R. v. Regner, 2013 BCSC 427

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Regner, 2013 BCSC 427 Date: 20130215 Docket: 35575-2 Registry: Campbell River Regina v. Joseph John Regner Before: The Honourable Mr. Justice Bowden Oral Reasons for Judgment Counsel for the Crown: P.G. Corbett Counsel for the Defence: J.C. Hormoth Place and Date of Trial/Hearing: Campbell River, B.C. February 13 and 14, 2013 Place and Date of Judgment: Campbell River, B.C. February 15, 2013 [ 1 ] THE COURT: I am referring to Campbell River Information 35575-2, Her Majesty the Queen and Mr.

Joseph Regner. [ 2 ] Joseph Regner is charged with the possession of a controlled substance, namely, cannabis marihuana, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act . [ 3 ] On December 5, 2010, the RCMP executed a search warrant at 121 Alder Street, in the City of Campbell River, British Columbia (the "Residence"). The Residence contained two living areas, one on the main floor and one downstairs.

Documents found in the Residence indicate that Ida Regner and Trevor MacDonald resided on the main floor, or upstairs, while Joseph Regner and Dea Anderson resided downstairs. There was a shared kitchen upstairs. [ 4 ] There is no issue regarding the identity or residency of the accused. [ 5 ] When he entered the Residence, Constable Gargus said he noticed an overwhelming odour of fresh, green marihuana.

A search of the Residence revealed the following: 1. a baggie containing plant material analyzed to be marihuana weighing 3.5 grams located in the living room upstairs; 2. small quantities of marihuana in tins, a glass pipe, and remnants of smoked marihuana referred to as "roaches" found both upstairs and downstairs in the Residence; 3. a baggie containing 226 grams of a plantlike substance in the downstairs bedroom closet.

I note that this was not reliably tested to be marihuana but the expert opined that it was marihuana; 4. a digital scale in the downstairs bedroom with residue of tetrahydrocannabinol, which I note is a controlled substance; 5. a bathroom-size scale in the downstairs living room; 6. a plastic box and two cardboard boxes containing marihuana stalks, leaves, and buds with a total weight of approximately 2,469 grams in the downstairs living room.

A hockey bag was also found in that area and contained 813 grams of remnants of trimmed plants or what is referred to as "shake"; 7. grinders with residue of a green leafy substance upstairs and downstairs; 8. seven pairs of scissors, three boxes of sandwich-size baggies, and a digital scale with marihuana residue, together with a baggie containing 55 grams of marihuana under the coffee table in the downstairs living room; and 9. 523 grams of trimmed and 1,304 grams of untrimmed marihuana in a downstairs sauna. [ 6 ] There is no evidence that marihuana was grown in the Residence. [ 7 ] Constable Derek Kryzanowski, a member of the RCMP for 22 years, including 10 years in the area of drug enforcement, testified as an expert in the area of packaging, pricing, usage, trafficking, and jargon used in relation to marihuana.

He has been involved

in close to 500 police investigations relating to marihuana grow ops. [ 8 ] Allowing for the drying of the marihuana found in the Residence, the expert concluded that there was at least 1,054 grams of marketable marihuana found in the downstairs part of the Residence. The accused was not in the Residence when the search occurred, but it is conceded that he lived in the downstairs part of the Residence. There is no issue that he had control and possession of the downstairs part of the Residence. There is also no question that the accused possessed cannabis marihuana.

The issue is whether or not he possessed it for the purpose of trafficking. [ 9 ] The expert said that the quantity of marihuana found in the Residence was consistent with it being used for personal use by the occupants, including the accused, and not for trafficking. It is also clear from the evidence that some of the marihuana was being used by the residents for personal use. However, Constable Kryzanowski opined that the marihuana found in the Residence was for the purpose of trafficking. He based his opinion on four factors: 1.

Two hundred and twenty-six grams of trimmed marihuana found in a baggie is consistent with an amount that would be sold in bulk at a low level of trafficking. 2. A baggie containing 55 grams of marihuana appeared to have been filled with a larger quantity of marihuana consistent with a baggie that once contained 226 grams. 3. Three working scales in the Residence indicate that the marihuana was being weighed for the purpose of sale. 4.

The three packages of sandwich-size baggies indicate that the marihuana was to be packaged and sold at street level. [ 10 ] With regard to the first factor, being the presence of a baggie containing 226 grams of marihuana, which I will assume was marihuana, while I accept that it is a size that is appropriate for low-level trafficking of marihuana, the expert agreed that it was also a practical way of storing marihuana after it had been trimmed. [ 11 ] I have discarded the second factor, which relates to the 55 grams of marihuana, because I am not satisfied that because of its marking, the baggie once contained 226 grams of marihuana.

It is just as likely that the baggie had been recycled and used to hold various amounts of marihuana at various times before it was discovered during the search. [ 12 ] The presence of the two small digital scales containing traces of a controlled substance is difficult to explain. Defence counsel argues that the scales could have been used to divide the marihuana among the occupants of the Residence. While the expert said that could be the case, he thought that, for personal use, the marihuana would simply be divided physically among the users without weighing.

The expert's view was that a scale located in the vicinity of the baggies and the marihuana is more consistent with the purpose of trafficking than it is with personal use. It may be that the accused used the scales to divide the marihuana with the other persons who occupied the house.

Consistent with this view is the 3.5 gram baggie found in the upstairs living room, although there is no evidence that the accused prepared that baggie. [ 13 ] With regard to the empty baggies, the expert says that when found in the vicinity of the scales and the marihuana, he is of the opinion that they indicate that trafficking of small amounts of marihuana is the purpose. Nevertheless, he also accepts that they are suitable for the short-term storage of marihuana for personal use. [ 14 ] On balance, I have concluded that while it appears that Mr.

Regner probably possessed the marihuana for the purpose of trafficking, I am not satisfied beyond a reasonable doubt that that was his purpose and he is acquitted of the charge. Nevertheless, I convict Mr. Regner of the lesser included offence of possession of cannabis marihuana under s. 4 of the Act . “Bowden J.”