R. v. Hildebrandt, 2017 BCSC 743

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Hildebrandt, 2017 BCSC 743 Date: 20170412 Docket: 42412-2 Registry: Prince George Regina v. Cynthia Mae Hildebrandt Before: The Honourable Mr. Justice Tindale Oral Reasons for Judgment on Appeal of Conviction pronounced by the Honourable Judge M.A. Gray on April 19, 2016 in the Prince George Provincial Court of British Columbia Counsel for the Respondent Crown: J. Lawn Counsel for the Appellant: D.S. Donnelly Place and Date of Hearing: Prince George, B.C. April 12, 2017 Place and Date of Judgment: Prince George, B.C.

April 12, 2017 [ 1 ] THE COURT: The appellant, Cynthia Hildebrandt, appeals her conviction for possession of a controlled substance pursuant to s. 4(1) of the Controlled Drugs and Substances Act on April 19, 2016 by the Honourable Judge Gray of the Provincial Court of British Columbia. [ 2 ] The Crown is opposed to the appeal.

Background [ 3 ] By way of brief background, on November 5, 2015, Constable MacDonald of the RCMP attended at the residence of the appellant located at 1837 Spruce Street, in the City of Prince George, with regard to a complaint related to the appellant's son, Brandon West. [ 4 ] Constable MacDonald located Brandon West at the residence and left with him.

Constable MacDonald, after returning Brandon West to a group home learned that day that there was a court order prohibiting the appellant from having contact with Brandon West at the residence. [ 5 ] Constable MacDonald returned to the residence of the appellant and arrested her. She was cooperative during the arrest. [ 6 ] The appellant while at her residence asked Constable MacDonald if she could retrieve her jacket and her purse. She was allowed to do this. [ 7 ] On attendance at the Prince George detachment, in the cell block, Constable MacDonald and another female police officer searched the appellant.

Inside the appellant's purse some narcotics were found in an inner side pocket of that purse. Also found in the purse was a wallet containing $2,250 consisting of $100 bills and a single $50 bill. There was also another wallet in the purse, as well as two cheques payable to other individuals and three cell phones. [ 8 ] At the trial of this matter, the appellant testified and claimed ownership of the items in the purse except for the narcotics. Position of the Parties The Appellant [ 9 ] The appellant argues that this is a simple, straightforward appeal.

The appellant is appealing the conviction for possession of a narcotic. The appellant argues that the Honourable Judge Gray's reasons for judgment are incoherent and that he failed to apply the test for reasonable doubt in a circumstantial case. The appellant argues that her guilt is not the only reasonable conclusion that the judge could have come to based on the evidence. [ 10 ] The appellant argues that the tests on this appeal can be found in the decision of R. v.

Bock , 2016 BCCA 195 , at para. 16 , which reads as follows: The more salient question in this case is whether the verdict can be said to be unreasonable. Mr. Massey on behalf of appellant referred

us to a helpful case, R. v. Trevor, 2006 BCCA 91 which, like this one, involved only circumstantial evidence. As is well-known, in sucha case the finder of fact must be satisfied that the guilt of the accused is the "only reasonable inference to be drawn from the provenfacts." see R. v. Cooper, [1970] 1 SCR 860.

This court in Trevor added that on appeal the court must "look at the whole of the evidenceand determine, through the lens of judicial experience, whether the circumstantial evidence, considered and weighed cumulatively,rationally supports the guilty verdict." [11] The appellant also argues that the judge erred by convicting the appellant on the basis of irrelevant evidence which isunreasonable.

The appellant argues that the irrelevant consideration was her explanation as to why she had a large amount of money inher purse. [12] The appellant argues that it does not make any sense that she would ask the police officer to let her retrieve her purse when shewas being arrested if she knew that there were drugs in the purse. [13] The appellant argues that the Honourable Judge Gray did not address this factor. He convicted the appellant after rejecting herreasonable explanation for having the drugs in her purse, that being; somebody else must have put them there as there were other peoplein the home.

In that regard, the appellant points to the Reasons for Judgment of April 19, 2016, at para. 24, where the learned judge saysthe following: [24] The other aspect is that, yes, knowing that the home was at that point occupied by addicts as you say the fact that one of thoseindividuals would secrete or put the drugs in the purse, is somewhat dubious.

Also the factor, in my view, in assessing the evidence is,you removed the drugs in the purse or removed the purse from the home because of the fact that perhaps the addicts were in the homeand had ready access, perhaps, to the purse, all the while recognizing it was upstairs in the bedroom where your boyfriend was. [14] The appellant argues that the Honourable Judge Gray did not consider the obvious risk that the boyfriend might have taken themoney and the purse, and the fact that the appellant went back upstairs is consistent with not knowing that there were drugs in the purse. [15] The appellant argues that the Honourable Judge Gray was looking for anything that would support a finding of guilt. [16] The appellant further argues that her explanation as to why she had the various items in her purse and her denial of knowledgeof the drugs was reasonable. [17] The appellant asks that the conviction be quashed.

The Respondent [18] The respondent agrees that that this is a straightforward appeal.

The respondent argues that the trial judge properly consideredthe evidence of the appellant and rejected her explanation that someone else put the drugs in her purse. [19] In that regard, the Honourable Judge Gray said the following at para. 27 of the Reasons for Judgment, which read: [27] If there is an element of speculation, in my view, in terms the question of the purse and why it was being moved from the house,but all in all, in my view there is no other explanation that those items were in your purse, together with the money, with you wellknowing that they were in your possession, and the suggestion that perhaps somebody put those drugs in your purse, in my view, justcannot stand scrutiny. [20] The respondent argues that the Honourable Judge Gray clearly conducted a proper analysis of the appellant's evidence at trial,considering the principles in R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742, and that the verdict was reasonable and supportedby the evidence. [21] The respondent argues that the Honourable Judge Gray was tasked with determining the credibility of the appellant, which hedid. And after rejecting her explanation, considered the totality of the evidence in concluding that she was in possession of 11 packagesof cocaine in her purse, and she had the requisite knowledge of that cocaine to found the conviction. [22] The respondent argues that the test for determining whether a verdict is unreasonable is found in the decision of R. v.

Kwok(2002), 2002 BCCA 177 , 164 C.C.C. (3rd) 182, where, at para. 27, the B.C. Court of Appeal states the following: [27] The test for an unreasonable verdict is strict. This Court cannot substitute its view for that of the trial judge. The question iswhether, looking at the whole of the evidence, the trial judge could reasonably have adjudged as he did … [23] The respondent argues that the appeal should be dismissed.

Decision [24] The Honourable Judge Gray began his Reasons for Judgment by confirming that the appellant was presumed to be innocent,and acknowledging that she had testified so he would have to assess her evidence. He went on to say the following at para. 3 of theReasons for Judgment: [3] Throughout, of course, it is not a question of the court choosing one version of what happened over another. The court has to besatisfied on the whole of the evidence that the Crown has proven the allegation beyond a reasonable doubt.

So I am going to do that. [25] The Honourable Judge Gray acknowledged that the appellant said that she had no knowledge of the drugs being in her purse,and then went on to state the following at paras. 12 and 13 of the Reasons for Judgment: [12] Then the question put to you, why were the drugs in the purse? Why would anybody put the drugs in the purse; because, of course,you disavowed any knowledge of those drugs.

[13] To the extent that you were asked to explain something, we have to remember that you are presumed innocent. You do not have to explain any of the evidence. It can stand on its own.

Perhaps, and if not, if it is weakened in terms of other circumstances, then that is something that I am to consider in allocating the proper weight to it. [ 26 ] The Honourable Judge Gray considered the explanation of the appellant for having a large sum of money in her purse, and said the following at para. 23 of the Reasons for Judgment: [23] The other factor is, as I view the testimony, I am struck that in all of that interaction with the landlord, there was, as I understand your testimony, money provided to you as straight cash, but nothing before the court in terms of documents showing any type of receipt or allocation of that money.

In other words, it is just money and in my view the court has to be fairly mindful of the fact that it was a landlord/tenant transaction, and somebody perhaps signing off or somebody obtaining a security deposit, all of that is not corroborated in the other matter of documents. So, all I have, really, is your testimony plus the money as it is shown in the photographs. [ 27 ] The Honourable Judge Gray went on to reject the appellant's explanation as to why she had the money in her purse.

The Honourable Judge Gray did not, in my view, consider irrelevant evidence because in rejecting the appellant's innocent explanation as to why she had the money in her purse, he said in part the following at para. 25 of the Reasons for Judgment: [25] ...

It does not make sense that that money would be in that quantity without more, and, of course, associated as it is with other items in the purse. [ 28 ] The Honourable Judge Gray clearly considered the totality of the evidence and the fact that not only were there drugs found in the purse along with a large quantity of money, there were also three cell phones and cheques that were not in the name of the accused in that purse. [ 29 ] The Honourable Judge Gray properly considered the evidence of the appellant and, as he was required to do, made an assessment of her credibility.

He rejected her explanation that she did not know the drugs were in her purse, and in doing so considered the other evidence of items that were in the purse. [ 30 ] It is not for this Court to substitute its view of the evidence for that of the trial judge.

The Honourable Judge Gray clearly considered all the evidence, made findings of credibility with regard to the appellant, and concluded that the Crown had proven its case beyond a reasonable doubt. [ 31 ] The argument of the appellant is in essence that her explanation as to not knowing that the drugs were in her purse was reasonable and therefore, on the evidence, a finding of guilt was not the only inference that could be made from the proven facts.

However, the Honourable Judge Gray rejected that evidence of the appellant as he was entitled to do. [ 32 ] Upon review of the totality of the evidence, it was open to the Honourable Judge Gray to find as he did. For the above-noted reasons, I dismiss the appeal. “The Honourable Mr. Justice Tindale”