R. v. Wellington, 2017 BCSC 2620

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Wellington, 2017 BCSC 2620 Date: 20170127 Docket: 49698-2 Registry: Vernon Regina v. Cody Carl Charles Wellington Before: The Honourable Mr. Justice Betton Oral Reasons for Judgment Counsel for the Crown: J.M. O'Quinn Counsel for the Accused: C.C. Mastop Place and Date of Trial/Hearing: Vernon, B.C. January 16 - 18, 2017 Place and Date of Judgment: Vernon, B.C. January 27, 2017 [ 1 ] THE COURT: This matter is today for my decision following the trial.

The accused is charged on a five-count indictment with various offences of possession, including that of a prohibited or restricted firearm, a Mauser handgun, cocaine for the purpose of trafficking, and methamphetamine for the purpose of trafficking. Background [ 2 ] By way of background, fire and police personnel responded to a fire at a condominium complex on July 27, 2014. Dean Wakefield is a fire inspector who was among the responders. Before undertaking his inspection, he assisted with the suppression efforts.

While doing so, he noted a male inside the structure who he told to exit, but the male did not. [ 3 ] Constable Gravelle was among the first police on the scene. Soon after arriving he noted the accused running around in "quite a panic". Constable Gravelle spoke to the accused, who said he had been asleep in his apartment when he awoke to a bang and smoke and he ran out. He was covered in soot or smoke and had wet shoes. [ 4 ] Sometime later that day, a Mr. Boyce attended the police office and provided a statement indicating that he had started the fire in the condominium.

The police then obtained a search warrant to further the arson investigation, authorizing search for, among other things, burn patterns, ignition sources, and documents indicating residency. [ 5 ] The residence consisted of a main floor where the kitchen and living room were located. Upstairs there were three bedrooms. Photos of the residence show two of those bedrooms: one is significantly fire damaged; the other is largely undamaged. The third is not shown in the photographs. [ 6 ] On the main floor, the search resulted in the location of a black notebook which is described as a “score sheet”.

It contained, among other more generic things, records of drug trafficking transactions or activity. In a kitchen drawer, there were several documents connected to Mr. Boyce or Milligan, and four other documents connected with four other names. [ 7 ] The fire had been upstairs and the photos indicate significant fire activity in some of the upstairs areas. One bedroom was largely undamaged. Photos of it show a bed, TV, a small amount of clothing in the closet, and general indicators that the room was being used as a bedroom.

In the closet of that room, a folder with a number of bank documents in the accused's name were located, together with a single document in another name. [ 8 ] The bank documents refer to a different address at 1907 45th Street. There was also a safe. It had an access that allowed small items to be placed inside without opening the safe, referred to by some witnesses as a drop box. Once the safe was opened, several documents in a small bag were located on a shelf below that opening. On that top shelf area were a number of documents, including a Yukon health card. On the reverse was the accused's name.

There was also two British Columbia identity cards in the name of Ryan Gordon Hartwig, as well as a social insurance card in the name of Mr. Hartwig. There was also a birth certificate of the accused, a card with the name "Enform" on it, and the indication of “H2S Alive” with the accused's name. There was also a small wallet, and inside of it was a Western Union Money Mart card with the accused's name and a TD Canada Trust bank card.

[9] Below that top shelf and separated from it was more storage which contained a small bag that contained two plastic bags, whichin turn contained smaller baggies of drugs. There was also a second smaller safe.

It was fully secured, but was also opened by the police.Within the smaller safe was a gun and clip in a sock, as well as the methamphetamine drugs and a quantity of cash, some $8,700. [10] I should say that the bank documents found in the closet that were not in the safe were TD Canada Trust documents. [11] The condominium unit had been rented to the accused and a Brandon Boyce on January 1, 2014, and they remained as thetenants, according to the residential tenancy agreement with the landlord, on the offence date. The property manager for the landlord, aMr.

Hill, confirmed the accused was indeed one of the tenants on the lease. He confirmed a knowledge of the accused prior to January 1,2014, as the son of another tenant at 1907-45th Street, the address on some of the bank documents referenced above. [12] The accused made a number of admissions pursuant to the provisions of the Criminal Code for purposes of the trial.

Thoseinclude that the search of the residence on the offence date was a lawful search; that the drugs found in the safe were in fact cocaine andmethamphetamine; that the cocaine and methamphetamine were possessed for the purpose of trafficking; that the accused was not theholder of an authorization or licence as required under the Firearms Act for the weapon that was located; that the accused was not theholder of a registration certificate for the weapon; and that the handgun was indeed a prohibited firearm as per s. 84 of the CriminalCode of Canada; and finally, that fingerprints found on a notebook located in the living room of the residence, which I will refer to later,were those of the accused. [13] The accused did not testify or call any evidence on the trial.

Issues and Positions of the Parties [14] By virtue of the admissions, the singular issue is whether or not the Crown has proved that the accused was in possession of thedrugs and the gun. All of the other elements are proved by the admissions of fact made by the accused. [15] The evidence of possession is circumstantial.

Simply stated, the Crown argues that, taken as a whole, the only reasonableinference to be drawn from that circumstantial evidence is that it was the accused who had possession of the various items of concern.The accused argues, however, that there are other plausible theories and other reasonable possibilities which are inconsistent with guilt. Analysis [16] Crown and defence both referred to recent and relevant authorities which articulate the law respecting circumstantial evidence. [17] In R. v.

Villaroman, 2016 SCC 33, the Supreme Court of Canada had occasion to comment on what is necessary to prove a casethrough circumstantial evidence and whether or not other inferences must indeed be founded upon evidence. In that decision the courtsaid this: [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.), atp. 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, 14C.R. (7th) 149, at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused toprove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence.

The issuewith respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferencesother 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. . . . [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 onalternative

interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable,not just possible. [18] The B.C. Court of Appeal had occasion to consider Villaroman in a very recent decision, R. v. Wiwchar, 2017 BCCA 9. Itsummarized the Supreme Court of Canada in part at paragraph 37 in this way: [37] When assessing circumstantial evidence, inferences of fact consistent with innocence no longer have to be drawn from provenfacts.

Such inferences may be drawn from “reasonable possibilities” arising from the evidence or lack of evidence that are inconsistentwith guilt . . . [19] I will proceed now to review some of the important evidence in this case as it relates to the inferences that might be drawn. [20] There is direct uncontroverted evidence that the accused lived in the unit. That includes the tenancy agreement and theaccused's own statements to Constable Gravelle at the scene. Together these establish not only the accused's legal status as a tenant, buthis occupation of the unit on the offence date.

The narrower issue which is critical to the Crown's case is the ability to prove possessionof the gun and drugs. [21] Possession under both the Controlled Drugs and Substances Act and the Criminal Code is defined in s. 4(3) of the CriminalCode which provides as follows:

(3) For the purposes of this Act, (

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

i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or 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. [22] Section 4(3)(

a) refers to what is often called personal possession; 4(3)(a)(

i) and (ii) are often referred to as constructivepossession, and 4(3)(

b) is sometimes referred to as joint possession. [23] As noted in the text Drug Offences in Canada, 4th Edition: One final point. The three forms of culpable possession are not watertight compartments. One or more may exist at the same time and anaccused can move quickly from one form to another. Consider, for instance, a homeowner living alone who deliberately hides drugs inhis fridge. While staying at home to watch hockey on television and have the occasional cold beer, he is almost certainly in personalpossession and may be in constructive possession as well.

If later that night he decides to stay over at his girlfriend's place and the policesearch his house while he is away, he probably has shed his culpability for personal possession but may be guilty on the basis ofconstructive possession under s. 4(3)(a)(ii) of the Code. [24] Proof of residency is not sufficient to prove possession. [25] The concepts to which I have just alluded are discussed further by the B.C. Court of Appeal in the decision of R. v. Tahirsylaj,2015 BCCA 7 at paragraphs 25 and 26. [25] The Crown relied upon “constructive possession”, as defined in s. 4(3)(b).

Constructive possession was recently discussed in R.v. Morelli, 2010 SCC 8 at para. 17, [2010] 1 S.C.R. 253: Constructive possession is established where the accused did not have physical custody of the object in question, but did have it “in theactual possession or custody of another person” or “in any place, whether or not that place belongs to or is occupied by him, for the useor 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) knowingly puts or keeps the object in a particular place, whether or not that placebelongs to him, and (3) intends to have the object in the particular place for his “use or benefit” or that of another person. [26] In R. v.

Pham (2005), (ON CA), 77 O.R. (3d) 401 at 406-407 (C.A.), 203 C.C.C. (3d) 326, aff’d 2006 SCC26, [2006] 1 S.C.R. 940, the majority referred to the basic principles that govern the law of constructive possession: In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledge whichextends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. See R. v. Caldwell(1972), 1972 ALTASCAD 33, 7 C.C.C. (2d) 285, [1972] 5 W.W.R. 150 (Alta. S.C. (A.D.)); R. v. Grey (1996), (ONCA), 28 O.R. (3d) 417, [1996] O.J.

No. 1106 (C.A.). In order to constitute joint possession pursuant to s. 4(3)(

b) of the Code there must be knowledge, consent, and a measure of control onthe part of the person deemed to be in possession. See R. v. Terrence, (SCC), [1983] 1 S.C.R. 357, 147 D.L.R. (3d) 724;R. v. Williams (1998), (ON CA), 40 O.R. (3d) 301, [1998] O.J. No. 2246 (C.A.); R. v. Barreau, (BCCA), [1991] B.C.J. No. 3878, 19 W.A.C. 290 (C.A.); and R. v. Chambers, (ON CA), [1985] O.J. No. 143, 20 C.C.C.(3d) 440 (C.A.). . . .

The onus is on the Crown to prove beyond a reasonable doubt, all of the essential elements of the offence of possession. This can be accomplished by direct evidence or may be inferred from circumstantial evidence. In R. v.

Chambers , supra , at p. 448 C.C.C., Martin J.A. noted that the court may draw “appropriate inferences from evidence that a prohibited drug is found in a room under the control of an accused and where there is also evidence from which an inference may properly be drawn that the accused was aware of the presence of the drug”. [ 26 ] The accused argued that the Crown must prove the accused could open the safe or safes. That proposition ignores the very ability to prove the accused's guilt with circumstantial evidence and, further, is an erroneous

interpretation of what constitutes constructive possession. In fairness, the accused, in making those submissions, was in part saying that the absence of proof of the accused's ability to open one or both safes was a gap in the evidence that may allow for alternative inferences. [ 27 ] The elements of constructive possession are referenced in the Supreme Court of Canada decision in R. v.

Morelli , which is contained within the quote from the Court of Appeal decision in Tahirsylaj at paragraph 25 set out above. [ 28 ] The question is whether the inference of that knowledge and control is the only reasonable inference to be drawn from the evidence of whether other reasonable inferences, in accordance with the comments of the Supreme Court of Canada in Villaroman , exist. [ 29 ] In the evidence here, the room containing the safe that had the drugs and the gun was occupied by someone. Inside the closet was the folder of documents, including the bank documents.

There was a receipt, an ICBC receipt to Mr. Wellington for a BCID card from December 28, 2011, together with a transaction receipt from that same date. [ 30 ] There are various documents from TD Canada Trust dated in 2011 with Mr. Wellington's name on them and the address, 1907 45th Street. There is a page, apparently part of a full page, with a number of names and phone numbers contained on it. There was also a single document in another individual's name within that folder. The address that I have made reference to is the address that Mr.

Hill confirmed to have been the former address of this accused when he was living with his parents, all of whom were tenants of his at that time. [ 31 ] Those documents are, in my view, logically the types of documents that a person keeps with them, and if they are to be in a bedroom of the person's residence, one would expect that to be that person's bedroom. There was, of course, also the safe. [ 32 ] The accused focuses on the ability for anyone to place things in the top of that safe as an indication that the person in control of the contents is or may have been someone other than the accused.

The contents included a wallet with documents of the accused and a bank card possibly connected to the other documents found in a closet. When I say possibly, it was from the same institution. There was also the birth certificate of the accused and other personal documents of his, together with those of Mr. Hartwig. There is no other evidence connecting Mr. Hartwig to the residence within the contents of the safe or otherwise. The address of Mr.

Hartwig on the documents is a different Vernon address than that of the subject residence. [ 33 ] Also in the top of the safe were some of the drugs in individually-wrapped portions consistent with trafficking. The smaller safe within the large safe had the remainder of the drugs and the gun and clip and the money. [ 34 ] The expert evidence is that drug dealers keep their stash in their personal living area. That has, in addition to the expert's opinion, some obvious logical common sense. It is also logical that such personal documents generally would be similarly kept by their owner in their personal area.

That is obviously not universally so, given the fact of the presence of Mr. Hartwig's documents in the safe and some of the documents of others located in a kitchen drawer of the residence. [ 35 ] I should note that within that kitchen drawer are documents apparently connected to the other signatory on the lease; four, as I understand it, of that individual's and three other documents connected with other individuals.

One of those was also connected to a Colton Canton, who I will refer to later, given the presence of his fingerprints on the so-called score sheet. [ 36 ] In sum, we have a collection of personal documents of the accused in the bedroom, both in and outside of the safe, together with, in the safe, the drugs, gun, and a small collection of other documents of another signatory to the lease in a kitchen drawer, together with the aforementioned documents of others whose connection to the residence is unknown.

The defendant's proposition is that, given that information and that evidence, someone other than the accused may reasonably be found or a reasonable inference is that someone other than the accused had control of the safe, or alternatively had the knowledge and control of the contents of the smaller safe inside. [ 37 ] Viewed in isolation, that proposition may gain some traction, but I am unable to look at it in isolation. I must view it in the context of the evidence as a whole and that is the analysis to which I am referring. [ 38 ] In that regard, there is also the notebook used as a score sheet.

The writing in the book appears to contain the writing of different persons, although there is no handwriting analysis. Of the prints suitable for analysis, and there were other apparent prints that were not suitable for analysis, those prints on the larger notebook, three on one page were identified as the accused and one is connected with another identified person, that is Mr. Canton to whom I referred to earlier. He had a Telus bill as one of the documents located in the kitchen drawer. [ 39 ] Mr. Canton's print was found on one of the pages within the scoresheet book.

That page was specifically connected to trafficking activity. The evidence with respect to the Telus bill does not include any indication of any address on it or date. The presence of the fingerprint proves that the accused handled the book or scoresheet and it is at least consistent with the Crown's theory. [ 40 ] Within the folder of bank documents in the closet of the bedroom is a page cut in half with a series of phone numbers that I earlier referred to. The page appears to be the same in size and general appearance as the pages within the notebook and is at least consistent with having been taken from it.

The prints of the accused that were identified on the back of the page in the notebook contain writing that is specifically connected by the expert to trafficking activity. The prints cannot be dated. [ 41 ] Both Crown and defence refer to the accused's observed conduct at the scene as supporting their respective theories. I am able

to see some merit in each of their respective views. The accused's conduct could be an effort to get to and remove or save the illegal items, or it might be that of a person oblivious to the presence of those items simply trying to protect his residence. [ 42 ] The defence points to the multiple cellphones found at the residence as an indication of multiple occupiers or residents of the unit. It must be understood that the expert's opinion, which was not challenged, relied in part on those phones as being consistent with multiple lines being used by drug traffickers.

There is no evidence of whether the phones were in fact active and, if so, in whose names any associated accounts might have been. [ 43 ] I do not find the evidence of the cellphones to be particularly helpful in determining the question of possession. [ 44 ] The defence suggests other reasonable inferences include that someone else controlled the safe and its contents, and that the accused only dropped his documents in the top portion and would have then needed to request the owner to return them if and when he needed them, and that even if he did have access to the large safe, he did not have access to the smaller safe. [ 45 ] The accused stresses that there is a basis to conclude that other persons lived in the residence.

In my view, when one considers the evidence or lack of evidence, the theories or possibilities raised by the accused are neither plausible nor reasonable. The evidence taken as a whole does prove, beyond a reasonable doubt, that the accused had the knowledge and control necessary for him to be found guilty of the possession of the various items in each of the five counts in the indictment. [ 46 ] He was one of the tenants on the residential tenancy agreement. He was clearly staying at the residence at the time.

There is nothing in the evidence that is inconsistent with the accused being the occupant of the room containing the safe. The positive evidence that he was in fact the occupant is the presence of his personal documents, both in the safe and in the closet. The only other person with documents in the safe has no known connection with the residence, and a different address appears on that individual's documents. The different address of the accused in those documents is known to be consistent with his residence prior to the subject residence.

The expert evidence confirms the owner of the contents of the safe would likely keep those contents with him. The presence of the accused's fingerprints on the book with records of trafficking activity supports the inference. [ 47 ] On the basis of the whole of the evidence, I am satisfied that the Crown has proved its case. I find the accused guilty on each of the five counts. “Betton J.”