Her Majesty the Queen - v. -, 2014 SKPC 213

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 213 Date: December 23, 2014 Information: 37291950 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Philippe Bui Appearing: D. M. Stahl For the Crown L. J. Watson For the Accused JUDGMENT Q.D. AGNEW , J [ 1 ] On June 12, 2012 at approximately 3:30 p.m., Constable Michael Scanlan made a traffic stop of a 2002 Dodge Caravan minivan in Saskatoon. There is no issue with respect to the validity of the stop. The accused was the driver of the minivan.

As a result of the events which followed the stop, the accused was charged with possession of cocaine for the purpose of trafficking, and possession of proceeds of crime, specifically $1,813.69. [1] The accused had no drugs on his person, and only some of the money. The Crown’s

contention is that the three occupants of the vehicle were engaged in a common enterprise of drug-dealing. On the Crown’s theory, the accused was in possession of the specified material, either constructively or jointly with his passengers. Facts [ 2 ] As Constable Scanlan pulled in behind the van, he noted that the driver was “jumping around” in the seat and it looked like he was putting clothing on or undertaking some similar activity. Constable Scanlan is apparently an instructor of police tactics, and he testified that a lot of movement in the course of a traffic stop is a “red flag” or a “threat cue”.

He was accordingly motivated to notice such activity. [ 3 ] He approached the minivan, and found the accused in the driver’s seat, another male in the front passenger’s seat, and a further male in the rear seat. He checked the accused’s driver’s licence and found that it was a British Columbia driver’s licence. The vehicle had a Saskatchewan licence plate and the constable asked the accused who it belonged to.

The accused said it belonged to “Matt”, but that he did not know Matt’s last name. [ 4 ] Constable Scanlan found the combination of the accused’s behaviour, the out-of-province driver’s licence and not knowing the last name of the owner of the vehicle to be suspicious. His suspicions were increased when the accused became “very argumentative”. He took the driver’s licence to his vehicle to review, as he was not familiar with British Columbia licences.

It indicated that the accused was a new driver, meaning that he was required to display the letter “N” on any vehicle he was operating, and could have a maximum of just one passenger other than an immediate family member. As there appeared to be two potential violations of the licence conditions, Constable Scanlan returned to the accused’s vehicle and told him that it appeared he was not abiding by his licence restrictions. The accused became more argumentative, yelling at the constable and saying that he was wrong, the occupants were the accused’s brothers.

Accordingly, the constable asked for identification from the passengers to confirm this. [ 5 ] Both passengers then, and through the remainder of the stop, acted in a manner which Constable Scanlan found suspicious. The front passenger was unresponsive, and refused even to meet the officer’s eyes; the rear passenger was so nervous that Constable Scanlan could see blood pulsing in his throat and hear him breathing heavily. Additionally, all three occupants of the vehicle were becoming more nervous as the traffic stop went on.

In Constable Scanlan’s extensive experience with traffic stops, the nervousness usually decreases after the initial contact, once people find out they have simply been pulled over for a traffic violation. In addition, passengers tend not to be nervous once they find out their vehicle has been pulled over for a traffic stop. This extreme and increasing nervousness on the part of not just the driver but also the passengers was again suspicious to Constable Scanlan.

Taking into account everything that had occurred, he testified that there were “a lot of strong indicators” that something untoward was going on. [ 6 ] Constable Scanlan then checked his computer again and found that the accused had three outstanding warrants from Saskatoon, all arising from him allegedly not complying with restrictions on his driver’s licence. Accordingly, the constable advised the accused that he was being arrested on those outstanding warrants. At this point, the accused became even more argumentative and initially refused to exit the van.

As soon as he got out, he put his hands into his pockets, which Cst. Scanlan interpreted as a “huge” threat indicator. He accordingly handcuffed the accused, and called for backup to deal with the other two and to transport the accused, as Constable Scanlan’s vehicle was not equipped to transport prisoners. In searching the accused, Constable Scanlan located a substantial bulge in the left front pant pocket, the pant pocket the accused was trying to put his hand into when he got out of the van.

In that pocket, as it turned out, the accused had a Blackberry cell phone and a lot of currency bills simply stuffed in (as opposed to placed inside a wallet, or in a roll). When Constable Scanlan ultimately counted the money, there was a total of $1,250.00. [ 7 ] Constable Scanlan attempted to obtain more information from the other two persons in the van. The front passenger continued his unwillingness to engage with Constable Scanlan. The rear passenger was somewhat more talkative. During the course of the stop, there was a cell phone which was ringing almost constantly within the car.

Constable Scanlan testified that in his experience it was not unusual for a cell phone to go off during a traffic stop. What was unusual in this case, however, was that the phone seemed to be receiving many calls within a short period of time. He testified that although he wasn’t sure how many times it rang, it was almost constant over the course of several minutes. [ 8 ] After the front passenger continued his refusal to respond, Constable Scanlan advised him that he was being detained for a drug investigation and asked him to step out of the car.

When the front passenger door opened, a large quantity of change, overflowing the door pocket, fell out. The manner in which it fell out, and the amount still remaining in the door, indicated to Constable Scanlan that the money had been placed in the door pocket after the door had last been opened. Constable Scanlan in due course counted the coins

and found almost $50.00 worth. [ 9 ] When the front passenger exited the vehicle, he did so in a very odd manner. The van was parked some distance from the curb, with a puddle between the vehicle and the curb. Rather than stepping across that puddle, the front passenger stretched both feet to the sidewalk and bridged his body out of the vehicle. He then proceeded to walk using only his lower legs, keeping his knees locked together.

This walk was observed not just by Constable Scanlan but also by Constable McFarlane, who was also on scene by this time and testified at the trial. [ 10 ] Constable Scanlan demonstrated this walk, or “waddle” as it might be more properly described, in court: it is exactly as he described it. It is consistent with someone attempting to hold their knees together while moving: as if, for example, they were holding something between their thighs.

In fact, when this person was subsequently searched at the police station, his shorts were found to conceal a plastic bag with numerous other small baggies within it, ultimately found to contain cocaine in both powdered and crack form. [ 11 ] After placing the front passenger in the custody of other officers, and after returning to the vehicle and dealing with the rear passenger, Constable Scanlan noted a small plastic bag on the sidewalk. It held a number of small baggies containing, once again, both powdered and crack cocaine.

Constable Scanlan testified that he located this bag after he dealt with the rear passenger, and that he believed that it had fallen out of the front passenger’s pants as the front passenger was being escorted by Constable Scanlan to the police cars.

He based this conclusion on the following facts: (1) he had not seen it previously; (2) only he and the front passenger had walked along that sidewalk during the course of this stop (both the rear passenger and the accused were taken from the driver’s side of the vehicle and moved along the roadway rather than the sidewalk), and; (3) the plastic bag was very clean and with very little water on it, a particularly telling point given that there was a light rain falling at the time.

This would also be consistent with the manner of the front passenger’s walk, observed by Constables Scanlan and McFarlane. [ 12 ] Between the detention of the front passenger and the finding of the bag on the sidewalk, Constable Scanlan detained the rear passenger. He was searched and was not found to be carrying any money but was found to be sitting on or beside two Blackberry phones, one of which had been ringing almost non-stop during the course of this entire event.

The phone had a call display feature and Constable Scanlan noted that one particular number kept coming up multiple times, in addition to other numbers. Eventually, at the police station, Constable Scanlan answered this telephone when the most persistent number again was calling. An agitated male voice asked why he was taking so long. Constable Scanlan asked him what he needed and the caller replied “80”. He wanted to have it delivered and wondered why it was taking so long. Constable Scanlan asked for the address, which the caller gave. The same caller called back again later, asking why it was taking so long.

He confirmed that he needed “80”. During this period of time other numbers came up on the call display on this Blackberry, as did this same number that Constable Scanlan had answered twice. The phone was ringing so persistently that eventually Constable Scanlan removed the battery. [ 13 ] There is no evidence that the police ever spoke with this caller again, tried to determine what it was that he was seeking, or went to his address to interview him in person. [ 14 ] Constable Scanlan considered that all the indicators he had seen were consistent with a “dial-a-dope” drug trafficking operation.

It is important to note, however, that Constable Scanlan was not qualified as an expert to give opinion evidence in this regard. [ 15 ] In

summary, there were three people in this vehicle. The accused, the driver, had a large quantity of cash stuffed haphazardly into his pocket. The front passenger was carrying drugs, slightly over $500.00 in cash and had approximately $50.00 in coins beside him, at least some of which had accumulated after the car door was closed. The rear passenger had neither drugs nor money, but had a telephone which was ringing almost constantly, at least one of the callers to which was looking for “80” to be delivered to him. This caller seemed quite frantic to get his delivery.

Corporal Lerat ’s evidence [ 16 ] Corporal Michael Lerat testified and was, by consent, qualified as an expert “in the areas of distribution, trafficking, usage, jargon, pricing, packaging and paraphernalia of cocaine as well as production and methods of trafficking cocaine in Saskatoon including dial-a-dope operations”. Of course, the fact that I accepted him as an expert does not mean that I necessarily must accept all, some or any of his evidence. Betweeen his report and his verbal testimony, he provided firstly evidence with respect to drug trafficking generally,

and secondly his opinion as to what the facts present here show about the accused and his companions. In reviewing that opinion, I remained cognizant of the fact that conclusions are ultimately for me to find, based on the evidence: it is not for an expert, however qualified, to opine on the ultimate issues before the Court. [ 17 ] I found some of Cpl.

Lerat’s evidence to be confusing if not contradictory. [ 18 ] Between his report and his oral testimony, his evidence was that a typical heavy user of cocaine would use anywhere from half a gram to three grams of cocaine per day depending on (amongst other things) whether they were taking it by snorting through their nose or smoking it in the form of crack.

His evidence also was that “typical” users would purchase anywhere from .5 grams to 3.5 grams, in order to help regulate their use. [ 19 ] Corporal Lerat also suggested that the amount of cocaine found on the occupants of the van, namely 27.9 grams, was far too much for a typical user and therefore was evidence of possession for the purpose of trafficking. Of course, this analysis ignored the fact that there were three people in the vehicle, not one. I note that there is no evidence as to whether or not any of the occupants of the vehicle were cocaine users, were heavy users or were “typical” heavy users.

Corporal Lerat did not say, nor do I believe he would have been able to say, that no cocaine user would ever have more than 3.5 grams of cocaine on his or her person for personal use. I note that according to Corporal Lerat’s evidence, 3.5 grams would constitute a one-day supply for a typical heavy user of crack cocaine. Depending on circumstances, it is hardly inconceivable that a heavy user might have more than a single day’s supply.

Furthermore, between three people, 27.9 grams would, divided equally, be 9.3 grams per person or, by Corporal Lerat’s figures, somewhat less than a three-day supply per person, depending on the user. [ 20 ] I also had a concern with respect to Corporal Lerat’s reasoning. In reading his report and listening to his testimony, his view of the evidence seemed to be coloured by his belief that the three van occupants were drug dealers. I therefore asked counsel to direct their minds to whether or not Corporal Lerat had fallen into the trap of circular reasoning.

Circular reasoning is a logical fallacy in which the conclusion is assumed to be true, and is used to support the truth of the premises which are then used to prove the truth of the conclusion. In this particular case, Corporal Lerat’s evidence gave me concern that he started from the assumption that the three occupants of the vehicle were drug-dealers, that this assumption coloured his view of the evidence, and that accordingly his view that the evidence proved that the occupants were drug dealers is at least suspect. [ 21 ] One example was the constantly-buzzing phone.

One of the reasons Corporal Lerat concluded that the accused was dealing drugs was the presence of a “dial-a-dope phone”, as he described it - a phone being used by dial-a-dope operators to arrange drug deals. Its presence in the vehicle, therefore, indicates that the occupants were dealing drugs. On the face of it, this seems a very reasonable conclusion: after all, who besides drug dealers would have a dial-a-dope phone?

Note, however, that the assumption that the phone is a “dial-a-dope phone” is supported by very little other than that it is found in the presence of drug dealers: the very fact it is put forward to prove. [ 22 ] Logical errors do not necessarily mean that the conclusion is incorrect; it may be proven correct by some other approach. In reviewing the Corporal’s testimony and expert conclusions, however, I have had to remind myself that he viewed at least some of the evidence through the lens of his assumption that the three van occupants were drug dealers.

I have accordingly put more weight on his descriptions of drug enterprises and operations, values, etc., and less on his opinion as to the individuals in the van. [ 23 ] A second difficulty with Corporal Lerat’s conclusion regarding the telephone is his reliance on the two telephone calls to that phone which Constable Scanlan answered (see pages 10 and 11 of his report). Based, amongst other things, on the content of those two conversations, he concluded that this was a “deal phone” (p. 12 of his report).

It seems to me that this conclusion runs afoul of the Supreme Court of Canada’s decision in R v Baldree . [2] That decision concerned the admissibility of statements made by a caller to a cell phone which had been seized by police. The caller asked for delivery of “weed” and made statements which indicated quite clearly that he had been calling the accused in order to ask for that delivery. The caller was not called as a witness at trial, nor was he apparently contacted by the police at any time to determine whether this was in fact a drug transaction he was attempting to arrange.

The Supreme Court concluded that the evidence of the conversation was hearsay and should not have been admitted. It seems to me that its characterization of the use to which the Court was asked to put that statement applies equally to the telephone calls before me: the Crown asked the trier of fact to conclude, based on Sgt. Martelle's testimony, that the unknown caller intended to purchase marijuana from the respondent because he believed the respondent to be a drug dealer . The relevance of the statement thus hinges on the truth of

the declarant’s underlying belief.

Any inference that can be drawn from the statement necessarily assumes its veracity. [3] [emphasis in original] [ 24 ] The Supreme Court identified the problems with hearsay [4] , and stated that a greater number of calls to the same phone, having more or less the same content, could overcome them: “[f]or example, where the police intercept not one but several drug purchase calls, the quantity of the calls might well suffice in some circumstances to establish reliability. . .” [5] [ 25 ] In the present matter, there were just two telephone calls, apparently from the same caller, with statements considerably more cryptic than those in Baldree .

Nor was there any follow-up by police which might have shed light on the meaning of the conversation, as there was in R v Ly . [6] In that case the telephone conversation, which seemed to be to arrange a drug deal, was followed by the drug deal which it had seemed to arrange; the Court concluded that the conversation was simply part of the circumstances which went to determining the accused’s intention to traffic when he appeared at the meeting.

In the case before me, the police did not take any steps to follow up the telephone calls to confirm that a drug deal was actually the subject of the discussion. [ 26 ] The Crown wishes to use the evidence from the two conversations which Constable Scanlan had on the phone as part of its argument that it was a “deal” phone and that this is evidence of drug trafficking. I do not believe the evidence can be stretched far enough to cover that assertion.

The constant buzzing of the telephone, the pattern of calls and other matters can form the basis of Corporal Lerat’s opinion with respect to the telephone, based on his expertise, and I can weigh that opinion bearing in mind all of the evidence. I do not consider the content of the conversations, bearing in mind the Supreme Court’s position, to be admissible and they are therefore of no assistance in supporting Corporal Lerat’s conclusions. Furthermore, the conversation is cryptic.

It is interpreted by Corporal Lerat as being a drug deal based, it seems, on his belief that that the people in the van are drug dealers. If they are drug dealers, then “80” is a reference to drugs. Of course, if one were to assume that they were something else, then “80” would be interpreted as a reference to something other than drugs. Again, this seems to be an example of circular reasoning: (

a) these people are drug dealers; (b) “80” has a particular meaning in drug circles; (

c) therefore a request for “80” is a request for drugs; (

d) if someone is asking these people for drugs, that someone believes these people are drug dealers; [7] (

e) this is therefore evidence that these people are drug dealers. Circumstantial evidence [ 27 ] As set out by the Supreme Court of Canada in R v Charemski [8] , guilt can only be established beyond a reasonable doubt by circumstantial evidence if guilt is the only rational conclusion which may be drawn from the facts I find. [9] [ 28 ] The accused was found with $1,250.00 in cash in his pocket. This money was not in a wallet, or in a neat bundle; rather, the bills were randomly stuffed into the pocket. This is referred to in Corporal Lerat’s report as “a large amount of unexplained currency”, and its presence seems to have played a

part in his conclusion that the accused was trafficking. The defence objects to the characterization of the money as “unexplained”, pointing to Constable McFarlane’s testimony: the accused told her that he had $600.00 - $700.00 on his person from his family; he then said that he had obtained the money from a specific bank and branch. It is not clear from the evidence whether these were alternate explanations for the money, or if they are one, namely that the money was from his family, which he obtained by physically withdrawing it from the bank.

Giving the accused the benefit of the doubt, I will take it that this was a single explanation; were it otherwise, then obviously the offering of two explanations weakens the credibility of both of them. The defence points to this alternate explanation for the money, and says that since this is a reasonable explanation, it is impossible to say that guilt is the only rational conclusion which can be drawn from the existence of the money. [ 29 ] There are two difficulties with the accused’s position. [ 30 ] The first is that the Charemski test applies to the evidence as a whole, not to individual pieces of it.

It would be conceivable to have a chain of circumstantial evidence, the individual portions of which all had alternate rational explanations, but the whole of which could rationally only lead to a conclusion of guilt.

[ 31 ] The second, and greater problem, is that there is no evidence from any witness confirming any portion of those statements. The accused’s statements to the officer are nothing but hearsay. He is attempting to provide this explanation without having to state it under oath or be cross-examined on it. Even if I concluded that the statements were admissible for the proof of their contents, I would give them no weight. [ 32 ] Defence concedes that the cocaine found was possessed by someone for the purpose of trafficking.

Defence also concedes that the other two individuals in the van “appear to be involved in the drug trade”. [10] Defence contends, however, that the evidence is not such that the only rational inference that can be made from it is that the accused was participating in drug trafficking; defence contends that it is also rational to infer that the accused was an innocent person driving a vehicle in which the other two were present; in other words, that he did not participate in any drug dealing. [ 33 ] As noted above, it is the totality of the evidence which I must examine to decide whether the only rational inference is that the accused possessed the cocaine, and the money in the van (including on the accused’s person), and whether or not the money was proceeds of crime. [ 34 ] The most salient facts of this case are as follows: (

a) the accused was the driver of the van; (

b) the van belonged to someone else, whose last name was apparently unknown to the accused. It is “often” the case that traffickers will use a vehicle belonging to a drug customer (Lerat report, p. 12). I note that it is also not unheard-of for non-traffickers to drive a vehicle not registered to them. However, it is a bit more odd that the accused did not even know the last name of the person who lent him the vehicle; (

c) the accused acted in an odd manner during the traffic stop, being rude and aggressive; however, I note that this should be treated as evidence potentially against a trafficking conclusion, since arguably one might expect a drug trafficker to be less inclined to argue about a traffic ticket than someone who is unaware of the presence of drugs in the vehicle; (

d) the passengers were both extremely nervous, and their nervousness increased rather than decreased throughout the stop. This factor may or may not tell against the accused: given that one of the passengers was subsequently found to have drugs on his person, his nervousness at least is quite reasonable, and might be expected whether or not the accused was aware of the presence of the drugs; (

e) the accused lied about the identity of the passengers; the passengers lied about their own identities; (

f) the accused had a large quantity of money ($1,250.00) in various denominations “stuffed” into his front pocket. This is consistent with drug trafficking; (

g) the accused apparently did not know how much money he had in his pocket - he advised Constable McFarlane that he had $6- 700.00 on him, when in fact, he had about double that amount. Corporal Lerat indicated that a drug trafficker will often not know how much money they have on their person (Lerat report, p. 9); (

h) the front-seat passenger had cocaine in his possession, packaged in a way indicative of trafficking rather than personal use. It would of course be possible for the passenger to have had cocaine on his person without the knowledge of the accused; (

i) money, in the form of coins, had been dumping into the pocket of the front passenger door some time after the front passenger had gotten into the van. According to Corporal Lerat, drug transactions sometimes include one- and two-dollar coins;

(

j) there were four cell phones in the vehicle, two of them in the back seat with the second passenger. One of those phones in theback seat was, after the stop, being called very frequently; (

k) the arrangement of a driver, a person with drugs and a person with a phone is consistent with a dial-a-dope operation. [36] The above list, comprising the highlights of the evidence, is necessarily incomplete. It is the totality of the evidence whichmust be examined. Having heard the witnesses, and having reviewed the evidence, there is no rational conclusion I can come to but thatthe accused was driving the van in the course of a dial-a-dope operation. He was aware of the drugs, and was an active participant in theenterprise. [36] Under s. 4(3)(

b) of the Criminal Code, “where one of two or more persons, with the knowledge and consent of the rest, hasanything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.” Conclusion [36] Accordingly, I am satisfied beyond a reasonable doubt that the accused had possession of the cocaine.

Given the defenceadmission, I am satisfied that the possession was for the purpose of trafficking, and I therefore find him guilty of count one of theInformation. [36] With respect to count two, possession of proceeds of crime, I am satisfied that the monies held by the accused and the rearpassenger were from the sale of the cocaine, and are thus proceeds of crime. I therefore find the accused guilty of this count as well. ______________________ Q.D. Agnew, J [1]Contrary to s. 5(2) of The Controlled Drugs and Substances Act, and ss. 354(1) and 355(

b) of the Criminal Code, respectively. [2]2013 SCC 35. [3]para. 39. [4] Apart from the inability of the trier of fact to assess the declarant's demeanour in making the assertion, courts and commentators haveidentified four specific concerns. They relate to the declarant's perception, memory, narration, and sincerity [citation omitted].

First, the declarant may have misperceived the facts to which the hearsay statement relates; second, even if correctly perceived, therelevant facts may have been wrongly remembered; third, the declarant may have narrated the relevant facts in an unintentionallymisleading manner; and finally, the declarant may have knowingly made a false assertion. The opportunity to fully probe these potentialsources of error arises only if the declarant is present in court and subject to cross-examination. (Paras. 31 and 32) [5]Para. 71. [6] (SCC), [1997] 3 SCR 698.

[7]Note that this is exactly the hearsay problem identified by the Supreme Court in Baldree. [8] (SCC), [1998] 1 SCR 679. [9]Page 690. [10]Defence brief, p. 9.