truth was not at issue. I considered Cst. Feser to have made every effort torecall accurately what occurred. He was not at all defensive or argumentative and did not seek to explain away difficulties whenconfronted by them. He did not lack objectivity.

When apparent errors were pointed out he took responsibility for them. [43] There were difficulties with the reliability of Cst. Feser’s recollections, at least respecting certain seized items. B. Reliability Concerns [44] Cst. Feser’s memory failed him respecting (at least) the number of knives seized (two not one) and he resiled from his initialrecollection that he had seized the pink and white folding knife. He could not confirm that Cst. Correia had provided a seized knife tohim. Cst.

Feser failed to recall the disposition of the marijuana grinder and failed to recall that he had seized two meth pipes or thedisposition of those pipes. [45] The difficulties in Cst. Feser’s testimony stemmed from his failure to keep comprehensive notes. Cst. Feser kept some notesand did prepare the R6-A but his notes did not record all items evidently seized during the incident and did not record the transfer to himof items seized by Cst. Correia. [46] Memory itself may be an unreliable record. The mixing of facts from different cases, the recasting of initial recollections into

a recalled narrative, and the sheer passage of time may reduce the reliability of memory alone. The events occurred in late 2017. Cst. Feser has doubtless been involved in numerous drug-related arrests since this incident. He could not be expected to recall the specifics of what he did in this case. [ 47 ] This is why note-taking is so important for police officers. Justice Moldaver wrote in Wood v Schaeffer , 2013 SCC 71 at para 66 that [66] …. The importance of police notes to the criminal justice system is obvious.

As [the Honourable G.A.] Martin observed of properly-made notes: The notes of an investigator are often the most immediate source of the evidence relevant to the commission of a crime. The notes may be closest to what the witness actually saw or experienced. As the earliest record created, they may be the most accurate …. Justice Moldaver stated at para 67 “that police officers do have a duty to prepare accurate, detailed, and comprehensive notes as soon as practicable after an investigation. Drawing on the remarks of Mr.

Martin, such a duty to prepare notes is, at a minimum, implicit in an officer’s duty to assist in the laying of charges and in prosecutions ….” See also R v Mascoe , 2017 ONSC 4208 , Hill J at paras 112 – 115. C. Assessment of Reliability [ 48 ] Because of Cst. Feser’s note-taking deficiencies, the Defence urged that I draw “adverse inferences;” I should consider Cst. Feser’s evidence to be unreliable, particularly when the note-taking deficiencies are coupled with his memory lapses: see Defence Brief at paras 74, 145, and 152-159. [ 49 ] However, Cst.

Feser did not make no notes or only skeletal notes; there was no evidence that the notes he did make were not accurate. The notes were not complete. In some instances, Cst. Feser did keep written records, on the R6-A form but not in his notes. That is how we learned about the meth pipes and the disposition of seized items that did not become exhibits. It is not surprising that Cst. Feser did not have independent recollection of all the seized items.

The difficulty of relying on memory alone is the foundation for the need to keep contemporaneous notes. [ 50 ] I do not consider the gaps in the notes to undercut Cst. Feser’s reliability as a whole. The gaps do not support the inferences that what was noted and the memories the notes refreshed were unreliable. [ 51 ] Further, the gaps in the notes did not concern crucial evidence. For example, the presence or absence of meth pipes was extraneous to possession issues, and of little significance to the possession for the purpose of trafficking issue.

A person who possessed methamphetamine for the purpose of trafficking might or might not personally use methamphetamine. The possession for the purpose issue turned on evidence other than the meth pipes. [ 52 ] I will consider Cst. Feser’s testimony about the seized knives below. [ 53 ] The Defence Brief emphasized that Cst. Feser did not make notes of the locations of items seized in the purse: see Defence Brief at paras 145, 156, 159, 176, 177.

As will be discussed below concerning R v Bjornson , 2018 ABCA 282 , the location of items in a vehicle may be important to assessing whether an accused had the knowledge necessary for constructive possession to be established. The relative location of items inside a purse has no such importance. What is important is that the items were found within the purse, not whether an item was to the left or to the right or above or below another item. There was no evidence that suggested purse contents were deposited in any sort of rigid strata.

There was no evidence that would attach probative value to the stratum of materials where a particular object was found in the purse. The relative location of items, in particular, did not have probative value on the issue of whether Mr. Yeomans’ testimony raised at least a reasonable doubt. [ 54 ] The Defence Brief emphasized that Cst. Feser did not take photographs of items that did not make their way into evidence, such as the purse and Ms. Johnstone’s identification card: see e.g., at paras 154, 155. Taking photographs would have been easy. Taking photographs may have been prudent.

But I do not view police officers’ note-taking obligation to include an obligation to supplement notes with photographs or audio or audio-visual recordings. Generally, police officers have discretion respecting what they consider sufficiently significant to record. Justice Miller confirmed in R v Medwed , 2011 ABQB 231 at para 3 that [3] Upon reviewing the authorities it can be safely stated that an officer is required to note “significant observations”, but the officer is permitted a wide degree of discretion in deciding what is “significant” and how detailed the notes must be ….

The failure to photograph the purse and identification card was not a violation of any duty owed by Cst. Feser. Photographs might have supported the narrative of events provided by Cst. Feser and reduced prospects for challenge. The case must simply be decided on the evidence that there was. And this is not a case where any significant inferences can be drawn from the absence of evidence. [ 55 ] While Cst. Feser’s testimony must be assessed in light of all of the evidence, and while I may accept all, some, or none of his testimony, I do not consider Cst.

Feser’s testimony to be tainted through and through with unreliability. IV. Personal Possession [ 56 ] The plastic-wrapped substance found in Ms. Johnstone’s jacket pocket was 1.1 grams of methamphetamine (exhibit 12). This substance was in Ms. Johnstone’s personal possession as contemplated by s. 4(3) (

a) of the Criminal Code . There was no evidence that Ms. Johnstone’s possession of the substance was authorized under the CDSA regulations. She properly conceded guilt for count 2 of the Indictment.

[ 57 ] The s. 88 offence concerning the knife will be considered below. V. Possession of the Purse [ 58 ] A foundational factual issue for the remaining counts is whether Ms. Johnstone possessed the purse in the car. If she did not possess the purse, counts 1 and 4 and possibly count 5 would collapse. Four questions arise. First, did the pre-arrest observational evidence establish that Ms. Johnstone possessed the purse? Second, is a fatal inferential gap caused because the identification card was not entered as an exhibit? Third, do reliability concerns respecting Cst.

Feser’s evidence support a reasonable doubt as to whether Ms. Johnstone possessed the purse? Fourth, what is the inferential effect of the Cst. Feser’s testimony about the identification card? A. Pre-Arrest Observational Evidence [ 59 ] The observational evidence prior to Cst. Feser’s search of the purse was as follows: • Cst. Feser but not Cst. Correia saw two individuals walk to and get into the car. Cst. Correia saw two individuals in the car but did not see (or did not recall seeing) them get in. • Cst. Feser did not testify that he saw either individual holding any object before getting into the car. Cst.

Feser testified that he had no recollection of what either individual was carrying or whether Mr. Yeomans carried the purse. • Neither officer testified that he or she saw either occupant of the car holding or otherwise touching the purse. • Ms. Johnstone had keys to the car but there was no evidence that she was the registered owner of the car, or that she had the keys in her possession or operated the car at any time prior to being observed by the officers. [ 60 ] What the officers observed, then, were two people in a car for at most about two or three minutes. Neither was seen bringing the purse to the car.

The evidence, then, did not establish how long the car had been in the parking lot, whether Ms. Johnstone had been in the car prior to being observed in the car by the officers, whether the purse was in the car before Ms. Johnstone got into the car (or how long the purse had been in the car), or whether Ms. Johnstone had a possessory interest in the car at any time prior to having been observed by the officers. Moreover, Mr. Yeomans was also observed to have been an occupant of the car and no pre-arrest observational evidence excluded a link between Mr. Yeomans and the purse.

The lighting conditions in the parking lot were poor and it was night.

There was no evidence about whether the interior lights of the car were activated when the individuals got into the car (that is, the evidence did not exclude the inference that the occupants failed to see the purse in the car, in the dark conditions of the parking lot). [ 61 ] There was some later evidence, to which I shall return, that the purse was in fact a blue “murse” or “man-purse,” but these details do not affect the inferential value of the evidence. [ 62 ] Were the pre-arrest observational evidence the only evidence relied on to link Ms.

Johnstone and the purse, the Crown would have failed to establish beyond a reasonable doubt that Ms. Johnstone possessed the purse. The evidence would support the reasonable inference that (e.g.) the purse was in the car prior to her getting into the car and the evidence would not establish that she knew the purse was present in the car, given the lack of lighting, the location of the purse, and the short time she was observed to have been in the car. B. Absence of the Identification Card from the Evidence [ 63 ] Cst. Feser, though, testified that he saw Ms. Johnstone’s identification card in the purse.

Again, neither the purse nor the identification card were in evidence, whether directly or by photograph. Cst. Feser made no notes about any distinctive features of the identification card. Cst. Feser did not recall whether the document was a driver’s licence or an Alberta identification card. He testified that he did not compare the photograph on the document to the arrestee. [ 64 ] The Crown relies on the identification card as a key link between Ms. Johnstone and the purse. For the Crown to establish that Ms.

Johnstone possessed the purse, must the identification card itself be in evidence? [ 65 ] The identification card itself need not be in evidence. The observational evidence of Cst. Feser, describing a relevant item that was in the purse, could suffice to establish the presence of the item in the purse. The probative value of the observation would be more secure if supported by real evidence, but the absence of real evidence does not preclude a finding that the identification card having the features described by Cst. Feser was in the purse. [ 66 ] Properly, there was no objection to Cst.

Feser’s report of his observations respecting the identification card. In particular, his report was not inadmissible on hearsay grounds. I will return to this issue below, but at this juncture, it suffices to point out that what Cst. Feser reported was relevant not because of the “truth of the contents” of the identification card but because of the fact that Ms. Johnstone’s identification card, a document bearing her name, was found in the purse. The observation of the precise collection of letters that spelled her name made his observational report relevant. C.

Reliability of the Observations Concerning the Identification Card [ 67 ] Regardless, given the memory failures and lack of notes, if the link between Ms. Johnstone and the purse rested only on Cst. Feser’s memory, the link between Ms. Johnstone and the purse could be cracked by reasonable doubt. Context, though, provided further evidence. [ 68 ] Cst. Correia asked Cst. Feser to confirm the arrestee’s name by finding identification. Cst. Feser found the identification card

in the wallet/cellphone case in the purse and confirmed the name to Cst. Correia. Had the name he observed not matched Ms.Johnstone’s name, events would not have unfolded as they did. There would have been some additional investigation of the arrestee andperhaps an additional charge laid. That events unfolded as testified to by Cst. Correia and Cst. Feser is evidence that Cst. Feser didindeed view the identification card and confirm that the name on the identification card was Samantha Johnstone. [69] Further, Cst. Feser testified that the blue notebook was found in the purse.

The blue notebook contained the handwritten letterto “Sammy” and the card with the word “Sammy” on it. Ms. Johnstone’s first name is Samantha. Sam (as Mr. Yeomans referred to her)and Sammy are both familiar variations, short-forms, or diminutives of the name Samantha. The presence of the “Sammy” itemscorroborates Cst. Feser’s testimony respecting the identification card and indeed was independent evidence that the purse was linked toMs. Johnstone. [70] I find, beyond a reasonable doubt, that Cst. Feser did see an identification card bearing Ms. Johnstone’s name in thewallet/cellphone case in the purse. D.

Significance of the Identification Card [71] What, then, can be made of the fact that Ms. Johnstone’s name was found in the purse? In my opinion, this is evidence fromwhich it can be inferred that she possessed the purse. Again, this is not to use identification as a form of hearsay, as if the identificationdocument implicitly stated “The person identified owns the property in which the document is found.” Rather, it is the fact that the nameof Ms. Johnstone – the precise words that constitute her name - was found on an identification card in the purse that is relevant. Thepresence of Ms.

Johnstone’s name in the purse is circumstantial evidence relevant to whether Ms. Johnstone had possession of the pursein which her name was found. The reasoning is that the presence in a place (such as a purse in a car) of a document bearing the wordsconstituting an individual’s name is some evidence that the individual has a connection to that place. There may, of course, be alternativereasons for documents with a person’s name being in that place, but the other reasons would have to be supported by evidence.

See R vLydon (1987), 85 Cr App R 221 (CA), Woolf LJ at 223-225, R v Rice, [1963] 1 QB 857 (CCA), R v Emes (2001), 157 CCC (3d) 124, (ON CA), R v Unger, 2016 ABPC 46; R v Wiggins, 2014 ABQB 40, Thomas J at para 13. In this case, there was noevidence supporting a reasonable inference that the presence of the identification card bearing Ms. Johnstone’s name was (e.g.) a resultof chance or caused by some third party putting the identification card in the purse. As for this last point, the Defence evidence, to whichI shall return, provided no foundation for an inference that Ms.

Johnstone’s name was put into in the purse by someone other than her. [72] The presence of the name on an identification document – whether a driver’s licence or an Alberta identification card –supports the circumstantial inference. It is unlikely that my identification would be in your purse or wallet. It is likely that myidentification would be in my wallet. [73] Further, the identification document was found not only in the purse but in a wallet in the purse. This is precisely where theidentification document of the owner of the purse would likely be found.

This too provides circumstantial support to the inference thatthe person named on the identification had possession of the purse. [74] And the presence in the notebook of the Sammy documents supports the inference that the purse in which those documentswere found, along with the identification card, belonged to Ms. Johnstone. [75] And finally, Ms. Johnstone’s concession respecting count 2 puts her at the scene of the offence and forestalls any issue ofidentification. [76] The purse was found in a car occupied by Ms. Johnstone, who had keys to the car and was sitting in the driver’s seat.

Thepurse was beside the driver’s seat. An identification document with her name on it was found in the purse, in a wallet. The notebookcontaining two documents with short-forms of her first name was also found in the purse. This evidence establishes, beyond a reasonabledoubt, that Ms. Johnstone knowingly possessed the purse, by having it in a place (the car) occupied by her, for her use or benefit,satisfying the requirements of s. 4(3) of the Criminal Code. It was her purse. [77] This fact is foundational for the evidential issues that follow.

I shall consider, given the peculiar circumstances of this case,whether Ms. Johnstone possessed not only the purse but the relevant purse contents, then whether the contents of the purse support thefinding that those contents were possessed for the purpose of trafficking methamphetamine. VI. Possession of the Contents of the Purse [78] The CDSA s. 5(2) offence requires a finding that an accused “possess” a controlled substance for the purpose of trafficking. A. Statutory Provisions [79] Subsection 4(3) of the Criminal Code applies to CDSA charges under CDSA s. 2(1): 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 ... (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.... (

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.

[80] With respect to s. 4(3)(a)(ii), Justice Fish described the elements that the Crown must prove beyond a reasonable doubt toestablish possession in a place in R v Morelli, 2010 SCC 8 at para 17: [17] Constructive possession is established where the accused did not have physical custody of the object in question, but did have it“in the actual possession or custody of another person” or “in any place, whether or not that place belongs to or is occupied by him, forthe use or benefit of himself or of another person” (Criminal Code, s. 4(3)(a)).

Constructive possession is thus complete where theaccused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not thatplace belongs to him, and (3) intends to have the object in the particular place for his “use or benefit” or that of another person. See Bjornson at para 19. [81] Circumstantial proof of knowledge often depends on the location of drugs as compared to the location of the accused.

See, forexample, the Court of Appeal’s comments in Bjornson at para 26: [26] … there was no evidence about the location of drugs and the drug paraphernalia inside the van. Consequently, there was noevidence about whether the drugs were visible to Mr. Bjornson from the driver’s seat, close to him or accessible to him.

Courts haveoften declined to find knowledge of the presence of drugs where the drugs are not visible, accessible or close to the accused: R vGordon, 2011 ONSC 5650, 97 WCB (2d) 182 (drugs not visible and vehicle not owned by the defendant); R v Grey, , 28OR (3d) 417 (Ont CA) (drugs not visible, defendant did not own the room where drugs found and others had access to the location); R vDouglas (1974), (ON CA), 18 CCC (2d) 189, [1974] OJ No 535 (Ont CA) (contraband found under mat and noevidence the accused owned the truck or had driven it before). [82] The last element of possession under s. 4(3)(

a) requires proof of control over the object in the place: R v Chambers, , 1985 CarswellOnt 1388, [1985] OJ No 143, 20 CCC (3d) 440 (ON CA), Martin JA at para 14 (CarswellOnt); R v Chalk,2007 ONCA 815 at paras 17 and 18; R v Mohamad, , 69 OR (3d) 481, [2004] OJ No 279 (CA) at paras 60 - 63; R vPham, , 203 CCC (3d) 326, affd 2006 SCC 26, at para 15. [83] With respect to s. 4(3)(b), while control may not be an element of possession, this form of possession is not established if anaccused did not consent to possession or if an accused only “passively acquiesced” to another’s possession: R v Williams (1998), (ON CA), 125 CCC (3d) 552 (ON CA); R v Marshall (1968), 3 CCC 149 (AB CA).

B. Exculpatory Evidence [84] Ordinarily, the inference from possession of a purse to the inference of possession of the contents of the purse would bestraightforward. Knowledge of the contents and control over the contents in the purse would be the natural and irresistible inference. Oneordinarily has control over one’s personal property, such as a purse sitting close at hand. One ordinarily knows what is in a bag onecarries, whether this is a purse, a computer bag, or a shopping tote. This is especially so when relatively bulky items, such as the Coachwallet, the scale, and the silver latch box are considered.

It would be extraordinary not to be aware of these sorts of items in one’s purse,and some evidence would be necessary to take the claim of ignorance from speculation to reasonable doubt. [85] This case has a peculiar feature, though. When it came time for the Defence to open its case, Mr. Yeomans walked into theCourtroom. He testified. This was the same Mr. Yeomans released at the scene by Cst. Feser. [86] Mr. Yeomans testified that the drugs and drug paraphernalia found in the purse had been his. These materials had been in hispersonal possession, in the pockets of his winter jacket. [87] He and Ms.

Johnstone had been at a friend’s home. They had parked in the parking lot. As he and Ms. Johnstone walkeddown the alley back to the car, he saw the police cruiser approach. He and Ms. Johnstone got into the car. The police (as Cst. Correiaand Cst. Feser had testified) drove behind the car, before driving in front of the car, putting on the emergency lights and ordering himand Ms. Johnstone from the car. Mr. Yeomans confirmed that only about 2-3 minutes passed from the time the police vehicle went to theback of the car to he and Ms.

Johnstone being ordered to get out of the car – a slightly longer period of time than referred to by Cst.Correia and Cst. Feser. [88] At the material time, Mr. Yeomans was intoxicated. He was high on methamphetamine, cocaine, and a little liquor. Heclaimed, though, that the methamphetamine heightened his awareness. His ability to recall was enhanced. [89] Mr. Yeomans had just gotten out of jail and did not want to return. He did not want to be found in possession of drugs. [90] When he got into the car, he quickly stuffed the contents of his pockets into the purse.

He described this as a blue “murse” (orman-purse). [91] He testified that he put a metal container, a “silver tin with a latch on front”, a scale, some drug baggies, and “a vial or two” inthe purse. In cross-examination, he said he “possibly” put some money in the purse, but he did not remember how much. He said thatinside the silver tin (my “pack and go, get-high tin”) was meth (crystal meth, maybe some MDMA), more baggies, a vial or two. He didnot remember putting any knives in the purse. [92] Mr. Yeomans testified that one of the vials contained MDMA. The other, pipe scrapings. [93] Mr.

Yeomans testified that a meth pipe should have been recovered by the police. [94] Mr. Yeomans stated that he had purchased the drugs in Red Deer earlier in the day. He had paid about $300. He “bought

almost 28 grams.” He had sold some and he “did” some. Just prior to incident with the police, he had no more than 10 grams, less than10 grams left. [95] He stated that Ms. Johnstone did not see him stashing the drugs. She was occupied: She was trying to unfog the window of thecar. She was getting the heater going and playing with the settings. It was wintertime. [96] Mr. Yeomans did not know that the car’s licence plate was stolen. [97] He believed that the police would not search the interior of the car and would not search the purse. [98] Mr.

Yeomans testified that he did not tell the police that the drugs and associated items were his, because he “don’t make ahabit of talking to the police.” [99] Mr. Yeomans testified that he and Ms. Johnstone were arrested and they were both put in the back of the cruiser. While therethey had a conversation. Ms. Johnstone agreed to bear the charges because she knew he had just gotten out of jail and she believed she’dget out on bail. [100] In cross-examination, Mr. Yeomans denied having discussed his testimony with anyone.

He had only contacted Defencecounsel’s assistant, advised that he had information on a client and “wanted to come clean.” He was provided with a court date andinstructions for picking up a subpoena. [101] If Mr. Yeomans’ testimony about his deposit of the items in the purse were to raise at least a reasonable doubt in the context ofthe evidence as a whole, Ms. Johnstone could not be convicted on count 1 (possession for the purpose of trafficking) or count 4(possession of MDMA) under s. 4(3)(a)(ii). Ms. Johnstone would not have “had” the items in the purse for her benefit. Mr.

Yeomanswould have put them there, on his evidence, without her consent. Possession could not be established by one person foisting physicalpossession on another. [102] Further, even if Ms. Johnstone could be inferred to have known what Mr. Yeomans was doing, a reasonable doubt would ariseunder s. 4(3)(b), since the deposit of the items in the purse was without her consent. At best, with the officers outside the car, she wouldhave passively acquiesced to Mr. Yeomans putting the items in her purse. C. Criminal Record [103] Mr.

Yeomans admitted in cross-examination to an extensive criminal record, stretching back some 17 years. He admittedconvictions for “dishonesty” offences including two fraud convictions and a personation conviction in 2014; in 2015, convictions foruttering forged documents, possession of stolen property, and attempted theft; in 2015 and 2016, convictions for obstructing a policeofficer by lying; in 2017, convictions for possession of stolen credit cards and possession of stolen property; in 2018, a conviction forpersonation. [104] Mr. Yeomans’ criminal record is relevant to my assessment of his credibility.

As Chief Justice Dickson observed in R vCorbett, [1988] 1 SCR 670, at para 22 , There can surely be little argument that a prior criminal record is a fact which, to some extent at least, bears upon the credibility of awitness. Of course, the mere fact that a witness was previously convicted of an offence does not mean that he or she necessarily shouldnot be believed, but it is a fact which a jury might take into account in assessing credibility.

Justice LaForest wrote in Corbett at para 155 , for the majority on this point, that Clearly, the probative value and prejudicial effect of a previous conviction are directly affected by the nature of that conviction. As theCourt of Appeals, D.C. Circuit, stated, in Gordon v.

United States, 383 F.2d 936 (1967), at p. 940: In considering how the District Court is to exercise the discretionary power we granted, we must look to the legitimate purpose ofimpeachment which is, of course, not to show that the accused who takes the stand is a “bad” person but rather to show background factswhich bear directly on whether jurors ought to believe him rather than other and conflicting witnesses.

In common human experienceacts of deceit, fraud, cheating, or stealing, for example, are universally regarded as conduct which reflects adversely on a man’s honestyand integrity …. [emphasis added] The adverse reflections on his credibility by his criminal record suggest a reduction of the probative value of Mr. Yeomans’ testimony.The Crown very properly pointed out at para 133 of the Crown Brief that Yeomans’ criminal record mandates that, at a minimum, the Court should handle his evidence with caution. To be clear, the Crown isnot suggesting that his evidence should be rejected on this basis alone.

A witness’ testimony should not necessarily be set aside solelybecause of their criminal history, particularly where the guilt of an accused person hangs in the balance. [105] The Crown pointed out to Mr. Yeomans that he had no drug possession or trafficking convictions. Mr. Yeomans said this wastrue. He had been acquitted. He referred to a 2016 acquittal on drug trafficking charges in Red Deer. D. Assessment of Mr. Yeomans’ Testimony [106] Despite Mr. Yeomans’ criminal background, since he is a Defence witness, I should not give myself a Vetrovec warningrespecting his testimony.

His evidence is to be assessed from a W(

D) perspective: R v Ryan, 2015 ABCA 85, Martin JA at para 24. Histestimony must be assessed in the context of the evidence as a whole.

[107] Mr. Yeomans testified that he was under the influence of both drugs and (a little) alcohol. He offered that his methamphetamineconsumption enhanced his memory. That was a neuropsychopharmacological opinion of uncertain validity on the evidence. I am not in aposition to take judicial notice of the effects on memory of methamphetamine consumption, particularly when coupled with both cocaineand alcohol consumption. I will set aside Mr. Yeomans’ drug consumption as a neutral credibility factor. [108] Mr. Yeomans was a friend of Ms. Johnstone.

The mere fact of friendship does not, by itself, undermine his testimony. JusticeCharron warned in R v Laboucan, 2010 SCC 12 at para 11 that [11] …. A trier of fact, however, should not place undue weight on the status of a person in the proceedings as a factor going tocredibility. For example, it would be improper to base a finding of credibility regarding a parent’s or a spouse’s testimony solely on thebasis of the witness’s relationship to the complainant or to the accused. Regard should be given to all relevant factors in assessingcredibility.

See also R v Murray (1997), (ON CA), 115 CCC (3d) 225; (ON CA), Charron J, as she then was,at 8. 1. Consistency of Mr. Yeomans’ Account with Other Evidence [109] Some aspects of Mr. Yeomans’ account fit with other evidence. [110] His account of the pre-arrest activity of the police matches the account of Cst. Correia and Cst. Feser. Mr. Yeomans did notsuggest that he put anything in a purse on the way to the car. Cst. Feser did not observe such activity. [111] Mr.

Yeomans’ disinclination to be arrested for possession of drugs, particularly given that he had only been recently releasedfrom custody, could be a reasonable motive. [112] Mr. Yeomans claimed that he did not know that the car had a stolen plate. To that extent, he did not have grounds for believingthat Ms. Johnstone’s purse would be searched. Whether he knew that Ms. Johnstone herself was carrying some drugs was not addressedin his testimony. [113] The officers did not see Mr. Yeomans putting anything in the purse. Neither Cst. Correia nor Cst.

Feser testified to seeing eitheroccupant of the car doing anything suspicious with their hands. From one perspective, an inference would be that they did not see whatMr. Yeomans was doing. [114] Mr. Yeomans would have had an opportunity to put the contents of his pockets into the purse from the time that he got into thecar until the time he was ordered out of the car. [115] The quantity of drugs that Mr. Yeomans claimed was left (less than 10 grams) is consistent with the quantity of drugsrecovered. [116] The items Mr.

Yeomans claimed to have deposited in the purse were essentially those recovered, a “silver tin with a latch onfront,” a scale, some baggies, and “a vial or two.” He was right that one of the vials contained MDMA, the other somemethamphetamine. He was also right that a meth pipe was one of the items located in the search. [117] Finally, one might argue that Mr. Yeomans’ criminal history was entirely consistent with his conduct during the arrest. Hewould not be inclined to talk to the police. He would be happy to lie, in this instance by omission, about being in possession of drugs.

Hecould be expected to have avoided responsibility by allowing another to be charged for a crime she did not commit. [118] Some other aspects of Mr. Yeomans’ testimony were inconsistent with the other evidence. 2. Inconsistencies between Mr. Yeomans’ Account and Other Evidence [119] Mr. Yeomans claimed that the vial that did not contain MDMA contained “pipe scrapings.” Cst. Feser was of the same view. Incontrast, Sgt. Campeau had testified that this brownish methamphetamine took its colour from a lack of acetone wash. He stated that ifthe meth were residue, it would be black from having been burned.

He also stated that scraping meth from a pipe bowl was not a sensiblepractice (at least on the assumption that the drugs were being used) since residue could be cooked and smoked on next use. Some moredetailed pharmacological evidence would be necessary to sort out this inconsistency and I do not take this inconsistency to undermineMr. Yeomans’ testimony. [120] Mr. Yeomans claimed that he bought the drugs in Red Deer, about 28 grams, for about $300. Sgt. Campeau, though, hadtestified that meth sold for about $10 per point or 0.1 grams. Twenty-eight grams should have cost about $3000 not $300.

The evidencedid not deal with price differentials between Red Deer and Edmonton, although one might infer that the price would be lower inEdmonton because there would be greater supply and lower transportation costs, with Edmonton being a more likely destination thanRed Deer for drug production or importation. However, meth could be cooked in Red Deer and exported. More detailed evidence wouldbe necessary to sort out this inconsistency as well and I do not take this inconsistency to undermine Mr. Yeomans’ testimony. [121] Cst. Feser described the purse as black and Mr. Yeomans described it as dark blue.

I do not regard this minor inconsistency assignificant, particularly given the poor lighting conditions in the parking lot. Either could be right or wrong; perhaps both were wrong(the object could have been a very dark green, for example). [122] Cst. Feser referred to a purse whereas Mr. Yeomans referred to a murse (later he did refer to it as a “unisex” bag). Stylisticdetails were not provided by either witness. As the object was not in evidence, it could not be determined whether it would have beenbest described as a murse or purse, and its characterization may well have been a matter of (mere) opinion.

It was a form of personal bag,

not just, for example, a dark plastic shopping bag. I regard the conflict in the evidence on this point as insignificant. (

a) Failure to Cross-Examine [123] The Defence asserted that, on the authority of Browne v Dunn (1893), 1893 CanLII 65 (FOREP), 6 R 67 (HL), because theCrown failed to cross-examine Mr. Yeomans on specific points of contrast between Mr. Yeomans’ testimony and Cst. Feser’s testimony,the Crown cannot invite the trier of fact (or perhaps the trier of fact is prevented) from drawing inferences adverse to Mr. Yeomans’credibility based on contrasts between Mr. Yeomans’ testimony and Cst. Feser’s testimony. [124] I will set aside the failure by the Defence to raise Browne v Dunn at the close of Mr.

Yeomans’ cross-examination or to applyto re-examine Mr. Yeomans following the close of cross-examination, that is to say, while Mr. Yeomans was still present in court in thewitness box. [125] In R v Sawatzky, 2017 ABCA 179, the Court of Appeal described the rule in Browne v Dunn as follows at para 23: [23] Where a party intends to impeach a witness who was called by his or her opponent, or present evidence contradicting thatwitness, the party should direct the witness’s attention to the contradictory evidence.

The contradictory evidence should be put to thewitness during cross-examination, so that the witness has an opportunity to address or explain the contradictory evidence. If the witnessis not cross-examined on any such matters of significance, the trier of fact may consider the failure to cross-examine the witness whenassessing the witness’s credibility or the credibility of any contradictory evidence …. The Court of Appeal explained at para 24 that [24] ….

The rule is rooted in concerns about fairness – specifically, fairness to the witness (who should have an opportunity toaddress the contested point), fairness to the opposing party (who should understand what aspects of its witness’s evidence are contested),and fairness to the trier of fact (who otherwise might not have the information necessary to properly assess the witness’s credibility) …. [126] The rule is usually invoked if a party fails to cross-examine another party’s witness on a point of substance, but subsequentlyleads evidence in its own case (whether testimony or other evidence) to contradict the opponent’s witness.

In these circumstances, theopponent’s witness was not given a chance to provide an explanation. These were not the present circumstances. However, I accept thatthe rule in Browne v Dunn might extend to a failure to cross-examine a witness, even though subsequently no contradictory evidencewere called but the witness was “impeached” in submissions, for example by reference to evidence called prior to the cross-examination:see R v II, 2013 ABCA 2 at para 17 and Sidney N. Lederman, Alan W. Bryant and Michelle K.

Fuerst, Sopinka, Lederman & Bryant:The Law of Evidence in Canada, 5th ed at §16.213: §16.213 The rule applies not only to contradictory evidence, but to closing argument as well. In Browne v.

Dunn, Lord Halsbury added: To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as togive them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, nothaving given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has beendirected either to their credit or to the accuracy of the facts they have deposed to. [footnote omitted] See also R v McCarroll, 2008 ONCA 715 at paras 107-108. [127] In this case, all of the evidence contrasting with Mr.

Yeomans’ evidence was heard before he testified, in the Crown’s case.There could have been no unfairness to the Defence. The Defence heard all the evidence that was inconsistent with Mr. Yeomans’testimony. (The Defence took no steps to correct any unfairness while Mr. Yeomans was yet present.) Fairness to the Defence, though, isdistinct from fairness to Mr. Yeomans, the witness. [128] The Crown’s cross-examination of Mr. Yeomans certainly challenged his testimony as a whole. The suggestion of the cross-examination, rejected by Mr. Yeomans, was that his account was a fabrication. Mr.

Yeomans’ criminal record was the subject of cross-examination. Mr. Yeomans eventually admitted that he was a convicted liar. It was put to Mr. Yeomans that he had discussed hisevidence with Ms. Johnstone. Mr. Yeomans denied this. It was put to Mr. Yeomans that his testimony was not truthful. He denied this. Itwas put to Mr. Yeomans that he did not place any items into the purse. He denied this as well. It is fair to say that Mr. Yeomans waschallenged in the witness box and it was made plain that his evidence was not accepted: II at para 17.

Justice Martin’s comments inRyan at para 53 are apt: [53] In the final analysis, Sheppard was put on notice by the prosecutor in direct examination that the Crown did not believe any partof the accident scenario. Accordingly, Sheppard was able to offer any other information or explanation which might support it, both indirect examination and during cross. Thus, the rule in Browne v Dunn, if it applied at all in these circumstances, which I doubt, was notviolated. [129] The cross-examination, however, did not put the details of Cst.

Feser’s testimony respecting the contents of the purse to Mr.Yeomans, with some minor exceptions. Mr. Yeomans was asked whether he put anything else into the purse beside the tin and the scale.Except for some baggies, he said no. He confirmed that he did not put any “wallet sized bags” into the purse (although what exactly wasmeant by the question was, I accept, not clear).

He denied putting any knives in the bag. [130] The Defence Brief asserted at para 91 that “if counsel does not cross-examine a witness on a particular point, he or she must betaken to accept the veracity of that testimony.” That claim is incorrect.

In Sawatsky, the Court of Appeal stated at para 26 that [26] Even if a party has violated the rule, it is up to the trier of fact to determine how much weight, if any, should be placed uponcounsel’s failure to cross-examine a witness about a particular matter: R v Palmer, (SCC), [1980] 1 SCR 759 at pp 782-783; R v MacKinnon (1992), (BC CA), 72 CCC (3d) 113 (BCCA); Paris at para 27. Failure to cross-examine thewitness about an issue does not require the trier of fact to accept the witness’s evidence on that point: R v Scheideman, 2001 ABCA 94

at para 2, 277 AR 331. An adverse inference is not mandatory. [emphasis added] See also Ryan at para 50: “The rule does not, however, stand for the proposition that a trial judge must accept as true the evidence of awitness, merely because the witness was not cross-examined on a particular point.” [131] Crown counsel may choose not to cross-examine defence witnesses, even on important points. Crown counsel runs the risk thatthe trier of fact will find against the Crown as the testimony has not been challenged. Given the evidence as a whole, that may be a riskthe Crown is willing to run.

In R v Mete (1971), (BC CA), [1973] 3 WWR 709 (BCCA), Justice Bull wrote at 712: Appellant’s counsel, in support of the submission which I have outlined, referred to a line of cases which he suggested decided that, if adefence witness is not cross-examined by the Crown on a statement that, if believed, would ensure the innocence of the accused, thatevidence must be deemed to have been accepted by the Crown and be binding on the court and hence an acquittal must be directed.

Inmy view, the cases do not go so far, particularly in a criminal case, where the evidence which was not cross-examined upon is in directconflict with the evidence adduced by the Crown as the basis of its case. In default of authority binding on me that goes so far as to saywhat counsel suggested, I can see no reason or logic in any view that a judge may not reject evidence which he disbelieves merelybecause it has not been cross-examined upon.

In R v Khuc, Bui, Pham & Tran, 2000 BCCA 20, Chief Justice McEachern wrote at paras 42 and 43 that [43] At trial, there were a number of issues affecting the appellant Tran, including her identification and her ability to speak English. After leading the evidence against Ms. Tran, Crown counsel did not cross-examine her. He also declined to cross-examine some of herwitnesses. In his address to the jury, he invited them to disbelieve her evidence, and explained that he did not cross-examine her becausethere was no point asking her if she was going to tell the truth.

He stated that she said she was not present on the occasion in questionand he added: “…What am I going to say to her? I suggest to you, you were there on the 28th and she's going to say, ‘No, I wasn’t.’ I’mgoing to say, ‘Yes, you were.’ She’s going to say, ‘No, I wasn’t.’ How is that going to help you in assessing her credibility?” [44] Crown counsel’s point is well taken. There can be no doubt that the general rule is that counsel must confront a witness with anynew material he or she intends to adduce or rely on after the witness has left the box.

However, the rule does not go so far as to requirecounsel to ask contradicting questions about straightforward matters of fact on which the witness has already given evidence that he orshe is very unlikely to change. Judges tell juries that they may accept or disbelieve all or any part of the evidence of a witness. Thatinstruction does not depend upon opposing counsel asking unnecessary questions. With respect, I believe the law is correctly stated inthe case of R. v. Mete … particularly at 713.

I do not believe the rule is any different if the evidence on which there is no cross-examination directly contradicts the evidence of the Crown or merely supports a fact inconsistent with the Crown's theory of the case. Counsel who does not cross-examine takes the chance that the evidence will be accepted; but rather than embark upon a futile cross-examination, counsel is entitled, as Crown counsel did in this case, to rely on the judgment of the jury as to what evidence it will accept.

And see R v Drydgen, 2013 BCCA 253 at para 17: [17] While a problem of fairness could theoretically arise from a failure to cross-examine on a point later advanced in argument, theconcern will almost always be considerably attenuated. This is especially so when the argument flows naturally from the direction takenin cross-examination, rendering any suggestion of ambush illusory: see R. v. Ali, 2009 BCCA 464 at para. 39.

The confrontation must bea meaningful exercise rather than merely the performance of a ritual where the witness is invited to agree with a proposition later to beargued to the effect that his testimony is unreliable …. [132] The Defence relied on II. In that case, the Crown did not cross examine an accused on the substance of the allegations againsther. The Court of Appeal ruled that Browne v Dunn did not apply since the accused testified with full knowledge of the case against her:at para 10. Mr. Yeomans, though, did not hear Cst.

Feser’s testimony. [133] In II, the Crown emphasized in submissions the complainant’s weathering of cross-examination to support the complainant’scredibility over the accused’s. At para 21: 1. What the complainant said and adhered to during his cross-examination by defence: 443/17-24; 445/9-11, 23-26. (Cf. 444/37-38;445/4, 14-15, 17-18, 34-35) 2. How long his cross-examination by defence was: 444/2-3, 37; 445/14-15, 34-35. 3. No defence cross-examination on a key point: 444/26-28. 4. Importance of cross-examination: 441/29-35 ….

Given these special circumstances, Justice Berger concluded at para 23 that [23] In my opinion, it was not sufficient for the trial judge to merely recite the Appellant’s denial of the allegations set out in this mostserious charge. I agree with the Appellant that “what was required in the special circumstances of this case was the judge had to advisethe jury that the Appellant did not have the potential benefit of being able to demonstrate her credibility because she was not cross-examined on material issues by Crown counsel at trial.” (Supplementary Submission of the Appellant dated November 15, 2012).

In theresult, the jury, absent an appropriate instruction, was denied an opportunity to properly assess the credibility of the Appellant. Trialfairness required the aforementioned special instruction. [134] This case lacks the special circumstances of II. The credibility assessment of Mr. Yeomans does not turn at all on any lack ofcross-examination on specific points of contrast with Cst. Feser’s evidence. Cst. Feser’s testimony is not enhanced by his account havingbeen consistently maintained despite cross-examination. [135] In my opinion, I am entitled to take into account inconsistencies between Mr.

Yeomans’ testimony and the testimony of Cst.

Feser. In addition, I have taken into account inconsistencies between Mr. Yeomans’ account and “the preponderance of the probabilitieswhich a practical and informed person would readily recognize as reasonable in that place and in those conditions:” Faryna v Chorny, (BC CA), [1952] 2 DLR 354, 1951 CarswellBC 133 (BCCA) at para 10 (CarswellBC). (

b) Inconsistencies [136] I consider the following inconsistencies to be significant. [137] First, Mr. Yeomans claimed that he “possibly” put some money in the purse, but then went on to say that he did not rememberhow much. The latter claim supports the inference that he did put money in the purse. However, the money in this case was found insidethe Coach wallet. Mr. Yeomans did not claim to have put the Coach wallet in Ms. Johnstone’s purse. Mr. Yeomans would not have hadthe opportunity to fold cash and put it in the Coach wallet inside the purse.

Not when he was rushing to dump his pockets with the policeapproaching. [138] Second, Mr. Yeomans claimed to have put the scale in the purse but the scale too was found in the Coach wallet. Again, hewould not have had time to get that into that smaller receptacle when trying to clear his pockets. [139] I note that Mr. Yeomans did not claim to have put the notebook in the purse. [140] Third, while the absence of evidence of seeing Mr. Yeomans put items in the purse was consistent with Mr. Yeomans’ account,in my opinion the more likely inference is that the officers did not see Mr.

Yeomans put anything in the purse because he did not do so.Both officers testified that they were concerned about watching the movements of car occupants for officer safety reasons. Theirconcern, of course, was entirely justified. Cst. Feser was watching the individuals’ hands. He said that their car was “smaller.” Thepolice vehicle was a Ford Explorer and Cst. Feser is (as I can confirm from in-court observation) a taller individual. He would have had agood angle for seeing inside the car. According to Cst. Feser, the occupants were not doing anything. No one appeared to be concealinganything. Mr.

Yeomans might have had a chance to dump all the items from the time the officers began moving from behind the car untilthey got in front of the car. That is all. That would have been a very small window of time. He did not have time to be stealthy. Evenduring that period, the car occupants would have been under observation. Putting items in the purse, particularly given that it was foundhanging to the side of the passenger seat would have required Mr. Yeomans to move his shoulders and arms to dump in the items. Hishead likely would have moved. None of this was observed. [141] Mr. Yeomans did mention that Ms.

Johnstone had to “unfog” the windows. This was in the context of her being distracted bygetting the car started (“it needed a little love to get started”) and “playing” with the heater settings, as an explanation for her not noticingthat he was putting things in the purse. I do not understand this evidence to mean that the front car window was opaque, covered withfrost or snow, rendering any activity inside the car invisible from without. Neither Cst. Correia nor Cst. Feser referred to any difficultiesin seeing into the car through its windows.

While this bit of evidence emerging in cross-examination could not have been anticipated byDefence counsel, neither officer was cross-examined respecting impediments to observation of the interior of the car. In my opinion, the“unfogging” testimony raises no doubts about Cst. Correia’s and Cst. Feser’s abilities to view the occupants of the car. [142] Fourth, Mr. Yeomans claimed to have had a discussion with Ms. Johnstone on scene, when both were in the back seat of thepolice vehicle. Cst. Feser did not arrest Mr. Yeomans. His testimony was that Mr. Yeomans was searched but released on scene.

Therewas no need to handcuff him and put him in a police vehicle. Neither Cst. Correia nor Cst. Feser testified that both Mr. Yeomans and Ms.Johnstone were together in the back of the police vehicle. [143] It may be that leaving two suspects together in the back of a police vehicle, unsupervised and able to communicate, would beagainst police policy and procedure. That issue was not explored in either officer’s testimony. Again, a sort of Browne v Dunncircumstance arises. Defence counsel cannot be at fault for this, since there was no suggestion that he knew what Mr. Yeomans wouldsay in his testimony. [144] Cst.

Feser, as it turns out, was recalled to deal with a notebook issue, but that was before Mr. Yeomans testified. [145] Mr. Yeomans’ testimony directly conflicts with that of Cst. Correia and Cst. Feser and with the uncontested fact that he wasreleased on scene. This aspect of his evidence may be assessed on this basis.

Insofar as his evidence generated unfairness to the Crownby raising an issue that might have been dealt with in the officers’ testimony, the appropriate response is to lower the probative value ofat least this aspect of his evidence. [146] In each of the four significant instances of inconsistency I have identified, I accept the testimony of Cst. Correia and Cst. Feser.Mr. Yeomans could not have put the money and scale into the Coach wallet where they were found. I do not find that Cst. Feser waswrong about where he located these items. I find that Mr.

Yeomans did not know where these items had been precisely located. I findthat it is extraordinarily unlikely that Mr. Yeomans could have put his pocket contents into a bag within a brief period of time while thepolice were close and watching, without his movements having been noticed. From the officers’ testimony of lack of detection ofmovement, I find that there was no movement. The possibility that the officers overlooked movement I find to be unreasonable. I findthat Mr. Yeomans’ account of a back-seat discussion is a concoction. He was not put in the backseat with Ms. Johnstone.

There was noreason to put him in the backseat of the police vehicle since he was released at scene, as was manifest from all the other evidence.Further, the probative value of this portion of his narrative has reduced probative value insofar as the officers were not given anopportunity to comment on what I would regard as the at least unusual practice of putting suspects (even if cuffed) togetherunsupervised. [147] Finally, I take into account Mr. Yeomans’ lengthy record for offences of dishonesty. These convictions tend to show that he isnot a person who can be trusted to tell the truth. [148] Mr.

Yeomans evidently knew something about what was found in Ms. Johnstone’s purse. I need not speculate about the sourceof his knowledge.

[ 149 ] When coupled with the inconsistencies and unlikelihoods of his narrative, his testimony t

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