Citation: R. v. Slemko and Stewart 2018 BCPC 380 Date: 20181228 File No: 219270-C-2 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. ANDREW RONALD SLEMKO and ANTHONY JOSEPH STEWART REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A. WOLF Counsel for the Crown: M. Wheeler Counsel for Mr. Slemko : J. Sherren Counsel for Mr. Stewart : D. Ferguson Place of Hearing: Surrey , B.C. Dates of Hearing: July 23-26, 30, 31, August 1, 2, 8, 2018 , December 4-6, 18, 2018 Date of Judgment: December 28, 2018

INTRODUCTION [ 1 ] These are the reasons for decision in the trial matter of Mr. Andrew Slemko and Mr. Anthony Stewart. CHARGES INFORMATION 219270-C-2 Count 1 Andrew Ronald SLEMKO and Anthony Joseph STEWART, on or about the 28 th day of October, 2016, at or near the City of Langley, in the Province of British Columbia, did unlawfully possess a controlled substance: N-methyl-3,4-methylenedioxy-amphetamine (MDMA) for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act.

Count 2 Andrew Ronald SLEMKO and Anthony Joseph STEWART, on or about the 28 th day of October, 2016, at or near the City of Langley, in the Province of British Columbia, did unlawfully produce a controlled substance: N-methyl-3,4-methylenedioxy-amphetamine (MDMA) for the purpose of trafficking, contrary to Section 7(1) of the Controlled Drugs and Substances Act.

Count 3 Andrew Ronald SLEMKO on or about the 28 th day of October, 2016, at or near the City of Surrey, in the Province of British Columbia, did unlawfully possess a controlled substance: N-methyl-3,4-methylenedioxy-amphetamine (MDMA) and 3,4- methylenedioxyamphetamine (MDA) for the for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act.

SUMMARY OF CASE: The Allegations [ 2 ] There are two locations involved. First, on October 28, 2016 a warrant was executed on the Surrey home of Mr. Andrew Ronald Slemko (“Slemko”) and controlled substances were located in the home. The total amount of drugs located in the residence was approximately 3.5 kilograms of MDMA and MDA. [ 3 ] Second, also on October 28, 2016 a warrant was executed at a different address and it is alleged that in the garage of that residence a drug lab (the Langley Lab: “the Lab”) was located. It is alleged that this lab was producing MDMA.

There was approximately 80 gallons of a MDMA liquid mixture found in a 240 gallon hopper vessel. There were also smaller amounts of MDMA located in the residence. [ 4 ] The Crown’s theory is that Slemko “is the supplier of the products used in the clandestine laboratory”. The Crown argues that it is Slemko that obtained much of the equipment and precursor chemicals used to produce MDMA and MDA at the kilogram level. [ 5 ] With respect to Mr. Anthony Joseph Stewart (“Stewart”), the Crown’s theory is that he is “more on the order of a cook or producer of MDMA”.

They argue that he either works ‘for or with’ Slemko in this capacity at the Langley clandestine lab. [ 6 ] MDMA is often called ‘Molly’ by young people. It is also commonly referred to as ‘ecstasy’. BURDEN OF PROOF AND STANDARD OF PROOF [ 7 ] The most fundamental concepts to our Canadian Justice System is that an accused is presumed innocent until the Crown has proven each element of the offence beyond a reasonable doubt. [ 8 ] The Crown has the primary or ‘legal’ burden of proof throughout the trial and must prove all the elements of the actus reus and mens rea for each of the offences alleged.

THE ISSUES [ 9 ] Has the Crown proven beyond a reasonable doubt that: A. Slemko unlawfully possessed MDMA and MDA for the purpose of trafficking? i. At the Surrey condominium; and/or ii. At the Langley Lab B. Stewart unlawfully possessed MDMA for the purpose of trafficking? i. At the Langley Lab C. Slemko unlawfully produced MDMA? i. At the Langley Lab D. Stewart unlawfully produced MDMA?

i. At the Langley Lab [10] In answering the above questions, I must consider whether there was a controlled substance and possession of that substance. Further, if there was possession, was it possessed for the purpose of trafficking or for some other purpose, such as personal use? [11] What is not in issue? While not expressly admitted, the identification of both of the accused seems overwhelmingly detailed. Many officers over a period of eight months were conducting detailed surveillance of both of them.

Faces, gait, physical characteristics,types of vehicles they drove, where they lived, and what they were seen doing has been carefully documented. I conclude that beyond areasonable doubt Slemko and Stewart have been identified to be the ones that the police were watching. [12] Equally, the fact that there was an alleged lab located in Langley, the Province of British Columbia is not in dispute. Thus, theelement of jurisdiction is not an issue. However, since it was not expressly admitted, I make a finding that jurisdiction and date in theinformation has been proven beyond a reasonable doubt.

THE LAW ON POSSESSION AND CIRCUMSTANTIAL EVIDENCE [13] This case is largely based on circumstantial evidence. I am mindful that while many cases are largely based on circumstantialevidence that I must be cautious in the way that I use certain pieces of circumstantial evidence. [14] There are many authorities that clearly set out what is meant by possession for the purpose of trafficking. However, MadamJustice Watchuk in R. v. Nazarek and Nazarek, 2017 BCSC 1909, is a recent decision from the BC Supreme Court that I find preciselydefines this area of the law in a complete but succinct manner.

At paragraph 10 of that decision, Madam Justice Watchuk writes: III. THE LAW 1. Possession for the Purpose of Trafficking [10] The definition of “traffic” is set out in s. 2(1) of the CDSA: “traffic” means, in respect of a substance included in any of Schedules I to V, (

a) to sell, administer, give, transfer, transport, send or deliver the substance, (

b) to sell an authorization to obtain the substance, or (

c) to offer to do anything mentioned in paragraph (

a) or (b), … [11] There are two elements to this offence, possession and an intention to traffic. The actus reus requires that an accused possess asubstance and that the substance be one which is named in one of the Schedules of the CDSA.

The mens rea includes knowledge of thenature of the substance, in that the accused must believe that it is a controlled substance, and intent to traffic, in that the accused musthave it in their possession for the purpose of trafficking. [12] On a charge of possession for the purpose of trafficking, the Crown is required to prove beyond a reasonable doubt possession asdefined in s. 4(3) of the Criminal Code, R.S.C., 1985, c. C-46: For the purposes of this Act, (

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

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

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall bedeemed to be in the custody and possession of each and all of them. [13] The Criminal Code provision identifies three forms of possession, often referred to as personal, constructive and joint. For each,knowledge and control are elements. [14] Personal possession requires actual physical possession together with knowledge and control.

A person has something in his orher actual physical possession when it is on his or her person, as in a pocket, or when it is inside something that he or she is carrying,such as a briefcase. The physical contact may be very brief. Fingerprints on an

article do not necessarily equate to possession of thearticle (R. v. Lepage, (SCC), [1995] 1 S.C.R. 654). [15] It is trite that knowledge and control are the key elements in the definition of constructive possession (R. v. Bauer, 2003 BCCA138 at para. 23; R. v. Fisher, 2005 BCCA 444 at para. 24). Constructive possession was addressed by Madam JusticeMacKenzie in R. v. Ahmadzai, 2012 BCCA 215 , with reference to the Supreme Court of Canada case of R. v. Morelli, 2010SCC 8 : [26] Proof of manual handling of a prohibited item or substance is not required to prove constructive or joint possession under s. 4(3).

Rather, to prove constructive possession, the Crown must prove beyond a reasonable doubt that the accused had knowledge of thenature of the prohibited item or substance and some measure of control over it. In R. v. Morelli, 2010 SCC 8 , [2010] 1 S.C.R.

253, Fish J. for the majority said: [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 the accused: (1) has knowledge of the character of the object, (2) knowinglyputs or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particularplace for his "use or benefit" or that of another person. [27] Thus, the question is whether, on the whole of the evidence, the trial judge could reasonably have concluded beyond areasonable doubt that the appellant had knowledge of and some measure of control over, the weapons and marihuana found in thevehicle.

The trial judge acknowledged the applicability of this test and properly set out its contents at para. 31 of his reasons forjudgment. [16] Joint possession applies to a situation in which more than one person has possession of something. The person who does nothave personal possession jointly possesses the item if he knows that the other person has custody or possession of it, and either exercisesor has the right to exercise control over it.

Joint possession also requires proof of knowledge and control (Fisher at para. 24). [17] Knowledge and control may be proved either by direct evidence or by circumstantial evidence or a combination of both. [18] The requisite element of knowledge is also established if the accused is “wilfully blind” to the nature of the substance, that is, ifhe or she knows enough that further inquiry ought to be made but wilfully shuts his or her eyes or refrains from making the inquiry. In R.v.

Briscoe, 2010 SCC 13 , Charron J. explained wilful blindness as follows: [21] Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledgewhenever knowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whosesuspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. See Sansregret v. The Queen, (SCC), [1985] 1 S.C.R. 570, and R. v. Jorgensen, (SCC), [1995] 4 S.C.R.55.

As Sopinka J. succinctly put it in Jorgensen (at para. 103), “[a] finding of wilful blindness involves an affirmative answer to thequestion: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?” [22] Courts and commentators have consistently emphasized that wilful blindness is distinct from recklessness. The emphasis bearsrepeating.

As the Court explained in Sansregret (at p. 584): . . . while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that theprohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to makethe inquiry because he does not wish to know the truth. He would prefer to remain ignorant.

The culpability in recklessness is justifiedby consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused’s fault indeliberately failing to inquire when he knows there is reason for inquiry. [Emphasis added.] [19] Possession does not require any proprietary interest in the item (R. v. Arason (1992), (BC CA), 78 C.C.C. (3d)1 (B.C.C.A.)). 2.

Proof of Possession Based on Circumstantial Evidence [20] As stated above, the Crown may prove the essential elements, knowledge and control, through direct evidence or circumstantialevidence, or a combination of both. [21] In R. v. Villaroman, 2016 SCC 33 , Cromwell J. set out the law regarding drawing inferences from circumstantialevidence and the relationship between proof by circumstantial evidence and proof beyond a reasonable doubt.

Justice Cromwellexplained that when the Crown’s case is based on circumstantial evidence, “the basic question is whether the circumstantial evidence,viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused isguilty”. If there is no other such inference, there is no reasonable doubt as to the accused’s guilt.

In other words, “an inference of guiltdrawn from circumstantial evidence should be the only reasonable inference that such evidence permits” (para. 30). [22] Alternative inferences to guilt “must be reasonable, not just possible” (para. 42). A reasonable doubt “cannot arise fromspeculation or conjecture” (para. 50).

Accordingly, the Crown may need to negative reasonable inferences other than guilt arising fromcircumstantial evidence, but: the Crown certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistentwith the innocence of the accused”: R. v.

Bagshaw, (SCC), [1972] S.C.R. 2, at p. 8. “Other plausible theories” or “otherreasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. (Villaroman at para. 47) [23] In considering whether circumstantial evidence supports an inference of guilt beyond a reasonable doubt, the court must notexamine each individual circumstance in isolation.

The proper approach is to consider whether all the evidence taken together in itstotality proves the accused’s guilt and is inconsistent with any other rational conclusion (Villaroman at para. 35). [24] Sometimes a single piece of circumstantial evidence may be such as to exclude reasonable doubt. Robinson Crusoe’s discoveryof the print of a man’s naked foot compelled his conclusion that he was not alone on his island (R. v. He, 2008 BCCA 418 atpara. 42).

[25] The court is entitled to bring a measure of common sense to bear on the analysis. The court is not expected to consider the caseas a “completely intellectual exercise where no conclusion can be reached if there is the slightest competing possibility” (R. v. To (1992), (BC CA), 16 B.C.A.C. 223 at para. 41, cited in Fisher at para. 42 and He at para. 66). [26] It is the submission of the Crown that s. 21(1) of the Criminal Code has an application in this matter. It provides that: Everyone is a party to an offence who (

a) actually commits it; (

b) does or omits to do anything for the purpose of aiding any person to commit it; or (

c) abets any person in committing it. [27] In R. v. Bi, 2011 BCCA 10 , the Court of Appeal dismissed the conviction appeals of a husband and wife who had beenconvicted as parties to the offences of production of marihuana, possession of marihuana for the purpose of trafficking and theft ofelectricity. The accused had been the tenants in the upper floor of a house where a marihuana grow operation was located in thebasement.

The trial court had taken into account the value of the marihuana grow operation in considering whether the owner of themarihuana would have permitted upstairs tenants who had no knowledge of the operation.

The Court of Appeal found that this had notbeen speculative reasoning by the trial judge, but rather had been the application of “ordinary human experience” (para. 16): ...it is common sense reasoning in cases such as this that the owner of the marihuana-grow operation would want exclusive residents ofthe premises to be involved in some aspect of the operation. [28] In upholding the convictions in Bi, the Court of Appeal also stated that the trial court was not required to determine whether eachaccused was a principal, an aider or an abetter, only that each accused was one or another (para. 20). [15] I find further guidance from Justice Cromwell of the Supreme Court of Canada in R. v.

Villaroman, 2016 SCC 33, [2016] 1S.C.R. 1000 at paragraph 35 where he writes: (iv) Whether the Inference Must Be Based on “Proven Facts” [35] At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rationalconclusions based on inferences drawn from proven facts”: see R. v. McIver, (ON CA), [1965] 2 O.R. 475 (C.A.), at p.479, aff’d without discussion of this point (SCC), [1966] S.C.R. 254. However, that view is no longer accepted. Inassessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v.

Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370 , 361 B.C.A.C. 301, at para. 10; R. v. Bui,2014 ONCA 614 , 14 C.R. (7th) 149, at para. 28. Requiring proven facts to support explanations other than guilt wrongly putsan obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by consideringall of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it.

Ifthere are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt. [36] I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by themere fact that it arises from a lack of evidence. As stated by this Court in Lifchus, a reasonable doubt “is a doubt based on reason andcommon sense which must be logically based upon the evidence or lack of evidence”: para. 30 (emphasis added). A certain gap in theevidence may result in inferences other than guilt.

But those inferences must be reasonable given the evidence and the absence ofevidence, assessed logically, and in light of human experience and common sense. [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.

I agree with the appellant that the Crown thus may need to negative these reasonablepossibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might beconsistent with the innocence of the accused”: 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 onspeculation. [38] Of course, the line between a “plausible theory” and “speculation” is not always easy to draw.

But the basic question is whetherthe circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference otherthan that the accused is guilty. [39] I have found two particularly useful statements of this principle. [40] The first is from an old Australian case, Martin v. Osborne (1936), 55 C.L.R. 367 (H.C.), at p. 375: In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation.

This means that,according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would beaccompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. [Emphasis added.] [41] While this language is not appropriate for a jury instruction, I find the idea expressed in this passage — that to justify aconviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonablealternative — a helpful way of describing the line between plausible theories and speculation. [42] The second is from R. v.

Dipnarine, 2014 ABCA 328 , 584 A.R. 138, at paras. 22 and 24-25. The court stated that

“[c]ircumstantial evidence does not have to totally exclude other conceivable inferences”; that the trier of fact should not act on alternative

interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible. [43] Where the line is to be drawn between speculation and reasonable inferences in a particular case cannot be described with greater clarity than it is in these passages. THE ANALYSIS OF THE EVIDENCE [ 16 ] The evidence in this trial covered many different days and some of the witnesses needed to be accommodated due to other time commitments.

As such, it is not useful to cover the evidence in a traditional fashion such as the order in which witnesses gave their evidence. In my view, assessing the evidence of the witnesses in the context of the issues is a better approach. [ 17 ] This case is the result of an eight month investigation by a team of RCMP officers that are part of a ‘Clandestine Lab Enforcement and Response Team’. Their mandate is to be the primary response team to clandestine drug labs in the Yukon and British Columbia. [ 18 ] Once more, it is a circumstantial case.

As such, I find it useful to break down the analysis in a manner that helps me decipher if there are any connections between certain things. Are people connected? Are certain people connected to certain places, such as the Lab? If there are connections, I then need to examine the strength of these connections. For example, are they connected in time and place? How many times are people seen together or seen to go to certain places? What were they doing when they were seen together?

Can the connection be explained away by an alternative reasonable explanation other than guilt? [ 19 ] With respect to Slemko, his counsel implicitly argues that there are alternative inferences other than guilt. More expressly counsel strongly argues that there are evidentiary weakness or gaps in the Crown’s case that create a reasonable doubt. With respect to Stewart, a possible alternative to guilt is suggested. This will be addressed later in these reasons. [ 20 ] First, I will examine the evidence with respect to the Slemko residence.

Then I will provide reasons with respect to Stewart and Slemko and the Lab. A. THE SLEMKO RESIDENCE: Was the substance a controlled substance, namely MDMA or MDA? Evidence of Police Officer Constable Romanko [ 21 ] On October 28, 2016, Cst. Romanko executed a search warrant at Slemko’s residence. This officer had been observing Slemko for approximately eight months and was the commander of the site upon the warrant’s execution. He arrested Slemko as well. He was able to confirm dates, jurisdictions and the identification of Slemko. As to the quality of evidence, he was concise, consistent, and extremely detailed.

He was able to recollect every minute detail of his participation in the investigation, right down to license plates, without referring to any notes. [ 22 ] He described his interactions with Slemko at time of arrest. Slemko was compliant and cooperative. He opened the door and let the officers in. The court also had the benefit of a video taken of the home at the time of Slemko’s arrest. The video shows a tidy and organized two bedroom apartment. [ 23 ] The search of residence located: 1. Container on balcony containing 530 grams of liquid MDMA found on the patio. 2.

Backpack: containing one bag with 1.47 kilograms of MDMA (& 5-9 below). 3. Bag: with 47.4 grams of MDA. 4. Bag: 17.4 grams (brown crystal substance) of MDA. 5. Bag: 50 grams of MDA. 6. Bag: 83.4 grams of MDA. 7. Bag: 35.5 gram of MDA (powder). 8. Empty buckets and separator funnels. 9. Acetone/solvents: located in fridge, freezer and kitchen cabinets. 10. Home Depot bucket containing 5.6 kilograms of non-controlled substance powder. 11. Bag containing 10.3 kilograms of non-controlled substance powder. 12. Business card of Slemko with company name “SMG Management”. 13. $1,600 in $50 dollar bills. 14.

Two big hockey bags that a Constable had seen him buying May 27, 2016. [ 24 ] As a matter of law, the CDSA makes it clear that MDMA and MDA are controlled substances. A number of Certificates of

Analyst have been filed as exhibits. The certificates establish that the substances found were MDMA or MDA. I am satisfied that the substances located in Slemko’s residence that have Certificates of Analyst filed, showing that they are MDMA or MDA, proves that the substances were controlled substances as defined by the Controlled Drugs and Substances Act . [ 25 ] There was also, as listed above as #11, a black garbage bag containing 10.3 kilograms of a material that was determined to not be a controlled substance.

I am not able to make any findings with respect to this material. [ 26 ] Lastly, as listed above as #10, there was a Home Depot bucket containing 5.6 kilograms of a product. It is not clear what this product was. I am not able to make any findings of fact concerning this product. [ 27 ] In essence, Slemko does not argue that he was not in possession of these substances. To the contrary, he concedes that it would be fair to infer that he had possession of MDMA and MDA. Slemko, however, questions whether the possession was for the purpose of trafficking or for some other purpose.

On the topic of possession, while conceded, I note that the evidence establishes that this was Slemko’s residence. He had control over it. He was known to live there and his keys were located in the kitchen. His keys to his car were also present. He was seen approximately two months earlier on the balcony moving some heavy items. He was present at the time of the execution of the warrant and had even unlocked the door to allow the officers in. In short, he had authority and control and possession over the residence and its contents. [ 28 ] In

summary

section 2 of the CDSA directs that the definition of possession is the same as in the Criminal Code of Canada . Section 4(3) defines possession, and based on this legal definition of possession, I conclude that the Crown has proven possession of the substances located in his residence. They were all located within the confines of his home, not hidden in any manner. It is obvious to me that he knew where the substances were and what they were.

There were precursor solvents located around his house and I accept the Crown’s submission that the amounts found are not consistent with general household use. [ 29 ] Was Slemko in unlawful possession of the MDMA and MDA? There is nothing in the evidence to indicate that he was in lawful possession of these substances. I conclude beyond a reasonable doubt that there was no lawful purpose for the possession of these substances. [ 30 ] Was the unlawfully possessed MDMA and MDA possessed for the purpose of trafficking?

Trafficking means to sell, administer, give, transfer, transport, send, or deliver something to someone else. In considering this issue, I must consider all the circumstances. I accept that quantity of the drugs is only one consideration. Or to put it in terms of Slemko’s counsel, quantity or valuation is simply one “critical variable” that can be considered. To be clear, just because someone might be in possession of what is considered a large quantity of drugs, that does not mean their intent was to traffic them. Evidence of Sgt. Rettie [ 31 ] Sgt.

Rettie provided expert evidence to the court in the pricing, use and distribution of MDMA and MDA. He has extensive experience and provided his opinion with respect to the quantities of MDMA and MDA that were located in Slemko’s residence. [ 32 ] He estimated pricing of MDMA and MDA to be approximately $30-$50 per gram; $500- $700 per ounce; and $15,000-$20,000 per kilogram. [ 33 ] He estimated that 7 different bags in the residence contained approximately 2.7 kilograms of MDMA.

While in cross- examination he agreed that some of the items found, such as the 530 grams of liquid MDMA might be able to be used by a heavy user over the course of a few days, in his view it was unlikely that it was possessed for such a purpose. I acknowledge Slemko’s argument that the 216 grams of MDA used over a period of nearly 70 days, at 3 grams a day, could be one possible inference that the court can draw that favours a finding of simple possession versus possession for the purpose of trafficking.

However, to come to this conclusion requires a huge inferential leap that there is a person that would use 3 grams a day for 70 days. There is no indication that Slemko or anyone in that house used MDA. Of course, there need not be a proven foundation of fact to support the alternative inference being offered. But I favour the opinion of Sgt. Rettie that the possession is only consistent with the purpose of trafficking over the speculative approach of imagining a ‘ghost’ user. It makes more logical sense to me that the amount of drugs is only consistent with possession for the purpose of trafficking.

In my view, there are no other reasonable alternatives. [ 34 ] As for estimated value, there was a range given. He estimated the amount of MDMA found would have a value, if sold at the gram level, in the range of $81,110 if sold for the lower price of $30 per gram. He agreed that it could be sold for as little as $40,905 if it was sold at the lower price of $15,000 per kilogram. He estimated the MDA to have a value of $6,489 if it were sold at the gram level and about half that if sold at the ounce level. [ 35 ] Slemko takes issue with the valuation of the substances.

It is argued that the premise upon which the expert valued the ‘tar-like sludge substance’ should not be valued the same as a finished product found in powder form. It is argued that this is not a ‘sound’ approach and that the court must be wary to rely on it. Approached from a common sense perspective as to weight, it is easy to fathom a liquid-like substance might be heavier than a powder-like substance. The difficulty is this, Sgt. Rettie testified that the substance was not unlike MDMA he had purchased in the past. From this evidence I can infer that the substance is consistent with a marketable substance.

It is a large amount of marketable product. It just so happens not to be in powder form. Perhaps more importantly, I have not been provided alternative valuations that contradict the opinion of Sgt. Rettie. Nor was his opinion shaken on cross-examination. I note his opinion as to trafficking was based on the lower end valuation of the substance, rather than the higher evaluation.

Even if the valuation is slightly off, which I do not find the evidence establishes, there is still the issue of quantity or weight. [ 36 ] It was his expert opinion based on the quantities found inside the residence, that the quantities are only consistent with distribution at a wholesale level. I agree. To reiterate the officer’s testimony, these quantities are “a significant amount of MDMA”. While again ‘quantity’ is only one consideration, the amount possessed here is large, both in quantity and value.

The packaging in individual bags and in different quantities also are contextual features that I consider to be consistent with trafficking. [ 37 ] I find that there are no other reasonable alternative explanations that provide me insight as to the purpose of possession. I

conclude that the Crown has proven beyond a reasonable doubt that Slemko possessed these drugs for the purpose of trafficking them. [ 38 ] I find Slemko guilty of being in unlawful possession of MDMA and MDA in his residence. These substances were possessed for the purpose of trafficking. There will be a guilty verdict with respect to count three. [ 39 ] I note as a matter of procedure that Stewart is charged with unlawfully possessing MDMA on October 28, 2016. This is the offence date for Slemko as well.

I appreciate the Crown has told me that they are not seeking to convict Stewart with respect to the MDMA found in Slemko’s residence. However, in an effort to be overly clear, since they are both charged with the same crime on the same date, I find there is nothing in the evidence to suggest that Stewart had control over any of the substances found in Slemko’s residence and, as such, I do not find him guilty of being in possession of these substances, in that residence, on that date. B. The Lab: Slemko and Stewart i. Legal Meaning of Production [ 40 ] R. v.

Pabla , 2013 BCSC 913 , is a decision by Madam Justice Dickson. In that case the accused was charged with producing MDMA. I rely on Justice Dickson’s useful

summary of the meaning of production: Producing a Controlled Substance [63] Section 7(1) of the CDSA provides: 7 .

(1) Except as authorized under the regulations, no person shall produce a substance included in

Schedule I, II, III or IV. MDMA is such a scheduled substance. [64] Production is defined in s. 2(1) of the CDSA as follows: "produce" means, in respect of a substance included in any of Schedules I to IV, to obtain the substance by any method or process including (

a) manufacturing, synthesizing or using any means of altering the chemical or physical properties of the substance, or (

b) cultivating, propagating or harvesting the substance or any living thing from which the substance may be extracted or otherwise obtained, and includes offer to produce. [65] Section 2(2) provides:

(2) For the purposes of this Act, (

a) a reference to a controlled substance includes a reference to any substance that contains a controlled substance; and (

b) a reference to a controlled substance includes a reference to (

i) all synthetic and natural forms of the substance, and (ii) any thing that contains or has on it a controlled substance and that is used or intended or designed for use (

A) in producing the substance, or (

B) in introducing the substance into a human body. ii. Did a Lab exist? [ 41 ] While perhaps obvious to anyone who watched the trial that there was a clandestine lab actively producing controlled substances, erring on the side of being thorough, I will still provide my conclusions as to whether a lab existed. [ 42 ] Mr. Glen Wong was a drug expert witness in the trial. He provided his conclusions and testified that “In my view all the ingredients were present to produce MDMA; all the chemicals that one would expect to be present if producing MDMA were there”.

I agree with his conclusions that all the things one would need to produce MDMA were in that lab. He testified that a total 75 kilograms of MDMA could be made in that lab with the amount of precursor chemicals located on site. Albeit, it appears that in order to make this high volume of MDMA, some of the precursors would need to be replenished. [ 43 ] There were over sixty exhibits filed in this trial. In one exhibit there are over 350 photographs. The photos show the Lab and its contents.

To help one understand the size of the operation, notably there were over 160 litres of methyl chloride, compressed cylinders of hydrogen chloride gas, approximately 160 litres of acetone, heat sources and numerous drums and buckets of other precursor agents. Literally everything you need to make MDMA, from buckets and beakers to valves and solvents, were present. The chemicals were neatly stacked on custom-built shelves and tools were meticulously and neatly hung on the wall. [ 44 ] To be clear, this was not a dormant lab. This Lab was actively producing MDMA. Mr.

Wong confirmed that not only were there “a lot of chemicals” but that there was a large plastic hopper in the middle of the garage with 80 gallons of liquid in it that tested positive for MDMA. In his view, this liquid once it completed the processing stages, would yield 35 kilograms of powdered MDMA. The large hopper had a motor attached to a blade. That blade was in the liquid actively agitating the liquid. There was a video camera mounted so that one could monitor the liquid. I conclude that the Crown has proven beyond any reasonable doubt that the Langley residence contained a clandestine lab.

The purpose of the Lab was to produce MDMA.

iii. What connectors exist between Slemko and the Lab? [ 45 ] The investigation of Slemko was significant. He was the target of the investigation. He was constantly watched. The police have detailed records as to what he did, where he went and who he met with. I accept Slemko’s submission that he was actually under surveillance during the time period in which the Lab was initially established. As such, it appears clear that there is no way he directly participated in the establishment of the Lab by providing physical labour.

In other words, he may have not put up the ventilation system and some of the other things that were needed during the early stages of the Labs creation. If he had, then the police would have seen him during their surveillance. a. The meetings between Slemko and Stewart [ 46 ] These are detailed later in these reasons. b. His ability to physically access the Lab [ 47 ] He was seen taking three buckets from a vehicle and putting them inside the Lab. On another occasion he was also seen going into the Lab and coming out two hours later.

In my view, this ‘close physical proximity’ to the Lab is important to understand in the context of other evidence. One police officer testified that he was on the neighbouring property next to the Lab just the day before the warrant was executed. The officer said even from a distance he could “hear some sort of a motor” and could smell a “sweet solvent smell” that suggested to him that this was a production site. Slemko was even closer to the Lab. It is logical to me that Slemko could hear the same noise, smell the same odour and had the further advantage of actually seeing the inside of the garage.

The pictures make it readily apparent that significant modifications were made to the garage to accommodate the creation of a lab. Distinctive venting ducts are very obvious and visible in the pictures. c. Storage locker connection to the Lab [ 48 ] The evidence is clear that Slemko rented, paid for and used a storage locker prior to being arrested on these charges. During this time the police had a warrant that allowed access to the contents and they documented items located in that storage locker. Notably, a ‘Kreyer’ air conditioner with a serial number 14060032 was observed to be in the locker.

The police were able to use the serial number to track down the company, who confirmed the unit had been sold to Slemko. A Kreyer air conditioning unit was later located in the Lab. [ 49 ] Defence counsel for Slemko agrees that the unit was seen in the locker in April 2016 but contends that it was no longer in the locker by July 17, 2017. They argue that since the house the Lab was found in had not yet even been rented, that we do not know where the unit was between the time it was extracted from the locker and found in the Lab three months later.

I am asked to pose the question: “where was it in the meantime?” In my view, this question need not be answered. There is nothing in the evidence to show that ownership of this unit passed from Slemko to anyone else. It does not matter where it was stored in this small time frame. [ 50 ] Defence also submits there is no way of knowing that the unit in the locker is the same unit that was found in the Lab. I disagree.

An examination of the serial number and a visual comparison of the pictures of these units fortified by the evidence of the officers who saw the item in the storage unit as well as Lab, satisfy me that the units are the same item. [ 51 ] Also found in a search of the locker was a blue compressor air tank. A similar one was located in the Lab. Slemko argues that through a visual inspection of the pictures one cannot determine with any degree of exactness that the tank seen in the locker was the tank found in the Lab. Another example of an item was that there was a ‘Baldor’ brand motor seen in the storage locker.

The same sort of type and brand of motor was found at the Lab, actively agitating the MDMA substance. Slemko argues that the motor seen in the pictures “had an attached blue plate with identification markings and that there is no indication that the item in the Lab is the same as what was seen in the storage locker.” It is submitted that this would have been an easy task for the police to provide further evidence on. It is argued, they could have made a notation of the original serial number and compared it to the one found in the Lab.

As is the case with most circumstantial cases, I instruct myself that the Crown need not prove beyond a reasonable doubt that the tank or the Baldor motor was the same one. They are merely individual pieces of the circumstantial puzzle that I may consider. [ 52 ] Similarly, there were twelve boxes containing 18.9 litre plastic buckets were located in the storage locker. There were many of these types of buckets found in the Lab. There were buckets filled with an unidentified liquid stored. Similar buckets were located in the Lab. There were valves in the locker.

It appears that these valves or at least ones extremely similar, were located in the Lab. d. Receipts located in dumpster [ 53 ] Some garbage that seemed to come from the Lab was tossed into a dumpster. A partially burnt receipt from ‘Industrial Paints’ was found in the dumpster. Slemko’s name was on that receipt. This is circumstantial evidence that I can consider when assessing Slemko’s connection to the Lab. e.

Seen with items that were found in the Lab [ 54 ] A particular brand of kitty litter, ‘Husky’ brand garbage bags, blue shop towels, a red fire extinguisher, bolts, a white plastic hopper, hose adaptors, motor oil, a small work bench, orange Home Depot buckets and lids were all purchased by Slemko at some point in time. In some instances he was seen purchasing the individual items. Receipts for many of the purchases are exhibits in this trial. I do not find the receipts helpful and do not accept them for the truth of their contents. But each of these items were located in the Lab.

There were other items as well. [ 55 ] Expert evidence suggests that most of these items are consistent with the production of MDMA in a lab. Based on the evidence, I cannot conclude with any degree of certainty that the kitty litter or motor oil have any direct purpose related to the production of MDMA. These are simply two items that were seen in the custody of Slemko and similar items were found in the Lab.

f. Association with chemicals [ 56 ] He is seen buying over a hundred pounds of sodium bicarbonate. He also bought lye. He has gallons of unidentified liquid in his storage locker. He has barrels of different substances in his storage locker. The Lab also has the same brand acetone located within it. The police watch him transfer heavy buckets of some sort of substance to another person. One officer testified he thought he saw Slemko with buckets of ‘organic solvents’.

However, I cannot give this observation much weight, as it was unclear to me why the officer thought the buckets appearance was consistent with organic solvents. [ 57 ] He ordered over a hundred gallons of acetone. We know this because the owner of the business testified that she sold it to ‘SMG Management’. Her business records showed that SMG was one of their clients and Slemko was there main contact for that company.

I also note that Slemko had a business card in this name, in his personal possessions when he was arrested. [ 58 ] Expert evidence suggests that each of these chemicals is consistent with the production of MDMA in a lab. [ 59 ] Slemko argues that with respect to the acetone, any such items that may be similar to the ones purchased were still factory sealed. From this it is argued that the mere presence of the acetone is not enough to convict a person for participating in the production of the MDMA. On this point, I note the acetone was large in quantity.

There is no other innocent purpose that has been offered for its purchase or possession. It was located in a clandestine lab. An expert has told me that this type of organic solvent is commonly used to process MDMA. MDMA was located on the site. All factors only produce one inferential conclusion. The acetone was one hundred percent there to be used to produce MDMA. There is absolutely no other reasonable inference at all. g. Drugs located in his home [ 60 ] MDMA and MDA was located in his home. The quantities of the drugs as well as the packaging are consistent with having a connection to a lab.

To create the drugs one would need exactly the same things that were found in the Lab. h. Other known associates [ 61 ] I do not put any weight on this category. However, Slemko is seen having some interaction with individuals who allegedly appear to be somehow associated to a different clandestine laboratory. One of those individuals was seen driving the white van and picking up and delivering acetone from the point of sale to the Lab. On another occasion, one of these individuals is seen driving Stewart’s car and Slemko is a passenger in it. The car thus becomes another link between Stewart and Slemko as well.

These points also support a connection between Slemko and the van and acetone. To be clear, I agree with Slemko’s counsel that I must not be lured into a ‘guilt by association’ line of thinking. To me, there has not been any evidence led that would establish that anyone named Scourgie or Panton were found guilty of producing any substance in a clandestine lab. Even if this was possible to conclude with any degree of certainty, just because Slemko is seen with them this does not assist me in determining whether the Crown has proven the case against Slemko beyond a reasonable doubt.

To put it another way, Slemko is not guilty of an offence even if he is hanging around others that might be involved in criminal activity. [ 62 ] A phone located in a bedroom where the Lab was, had the contact information listed for a “Ali Slemko”, who was the girlfriend to Slemko during this time period. Of course, I acknowledge the strength of this particular circumstantial evidence considered outside the whole of the evidence is somewhat weak. It is simply only one piece of evidence that can be considered. iv.

What connectors exist between Stewart and the Lab? [ 63 ] Neither Stewart nor Slemko were present at the Lab at the time of the search. However, there are other connectors that I consider to be relevant. a. Tenancy [ 64 ] The owner of the Langley residence testified. He told the court that he had rented the residence out to Stewart. He identified Stewart as the only person who signed the lease agreement. The landlord recalled coming by the house about a month after the lease was signed and met with Stewart at the residence.

The landlord was able to look at the pictures of the garage and confirmed that the venting and other significant modifications done to accommodate the creation of the Lab were not done by him and must have been done during the tenancy of Stewart. b. Bedroom in residence - Receipt found [ 65 ] In what has been called ‘bedroom #4’, there was a desktop computer on a table, creating a sort of makeshift office. A receipt for a cell phone purchased October 27, 2016 was located next to that computer. Stewart’s name was on that receipt. I note the warrant was executed on October 28, 2016.

Therefore there is a close physical proximity between the receipts with Stewarts name to the Lab. Based on the date of the receipt there is also a close nexus in time. There were keys in this room that opened up a door between the residence and the garage, where the Lab was found. I find that Stewart had access to the room and the keys. The keys provide controlled access to the Lab. c. Mail located in dumpster [ 66 ] Some garbage that seemed to come from the Lab was tossed into a dumpster. Some mail with Stewarts name was located in the dumpster. This is another link between Stewart and the Lab. d.

Physical presence at residence/lab [ 67 ] In addition to the landlord testifying that Stewart was the tenant and was seen at the residence, the police also made some observations of Stewart at the residence.

[ 68 ] On October 12, 2016 a member of the surveillance team saw Stewart walk from the residence to a gym located about half a block away. He met with Slemko and came back to the house and went inside of it together for about two hours. [ 69 ] On October 26, 2016 Stewart is seen unloading Home Depot buckets from a white van in through a door into the garage where the Lab was. [ 70 ] The same logical reasoning regarding Slemko as stated above is applicable here with respect to what one might hear, smell and see. e.

Link to white van [ 71 ] One officer observed Stewart driving a white GMC cargo van with a license plate JG3150 on a number of occasions. This van was used to transfer garbage from the Lab to a dumpster. It was used to pick up and deliver hundreds of litres of acetone from the point of sale to the Lab. The van also was seen driving to and from a chemical company named Praxair. The driver on the ‘Praxair’ occasion is believed to be Stewart. Praxair packaging was found within the Lab.

In short, the van was used by a number of individuals to transport chemicals into the Lab. [ 72 ] Another example of the van’s use was that on October 5, 2016 when the van was seen going from the Lab to a company called ‘Industrial Plastic and Paint’.

A number of metal pails containing chemicals were loaded into the van and then delivered to the Lab. [ 73 ] On one occasion the van was driven by Stewart to meet with Slemko, where a package was transferred from Slemko to Stewart and put in the van. [ 74 ] On October 13, 2016 Stewart was driving the van when Stewart went shopping in Home Depot with Slemko. [ 75 ] Close to two weeks later and just two days before his arrest on October 26, Stewart again drove the van, met with Slemko and transferred three buckets from Slemko’s car to the van.

The van then returned to the Lab where those buckets were transferred into the Lab. [ 76 ] When questioned about quality of observations, one officer was able to say at one point in time, he was no more than 10 feet away from Stewart, as they were both gassing up their vehicles at a gas station. All this to say there is a strong link between Stewart and the van, and the van to the Lab. f. Link to Slemko [ 77 ] On October 12, 2016, Stewart was seen meeting with Slemko near a gym and walking to the Lab together.

They both went into the Lab for about two hours. [ 78 ] He was also seen shopping at Home Depot with Slemko. Undercover officers were so close to them that they were able to see the items in their shopping cart. They were buying multiple five-gallon pails, bolts and a fire extinguisher. While some receipts might have been tendered for these purchases, they are of little value, especially when balanced against the first-hand observations of the investigating officers and their detailed surveillance. [ 79 ] On October 13, 2016 there was a hand-to-hand transfer of some item between Slemko and Stewart.

There is nothing to suggest that the item being transferred was any sort of drug. However, it is simply another connector or example of a meeting that indicates a relationship between Slemko and Stewart. [ 80 ] On October 26, 2016 there was also some sort of exchange that took place between them at a golf range. Three heavy buckets were transferred by Slemko to Stewart. v. Conclusions: Slemko and Stewart and Possession and Production Allegations [ 81 ] With reference to the receipt for a phone in Stewart’s name that was found in a room in the house, the Crown does not argue that Stewart occupied this residence.

In reply, they argue that no degree of residency is required, whether regular, temporary or long term. Rather, they argue that the circumstantial evidence considered as a whole proves beyond a reasonable doubt that Stewart rented the house, allowed it to be modified and, as such, essentially helped create the Lab.

They argue the 80 gallons of MDMA substance was actually possessed by Stewart, that he knew what the substance was; he knowingly put or created the substance in that lab, and had some measure of control over it. [ 82 ] Failing a finding of actual constructive or joint possession with Slemko, the Crown argues that in the very least Stewart was ‘wilfully blind’ and thus I am able to impute the requisite ‘knowledge’ or mens rea required to convict Stewart.

I agree that I would be able to consider this line of reasoning, as supported by the case law cited earlier in these reasons, but for now, I do consider it necessary to examine the law under this heading. [ 83 ] On October 13, 2016 Stewart was seen entering the house. He was in the house for about two hours. There is also circumstantial evidence that Stewart saw the inside of the garage. A man, thought to be Stewart, wearing certain flannel pants, was seen unloading buckets into the garage through the east door. As a side-note, one officer thought he found the same pants in one of the bedrooms of the residence.

On this point, Stewart argues that “someone could walk into the garage and not necessarily know there is an MDMA production lab within it”. Stewart argues that the actual hopper was out of sight, located within a sub-room. In my view, this alternative inference is inconsistent with the surveillance of the officers who made observations both within the garage and outside the perimeter of the garage. Based on officer observations, Stewart would have seen the significant venting ducts coming from lab. He must have heard the sounds of the agitating motor.

He must have smelled the same sweet solvent smell that the officer described being able to smell from the neighbour’s property. I find beyond any reasonable doubt that Stewart knew what was happening in that lab. I also accept that based on the totality of the evidence and continuity of observations made by the officers, that it was Stewart who had

driven the van to a meet with Slemko, loaded some buckets in the van, exited the driver’s seat of the van and unloaded the buckets into the garage. [ 84 ] In addition to the above, he was the tenant responsible for this house. The modifications and creation of the Lab was done during the time of his legal tenancy. He had a measurable degree of control over the Lab and its contents. All of these points lead me to the conclusion that Stewart possessed the contents of the hopper for the use or benefit of himself or another person. [ 85 ] Stewart does offer an alternative inference other than guilt.

It is submitted that this was a lengthy investigation. In the investigation, there is evidence that shows at least ten other individuals may have actually had some involvement with the Langley residence, and thus, the Langley Lab. I agree that there are other individuals associated to the house. There were rooms that were occupied and documents were found within the house supporting an inference that other people had access to the house. I am asked to consider this theory: “Mr.

Stewart leased, and sublet the house to his friends and associates and that he was unaware that a lab was being operated.” It is further argued that any sighting of Stewart at the residence or near the garage can be explained by the lease, in that, he was responsible for the upkeep of the residence. [ 86 ] The problem is that there is no evidence that Stewart sub-let this residence to anyone, let alone his “friends or associates”. It is not reasonable to leap to the conclusion that just because other people were present that Stewart did not continue to have possession of the Lab.

As the Crown argues in reply, “others may have had a role to play in this lab as well, but that is not the question”. The issue is whether the totality of the evidence establishes beyond a reasonable doubt that Stewart is guilty of production or possession. Others may also be responsible. [ 87 ] I conclude that viewed logically, in the totality of the circumstances, the circumstantial evidence is not reasonably capable of supporting an inference other than the guilt of Stewart.

With respect to Count 1 of the Information that alleges Stewart unlawfully possessed MDMA for the purpose of trafficking contrary to section 5(2) of the CDSA, I find Mr. Anthony Joseph Stewart, guilty. [ 88 ] I acknowledge that Slemko’s position is slightly different with respect to the possession of the MDMA in the hopper. I also acknowledge that there was a voir dire held with respect to his standing wherein Slemko argued that he should be able to challenge the warrant that was issued to search the Lab. This standing was denied.

It must be remembered that the voir dire was limited by the evidence within that voir dire . In contrast, the trial proper provides a more complete evidentiary foundation, albeit circumstantial, in which the court must examine the concept of possession. In my view, it is neither uncommon nor contradictory to deny standing but potentially reach an alternative conclusion with respect to possession.

In my view, each case is dependent on its own particular circumstances. [ 89 ] Some of the factors considered in the voir dire possession analysis are overlapping when considering whether in the trial proper Slemko is actually in possession of the substances found in the Lab. For example, some of the overlapping factors include the fact that Slemko was not the tenant. Further, it appears he was only observed in the house while in the presence of Stewart. As well, Slemko did not have any keys to the Lab.

Thus, one might argue that the inferences to be made with respect to Slemko are not as strong as the ones made for Stewart. However, I remind myself that it is not a competition that requires a finding of who was in possession “the most”, but rather whether the elements of possession have been proven with respect to either Slemko or Stewart. The manner of possessing an item can differ. However, one is either in possession of an item or they are not. [ 90 ] One piece of circumstantial evidence that I consider is that Slemko was in possession of the MDMA found in his residence.

He had numerous kilograms of MDMA in his possession. The Lab is capable of producing the same type and quantity of MDMA. His possession of such a large quantity in these circumstances is supportive of an inference that he was involved with the production. [ 91 ] I conclude Slemko had knowledge that the Lab existed. Just like Stewart, he had the opportunity to observe the Lab up close and thus see, hear and smell the same things Stewart could. I conclude there is evidence to support that he knew the Lab was making MDMA. I find that the evidence also supports the conclusion that he was in possession of the Lab.

In fact, the evidence is that many of the items that created the Lab, such as the air conditioning unit, actually belonged to Slemko. There is a receipt that is circumstantial evidence showing he bought the unit. This unit was in his possession. He stored the unit. The unit was located in the Lab. This is simply one example of an item that is apparently owned by Slemko that was found in the Lab. The hundreds of litres of acetone could also be inferentially linked to Slemko. He ordered and paid for the chemicals. He owned them. He controlled them.

The chemicals and MDMA and other items in the Lab were in the house. The house may have been leased by Stewart, but possession still exists under section 4(3) (a)(ii) of the Criminal Code . [ 92 ] In addition, Slemko is an apparent beneficiary of the Lab. Specifically, the Lab created an MDMA product and Slemko received the product. This is a further link between Slemko and the Lab. I find the evidence considered as a whole, supports the conclusion that Slemko possessed the controlled substances in the Lab. It may be that it was a constructive or joint possession with Stewart or possibly even others.

But that is possession, nevertheless. This conclusion, once more in my view, is bolstered by the fact that Slemko had such a significant quantity of the same substance being produced in the Lab, in his residence. I conclude that he was in possession of the MDMA found in the Lab. With respect to Count 1 of the Information that alleges Slemko unlawfully possessed MDMA for the purpose of trafficking contrary to section 5(2) of the CDSA, I find Andrew Ronald Slemko guilty of this offence. [ 93 ] Did Slemko and/or Stewart actually produce MDMA? As I have found, there was a clandestine laboratory.

It was producing MDMA. It had the ability to produce a substantial amount of MDMA. Both possessed the MDMA located in the hopper. Both assisted in placing things into the Lab for the use or benefit of the other. Now, I must examine whether Slemko or Stewart were active participants in this production. [ 94 ] Stewart was in possession of the substances and other contents of the Lab and it follows that he is, at least partially, responsible for production of MDMA. There would be no other purpose to possess this lab and its contents, such as what was in the hopper, except for the illicit purpose of producing MDMA.

The evidence examined in its totality establishes beyond a reasonable doubt that Stewart is guilty of unlawfully producing MDMA. As such, I find Anthony Joseph Stewart guilty of unlawfully producing MDMA contrary to Section 7(1) of the CDSA and convict him on Count 2.

[ 95 ] The evidence clearly shows that Slemko aided in this production by providing significant materials, including pre-cursor chemicals, to the Lab. Police observed him order chemicals and watched those chemicals being delivered to the Lab. Once more, the number of items that I discussed earlier, overwhelmingly support one inference: that he was a key supplier of materials to the Lab. There is no other reasonable inference other than he was knowingly assisting in the production of MDMA. I find Andrew Ronald Slemko guilty of being a party to unlawfully producing MDMA and convict him of an offence contrary to Section 7(1) of the CDSA.

SUMMARY OF CONCLUSIONS [ 96 ] Has the Crown proven beyond a reasonable doubt that: A. Slemko unlawfully possessed MDMA for the purpose of trafficking? i. At the Surrey condominium and/or -- YES ii. At the Langley Lab – YES B. Stewart unlawfully possessed MDMA for the purpose of trafficking? i. At the Langley Lab – YES C. Slemko unlawfully produced MDMA? i. At the Langely Lab – YES D. Stewart unlawfully produced MDMA? i. At the Langley Lab – YES [ 97 ] I am satisfied that the Crown has proven beyond a reasonable doubt that the substance at Slemko’s condominium and liquid found in the hopper in the Lab was MDMA.

I am also satisfied that the substance possessed was for the purpose of trafficking. While I do not need to determine the purpose of the production, I find the only reason Slemko and Stewart were producing MDMA in the Lab was to traffic it. [ 98 ] There were smaller amounts of substances that were located inside the residence that was attached to the Lab. I decline to make any findings with respect to these substances that analysed as MDMA.

While in any other context, the quantities found might be considered large, in the context of this case the amounts are inconsequential. ________________________________ The Honourable Judge A. Wolf Provincial Court of British Columbia