R. v. Khan Date:, 2015 BCPC 444

Citation: R. v. Khan Date: 20151127 2015 BCPC 444 File No: 57233-1 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. IMRAN KHAN ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE H.H. FIELD Counsel for the Crown: Federal Crown: M. Wiancko Counsel for the Accused: K. Filkow Place of Hearing: Richmond , B.C. Date of Judgment: November 27, 2015 [ 1 ] THE COURT : This is an oral judgment, and I have read all the materials, the transcripts, my notes, submissions made by

[ 1 ] THE COURT : This is an oral judgment, and I have read all the materials, the transcripts, my notes, submissions made by counsel and written material provided. [ 2 ] Mr. Khan is charged on the 31 st day of January 2013, at or near the City of Richmond, in the Province of British Columbia, did unlawfully possess a controlled substance, to wit, a lengthy name, but essentially it is MDMA, and trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act . [ 3 ] This is the chronology of evidence to be discussed; firstly there is: 1. Introduction; 2. Mr. Khan's evidence; 3. What was found in Mr. Khan's bedroom; 4. The issues. (

a) The credibility of Mr. Khan. i. The sense of the evidence; ii. Internal and external inconsistencies regarding Mr. Khan's testimony and innocent explanation regarding purpose, the knowledge of the character of the MDMA powder found in his Below the Belt bag; iii. Mr. Khan's meeting with Mr. Wong; iv. A conclusion regarding Mr. Khan's explanation. (

b) Possession for the purpose of trafficking. i. Consideration of what weight, if any, to apply to the expert opinion; ii. Opinion evidence on the ultimate issue; iii. Comments on the absence of evidence; iv. Conclusion regarding the expert opinion. INTRODUCTION [ 4 ] After a lengthy voir dire , the court concluded there were no Charter violations pursuant to s. 8. [ 5 ] Relevant evidence contained in the voir dire was admitted into the trial proper, including formal admissions made pursuant to s. 655 of the Criminal Code , and a binder of admissions.

These were marked as exhibits. [ 6 ] The Crown called an expert to complete their case, and Mr. Khan has testified in his defence. Though he admits being in possession of the MDMA tablets set out in the Information, his possession was not for the purpose of trafficking. [ 7 ] He does not admit to having knowledge of the MDMA powder found in the Below The Belt bag that I will make reference to. MR. KHAN'S TESTIMONY [ 8 ] Mr. Khan testified that his friend from school, Jared Wong, attended his residence in early 2012. After smoking some marihuana, in the course of their discussion Mr. Khan was told by Mr.

Wong, that Mr. Wong, was working for a criminal organization involved in the manufacture and production of Ecstasy. [ 9 ] He testified his boss, dealer, producer, gave him a failed batch of Ecstasy pills and was told to get rid of them, destroy them. Described as weak and worthless. [ 10 ] Upon hearing this information, Mr. Khan testified he asked his friend whether he could have them. He had no specific reason, he simply wanted them. His friend gave him the Ecstasy pills in the Below The Belt shopping bag which contained both Ecstasy tablets, MDMA powder and an unknown powder P+ caffeine in a Ziploc bag.

WHAT WAS FOUND IN MR. KHAN'S BEDROOM [ 11 ] Mr. Khan made no effort to destroy the drugs. He testified that the whereabouts of the bag and the contents slipped his mind. The drugs contained in the bag remained under his bed for approximately one year. He did not distribute any of the drugs, nor had any intention to do that. [ 12 ] The following admissions filed were made after the execution of the warrant. Reading C: 8. All the exhibits seized were located in bedroom 1.

9. Bedroom 1 is located on the southwest corner of the second level of the residence and consists of a bed, closet, dresser and nightstand. 10. Imran Kahn resides in bedroom number 1. 11. Police located the following items in bedroom number 1: (

a) a grey electronic safe inside the closet. Inside the safe, the police located a plastic Ziploc bag containing 65.2 grams of powder, phenacetine, $3,275 in Canadian currency, and a plastic Ziploc bag containing four metal objects; (

b) three red MDMA pills with smiley faces on the floor behind the nightstand; (c) .28 grams of a brown powder, heroin, in the top drawer of the nightstand (that was not admitted by Mr. Khan); (

d) a black password-protected iPhone on the top of an nightstand; (

e) an invoice for physiotherapy and other documents in the name of Imran Khan on the floor beside the bed; (

f) a digital scale, with batteries, on the floor at the foot of the bed; (

g) a Below The Belt shopping bag located under the bed. The following items were found in the bag: 1. a plastic Ziploc bag containing 806.9 grams of red MDMA tablets with smiley faces. Cst. Cheung, estimated the total numbers of pills by weighing several tablets and noted their weight to be approximately .25 grams. Using this weight to extrapolate the total number of pills, Cst.

Cheung estimated there to be approximately 3,227 pills. 2. a plastic Ziploc bag containing P+ coffee containing 77 grams of a white powder of a substance that is unknown; 3. a plastic Ziploc bag containing 206 grams of white powder MDMA with a purity level of 31 percent. (The knowledge of the character of this drug was denied under oath.) (

h) one glass Pyrex dish and two glass measuring cups contaminated with a white powder from under the bed; (

i) the MDMA pills, the police took samples of the MDMA pills from behind the nightstand, the pills from under the bed and the powder MDMA was tested and determined to be (very lengthy name) also known as MDMA, the subject of the charge. 15. The suspected heroin was tested and determined to be heroin (not admitted by Mr. Khan). 16.

The suspected phenacetine was tested and determined to be phenacetine. [ 13 ] Imran possessed all of the items referred to in paragraph 11 except for heroin. [ 14 ] Acknowledging he knew the tablets were MDMA, 3,227 tablets, he testified to having no knowledge that the 209 gram powders also found in the Below The Belt bag analyzed MDMA. ISSUES [ 15 ] The following issues have been raised by counsel, Mr. Filkow: 1. The credibility of Mr. Khan's evidence. Mr. Filkow submits that Mr.

Khan's explanation that he did not possess the MDMA for the purpose of trafficking is both internally and externally consistent with his testimony, is believable and capable of establishing a reasonable doubt. And notwithstanding that, he submits the Crown has not met the burden of proof. He makes reference to R. v. W.D. 2. No or very little weight should be attached to the expert Sgt. Sheppard's opinion. Counsel submits he is a biased witness whose evidence lacked independence, and his evidence was not balanced. The impartiality of his evidence is being challenged. Mr. Filkow relies on the case of R. v.

Klassen 2003 MBQ 253, Mr. Justice Scurfield. 3. Though possession of the pills has been admitted, the Crown must prove the accused possessed the drugs for the purposes of trafficking. (

a) The Credibility of Mr. Khan (

i) The sense of the evidence – concerns regarding Mr. Khan's evidence [ 16 ] The application of the burden of proof to the issue of credibility, the analysis of R. v. W.D. [ 17 ] It is difficult to comprehend why a person or organization who manufactures, produces and distributes MDMA would direct an employee to destroy a soluble, failed, weak batch of MDMA. (

a) That task can be achieved expeditiously in-house with no other personnel involvement, with no effort and risk of detection. (

b) The risk of detection and apprehension is significantly enhanced considering the quantity of powder and tablets seized when carried by an employee. (

c) Why produce 806 grams of MDMA tablets, 3,227 pills, before noticing they are weak? Why not distribute them?

[ 18 ] Considering the following reasons, the explanation provided by Mr. Khan is materially in conflict with the nature of the 200 grams of MDMA powder he received from a friend, acquaintance Mr. Wong. (

a) In regard to the MDMA powder in a Below The Belt bag later found under his bed, analyzed at 31 percent purity, the purity was consistent with the MDMA sold in the Lower Mainland, including Richmond. (

b) It is doubtful that a producer/dealer would consider the powder a worthless, failed batch when considering the significant value of the powder for sale later to be referred to. (

c) Why give the drug to an employee for destruction if the batch is weak? Why would it not be sold? (

d) Further considering the above, I found the sense of his evidence illogical as to why he would forget the drugs were left under the bed. [ 19 ] Bearing in mind the drug analysis referred to above, Mr. Khan's innocent explanation makes no sense. Why would he be given a valued batch of MDMA powder that could be actively used in production for sale? Why not throw either the powder or pills away? [ 20 ] Notwithstanding the above, why would a friend want to pass on a worthless, bad batch of MDMA to Mr. Khan? For that matter, why would Mr.

Khan want to keep the tablets? (ii) Credibility of the accused – The internal and external inconsistencies regarding Mr Khan's evidence not supported by independent evidence. [ 21 ] The Crown submits that it is unbelievable that Mr. Khan would not know what powder MDMA was when his friends told him he was given a failed batch of Ecstasy. I agree with the following response by the Crown: • Mr. Khan testified on cross-examination that his friend gave him a Below The Belt bag containing a failed batch of Ecstasy. • He was then cross-examined by the Crown regarding the strength of the powder.

He then denied knowledge of the character of the powder MDMA in the bag, and the unknown powder P+ caffeine, in the other Ziploc bag. • He agreed the pills and powder were placed under his bed. The Below The Belt bag was in close proximity to scales, Pyrex cups and two dishes contaminated with powder. • Mr. Khan then went on to educate the court that Ecstasy was sold in pill form and MDMA powder is referred to as "Molly" and sold at street level, an attempt to distinguish.

On cross-examination, he later testified on August the 28 th at page 42 when he was cross- examined by the Crown, line 25, the following: The chemical name for Ecstasy is MDMA. I'm just saying Ecstasy because that's what I'm more familiar with, so -- I'm not saying MDMA isn't this and Ecstasy isn't that. I'm saying I was given the bag. I was told that it was Ecstasy or MDMA, whatever. [ 22 ] Overall, when I consider the chronology of this, I found his evidence regarding lack of knowledge of the MDMA powder inconsistent with receiving a failed batch of Ecstasy from his friend.

The batch would undoubtedly apply to the contents within the bag, or at the very least, he was wilfully blind. [ 23 ] Regarding his evidence relating to language used by buyers and sellers earlier referred to in the sale of powder versus pills, I agree with the Crown, it is evident Mr. Khan demonstrated a knowledge of an Ecstasy trafficker. [ 24 ] In addition, Mr. Khan denied ever weighing or packaging the drugs, but could not explain the proximity of the drugs to the digital scales, nor the powder found in the measuring cup.

I found this evidence inconsistent with his evidence and agree with the Crown in their response. [ 25 ] The bags containing both powder and pill form drugs were found underneath Mr. Khan's bed, in close proximity to the Pyrex measuring cups and dishes partly contaminated with the white powder, inconsistent with his explanation of possession simpliciter. [ 26 ] Additional details were added when confronted with the contradictory nature of his evidence. When confronted with phenacetine, a cutting agent for cocaine, and approximately $3,200 of cash, found in the safe, he added that Mr. Ameeri and Mr.

Mohammed, targets in this investigation, paid him to hold the cutting agent. When asked why he was entrusted with these prohibited drugs, he volunteered that he also held cocaine for them. He knew they were drug dealers. [ 27 ] Then he volunteered that the other targets in this investigation do not sell MDMA. [ 28 ] This evidence was inconsistent with his earlier testimony that he never discussed the drug trade with them. [ 29 ] At the very least, I found this evidence demonstrated Mr. Khan's knowledge of the drug trade, and his associates. I agree with the Crown in their response to Mr.

Filkow's submission. [ 30 ] In regard to this part of the evidence, he volunteered that he was further paid by both Mr. Ameeri and Mr. Mohammed to hold their scale found at the foot of the bed. This evidence makes no sense. [ 31 ] Contradictions in his evidence regarding the knowledge of the MDMA powder. That was admitted in his admissions filed and signed under (e). [ 32 ] Under oath he testified otherwise, that he did not know the character of the MDMA powder. For completeness, in regard to Mr. Khan's credibility, the Crown made reference to Mr.

Khan's contradiction of his prior filed formal admission of possession of MDMA

powder. In the Crown's submission, this contradiction should be considered as a prior inconsistent statement. The Crown relies on R. v.Basi, 2010 BCSC 738, R. v. Colburn, (ON CA), 1982 27 C.R. (3d), 259, R. v. Smith, , and R. v.Desjardins,1998 BCJ No. 1707, the British Columbia Court of Appeal at paragraph 30. [33] No formal application was made by counsel for Mr. Khan to withdraw the admission regarding the powder MDMA. Notwithstanding the admission may have been made in error, in order to prevent any injustice to Mr.

Khan, I am not going to considerthe admission as a prior inconsistent statement. (iii) Khan's meeting with Mr. Wong [34] The evidence surrounding their meeting was minimal. [35] No evidence was tendered as to why Mr. Wong attended Mr. Khan's residence. Why trust Mr. Khan with his disclosure? Wasthere an earlier plan or an indiscreet drop-in that was not planned? Though difficult to draw an adverse inference, the lack of detail ofwhy they got together and their connection was never fully explored; another concern of the court. (iv) Conclusion regarding Mr.

Khan's explanation, the application of the burden of proof to the issue of credibility, R. v. W.D. [36] There are many internal and external inconsistencies regarding Mr.

Khan's explanation as to how he came into possession ofMDMA and for what purpose, earlier referred to and considered under the heading of "Credibility". [37] I do not believe that dealers, producers or an organization producing a significant quantity of MDMA pills and powder, soluble,with resultant highly-profitable street value, later to be referred to, would direct an employee to dispose of a failed, weak batch of drugswhen they could undertake this task expeditiously and with ease, no risk of being detected.

Reviewing the earlier concerns under thehead of credibility, I find his evidence incredible, I reject and disbelieve Mr.

Khan's testimony, and his innocent explanation that he cameinto possession of the drugs with the intent to use them for his own personal use with no intent to sell, distribute or traffic in the drugs. [38] Even if the profit was less, the producer could easily destroy the soluble drugs without the need to give them to an employee fordestruction. [39] Further, considering my other concerns regarding his innocent explanation regarding receiving a failed, weak batch of Ecstasyfrom this friend, I disbelieve and reject his denial that he did not know the character of the powder MDMA found with the Ecstasytablets in the Below The Belt bag he received from Mr.

Wong. I find his evidence not credible and inconceivable in this regard. [40] In coming to these conclusions I have considered: 1. The sense of the evidence; 2. The nature and quality of the drugs; 3. The admissions made, the paraphernalia found under the bed in proximity to the drugs, inconsistencies in his evidence notsupported by independent evidence, and finally, lack of details regarding his meeting. [41] Overall, in regard to my findings of fact, I found his testimony and explanations not logical, not credible when confronted withcontradictory, independent evidence.

His evidence does not harmonize with the independent evidence that is accepted. I reject hisevidence regarding his explanation. [42] In addition to my findings of fact regarding knowledge and control of both the MDMA powder and pills, I have considered thefollowing Crown's submissions: • Mr. Khan admitted the items were found under his bed. • He admitted receiving the Below The Belt bag with the contents from Mr.

Wong. • Not only was he present at the time of the execution of the warrant, but there were personal papers in his name that were found inhis bedroom. • There were 3,226 Ecstasy pills and 200 grams of powder MDMA and the P+ coffee bag were located in the shopping bag underhis bed, same bag that he said he received from Mr.

Wong. • Digital scales with batteries were found on the floor near the bed. • Pyrex cup and measuring cups were contaminated with the white powder found under the bed in proximity to the Below The Beltbag. • The expert testified that MDMA powder and pills were valued in the thousands and it would take approximately 11 years to useup. • In addition to my finding of fact that I made earlier, I agree with the Crown's submissions considering the factors that I initiallymade reference to, and that is this: Considering the location of the drugs and the paraphernalia under his bed, and the valuation later tobe referred to, the only reasonable inference I can draw is that Mr.

Khan had both knowledge and control of both the powder and thepills.

• In support of that conclusion, in addition to receiving the bag, the further inference I draw is a person would know or be wilfully blind if they had something that valuable under their bed. Those are the submissions of the Crown that I agree with after considering some of the above factors, and totality of the evidence. [ 43 ] In conclusion, I am satisfied beyond a reasonable doubt that Mr. Khan had both knowledge and control of the items in the Below The Belt shopping bag, MDMA powder, Ecstasy pills and the other white powder, and conclude he was in possession of the drugs found under his bed.

I am speaking now about the pills and the MDMA powder. [ 44 ] Having disbelieved the explanation and rejected the evidence of the accused, Mr. Khan, considering the aforementioned earlier reasons, I am further not left with a reasonable doubt by his evidence. [ 45 ] Notwithstanding, I now have to consider, on the basis of the evidence I do accept, that I am convinced beyond a reasonable doubt by the evidence of the guilt of Mr. Khan, later to be referred to, that he possessed the drugs for the purpose of trafficking. (

b) Possession for the purpose of trafficking [ 46 ] I am now going to consider what weight should attach to the expert opinion. Mr. Filkow submits that an expert should be independent, unbiased and impartial. He submits the expert, Sgt. Sheppard: (

a) overstated the evidence relating to the charge, (

b) ignored the evidence not in support of the charge, and (

c) his opinion was unbalanced. He further submits no or little weight should be attached to his opinion, and Mr. Filkow relies on R. v. Klassen , 2003 MBQB 253 at paragraph 31-33 , and R. v. Chan , 2014 BCSC 2560 . [ 47 ] The Crown's position: The first indication that bias was canvassed is when Sgt. Sheppard was cross-examined related to being a driver in a potential buy with an undercover operator, February 2013. That never happened, this occurred after this offence, but during the same large drug project which had several targets spanning several months. Nothing transpired.

There was no undercover buy, nor did the sergeant know Mr. Khan. [ 48 ] None of this was raised at the qualifications stage. The qualifications were admitted. The issue was raised in closing argument. [ 49 ] Mr. Filkow had full disclosure of the officer's qualifications and minimal involvement prior to his cross-examination of the officer's expert opinion. The level of his impartiality could have been determined at the outset, not in closing argument. [ 50 ] The issue of impartiality is considered in the following cases: R. v. Violette , 2008 BCSC 920 , R. v. Klassen , 2 003 MBQB 253 , and R. v.

Chan , 2014 BCSC 2560 . Analysis: [ 51 ] R. v. Klassen , 2003 MBQB 253 , stands for the proposition that the weight given to an expert witness' evidence ought to vary with the degree of independence and the degree to which their opinion is supported or contradicted by both common sense and other evidence. (Paragraphs 31 to 33) [ 52 ] In Burgess and Abbott , 2015 SCC 23 , at paragraph 14 , Mr. Justice Cromwell, writing for the court, makes it clear that impartiality and bias go to both admissibility and weight.

That said, however, it is also made clear that expert testimony will only be inadmissible in the clearest of cases. [ 53 ] Sgt. Sheppard testified had there been any evidence gathering, he would not have been an expert on this file. [ 54 ] Sgt. Sheppard was not engaged with the Richmond RCMP squad or ERT squad. He is an officer who works in a separate detachment and separate unit. [ 55 ] Prior to this witness' testimony, Mr. Filkow had 4,000 pages of disclosure. The accused's counsel alleged the officer did not disclose his less than minimal involvement which had no investigative result.

Disclosure suggests otherwise prior to his testimony. [ 56 ] No objection was taken by Mr. Filkow with regard to St. Sheppard's impressive qualifications, exhibit filed in these proceedings, which were conceded, nor the area of his expertise, namely his opinion of the use, distribution, price, packaging of heroin, cocaine, methamphetamine, Ecstasy (MDMA) in the Lower Mainland, including Richmond. [ 57 ] The officer in this case was significantly separated from this investigation. His involvement was minimally limited. [ 58 ] Mr.

Filkow further submits some details based in the RTCC were not in the will-say statement. The difference is to be expected. The officer's opinion was based on a hypothetical. [ 59 ] Further considering his opinion regarding the metal objects found in the safe were pill punches utilized in stamping logs on Ecstasy pills, on sober reflection on his own initiative, the expert, on re-examination, resiled from that view. [ 60 ] Mr. Filkow submits his evidence, resiling from an earlier positive opinion, affects his impartiality.

When cross-examined, the witness was shown a dual bolt locking mechanism for a different European safe. The photograph placed before the witness was being

sold on the internet, they were not photos of the bolts that affixed safes to the wall, nor of the four metal objects found in the safe. Having heard this exchange, I agree with the Crown's submission, he was being extra cautious in his attempt to be impartial. Conclusion as to the impartiality and reliability of Sgt. Sheppard: [61] Sgt, Sheppard rendered an opinion given the background information regarding usage, packaging, pricing and distribution, andother qualifications earlier referred to.

He was qualified as an expert in all aspects of trafficking and possession of cocaine, heroin,methamphetamine, Ecstasy (MDMA) in the Lower Mainland. [62] In regard to this evidence, I have concluded that his candid reflection supports his reliability. He was frank, he was open, anhonest witness with an impressive curriculum vitae. [63] This is hardly the evidence of a bias, partial witness that weight should not be given to his opinion. [64] Overall, upon reviewing the admissions and the evidence of Mr. Khan and proven facts, I have concluded his opinion wasstrongly connected to the facts, minimizing any bias.

The main basis of the expert opinion was based on quantity and value. [65] While Klassen states that an expert witness' independence should speak to the weight of evidence, the more recent case ofAbbott suggests that the level of independence of the expert witness can also inform the assessment of the admissibility of his or heropinion. [66] Sgt. Sheppard was qualified to testify on use, distribution, price, packaging of heroin, cocaine, methamphetamine, Ecstasy,MDMA in the Lower Mainland, including Richmond, and testified within his qualifications.

His opinion on the factors as set out in thehypothetical, which will be referred to shortly, was supported by his reasons. [67] Given my analysis as above, and evidence that I referred to, I find Sgt. Sheppard's opinion evidence to be admissible, I found hisevidence to be reliable, and his opinion carries significant weight. Opinion Evidence on the Ultimate Issue: [68] Mr. Filkow submits that the expert offended the ultimate issue rule by providing an opinion as to whether the drugs were forpersonal use only.

After considering the hypothetical that was closely connected to the proven facts, he provided his opinion, qualifiedby reasons that were connected to the several factors he considered, later to be referred to. [69] The Supreme Court of Canada has ruled that the common law prohibition against expert evidence relating to the ultimate issuehas been significantly relaxed; in fact, R. v. R.D., (SCC), 1996 SCJ No. 8, at paragraph 39, Mr. Justice Major, writingfor the court, indicated that expert testimony is admissible even if it relates directly to the ultimate question which the trier of fact mustanswer.

That said, however, the closer the expert evidence comes to the ultimate issue, the greater the scrutiny which must be applied bythe trial judge. [70] The following passage from the case of R. v. Sekhon, 2014 SCC 50, at para. 76, judgment of Mr. Justice Moldaver, isinstructive. The trial took place in the Provincial Court of British Columbia in Surrey: The Mohan requirement of necessity is the primary safeguard against the inappropriate proliferation of expert evidence.

But even wherethe expert’s evidence is broadly necessary, as in this case, it should be assessed with special scrutiny as it approaches the “ultimateissue”: Mohan, at p. 24; R. v. J.-L.J., 2000 SCC 51 , [2000] 2 S.C.R. 600, at para. 37. The decision to qualify an expert witnessdoes not end the need for scrutiny of the expert’s evidence.

A properly qualified expert could stray into expressing inadmissibleopinions about the guilt of an accused, and the trial judge must ensure that the expert’s testimony stays within the proper boundaries ofsuch evidence and maintain the integrity and independence of his or her own fact-finding function as regards the credibility of witnessesand the guilt or innocence of the accused. Finally, the fact-finding function must remain with the trier of fact, not the expert witness. [71] Notwithstanding, the opinion has to be weighed by the trier of fact. [72] Sgt.

Sheppard rendered an opinion, given the background information regarding usage and packaging and pricing, quality anddistribution. The opinions rendered were within his qualifications. [73] He was qualified as an expert in all aspects of trafficking and possession of cocaine, heroin, methamphetamine and Ecstasy,MDMA in the Lower Mainland. [74] He first testified with an overview of MDMA usage, packaging and distribution. [75] All the items the expert based his opinion on were items found in Mr. Khan's bedroom. He considered some of the followingfactors: 1. The currency found in the safe; 2.

The quantity of the tablets found; 3. The quantity of the powder MDMA; 4. The paraphernalia found in proximity to the drugs under Mr. Khan's bed; 5. The phenacetine found in Mr. Khan's safe, and

6. Ziploc bags containing powder, there was a P+ coffee bag containing 77 grams of unknown white powder. [ 76 ] His opinion is strongly connected to the proven facts. The hypothetical put to Sgt. Sheppard reflected the above. The expert then considered the following factors and he elaborated on whether the accused possessed the drugs for the purpose of trafficking, or personal use. [ 77 ] The hypothetical closely mirrored the admissions and proven facts. He considered the following.

The main basis of the expert opinion was based on quantity and value. [ 78 ] Cash found in the safe was not a traditional banking method; the cash was approximately $3,200 found in proximity to the phenacetine. Notwithstanding this may not be unusual, cash found in these circumstances was not a traditional banking method. It is often used by drug traffickers to stash drug money in their houses or stash houses. 1. The quantity of pills and powder was significant, the 800 grams (the 3,227 tablets) and 206.6 grams of powder MDMA.

In his opinion, in regard to both the pills and the MDMA powder, there was enough drugs to use for approximately 11 years. He said 8.8 years supply of the pills and 2.2 years supply of the powder. 2. The value of the powder and pills was significant.

The hypothetical revealed several possibilities: • Street level sold at ten dollars a pill would be $32,000, powder $40,000, total pill and powder at street level was $72,000. • At a party or clubs, pills could be sold at $20, meaning approximately $64,000, powder at $40,000. • Then if the drugs were purchased in large quantities, mid-level dealer, the value would be about three or four dollars a pill.

The value would be between $9,600 and $12,800. • If purchased as a boat, a thousand pills, almost unheard of said the expert, then the value of the pills was $3,200/$6,400, powder would be $14,000. [ 79 ] The witness testified that the strength of the MDMA at 30 percent for a single dose is consistent with the evidence of an average dose in the Lower Mainland. Overall, regarding valuation and purity of the drug, Sgt.

Sheppard testified producers would never make 3,200 pills, average amount of purity, and consider this a failed batch. [ 80 ] Notwithstanding, the court does not know the actual purity of the Ecstasy. Submission made by Mr. Filkow, at pages 40 and 41, August 27th, 2015, paraphrasing from the bottom of page 40, top of page 41, Sgt. Sheppard testified that the value of the MDMA sold at a gram level could be as low as $14,000 and as high as $40,000. And then Sgt. Sheppard testified that if the pills were weaker they would be worth less, not worthless.

Considering that evidence, I have concluded, when I review all of the evidence, that valuation of the drugs in the possession of the accused was significant. 3. The expert testified the cups and dishes that were contaminated, and digital scales found underneath the bed in proximity to the pills, MDMA powder and unknown powder, can be used to measure and break down the MDMA utilizing a cutting agent for the street level sale. 4. He further testified that P+ coffee written on a bag containing powder, not analyzed, caffeine commonly used as a cutting agent for the purpose of cutting to increase profit. 5.

He testified that the phenacetine is regulated under the Food and Drug Act and not prohibited by the CDSA, but there is no lawful reason to possess it outside of the agricultural purpose. 65.2 grams of it were found in Mr. Khan's safe, cutting agent for cocaine. Those are the factors set out in the hypothetical that he testified to. [ 81 ] Sgt. Sheppard based his opinion on items found in Mr. Khan's bedroom, earlier made reference to, and as set out in the admissions of fact. The opinion was closely connected to the proven facts in this case. [ 82 ] Considering all of the above factors, Sgt.

Sheppard's opinion was the drugs that were found in the circumstances were not for personal use. Further, he testified if all the factors were removed from the hypothetical, except for the MDMA pills and powder that were located, his opinion would be the same, considering the significant amount of drugs and the value. It would take 11 years to use what was found. [ 83 ] I have assessed all of the facts that are in the hypothetical that relate to the proven facts in this case and given significant weight to the expert opinion. The officer's opinion was well-supported in the evidence. I accept his opinion.

His reliability, was earlier referred to. Comment on Absence of Indicators of Trafficking: [ 84 ] Mr. Filkow submits there was an absence of evidence of weapons, scoresheets, and packaging material,and their absence seriously detracts from the Crown's theory and affects the burden of proof regarding his possession for the purpose of trafficking. [ 85 ] The test is not whether there is an absence of evidence; the court needs only consider and assess the totality of the evidence, not piecemeal, to determine whether the Crown has met the burden of proof.

[ 86 ] I do not intend to speculate on the different possibilities as to why he was in possession of a large quantity of drugs and associated paraphernalia for the purpose of trafficking. [ 87 ] The test is whether, on considering the totality of the evidence, has the Crown proven beyond a reasonable doubt the guilt of the accused, that he possessed the drugs for the purpose of trafficking? Conclusion Regarding the Expert Evidence: [ 88 ] I have accepted the opinion of Sgt. Sheppard, and I have given the factors considered significant weight.

His opinion was that the MDMA powder and pills were not for personal use. [ 89 ] In addition, weighing the evidence intricately connected with the proven facts, including the admissions, the photographs and the testimony of the accused earlier referred to, I am satisfied beyond a reasonable doubt that the accused is guilty of being in possession of the drugs for the purpose of trafficking, that he possessed the MDMA for the purpose of trafficking. [ 90 ] Notwithstanding the expert opinion regarding use, when I consider the evidence referred to, including the significant weight attached to this officer's evidence regarding quantity, quality, pricing and distribution, I am satisfied beyond a reasonable doubt that the accused possessed the MDMA for the purpose of trafficking.

I am satisfied the Crown has met the burden of proof beyond a reasonable doubt. [ 91 ] Please stand up, Mr. Khan. [ 92 ] I find you guilty as charged. (REASONS FOR JUDGMENT CONCLUDED)