R. v. Peal, 2017 BCSC 623

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Peal, 2017 BCSC 623 Date: 20170413 Docket: 78554-2 Registry: New Westminster Regina v. Victor Tyrone Peal Before: The Honourable Madam Justice E.A. Arnold-Bailey Reasons for Judgment Counsel for the Crown: J. Michael Le Dressay Counsel for the Defence : Dale Melville Place and Date of Trial: New Westminster, B.C. November 21-25, 2016 Place and Date of Judgment: New Westminster, B.C.

April 13, 2017 Introduction [ 1 ] Victor Tyrone Peal is charged with unlawfully importing into Canada a controlled substance, cocaine, contrary to s. 6(1) of the Controlled Drugs and Substances Act [ CDSA ] (Count 1), and unlawful possession of a controlled substance, cocaine, for the purpose of trafficking, contrary to s. 5(2) of the CDSA , (Count 2). [ 2 ] Both charges arise from an incident that occurred at or near the City of Surrey, BC, on or about November 8, 2014, during which police found Mr. Peal and another male, Kyle Provo, in a bush area of a dark field late at night close to the Canada/US border.

The two men were found in close physical proximity to a number of items, including three backpacks containing a total of 29 kilograms of cocaine.

Issues to be decided [ 3 ] The issues to be decided in this case are whether the Crown has proven each essential element of the offences charged beyond a reasonable doubt. [ 4 ] With regard to Count 1, importing a controlled substance into Canada, the issues are whether the accused did, in fact, transport the cocaine across the border from the US into Canada, and whether he had knowledge of the presence of the cocaine in the backpacks, or was wilfully blind as to their contents. [ 5 ] With regard to Count 2, the only issue is whether the accused was in constructive possession of the controlled substance when he was apprehended by Cpl.

Kajan of the RCMP and a police dog in the bush near the location of the backpacks of cocaine. Constructive possession requires proof beyond a reasonable doubt of knowledge, consent, and a measure of control. [ 6 ] Given the circumstantial nature of the Crown’s case, the test to be applied by the trier of fact is whether the only rational inference to be drawn from the evidence is the guilt of the accused: R. v. Griffin , 2009 SCC 28 , at para. 33 . The Trial [ 7 ] The Court has considered the evidence called by the Crown. The accused, Mr.

Peal, did not testify or call evidence. [ 8 ] Unless otherwise stated I find the evidence of the witnesses called to be reliable and credible, and I accept it.

[ 9 ] The Crown called the following witnesses: 1. Agent Christopher Johnson of the US Dept. of Homeland Security, who on November 8, 2014, stopped a vehicle in Washington State close to the US side of the US/Canada border that he believed to be associated with a suspected drug smuggler named John Emit Brown; 2. Agent Chad Peterson, a US border patrol agent employed by the U.S. Dept. of Homeland Security, who was asked to assist Agent Johnson and then went to an area near the border, and made certain observations; 3.

Agent Sean Crawford of the US Dept. of Homeland Security stationed at Blaine, Washington, who testified about being with Agent Peterson on November 8, 2014, in the area of Harvey Road, H Street Road, and 0 Avenue, and his observations of the vicinity of the border on that occasion. He also identified a male named John Emit Brown from photographs and videos obtained from cell phones seized in this case; 4. Cst. Dirk Odendaal, of the Vancouver Police Department, a tactical flight officer in “Air 1”, a police helicopter, who testified about the involvement of Air 1 in the detection and apprehension of Mr.

Peal and the second male, Mr. Kyle Provo, on the Canadian side of the border in an area just north and east of Harvey Road in Washington State, and 0 Avenue and 188 th Street in Surrey, BC; 5. Cpl. John Kajan, an RCMP officer and police dog handler, an expert in interpreting the behaviour of Police Service Dog “Chad” conducting a human scent track, who was called out to track individuals reported to have crossed the border into Canada from the US, and who apprehended Mr. Peal and Mr. Provo; 6. Cst. Sven Spoljar, a general duty RCMP officer, who took custody of Mr. Peal from Cpl.

Paterson, and searched him incidental to arrest, noting the various items he had on his person. He also accompanied Mr. Peal to the hospital to be treated for dog bites, and seized further items from Mr. Peal there; 7. Cst. Stefan Moxness, an RCMP officer, who attended the scene with Cpl. Kajan, and accompanied Cpl. Kajan and police dog Chad following a track until Mr. Peal had been located. Once Chad was under control, Cst. Moxness approached Mr.

Peal, handcuffed him, advised him that he was under arrest and carried out a quick search of his person, before walking him out of the bush to 188 th Street, and turning him over to Cpl. Paterson. Cst. Moxness was then involved in the apprehension of the second male, Mr. Provo, and in locating a number of items at the scene, including the three backpacks containing cocaine; 8. Cpl. Claude Paterson, an RCMP officer based in Surrey, BC, who was the road supervisor that evening, set up police containment of the area, and oversaw various aspects of the investigation. He received custody of Mr. Peal from Cst.

Moxness, and gave directions that he be taken to the hospital. Cpl. Paterson also dealt with Mr. Provo, and the Blackberry phone taken from Mr. Provo. Cpl. Paterson was called back to the scene on November 23, 2014, to deal with some additional items a homeowner found on their property at 0 Avenue and 188 th Street; 9. Cst. Jean Bissonnette, an RCMP officer, who attended the scene to assist Cpl. Kajan in the dog track, and who assisted in taking Mr. Peal and Mr. Provo into custody until each of them was walked out of the forest area by Cst. Moxness. Cst.

Bissonnette then carried one of the three backpacks out to the street and gave it to Cst. Da Rosa; 10. Cst. Goncalo Da Rosa, an RCMP officer, who was directed to a location at about the 200 th block of 188 th Street to receive and transport exhibits he received from Cst. Moxness and Cst. Bissonnette, including the three backpacks and other items, and a camo jacket worn by Mr. Peal that had the Alcatel cell phone in a sleeve pocket. Cst. Da Rosa then helped Cpl. Rook-Green at the Surrey detachment to process the items seized; 11. Cpl.

Chris Rook-Green, with the Surrey RCMP, who did not attend the scene but received, photographed, and documented exhibits he received from Cst. Da Rosa, which included the backpacks containing cocaine, and items taken from Mr. Peal. He then passed the items seized along to Cst. Dupras; 12. Mr. Marc Moore, a jail guard, who booked in Mr. Provo, the male arrested with Mr. Peal, and in the course of doing so picked up the Blackberry cell phone associated with Mr.

Provo to turn it off as it kept ringing, and observed a photograph on the cell phone of what appeared to be packaged drugs (Exhibit 9, Photo 1), which he drew to Cpl. Paterson’s attention; 13. Cst. Ryan Cop, an RCMP officer, who received items from Cpl. Paterson taken from Mr. Provo, including the Blackberry cellphone and black clothing; and who also received items from Cst. Spoljar, and items taken from Mr. Peal, including binoculars and a gun magazine with bullets, all of which he listed upon a review of the exhibit flow chart prepared by Cst. Dupras; 14. Cpl.

George Hilliard, with “E” Division of the RCMP, a trained surveyor who usually works in accident reconstruction, who attended the scene later with Cpl. Kajan, and using evidence markers and a transit gun recorded the distances between markers placed where various items had been found, and made the diagrams contained in Exhibit 10; 15. Cst. Isabel Dupras, with the RCMP in the Federal Serious and Organized Crime Section, who took custody of the exhibits from Cpl. Rook-Green and Cst. Cop. On November 9, 2014, with Cpl. Kajan, she attended the scene where Mr. Peal and Mr.

Provo had been arrested the night before, and found and seized further items including two hats, a strap, a loaded handgun and a “ZTE” cell phone. She opened, photographed, and weighed the 29 bricks of cocaine from the backpacks, taking samples from a total of eight bricks for analysis and producing in court the “H” envelopes and their corresponding Certificates of Analysis. She also testified at the Seattle trial of John Emit Brown, who she identified as the person shown in Exhibit 22, Tab 1, Photos 1-3; 16. Cst.

Harj Binning, with the RCMP in the Federal Serious and Organized Crime Section, who received extraction reports from four cell phones seized in this investigation. He removed two videos from an Alcatel cell phone and one video from a Blackberry cellphone, copying them onto a disc marked Exhibit 21. Two of the videos on Exhibit 21, files # 221 and # 229, came from the Alcatel cell phone, and file # 263 came from the Blackberry cellphone. Cst. Binning also testified about which photographs in Exhibit 9 came from those

two cellphones; and 17. Staff Sgt. Patrick Murphy of the RCMP, who was held to be an expert in the pricing, packaging, and the importation of drugs, in particular cocaine; and who testified as to the value of the cocaine seized, and the sources, routes, and methods of cocaine importation into Canada. Admitted facts [ 10 ] There are two sets of facts admitted pursuant to s. 655 of the Criminal Code . [ 11 ] The first set of admitted facts is contained in Exhibits 19, and they are that: • Victor Tyrone Peal is an American citizen and not a Canadian citizen.

Nor is he otherwise entitled to be resident in Canada; • Prior to November 8, 2014, Victor Tyrone Peal was a resident of the State of Washington in the United States of America; • The records of the Canada Border Services Agency indicate that Victor Tyrone Peal has never presented himself at a port of entry to legally enter Canada. [ 12 ] The second set of admitted facts is contained in Exhibit 20, and they are that: • Cpl.

Lewis of the RCMP examined and, using a technical device, extracted all the data from the Blackberry cellphone depicted in Photograph 1 of Exhibit 9 in these proceedings (the “Blackberry”); • Cpl. Lewis presented a report containing all the data extracted from the Blackberry to Cst. Harj Binning of the Federal Serious and Organized Crime

Section of the RCMP at Surrey, BC; • The report presented by Cpl. Lewis depicted all the videos, photographs and text messages contained on the Blackberry; • Vincent Chand examined and, using technical software, extracted all the data from the Alcatel cell phone depicted in Photo 4 of Exhibit 9 in these proceedings (the “Alcatel cellphone”); • Vincent Chand presented a report containing all the data from the Alcatel cellphone to Cst. Harj Binning of the Federal Serious and Organized Crime

Section of the RCMP at Surrey, BC; • The report presented by Vincent Chand depicted all the videos contained on the Alcatel cellphone. [ 13 ] With regard to the cellphone admissions, I note that the evidence proves the Blackberry was seized from Mr. Provo and the Alcatel cell phone came from a pocket of the camouflage jacket that Mr. Peal was wearing at the time of his arrest.

The Facts [ 14 ] From the evidence called by the Crown at trial and including the admitted facts set out above, the Court finds the following to be proven facts based on the testimony of the witnesses called by the Crown and the exhibits filed. Any hearsay referred to is only considered for the purpose of the narrative, and not for its truth.

The US Border Agents [ 15 ] On November 8, 2014, Agent Johnson was called to a traffic stop of a vehicle speeding and heading south in an area of Washington State in the US close to the border with Surrey, BC, Canada. [ 16 ] The stop was at Odele Road, which is to the south and a bit west of a cross-border location where Harvey Road on the US side meets the Canadian border at 0 Avenue on the Canadian side. In this area the border is separated by a ditch about three feet wide with large three foot monuments about every quarter mile marking the actual border.

At this location on the Canadian side it is about five feet to the border from the south side of the roadway of 0 Avenue. [ 17 ] On the US side Agent Johnson described the area at Harvey Road with the adjoining H Street Road as an area of densely wooded residences with worn foot paths running north/south, commonly used for illegal smuggling of humans, drugs and firearms. [ 18 ] Based on photo identification found in the stopped vehicle, it was determined that the vehicle was associated with John Emit Brown, a drug smuggler known to US authorities.

When the officers opened the trunk of this vehicle they started to cough from pepper spray, a substance in Agent Johnson’s experience that drug smugglers use to mask the scent of drugs. They did not find items in the vehicle associated with drug smuggling.

However, the proximity of this vehicle associated with John Emit Brown near the border caused Agent Johnson to take further steps. [ 19 ] As John Emit Brown was known to use an area at the north end of Harvey Road to smuggle drugs into Canada - an area where to the east there is a large mowed field at the end of Harvey Road and then dense woods with foot paths - Agent Johnson directed other agents to the north end of Harvey Road that evening. It was about 10 p.m. and dark at the time. [ 20 ] At approximately 10:30 p.m. Agent Peterson, also a US Border agent, was dispatched initially to assist Agent Johnson.

Agent Peterson was familiar with the area of Harvey Road and H Street Road, where he noted that the Canada/US border runs parallel to 0 Avenue at distances that vary from two to five feet. Agent Johnson had suggested to Agent Peterson that possibly there were some

suspects northbound in that area. [ 21 ] Agent Peterson met another US Border agent, Agent Crawford, at the north end of Harvey Road where it terminates right at 0 Avenue. Agent Peterson went on foot east in the direction of 188 th Street on the Canadian side, which runs north/south. He was in a wooded area east of an open field on the south side of 0 Avenue. He and Agent Crawford went to a point about 150 yards west of 188 th Street, still on the US side. They had night-vision, heat-seeking technology, also called FLIR goggles, with them that they passed back and forth.

Agent Crawford was ahead of Agent Peterson with the FLIR goggles. Agent Crawford indicated that he had just “seen something”, and that “he just went north”. [ 22 ] While Agent Crawford stopped to relay a message to dispatch to contact the RCMP, Agent Peterson said he saw two other subjects go north across 0 Avenue, who then appeared to go up 188 th Street. They were moving to where there were bushes and trees, and going north when he last saw them.

Before that the subjects had been travelling west in the ditch south of 0 Avenue. [ 23 ] Agent Peterson said the first subject he saw was wearing camouflage or “camo” clothing of the hunting variety, as opposed to the military variety, and had a large rucksack. The second subject was quicker and had dark clothing. His rucksack was a little smaller. When Agent Peterson first saw them they were single file with about five yards separating them.

He agreed that the camo clothing he saw could be as depicted in Photos 4 and 5 of Exhibit 1, whereas the darker clothing of the second subject would be as worn by the male depicted in Photo 8. Agent Peterson said they stayed in the area to make sure no one came back to the south, and the first RCMP officers arrived in about five minutes. They waited for about 20 minutes until the RCMP had enough units in the area to begin their search. [ 24 ] In cross-examination Agent Peterson indicated that US border agents do not follow suspects across the border into Canada, but call the RCMP.

When Agent Crawford remarked to him about “seeing something”, Agent Peterson thought Agent Crawford was using the FLIR goggles. When Agent Peterson saw the two suspects he said he was not using the FLIR goggles. He saw the two suspects for five to ten seconds. It was about 10:30 p.m. He believed there to be a light at the intersection of 0 Avenue and 188 th Street. He agreed that he saw them at a distance of about 150 yards directly under the street light for about two seconds. He could not tell their race. Nor did he see hats.

He could not say anything about their hair, how tall they were, or anything about their weight. He believed they were both wearing pants, the first one in a camo-type uniform, and the second in darker coloured clothing. He could only say that the camo- type clothing depicted in Photos 4 and 5 of Exhibit 1 was similar to what he saw. [ 25 ] Agent Crawford gave similar testimony to that of Agent Peterson.

He described the north end of Harvey Road as coming to a dead end within ten yards of 0 Avenue where there is a hedgerow of blackberry bushes and a bit of a tunnel through vegetation through to the south shoulder of 0 Avenue. He described the area as sparsely populated with trees and bushes. Along 0 Avenue he said there were street lights to the west and the east, and in particular there was a street light at the intersection with 188 th Street.

He said in the area “there was not much going on”, it was after dark, there was no pedestrian traffic, and he did not think there were any vehicles about until the RCMP arrived. [ 26 ] Agent Crawford described going east towards the street light at the “T” intersection where 188 th Street meets 0 Avenue. He knew because of prior intelligence that the group associated with John Emit Brown preferred to use the cover of the woods to the east of Harvey Road to move towards 0 Avenue at the point where 188 th Street meets it.

Agent Crawford was wearing the FLIR goggles, and had gone about 100 to 150 yards to the east paralleling 0 Avenue when he heard male voices. He drew his path and marked points upon it on a drawing he made on June 17, 2015, at p. 36 of Exhibit 1. Agent Crawford said he was a few yards ahead of Agent Peterson at that point. The voices were to the east of him, and both he and Agent Peterson were looking towards the east. [ 27 ] Agent Crawford said that he told Agent Peterson he heard voices, and then Agent Crawford said he saw a single subject walk across 0 Avenue at 188 th Street.

He had marked the path of this person with a dotted line on his drawing, and said the person walked across 0 Avenue just under the street light. He gestured to Agent Peterson and then hunched down to minimize the sound of his voice as he radioed dispatch to alert the RCMP to the northbound cross-border traffic at this location. [ 28 ] Describing what he saw further, Agent Crawford said that the person he saw crossed directly under the street light, by gait and mannerisms he considered the person to be male, and all he noted was the person was wearing dark clothing.

He could not tell if the person had anything with him or something on his back. [ 29 ] After about 30 seconds of communication with dispatch, Agent Crawford heard Agent Peterson say he had seen additional subjects cross at about the same place. Agent Crawford said that he and Agent Peterson walked towards 188 th Street and 0 Avenue. Once they got to the corner he used his FLIR goggles and, looking due north up 188 th Street, he saw three distinct “heat signatures” walking, that showed as three glowing figures.

The figures were on 188 th Street or on the side, just walking along the roadway. [ 30 ] Agent Crawford said he watched the three heat signatures constantly for three minutes, and at the point that he was slightly to the west of 188 th Street the three heat signatures disappeared. He and Agent Peterson spoke to two RCMP officers who arrived in a canine unit, passing along that they had seen a total of three subjects cross onto 188 th Street and travel north on 188 th Street until they disappeared from view over the crest of a hill.

He told the police about the history they had with the group associated with their suspect, John Emit Brown. [ 31 ] Agent Crawford identified John Emit Brown, who American law enforcement personnel later charged in relation to this matter, as the person depicted in what became Exhibit 22, Tab 1, in Photos 1, 2, and 3, and also at Tab 3. He also identified the quick view of a male driving in video # 221 from Exhibit 21 as John Emit Brown.

As well, in video # 229 from Exhibit 21, Agent Crawford identified the male walking down the street with a pop bottle, who stopped in front of several individuals slumped against buildings, appearing to put something down in front of each of them, as John Emit Brown. [ 32 ] In cross-examination, Agent Crawford indicated that he did not see Mr. Peal in any of the videos, and he had no prior knowledge of Mr. Peal. He also indicated that his drawing made on June 17, 2015, was made seven or eight months after the incident,

and was based on his memory and his report. Agent Crawford agreed that based on what he saw of the person crossing the road he could not tell the person’s race or any actual characteristics associated with stature or gender. He confirmed that he could not say anything more about the person he saw under the street light. However, he also said he watched this person for about 10 seconds before he bent his head to call dispatch, seeing the person before they passed under the street light, then at a diagonal and then under the street light.

He confirmed that he saw one person crossing the road, contacted dispatch, and then using the FLIR goggles he watched three persons for about three minutes. Asked about deer in the area, Agent Crawford said there were often deer there. He said he had seen plenty of deer and human forms using the FLIR goggles, and said they are easy to distinguish. Air 1 Helicopter over the border area of Surrey, BC [ 33 ] Cst. Odendaal, the tactical flight officer in the “Air 1” police helicopter, described the FLIR heat-seeking technology installed in the helicopter.

He is trained in thermography and certified in thermal imaging. He works with a pilot who flies the helicopter. [ 34 ] Cst. Odendaal explained how he is able to control the direction of the FLIR camera and a colour camera mounted on the helicopter. He can switch cameras, zoom in and out, and adjust the contrast. He can also turn on a spot light. He can choose to record a video of what the cameras see. The thermal imaging technology reads surface temperatures and it displays on a screen, with the whiter images being hotter and the colder images going to black, and it displays all the shades of grey in between.

Human beings show up on the thermal imaging, which is very sensitive, and the technology can pick up heat off the skin and through clothing. The images are very distinct as compared to colder things, trees for example. [ 35 ] On November 8, 2014, Cst. Odendaal said Air 1 was in the air over Surrey, BC, and they heard a police dispatch that three people had come into Canada in the area of 190 th and 188 th Streets and 0 Avenue. They got to the area about 11 p.m. He said he is familiar with this area, rural farmland with lots of open areas, and he started scanning it with the FLIR camera.

He did not turn on the recording function until he heard that a police dog handler had someone in custody. This person turned out to be the accused, Mr. Peal. [ 36 ] Cst. Odendaal described the video played in court from the disc marked Exhibit 2, a copy of the original stored image, commencing at 11:18 p.m. That night he also was wearing night-vision goggles. At one point he noted two heat anomalies that turned out to be deer. Then by heat imaging he found a person he believed to be lying on their side and shone the spot light right on this person who stood up. Cst.

Odendaal also noted the presence of an Emergency Response Team member. The person who stood up, the second suspect, who turned out to be Kyle Provo, was taken into custody at about 11:41 p.m. He said that Air 1 then continued to look for a third suspect, but was not successful in that regard. [ 37 ] Several days later Cst. Odendaal flew over the same area again and took some aerial photos. He produced a large colour photo of the area, Exhibit 3, upon which he marked in a “U” shaped area of trees where he noted the dog handler and where he located the second suspect.

Exhibit 4 is a close up of the same area and he also marked where he found the second suspect. The area has thick band of trees and bush, lighter forest and intermittent trees, and some open spaces. [ 38 ] On cross-examination Cst. Odendaal said there were street lights on 188 th Street, but he could not remember if there was one right at the intersection with 0 Avenue. With regard to the second suspect, Mr. Provo, who Cst. Odendaal found with thermal imaging, he said he helped to direct the dog and Cpl. Kajan to that person.

From the air with the FLIR technology he could see the dog moving steadily in a straight line to a person lying on his side, Mr. Provo. He agreed that there are a lot of deer in the area, which is populated with residences, and said he was not sure if people hunted in the area. [ 39 ] Cst. Odendaal agreed that Air 1 did a sweep over 188 th Street in its larger search, but then focused on the area of the “U” shaped treeline after Cpl. Kajan took someone into custody. Cst. Odendaal did not observe anyone to cross the border that night.

He did not recall if they searched the area directly around the “T” intersection of 188 th Street and 0 Avenue. Tracking the Suspects and Apprehending Mr. Peal and Mr. Provo [ 40 ] Cpl. Kajan, the dog handler, testified about how tracking dogs work and in particular how Police Service Dog “Chad” works to conduct a human scent track. He explained how Chad is trained to circle to find the scent, and then gives various signs if he is getting close to the human being tracked. Chad is also trained to find articles bearing the scent being tracked. [ 41 ] Cpl.

Kajan said he received the dispatch at 10:47 p.m. regarding border runners into Canada from the US. He arrived on scene with Chad at 11:03 p.m. He met the US Border Patrol agents at 0 Avenue and 188 th Street, who indicated that three suspects carrying backpacks were heading northbound on 188 th Street, but they could not say on which side of the street. Chad was deployed in a circle and picked up a scent on the west side of 188 th Street a few yards in from 0 Avenue.

The dog then began pursuing the track of scent northbound between the fence and the west side of 188 th Street for about two blocks or 450 to 500 yards. Because there were three scents Cpl. Kajan said at the start Chad bounced back and forth between them, and then followed one track. Cpl. Kajan drew the track Chad followed northbound on 188 th Street onto Exhibit 7, a copy of the aerial photo taken by Cst. Odendaal. [ 42 ] When Chad got about 450 to 500 yards northbound on the west side of 188 th Street he lost the scent.

Chad was deployed again in a circle and picked up the track on the east side of 188 th Street. Then Chad tracked the scent eastbound through an open field. Based on training Cpl. Kajan was confident that Chad was back on the same track. Once they got across the open field Chad indicated they were really close to the person they were tracking. Then Cpl. Kajan heard noises and crashing in the bush. He saw more than one shadow, but he could not say how many. Cpl. Kajan marked on Exhibit 7, the spot where Chad’s head and tail went up indicating the person was close. Cpl.

Kajan deployed Chad to apprehend at least one of the suspects. Off the lead, Chad went into the bush and within 30 seconds Cpl. Kajan heard screaming. Cpl. Kajan followed Chad into the bush and found the male in camo clothing on his back on the ground with Chad on his leg. Cpl. Kajan removed Chad, and Cst. Moxness took custody of the male, who Cpl. Kajan identified in court as Mr. Peal.

[ 43 ] Cpl. Kajan deployed Chad again and he picked up a scent towards the southeast. Cpl. Kajan got word that the helicopter had seen a heat source to the southeast of where they were, back towards the border. Chad followed that scent for about 100 yards, and near a downed tree a male in black stood up and surrendered to police. Once the second male, Mr. Provo, was in custody, Cpl. Kajan and Chad continued to look for the third suspect. They could not pick up a scent so Cpl. Kajan took Chad back near to where he had found Mr. Peal.

Chad dove under a big tree and found two knapsacks (more often referred to as “backpacks”). He explained that Chad is trained to track a scent to an article. As the dog had been following one of the three scents up 188 th Street from 0 Avenue the dog found the knapsacks, which Cpl. Kajan said would have had an abundance of fresh human scent on them. In the same location as the knapsacks they found a military helmet and two items that looked like smoke grenades. Cpl. Kajan identified the items found in the photos in Exhibit 1. [ 44 ] Then Cpl.

Kajan took Chad to circle towards the southeast to see if the dog could pick up a scent, but Chad kept pulling towards the northeast. Chad then found a third backpack about 30 feet northeast from where they had found the first two backpacks. The spot where Mr. Peal had been apprehended was about 20 yards northeast of that third backpack. Cpl. Kajan marked these spots on another aerial photo of the area, marked Exhibit 8. [ 45 ] Then police dog Chad found a human scent going southeast from the base of the trees that, according to Cpl. Kajan, could have been one of the two scents already encountered.

They followed that scent southeast for almost 100 yards and then Chad found a can of bear spray, a light green jacket, and a walkie talkie. Cpl. Kajan marked that location with a star on Exhibit 8, and identified the items in the photos in Exhibit 1. [ 46 ] Cpl. Kajan and Chad continued to try to find a track for the third suspect, but they were unable to do so, and left the scene at about 2 a.m. on November 9, 2014. [ 47 ] On cross-examination Cpl. Kajan agreed that it was dark out when he arrived at 11:03 p.m. at the intersection of 0 Avenue and 188 th Street.

He agreed that the artificial lighting there was poor, and said that there may have been a couple of street lights, one or two every couple of houses. He received the information about three suspects and set out with Chad to locate a scent. He did not use a flashlight and followed Chad on a lead as the dog tracked. He agreed that when Chad is following multiple scents, he cannot tell how many or which one he picks to follow. Initially, Chad bounced back and forth and then picked one scent to follow until he reached the source.

He said that Chad is trained to follow the scent to the person and also to find articles bearing that scent. [ 48 ] Cpl. Kajan agreed that after they found Mr. Peal, he and Chad continued to look for the scent of the second and third suspect. After Mr. Provo had been located Chad found the two backpacks under the tree. As Chad dove under the tree Cpl. Kajan thought that perhaps Chad had found a person given his behaviour, but it was related to the two backpacks, which were obviously bearing a large amount of human scent.

The human scent on the backpacks would have been the scent Chad was tracking when he had started to track. However, Cpl. Kajan said that when Chad starts off tracking with multiple scents from multiple individuals he cannot then determine which scent relates to articles subsequently found while Chad is pursuing the scent. Cpl. Kajan said the tracking conditions that night were very good, and given there were three backpacks, each bag would have the individual’s scent on it. He agreed that upon locating the third backpack he and Chad were unable to locate a third suspect.

Given that it was thick bush and there were multiple officers in the bush by that point, Chad was not able to pick up the scent of the third suspect when the person “split off”. [ 49 ] Cst. Stefan Moxness attended the scene on November 8, 2014, with Cpl. Kajan and the police dog. His evidence is similar in many respects to that of Cpl. Kajan. He described the area as rural with a handful of large houses and mixed acreages, and then a dense wood, which when they entered was dense brush and small trees. Dealing with Mr. Peal and Mr. Provo and items seized from them and the scene [ 50 ] Cst.

Moxness was the first person to deal with Mr. Peal after Cpl. Kajan had called off the dog. He searched Mr. Peal after handcuffing him and found a smoke grenade in a pouch of the load-bearing vest he was wearing. He advised Mr. Peal that he was under arrest for entering Canada illegally and walked him out of the woods. Cst. Moxness transferred the custody of Mr. Peal to Cpl. Paterson. [ 51 ] After Mr. Peal had been apprehended, Cst. Moxness recalled that the police dog Chad was tracking and Air 1 had provided information about a second suspect. This person surrendered.

He was a black male, wearing a t-shirt and sweat pants. This person was cooperative, and he too was handcuffed, searched, advised that he was arrested for illegal entry into Canada, and walked out of the woods and turned over to Cpl. Paterson. In his search of this person, who turned out to be Mr. Provo, Cst. Moxness did not find anything of note. He identified Mr. Provo as the person in Photo 8 of Exhibit 1. [ 52 ] Cst. Moxness returned to join Cpl. Kajan, and continued the search for the third person who they believed to be there, but did not find.

They did find a first group of articles to the north of their second arrest and not far from where Mr. Peal had been apprehended. Cst. Moxness said these articles were located near a large pine tree that was “almost a landmark”, being one of a few gigantic trees in the area. These articles included two heavy military backpacks with strapping on them. When he opened them he saw several bricks heavily wrapped in cellophane. The backpacks were completely full and extremely heavy. He also found a cellophane bag containing ammunition.

He said Photos 18 and 19 of Exhibit 1 showed one of these backpacks. [ 53 ] Then Cst. Moxness described finding a smaller backpack a short distance away that looked more like a school backpack, along with a kevlar helmet, some camo clothing and a load-bearing vest. The helmet was just to the north under the same tree in the same area as the vest and the third backpack. These items were a slight distance away from the first two backpacks they found. He identified these items in the photos in Exhibit 1.

In particular, Photo 16 is of the school-type backpack, and Photo 17 shows the blue-coloured cellophane wrapped bricks contained in this third backpack. He poked one of the bricks with his knife and saw a white powdered substance that he believed to be cocaine. He estimated that the three backpacks contained 25 to 30 bricks of cocaine. Cst. Moxness said that he and Cst. Bisonnette carried these items out to the road and gave them to Cst. Da Rosa. [ 54 ] Cst. Jean Bissonnette was called to the scene that night to assist Cpl. Kajan with the dog track.

He assisted in taking the two males into custody and carried a backpack out to the roadway with Cst. Moxness, who carried the others. They delivered the backpacks

to Cst. Da Rosa. He personally seized the camo jacket depicted in Photo 2 of Exhibit 9, and the bear spray and the walkie talkie, as depicted in Photos 9-10, and Photo 15 of Exhibit 1. Cst. Bissonnette gave these items to Cst. Da Rosa who was located on 188 th Street. [ 55 ] Cpl. Claude Paterson was the road supervisor that evening. He described how he set up containment of the area by deploying police officers. Once he heard that the police had a person in custody he went to a location on 188 th Street just south of 4 th Avenue where he met Cst. Moxness, who had Mr. Peal in his custody. Mr.

Peal was on the ground and Cpl. Paterson made arrangements for him to be taken to the hospital. He saw that the personal items next to Mr. Peal included a glove and a smoke grenade. He ensured that Cst. Jansen had warned and Chartered Mr. Peal. [ 56 ] Cst. Spoljar took custody of Mr. Peal after he had been turned over to Cpl. Paterson by Cst. Moxness. This occurred at 184 th Street and 0 Avenue. He searched Mr. Peal incidental to arrest and found him to be wearing a camouflaged coat and pants and a tactical vest. He took a cell phone from Mr.

Peal at the scene that was black, not a flip phone, similar to a Blackberry, but not a Blackberry (proven to be the Alcatel cellphone). He also seized papers with phone numbers on them in his inner pants, as well as his wallet with Washington State identification bearing a photo of Mr. Peal. [ 57 ] After Cpl. Paterson turned over Mr. Peal to Cst. Spoljar, Cpl. Paterson then went back and picked up the second male, Mr. Provo, who had been walked out of the forest by Cst. Moxness. Cpl. Paterson did a pat down search of Mr. Provo, and he seized a cell phone from Mr.

Provo’s front pants’ pocket that looked like a Blackberry (proven to be the Blackberry). [ 58 ] Cst. Spoljar identified Mr. Peal in Photo 1 of Exhibit 1 as how he looked that night minus the tactical vest. Cst. Spoljar said the camo jacket and pants shown in Photos 4 and 5 were what Mr. Peal was wearing when he took custody of Mr. Peal. He also identified the tactical vest shown in Photos 6 and 7 as the one that Mr. Peal was wearing. Cst. Spoljar and Cst. Jansen accompanied Mr. Peal in the ambulance that took him to the hospital for treatment for the wounds from the police dog. [ 59 ] While at the hospital Cst.

Spoljar seized a magazine containing bullets in the right sleeve pocket of the shirt being worn by Mr. Peal. Later when Mr. Peal was strip searched at the Surrey detachment cells he noted that Mr. Peal was wearing all camo clothing and multiple layers of clothing, more than two pairs of pants and two shirts. When his socks were removed $US 60 cash was found in his right sock. No Canadian currency was found on his person. Cst. Spoljar turned all these items over to an officer with the General Investigation Section. [ 60 ] Cst.

Da Rosa was assigned the task of receiving and transporting exhibits in the early morning hours of November 9, 2014. He attended at about the 200 block of 188 th Street, and described receiving the various items seized by police and brought out of the bush by Cst. Moxness and Cst. Bissonnette, including the three backpacks. In particular, Cst. Da Rosa received a camo jacket with items in the sleeves. He said the camo jacket he received was depicted in Photo 2 of Exhibit 9, and Photo 3 showed a cellphone partially protruding from a pocket on the sleeve of the same jacket.

This cellphone is the Alcatel cellphone depicted in Photo 4. [ 61 ] Cst. Cop was given the task of seizing the items being taken from Mr. Peal and Mr. Provo upon their arrest. He received items from Cpl. Paterson that included Mr. Provo’s clothing and the Blackberry. He delivered the items to the exhibit locker where Cst. Dupras later retrieved them. He reviewed her exhibit flow chart and indicated that the items listed at numbers 85 through 92 came from Mr. Provo.

They included the Blackberry depicted in Photo 1 of Exhibit 9, black boots, black pants, a black t-shirt, a black belt, socks, shorts, and underwear. [ 62 ] From Mr. Peal, seized by Cst. Moxness and sent via Cst. Stoljar, Cst. Cop received many items, including a wallet with the identification shown in Photo 2 of Exhibit 1, a pair of binoculars, and the gun magazine with bullets as shown in Photo 13 of Exhibit 9 (seized from Mr. Peal in the hospital). [ 63 ] All the items seized from Mr. Peal that Cst. Cop received were listed by Cst. Dupras in her exhibit list at numbers 62 through 84.

In addition to the items previously mentioned, Cst. Cop received a black bandana, a beige balaclava, a black LG cellphone, note paper with names and a telephone number noted, three $US 20 bills, beige body armour as shown in Photos 6 and 7 of Exhibit 1, a kitchen style black-handled knife, a long sleeve black shirt, a long sleeve black button-up shirt, black boots, black pants, another pair of black pants described as “Dickies”, a green vest, a black and green shirt with a skull design, and the camo shirt and pants as shown in Photos 4 and 5 of Exhibit 1. In cross-examination Cst.

Cop indicated he believed the clothing (black) shown in Photos 7, 8, and 10 of Exhibit 9 came from Mr. Provo, except perhaps the green vest shown in Photo 9, which may have been Mr. Peal’s. Cst. Cop said he recalled that all Mr. Provo’s clothing was black. Mr. Provo’s Blackberry [ 64 ] Cpl. Paterson put the cellphone (the Blackberry) in a plastic bag on the seat beside him in his police vehicle, with Mr. Provo lodged in the back. He took Mr. Provo to the same location where Mr. Peal still was awaiting transport to hospital. Cpl.

Paterson also noticed the cell phone in the plastic bag was constantly ringing, and at one point he answered it and had a brief conversation (the substance of which was not admitted into evidence after a voir dire ). [ 65 ] Cpl. Paterson then took Mr. Provo to the Surrey RCMP Detachment’s cells where he was booked in. As Mr. Provo was being booked in Cpl. Paterson put the cellphone on the counter top and Mr. Provo’s clothes were seized and placed in a plastic bag. Cpl. Paterson saw the jail guard answer the cellphone after it rang a couple of times.

Then the jail guard drew his attention to a photograph on the Blackberry, which depicted packages done up in silver paper lying on the floor, each package about eight inches long and two to three inches wide. [ 66 ] Marc Moore, the jail guard who booked in Mr. Provo, testified about picking up the cellphone that Cpl. Paterson had placed on the booking-in counter, to turn it off, as it kept ringing constantly. He said they try to turn off such devices in the jail. The call was dropped but Mr.

Moore said he clicked on the picture icon on the cellphone “just out of curiosity”, and the first picture that popped up appeared to be a picture of packaged drugs. He recalled that the cellphone was a Blackberry, and the image depicted in Photo 1 of

Exhibit 9 is what he saw. In cross-examination Mr. Moore agreed that he could not remember the colour of the packaging. [ 67 ] I note that this photograph depicts a total of 29 uniformly packed objects laid out on the floor in four rows of six and one row of five. Their shape is consistent with that of the wrapped kilos of cocaine seized in this case. Each appears to be wrapped in a shiny material with a bluish tinge, although one cannot clearly discern the colour of the wrapping because of the distance and lighting in the photograph. Processing the police exhibits [ 68 ] Cpl.

Chris Rook-Green was at the Surrey detachment and did not attend the scene. At about 1 a.m. on November 9, 2014, he was contacted by Cpl. Paterson and asked to assist in dealing with two males who had been arrested. Cst. Cop and Cst. Lush were also assisting. Cpl. Rook-Green was asked to receive bulk exhibits from Cst. Da Rosa, and he received three backpacks and one large paper bag with multiple items in it. Cpl. Rook-Green documented and photographed the items he received and prepared an exhibit report. Cpl. Rook-Green reviewed the photos contained in Exhibit 9. [ 69 ] I note in particular that Cpl.

Rook-Green testified that he found a cellphone in the right forearm pocket of the camo jacket as shown in Photo 3, and he took the phone apart to show its cell phone identifier and serial number, it being the Alcatel cell phone. He also reviewed the photographs of items in Exhibit 1, noting that both smoke bombs (also referred to as “smoke grenades” by others) in Photo 12 were spent. He noted that he went through the pockets of a pair of camo pants similar to those shown in Photo 5 of Exhibit 1, but they did not have the belt depicted in Photo 5.

In those pants he found a red mitten and a lighter in the top right hand pocket, and two $US 20 bills. He also removed 11 small packages of what he assumed to be cocaine from a red athletic jacket found inside the black backpack shown in Photo 17 of Exhibit 1. I note that appears that Cpl. Rook-Green was mistaken about the amount of US currency as the other witnesses referred to $US 60, but nothing turns on the exact amount of $US currency carried by Mr. Peal. [ 70 ] Cpl.

Rook-Green described removing a total of 29 larger packages from the three backpacks, 10 in the black backpack (Exhibit 1, Photo 17), 11 in the green backpack (Exhibit 1, Photo 19), and eight in the second green backpack. He also found a knotted bag of cartridges for a .38 handgun from the bottom pocket of the green backpack shown in Photo 19. Cpl. Rook-Green passed on all the items he received to Cst. Dupras on the morning of November 9, 2014. [ 71 ] Cst. Isabel Dupras took custody of the police exhibits. She received items, including the cocaine, from Cpl. Rook-Green and items from Cst. Cop. Cst.

Dupras opened, weighed, and photographed each of the bricks of cocaine, and she took samples from eight of them for analysis, placing each sample into an “H” envelope. She testified that each brick had “XX” impressed into it. Each one weighed close to 1000 grams or one kilogram.

There was also a bag of loose cocaine weighing 277.9 grams. [ 72 ] I note that photographs of several of the bricks of cocaine (Exhibit 1, Photos 29-34) depict an outer blue wrap with a clear plastic-type covering, and underneath a brown wrapping that appears to be packing tape with a band of duct tape around one end, marked with “XX”, which is also impressed on the white brick of cocaine, visible when the brick is completely unwrapped. [ 73 ] Cst.

Dupras tendered the H envelopes and the certificates for analysis for the samples that indicated the substance was cocaine, ranging in purity from 74 to 78 percent depending on the sample. [ 74 ] She reviewed her exhibit flow chart (Exhibit “F” for identification), which lists items 1 through 56 as coming from Cpl. Rook- Green, items 57 through 61 as being personally seized by her and items 62 through 92 came from police cells from Cst. Cop. Where applicable it also lists which officer provided specific items to either Cpl. Rook-Green or Cst. Cop.

November 9, 2014 - Further items found at the scene in the bush off 188 th St [ 75 ] Cpl. Kajan returned to the scene with police dog Chad later on November 9, 2014, with Cst. Dupras to show her where certain items had been found the night before, and to do a further search of the area. When he went back to the large tree under which the two backpacks had been found the night before, and searched further, he found two camo hats, a strap, a loaded handgun and a blue cell phone, as depicted in Photos 21 to 27 of Exhibit 1 (the ZTE cellphone). [ 76 ] Cst. Dupras said that on this occasion she and Cpl.

Kajan and his dog stood by the large tree where the two green backpacks with cocaine had been found late the night before. She searched the area and seized the two camo hats, one as depicted in Photos 21 and 22, and the other as depicted in Photos 23 and 24 (in Exhibit 1). She found a strap and the handgun depicted in Photo 26 of Exhibit 1, and the ZTE cell phone depicted in Photo 27. These items were all found in a bed of leaves in the same area. November 23, 2014 - A further trip back to the area of 0 Avenue and 188 th Street [ 77 ] Cpl.

Paterson said that he was called back to the area on November 23, 2014, because a property owner had called police about items in the rear of his property, which included a gun. [ 78 ] Cpl. Paterson said he was first on the scene and he saw smoke grenades, a glove, and a revolver that he said was loaded. The property was west of the intersection of 188 th Street with 0 Avenue. The items were in the rear of the house, in an area with some big tall trees and low grass. They were located about 60 m. north of 0 Avenue, and about 15 m. from the roadway of 188 th Street towards the west.

He said the revolver in Photo 28 of Exhibit 1 looked similar to the one he saw that day. [ 79 ] Cpl. Kajan also went back to this location on November 23, 2014. He attended with police dog Chad. This was the location where they had started their track on the night of November 8, 2014 (15 days earlier), when he met with the US Border agents. He said the items the police found on November 23, 2014, were a black glove, a loaded silver revolver-type of handgun, and two smoke grenades that were similar to those police found the night of November 8, 2014, when they arrested Mr. Peal and Mr. Provo.

These items were seized from locations inside the fence line about 15 to 20 yards west of the original dog track. He indicated that the silver handgun

found on this occasion is shown in Photo 28 of Exhibit 1. [ 80 ] Cst. Bissonnette was also present on this occasion and identified the items seized as those located at the property on the northwest corner of 0 Avenue and 188 th Street. He reviewed the photographs taken of these items. Specifically, Photos 14 and 15 in Exhibit 9 depict where these items were found, and Photo 16 depicts the revolver, the black glove and two smoke grenades lying on the ground amidst leaves and plant debris. Photos 18, 19, and 20 depict each of those items.

Photo 19 depicts the revolver in a manner that shows it was loaded with five rounds. Cpl. Hilliard attends the scene with Cst. Dupras and Cpl. Kajan to measure distances [ 81 ] Cpl. George Hilliard, who usually works in accident reconstruction, is a trained surveyor. He attended the scene with Cpl. Kajan and Cst. Dupras in order to determine, mark and measure the locations of Mr. Peal, Mr. Provo, and the various items found and seized by the police related to the events of the night of November 8, 2014. [ 82 ] Cpl. Kajan assisted Cpl.

Hilliard to identify the spots where he and police dog Chad had originally found Mr. Peal and Mr. Provo, and various other items seized by the police, including the three backpacks that contained cocaine. Cpl. Kajan pointed out the spots he marked on the aerial photograph marked as Exhibit 8. [ 83 ] Cpl. Hilliard’s report, which is comprised of five pages, is Exhibit 10. It includes a site map of the area where Mr. Peal and Mr. Provo were apprehended, marked with their approximate locations.

Also marked are the locations of other items found and seized by police, including the three backpacks containing the kilos of cocaine. His report contains the distances between the various points. It also contains measurements of the site where the further items alleged to be associated with this incident were found by police on November 23, 2014, including two smoke grenades and the loaded revolver-type handgun. [ 84 ] In his testimony Cpl. Kajan viewed the points marked “GFM” 1 through 7 on a version of Cpl. Hilliard’s report marked as Exhibit “B” for identification (replaced later in the trial by Exhibit 10).

Cpl. Kahan noted that GFM 1 marked the location of the large tree where the two backpacks were found, along with the battle helmet, two smoke grenades, the firearm, the two camo hats, the black strap, and a cell phone. GFM 2 marked the location of the third backpack. He could not comment on GFM 3. GFM 4 marked the spot where Mr. Peal was found. GFM 5 was where he found the bear spray, a light green jacket, and the walkie talkie. GFM 6 was where Mr. Provo was located. [ 85 ] Cpl.

Kajan also noted that GFM 7 indicated where further items were found on November 23, 2014, in the yard at the corner of 0 Avenue and 188 th Street. [ 86 ] Referring to only some of the measurements in Cpl. Hilliard’s report, I note that Mr. Peal (Point GFM 4) was located about 17.22 m. north and 6.74 m. east of the point at the base of the large tree (Point GFM 1) where the two backpacks containing cocaine were found with the two expended smoke grenades, the loaded 9 mm. handgun and the other items previously listed. Mr.

Peal was approximately 12.36 m. from Point GFM 2, where the black backpack was found. [ 87 ] I note that Cpl. Hilliard lists the cellphone found at Point GFM 1 in error as a “TCE” cellphone when it was, in fact the “ZTE” cellphone seized by Cst. Dupras. He also places the six rounds of .308 ammunition with the black backpack, whereas I accept the evidence of Cst. Moxness, who said he found the cellophane bag with ammunition in one of the green backpacks. [ 88 ] Further, I note that also found at near the black backpack was a second load-bearing vest. [ 89 ] In Cpl. Hilliard’s report, Mr.

Provo (Point GFM 6) was located approximately 102.49 m. from Mr. Peal in a southeast direction. Mr. Provo was approximately 100.27 m. from the two backpacks containing cocaine located at GFM 1, and approximately the same distance at an angle to the southeast from the black backpack that contained cocaine located at Point GFM 2. Expert evidence with regard to cocaine and the importation of the same [ 90 ] Staff Sgt. Patrick Murphy, the expert called to testify about drugs, their packaging, and prices, and in particular cocaine, and the importation of the same, is very experienced in such matters.

Shown the cocaine as packaged in this case and as depicted in Photos 17, 29, and 30 of Exhibit 1, Staff Sgt. Murphy said that cocaine is most often trafficked in kilo bars that have been stamped before export, as appear in this case. The purity of the bars here ranges for 74 to 79 percent and the packages each contained about 1000 grams.

He described the primary source countries for cocaine as Colombia, Peru, Ecuador, and Bolivia, and the main route into Canada being through Mexico, California, and the Pacific Northwest, focusing on the Highway I-5 corridor from Tijuana to the Peace Arch Crossing. [ 91 ] Staff Sgt. Murphy watched the video designated # 263 (from the Blackberry) contained in Exhibit 21 and made certain observations. The video was shot from inside a vehicle driving in the rain and a camo clothed arm was shown reaching into the area of the back seat and lifting a blanket and then to pat something blue.

He commented on the role of a decoy vehicle, also shown to be driving the same direction as the vehicle in which the video was being taken. He said that once cocaine is transported to the Canada/US border it is either brought through by vehicle or on foot across the border. [ 92 ] Asked about two people and three backpacks containing a total of 29 kilos of cocaine at this particular location, with one person dressed in camo clothing, Staff Sgt. Murphy said this was not a surprising situation. The camo clothing was to blend in, depending on the environment.

Asked about finding two handguns and a cartridge with shells, he said that typically any weapon found in such circumstances is to deter theft of the drugs. [ 93 ] Staff Sgt. Murphy said that the price per kilo of cocaine at this time was approximately $35,000 to $45,000, which gave an approximate value to this load of cocaine of $1M to $1.3M. A bulk purchase of this amount of cocaine in Vancouver could range from $900,000 to $950,000. Sold in smaller, street-level amounts Staff Sgt. Murphy said this cocaine could be worth up to $2.3M.

He also said that at this time cocaine was selling in Los Angeles for $US 25,000 to $US 28,000 per kilo. This amount could have been purchased for a

total of $US 750,000, so considerable profit was to be made by moving it to Canada and selling it. Sold in smaller lots, he said the priceincreases. [94] In cross-examination Staff Sgt. Murphy admitted that handling a wrapped package like the one shown in Photo 17 of Exhibit 1(clear wrap over a blue-coloured tape or wrap), he could not tell what was in it without opening it. He also agreed that people acting as“mules” are used to import drugs. He agreed that lower purity affects the price, and cocaine that is 75 percent pure is worth less than thatwith a higher purity.

When it was put to him that this cocaine by way of a bulk purchase could be worth $700,000 to $1M, he said thatnumber was “a bit lower than his comfort level”, but that it could be possible. He said there were “no absolutes here” but everyoneinvolved needs to make their profit. [95] I find, considering Staff Sgt. Murphy’s evidence as to the estimated value of the cocaine, that his approximate value of $1M to$1.3M is the most accurate estimate of value. The videos and photographs from the Blackberry and the Alcatel cell phones [96] Cst.

Harj Binning received the extraction reports for the four cell phones seized by police in this investigation. Cst. Binningreviewed those reports and placed two videos from the Alcatel cell phone (found in the sleeve pocket of the camo shirt worn byMr. Peal) and one from the Blackberry (seized from Mr. Provo) on a disc marked as Exhibit 21. [97] Exhibit 22 contains photographs obtained from cellphone extraction. Those at Tab 1 came from the memory card of theBlackberry. Photos 1 through 3 depict the same male who Agent Crawford identified as John Emit Brown.

Other photos at this tabappear to reflect a road trip that included Los Angeles and Seattle, and several of the photos bear time and date stamps morning tomidday on 2014 11 04. Also included in Exhibit 22, is Photo 16, which is the same photo of the 29 similarly sized and wrapped packagesas viewed by Mr. Moore, the jail guard, with a time and date of 2014 11 08 at 11:47 a.m. The only photo at Tab 2, also from theBlackberry, is of Mr. Provo. [98] Also from the Blackberry is the freeway driving video marked as # 263 on Exhibit 21, which was the video shown to andcommented upon by Staff Sgt. Murphy.

It has a date stamp of 2014 11 06 at 7:46 a.m. and is taken by the passenger in the vehicle. Itshows the driver’s camo-covered arm reaching back and patting blue packages of similar appearance to the 29 packages seized, and thepassing of a white car in the rain that appears to be a decoy vehicle. [99] From the Alcatel cell phone at Tab 3 of Exhibit 22 is a somewhat blurred picture of a black male that Agent Crawfordrecognized as John Emit Brown. [100] Also from the Alcatel cell phone are two videos.

The first, # 221 on Exhibit 21 is a driving video with two people in a car andbriefly depicts John Emit Brown as identified by Agent Crawford. The second, # 229 on Exhibit 21 depicts John Emit Brown on a streetwith another male who is filming, likely in Los Angeles. There is conversation between them, much of which is hard to hear clearly.

JohnEmit Brown is shown walking along and appearing to drop something near two different individuals slumped on the sidewalk againstbuildings, and there is a reference by one of the males to Hastings being “like a drop in the bucket.” He appears to be distributing a smallitem to each of these people in an unobtrusive manner. Agent Crawford recognized John Emit Brown in this video. [101] Six months later Agent Johnson said that John Emit Brown was apprehended and charged. Agent Johnson testified at his trial inSeattle, as did Agent Peterson, Cpl. Rook-Green, and Cst. Dupras. Cst.

Bissonnette testified that he went to Seattle to testify about therecovery of the smoke grenades on November 23, 2014, at John Emit Brown’s trial in the summer of 2016. The Law Circumstantial Evidence [102] In order to convict, the trier of fact must be satisfied beyond a reasonable doubt that the only rational inference that can be drawnfrom the circumstantial evidence is that the accused is guilty: R. v. Griffin, 2009 SCC 28, at para. 33. The words “rational” and“reasonable” are virtually synonymous: R. v.

Villaroman, 2016 SCC 33, at para. 33. [103] If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond areasonable doubt: Villaroman, at para. 35.

These alternative inferences must be reasonable, not just possible: Villaroman, at para. 42.The Crown may need to negative other reasonable possibilities, but certainly does not need to negative every possible conjecture whichmight be consistent with the accused’s innocence: Villaroman, at para. 37. [104] Other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, not onspeculation: Villaroman, at para. 37. A reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by the mere fact thatit arises from a lack of evidence.

A gap in the evidence may well result in inferences other than guilt: Villaroman, at para. 36. [105] The modern approach to circumstantial evidence, found in R. v. Cooper, (SCC), [1978] 1 S.C.R. 860, andadopted in Griffin was reaffirmed recently in the BC Court of Appeal in R. v. Bullington, 2014 BCCA 358, at para. 21. The Offence of Importing a Controlled Substance [106] Section 6(1) of the CDSA creates the offence of importing into Canada a substance included in the listed schedules, includingcocaine, a

Schedule 1 substance, except as authorized under the regulations. [107] The mens rea for importing requires proof of actual knowledge or wilful blindness as to the presence of the controlled substanceor wilful blindness as to its presence: R. v. Sandhu (1989), (ON CA), 50 C.C.C. (3d) 492. An accused may be

convicted of importing a narcotic (now a controlled substance) where he knew the substance was a narcotic, but not necessarily theparticular narcotic, or was wilfully blind to that fact: R. v. Blondin (1970), (BC CA), 2 C.C.C. (2d) 118 (B.C.C.A.),aff’d (SCC), [1971] 4 C.C.C. (2d) 566n. [108] With regard to the actus reus, “import” means to bring into the country or cause to be brought into the country. It is not acontinuing offence but one that is complete when the goods enter the country. The accused need not have carried the goods into thecountry or to have been present at the point of entry.

The offence may be tried at the place where the accused made all the arrangementsfor the importation and the place where the goods entered the country: R. v. Bell, (SCC), [1983] 2 S.C.R. 471. [109] With regard to the offence of importing, the Court has been referred by the defence to R. v. Rai, 2011 BCCA 341, from which Inote the following passages: [20] As pointed out in Blondin, wilful blindness can furnish the necessary mens rea for conviction. The trial judge stated at para. 52that in the alternative he would have been prepared to utilize this doctrine as a basis for conviction in the present case.

I do not considerit necessary to pass on this as a possible basis for conviction, since I consider there was an ample foundation in the evidence to establishknowledge on the part of the appellant that he was involved in the importation of a narcotic. The reasoning in Blondin supports theconclusion of the judge that the guilt of the accused was established on the evidence. […] [23] As counsel argued, importing narcotics is not a continuing offence: see R. v. Bell (1983), (SCC), 8 C.C.C.(3d) 97 (S.C.C.). Thus the offence was complete when the package arrived at Toronto.

It was submitted the later activities of theappellant dealing with the package in British Columbia were not probative of his involvement in importation of the package. However,what the appellant did with L.B. before and after the arrival of the package in Vancouver and his dealings with the package in Vancouverand Surrey did furnish evidence of his being centrally involved in the importation of the drug into Canada. I consider the evidenceproperly supports the finding of the trial judge that the appellant “knew the full extent of the transaction”. Thus he was properlyconvicted on the importation count.

Unlawful possession of a controlled substance for the purpose of trafficking [110] In the present case the only live issue with regard to Count 2 is the element of possession. It is not disputed that the amount ofthe controlled substance found in the three backpacks supports the “for the purpose of trafficking” element. There is also no issue thatthe controlled substance found and seized by the police analyzed as cocaine, and is a

Schedule 1 substance. [111] I note that s. 5(2) of the CDSA (by virtue of s. 2(1) of the CDSA) incorporates the definition of possession contained in s. 4(3) ofthe Criminal Code, which includes both concepts of joint and constructive possession, defined in s. 4(3)(a)(

i) and (ii) 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; [112] The law relating to possession has evolved over the years in Canada. A recitation of the same always starts with Beaver v.

TheQueen, (SCC), [1957] S.C.R. 531, 118 C.C.C. 129 as authority for the three elements of constituting possession withinthe meaning of the criminal law, which are, in cases of manual handling, that it must be co-existent with knowledge of what the thing isand some element of control over it outside public duty. [113] In R. v. Fisher, 2005 BCCA 444, Smith J.A., for the court, reviews the law in relation to personal, constructive, or jointpossession at paras. 19 to 22.

I have considered the law as set out in those paragraphs. [114] In particular, at para. 22 of Fisher, Smith J.A. quotes with approval the following passage by Allen J.A. from R. v. Caldwell(1972), 1972 ALTASCAD 33 , 7 C.C.C. (2d) 285, [1972] 5 W.W.R. 150 (Alta.

C.A.) [cited to C.C.C.] at p. 290-91: …while possession under the definition prescribed by the Criminal Code is a matter to be determined on the facts of each case, when thegoods in question are not in the physical possession of an accused, in order to constitute constructive possession it must extend beyondquiescent knowledge and disclose some measure of control or right of control over the goods. [115] At para. 24 of Fisher, Smith J.A. concluded the following: As is evident from my

summary of the law, neither constructive possession nor joint possession requires proof of manual handling. Toestablish constructive possession, it was incumbent upon the Crown to prove beyond a reasonable doubt that the appellant knew of thepresence of the cocaine and that he had some measure of control over its location.

To establish joint possession, the Crown was requiredto show that someone other than the appellant had possession of the cocaine with his knowledge and consent and that he had somemeasure of control over it. [Emphasis added.] [116] While ownership of the controlled substances in question may be relevant to the question of possession, the question ofpossession of the controlled substances may nonetheless be determined regardless of their actual ownership: Fisher at para. 33. [117] An instructive case is R. v. Bauer, 2003 BCCA 138. In Bauer the police found Mr. Bauer with two others in a house upon

executing a search warrant. Bauer was getting dressed in a bedroom when the police arrived. The basement was occupied by an extensivemarihuana grow operation, and there was a pervasive odour of marihuana in the house. Bauer had $2,800 in cash on his person, and nearthe bedroom was a linen closet containing dried marihuana, weigh scales, and bags. He called no evidence and did not testify.

On appeal,Bauer argued unsuccessfully that the evidence was not sufficient to support his conviction for production and possession of marihuanafor the purpose of trafficking. [118] In Bauer, Hall J.A. for the Court of Appeal reviewed a number of authorities relevant to the issue of possession before upholdingthe convictions found by the trial judge: [21] Chief Justice MacEachern in the case of R. v.

To (1992), (BC CA), 16 B.C.A.C. 223, a case of possession ofheroin for the purpose of trafficking, pointed out that a court must not be expected to treat real life cases as a completely intellectualexercise where no conclusion can be reached if there is the slightest competing possibility or theory. As he observed, the criminal lawrequires a very high degree of proof for inferences consistent with guilt, but it does not demand certainty.

I take it from those commentsof the Chief Justice that he was suggesting that, in assessing facts in any particular case, a trial court has to bring to this task a measure ofrealism. [22] A case decided recently by this Court, R. v. Hubble 2002 BCCA 561, might be thought to bear some factual similarity to the caseat bar. In that case the police searched residential premises in Rossland. These premises were apparently occupied by the accused, as alessee. As in this case, there were found in the house a number of items of identification that could be related to the accused.

Theinvestigating officers, upon their entry into the residence, could smell a strong odour of marijuana. The grow operation was contained inthe basement of the house. In the upper portion of the residence a tin was found containing a few grams of marijuana. The accused hadbeen convicted at trial of production of a controlled substance, marijuana. In giving judgment for this Court on an appeal fromconviction, Mr. Justice Hollinrake noted that the appellant gave no evidence and had called no witnesses, a situation parallel to the caseat bar. Mr.

Justice Hollinrake did not accede to the argument that the conviction that had been registered against the appellant wasunreasonable or was not supported by the evidence. In the course of his Reasons dismissing the appeal, he said this: ... In my view the dictum of Irving, J.A., of this Court in R. v. Jenkins (1908), (BC SC), 14 C.C.C. 221, 14 B.C.R. 61,is directly applicable.

That dictum is as follows: It is true that a man is not called upon to explain suspicious things, but there comes a time when, circumstantial evidence havingenveloped a man in a strong and cogent net-work of inculpatory facts, that man is bound to make some explanation or stand condemned. In my opinion, the irresistible inference here in the absence of any evidence from the appellant is that he is guilty as charged. ... [23] It seems to me that in the instant case, there was a body of evidence probative of knowledge and control, the necessary ingredientsfor a finding of guilt.

Looking at the matter with "realism", as suggested by Chief Justice McEachern in To is the proper approach, itseems to me that the appellant was, to use a neutral term, involved in this grow operation. I believe the comments of Mr. JusticeHollinrake in the Hubble case are apposite in the circumstances of this case. Absent some evidence supportive of some innocentexplanation such as was the situation in the Black case referred to supra, it seems to me that the judge was correct to draw the inferenceto be drawn on all of the evidence that this appellant was guilty as charged.

I do not consider that the trial judge erred in concluding thathis guilt was proven beyond a reasonable doubt. It follows that I do not consider that the verdicts were unreasonable and I wouldtherefore dismiss this appeal. [Emphasis added.] [119] Before turning to the analysis in this case I also find it useful to refer to R. v. Pham, 2006 SCC 26, in which the Supreme Courtof Canada unanimously adopted the majority reasons of the Court of Appeal for Ontario in R. v.

Pham (2005), (ONCA), 77 O.R. (3d) 401, 203 C.C.C. (3d) 326 [Pham], dismissing the further appeal by the accused of her conviction for possession ofcocaine for the purpose of trafficking. [120] On appeal to the Court of Appeal for Ontario, Kozak J.A. (ad hoc), with Blair J.A. concurring, addressed the issue ofconstructive possession and upheld the findings of the trial judge in his conviction of Ms. Pham.

Kozak J.A. reviewed the law in relationto constructive and joint possession, in the following passages: 15 In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledgewhich extends 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 (Alberta Supreme Court, Appellate Division); R. v. Grey (1996), (ON CA), 28 O.R. (3d) 417 (C.A.). 16 In order to constitute joint possession pursuant to section 4(3)(

b) of the Code there must be knowledge, consent, and a measure ofcontrol on the part of the person deemed to be in possession. See R. v. Terrence, (SCC), [1983] 1 S.C.R. 357 (S.C.C.);R. v. Williams (1998), (ON CA), 40 O.R. (3d) 301 (C.A.); R. v. Barreau, (BC CA), 9 B.C.A.C. 290,19 W.A.C. 290 (B.C.C.A.) and Re: Chambers and the Queen (1985), (ON CA), 20 C.C.C. (3d) 440 (Ont. C.A.). 17 The element of knowledge is dealt with by Watt J. in the case of R. v. Sparling, [1988] O.J. No. 107 (Ont. H.C.) at p. 6: There is no direct evidence of the applicant's knowledge of the presence of narcotics in the residence.

It is not essential that there be suchevidence for as with any other issue of fact in a criminal proceeding, it may be established by circumstantial evidence. In combination,the finding of narcotics in plain view in the common areas of the residence, the presence of a scale in a bedroom apparently occupied bythe applicant, and; the applicant’s apparent occupation of the premises may serve to found an inference of the requisite knowledge. [Emphasis added.] [121] With these legal principles and authorities in mind, I turn to the present case.

Analysis and findings Regarding the evidence overall [ 122 ] As indicated at the outset of the evidence portion, I accept the evidence of the witnesses who testified on behalf of the Crown as credible and reliable. I have noted the few small errors or conflicts in the evidence and set out my findings in relation to them.

I have carefully considered their testimony and reviewed the exhibits tendered. [ 123 ] The defence did not call evidence, but puts the Crown to strict proof of the elements of the offences charged. [ 124 ] The physical objects seized in this case, including evidence of the 29 packages of cocaine have been put before the Court by way of photographs admitted by the defence. [ 125 ] I find that the continuity of the various items in terms of where, when and by whom they were seized, up to the point they was catalogued and photographed has been proven.

This includes the continuity of the 29 kilos of cocaine and the continuity of the samples sent for analysis via H envelopes and corresponding Certificates of Analysis, the continuity of which has not been an issue. Proof of a

Schedule 1 Controlled Substance - cocaine [ 126 ] In the present case the Crown has proven beyond a reasonable doubt that the substance contained in the 29 similarly shaped and wrapped packages, each weighing approximately 1000 grams, was cocaine, a controlled substance pursuant to

Schedule 1 substance of the CDSA . Count 1 - the offence of importing a controlled substance [ 127 ] In the present case the Crown submits that Mr. Peal imported cocaine, a controlled substance, into Canada by physically carrying it across the border. [ 128 ] The actus reus for the offence of importing a controlled substance into Canada requires the individual to personally carry the controlled substance or cause it to be brought into Canada.

The mens rea requires actual knowledge of the substance being imported or wilful blindness as to its presence. [ 129 ] I find that there is ample circumstantial evidence from which the only rational inference to be drawn is that Mr. Peal carried a backpack of cocaine across the Canada/US border into Canada with Mr.

Provo and most likely, one other person. [ 130 ] The observations of Agent Crawford and Agent Peterson prove that after 10:30 p.m. on November 8, 2014, three individuals crossed into Canada over the Canada/US border from the US side near Harvey Road to the area in Surrey, BC, where 0 Avenue runs east/west parallel to the border and 188 th Street runs north/south, starting from a “T” intersection with 0 Avenue. [ 131 ] Regarding the first person observed by Agent Crawford who crossed up and over 0 Avenue from the US side, Agent Crawford did not make any specific observations about this individual except to note the crossing.

He then turned his attention to calling dispatch. As he was doing that Agent Peterson observed two more individuals cross 0 Avenue near the street light at the corner with 188 th Street, and to head north on 188 th Street. The first individual as observed by Agent Peterson was wearing camo-coloured clothing, and to be carrying a large rucksack, and the other person he saw was wearing dark clothing, was quicker, and had a smaller rucksack. [ 132 ] The two individuals seen by Agent Peterson were both carrying rucksacks, which Canadians seem more often to call backpacks or sometimes knapsacks.

The individual in the camo-coloured clothing with the larger backpack generally matches the clothing worn by Mr. Peal. The second individual in dark clothing with the smaller backpack was either Mr. Provo, or the third individual who evaded police. Given that Agent Crawford only observed the presence of the first person and not that person’s clothing, I also acknowledge the possibility that this person also could have been wearing camo-coloured clothing, but that does not detract from the fact than Mr.

Peal was apprehended shortly thereafter wearing a camo-coloured jacket and pants. [ 133 ] Shortly after the observations of Agent Crawford and Agent Peterson were made, the three backpacks containing cocaine were found in close proximity to Mr. Peal and Mr. Provo in the bush as they were trying to evade detection by police. The three backpacks found contained a total of 29 individually-wrapped kilos of cocaine distributed between them (ten in the black backpack, 11 in a green backpack, and eight in the second green backpack). [ 134 ] This incident occurred late at night in a quiet semi-rural area in South Surrey.

The area was sparsely populated and devoid of other obvious pedestrian or vehicular traffic at the time. It was dark and the area had limited street lighting. The three individuals observed to be crossing into Canada were not to be confused with other pedestrians. None were seen and no one else was about. The heat seeking technology detected several deer, not to be confused with humans in terms of their distinct images. [ 135 ] The evidence also proves that Mr. Peal and Mr. Provo were together and working in concert on this particular evening, most likely with a third individual who evaded apprehension.

This is clear from the observations of Agent Peterson and Agent Crawford, particularly Agent Crawford’s testimony that using the FLIR goggles he observed the three individuals who had just crossed over 0 Avenue from the US side for about three minutes as they proceeded together north up 188 th Street until they went out of view over a hill. It is also clear that Mr. Peal and Mr. Provo were engaged in a joint endeavour from the fact that there were three backpacks found, each containing bricks of cocaine of the same size and packaged in the same manner, and the cellphone extraction evidence that links both Mr.

Peal and Mr. Provo to John Emit Brown, and approximately 35 to 45 minutes earlier at least two of the three individuals seen

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