Her Majesty the Queen - v. -, 2017 SKPC 042

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 042 Date: April 25, 2017 Information: 36657445 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Randy Lawrence Norman April Appearing: Janelle Khan For the Crown Chris Lavier For the Accused JUDGMENT S.S. ANAND , J I. INTRODUCTION [ 1 ] Randy April is charged with a number of offences.

These written reasons only address his charge of possession of a controlled substance, specifically, methamphetamine, for the purpose of trafficking. [ 2 ] This charge stems from a search conducted by police officers pursuant to a search warrant of a home in which Mr. April was residing. When the police executed the search warrant, they found a number of individuals inside the home, including Mr. April. In

addition, the police found, among other things, two clear plastic bags containing methamphetamine. The methamphetamine was located behind a baseboard in a bedroom on the main floor of the house. [ 3 ] Defence counsel concedes that whoever had possession of the drugs did so for the purpose of trafficking. [ 4 ] The issue in dispute is whether or not the evidence tendered at the trial establishes beyond a reasonable doubt that Mr. April was in possession of the methamphetamine. This issue turns on a consideration of the following questions:

(1) Did Mr. April have the requisite element of knowledge to find him in possession of the drugs? and

(2) If so, did Mr. April have the requisite element of control necessary to find him in possession of the drugs? [ 5 ] For the reasons that follow, I hold that the Crown has established the knowledge element of possession, which is satisfied by ample evidence that Mr. April had knowledge or was wilfully blind as to the general location of the forbidden substance (that it was somewhere in the house) and the character of the forbidden substance (that it was some form of illicit drugs).

Nevertheless, I also hold that the Crown has failed to establish beyond a reasonable doubt the control element of possession, which, in the factual context of this case, would require the Crown to prove that Mr. April knew the precise location of the drugs in the bedroom wall. Consequently, I find Mr. April not guilty of the offence of possession of a controlled substance for the purpose of trafficking. II.

KEY FACTS AND EVIDENCE [ 6 ] The relevant facts of this case, as gleaned from the admissible evidence, are largely not in dispute. [ 7 ] On December 18, 2015, police executed a search warrant at the residence located at 1130 Avenue O South in Saskatoon, Saskatchewan. This residence is a bi-level house with three doors leading to the outside of the home. Upon entering the front door, there is an entry way or landing area and one set of stairs that leads up to the main level. There is a second set of stairs that leads down to the basement.

Moving from west to east on the main floor, the first room encountered is a living room, then the kitchen, and, finally, the dining room. Another door leading to the outside of the house is found in the dining room. There are also two bedrooms on the main floor. In the basement, there is a living room, a bedroom, and a laundry room. The laundry room in the basement contains the last door that leads to the outside of the house. [ 8 ] All entrances to the residence were barricaded. The main or front entrance was barricaded with metal bars that could only be unlocked from the inside.

The door off the dining room on the main floor was fortified with 2x4 wood boards that ran across the span of the door and were secured into the door frames by way of barrel bolts. There is a set of stairs that leads from the laundry room up to the basement door, and these stairs contained a number of overturned chairs that blocked the way to the basement. Although the front door and the dining room door were locked, the basement door was unlocked. [ 9 ] In their execution of the search warrant, the police utilized a hand-ram.

Because of the metal bars, it took a great deal of effort to break through the front door. Several strikes were required, and it took from 1-2 minutes to gain entry into the residence. [ 10 ] Upon entry, the police observed Mr. April and Mr. Erickson move a few feet from the kitchen peninsula to the dining room table. At that point, both Mr. April and Mr. Erickson complied with the police direction to stop moving and to put their hands behind their heads. [ 11 ] A cell phone was found, broken open with the SIM card removed, inside a dog food container.

The dog food container was situated on the floor at the boundary between the kitchen and the dining room. A SIM card was found on the portion of the kitchen counter closest to or adjacent to the dog food container. Multiple electronic devices, including cell phones and a tablet, were also found on the dining room table. [ 12 ] During their search of the residence, the police discovered score sheets on the kitchen counter near the stove, on the living room table, and on the dining room table. Score sheets often take the form, as they did in this case, of pieces of paper containing a series of

names with corresponding dollar amounts listed next to them. The score sheets are essentially debt ledgers representing the amount of money owed to a drug dealer by his or her clients. [ 13 ] The police also found a number of other items on the dining room and living room tables. On the dining room table, they found an aerosol can with a false bottom containing empty plastic packaging of the type typically used by drug traffickers to package methamphetamine at the gram level. On this table they also found a canister of bear spray and a prescription bottle in the name of Christopher Boylan.

Small Zip-lock baggies and two digital scales were found on the living room table. [ 14 ] As the police dealt with Mr. April and Mr. Erickson, they encountered two dogs on the scene. While the dogs were quiet and passive, they seemed afraid when interacting with the police. By contrast, the dogs were more friendly with Mr. April and Mr. Erickson. Mr. April told the police that they did not have to worry about the dogs. [ 15 ] The police arrested Mr. April and Mr. Erickson, and they conducted searches incident to arrest. $1,047 was found in Mr. April’s wallet, and $310 was found in Mr.

Erickson’s wallet. [ 16 ] The police moved on and searched the bedrooms on the main floor. They discovered a money counter in a bedroom that was filled with children’s toys. The police also searched another bedroom on the main floor. Although this bedroom was filled mostly with female clothing and personal effects, there were two pairs of large jeans in the room. The size of the jeans suggests that they may be male jeans. [ 17 ] The methamphetamine located at the residence was located in this latter bedroom. In searching this bedroom, police officers removed items that were close to the walls.

One of the items removed was a purple plastic bin that occupied the space between the nightstand and the baseboard. Although the purple bin had initially obscured the view of the baseboard, it was easy to move from its place and it was not wedged in between the baseboard and the nightstand. Upon moving the bin, police officers noticed that the baseboard was loose as it was not attached to the wall. A police officer shone his flashlight into the gap between the baseboard and the wall, and another officer thought he saw something shiny in the gap.

The police officer with the flashlight then removed the baseboard, reached into a hole in the drywall, and pulled out two plastic bags containing 27.82 g and 27.68 g of methamphetamine respectively. [ 18 ] Police officers also conducted a search of the basement area. While engaged in this search, they came upon Melissa April, who was seated in the basement living room. During the search of the basement, the police discovered paperwork in the name of Chris Boylan and needles in the basement bedroom. [ 19 ] Just prior to the police executing the search warrant, officers observed Mr.

Boylan on the street in the vicinity of the house. An officer heard Mr. Boylan say into his cellphone, “They are right outside. I saw them on the corner. You better get out.” The police arrested Mr. Boylan and searched him incident to arrest. In a bag that he was carrying, they found 5.71 g of methamphetamine, drug packaging, a scale, and a cell phone. [ 20 ] While conducting surveillance of the house earlier that day and prior to the execution of the search warrant, police officers observed Tyra Goodheart leave the residence with an unidentified male.

Less than an hour later, while she was driving in the 100 block of Avenue O South, Ms. Goodheart was arrested by police. The officers searched her incident to arrest and found $220 in cash, a conducted energy weapon, a pocket knife, 27.29 g of methamphetamine, 1.4 g of cocaine, 30 mg of hydromorphone, and a cell phone in the area immediately surrounding her, on her person, and/or in her belongings. [ 21 ] The Crown called expert evidence in this case.

The Crown’s expert was deemed qualified to provide the court with expert evidence in the following areas: The methods of packaging, distribution and pricing of methamphetamine; usage and effects, and observable signs of methamphetamine use, as well as the patterns of methamphetamine usage in Saskatchewan; the language, paraphernalia and proceeds related to the possession, use and distribution of methamphetamine. [ 22 ] The Crown’s expert testified that drug traffickers often practice barricading in the buildings in which they store their drug supplies.

Drug traffickers barricade for two reasons: (1) to protect themselves from robbery by other drug traffickers; and (2) to slow police down as they attempt to gain entry so that the traffickers can dispose of the evidence against them. [ 23 ] Expert testimony also established that the drug trafficking operation at play in this case was at a low level. If the

methamphetamine found in the bedroom wall was sold by the point (of a gram), it would be worth $5,500; and if sold in half-ouncepackages, it would be worth $4,400. [24] Although the Crown’s expert opined that the drugs were possessed for the purpose of trafficking, he indicated that thedeterminative factors that drove this conclusion were the quantity of the drugs found as well as the presence of the scales, packaging, andscore sheets in the house. The amount of cash found on Mr.

April’s person was not a major factor in his determination that the drugswere possessed for the purpose of trafficking. [25] In fact, the Crown’s expert could not confirm that the cash seized from Mr. April’s person constituted proceeds of crime. Theamount was not large enough to strongly suggest that it constituted proceeds of crime. Moreover, it was not bundled in the manner thatmuch cash that is proceeds of crime is bundled. Also the fact that the money was found in Mr. April’s wallet caused the Crown’s expertto doubt whether or not the money constituted proceeds of crime.

The Crown’s expert testified that drug traffickers often hide proceedsof crime somewhere in the residence such as inside a jacket hanging at the back of a closet as opposed to carrying the proceeds on theirperson. Such practices are aimed at protecting proceeds from falling into the hands of would-be robbers or the police. [26] On December 15, 2015, Mr. April entered into a recognizance requiring him to reside at 1030 Avenue O South in Saskatoon,Saskatchewan. On December 17, 2015, an amendment was made to this recognizance requiring him to reside at 1130 Avenue O South inSaskatoon, Saskatchewan. III.

THE RELEVANT SUBSTANTIVE LAW [27] The concept of possession is, at least initially, defined by legislation.

Section 2 of the Controlled Drugs and Substances Actimports the definition of possession from section 4(3) of the Criminal Code: 4(3) For the purposes of this Act, (

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

i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person;and (

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall bedeemed to be in the custody and possession of each and all of them. [28] It follows from this provision that there are three different possible types of possession that can be established: (1) personal(section 4(3)(a)), (2) constructive (section 4(3)(a)(

i) and (ii)), and (3) joint (section 4(3)(b)). The theory of the Crown is that the accusedwas in constructive or joint possession of the drugs found in the residence on December 18, 2015, because there is no evidence that Mr.April was in personal possession of the drugs. Accordingly, the relevant concepts in this case are relegated to constructive and jointpossession. [29] Canadian jurisprudence has made clear that all three types of possession require knowledge and control.

Pursuant to R vTerrence, (SCC), [1983] 1 SCR 357, to make out joint possession, knowledge and consent must co-exist with somemeasure of control over the item in question. Similarly, in R v Pham, 2006 SCC 26, [2006] 1 SCR 940 the court endorsed constructivepossession as requiring knowledge that extends beyond quiescent knowledge and discloses some measure of control over the item. [30] Even though some aspects of the knowledge requirement of possession are fairly well established by the jurisprudence, otheraspects are more ambiguous.

Courts have long held that, in order to establish that an accused is in possession of a substance or material, the Crown must establish that the accused had knowledge of the nature of the substance or material, but the accused need not know theprecise nature of the item as long as knowledge of its illicit character is made out (see, for example, R v Beaver, (SCC),[1957] SCR 531 at para 35 and R v Kundeus, (SCC), [1975] 2 SCR 272 at paras 5-6 and 18-19).

[31] Courts have also consistently ruled that, for an accused to be in possession of an item, the location of the substance must beknown by him or her, but how precise must the accused’s knowledge be in order for this element of possession to be established? Forexample, is it enough for an accused to be aware that drugs are somewhere in a residence or must he or she be aware of the preciselocation within that residence that drugs are located? [32] Unfortunately, it is difficult to find a clear answer to such questions emanating from the jurisprudence.

The Crown cited R vMraz, 2001 SKQB 296 [Mraz] for the proposition that an accused may be found in possession even when he or she does not know theexact location at which drugs are stored as long as he or she is aware of the general location of the items within the building, receptacle,or place (to borrow the language used in

section 487, the general search warrant provision of the Criminal Code) containing the drugs.However, citing Mraz as standing for such a proposition is problematic. [33] A brief discussion of this case reveals why it is problematic. Mraz involved a charge of simple possession of marijuana. Theaccused and his friend had shared a joint while they were inside their parked vehicle on the University of Saskatchewan campus. Shortlythereafter, campus security arrived and the accused consented to the security officers searching the motor vehicle.

Despite the fact thatthe accused thought his friend had returned the marijuana to the friend’s jacket pocket, he had moved the marijuana from his pocket to alocation under the passenger seat where the drugs were subsequently found by the security officers. The trial judge focused on themoment in time when the drugs were found and indicated that, because the accused did not know that the drugs were now under thepassenger seat, he did not have the requisite knowledge necessary to make out possession. The

summary conviction appeal court allowedthe Crown appeal on the basis that the accused, at some time on the relevant evening, knew the precise location of the drugs.

Hence thesuccessful appeal was not based on the court ruling that the requisite knowledge element for possession could be satisfied by anawareness of the general location of the drugs (somewhere in the vehicle). [34] Nevertheless, there are some cases that support the proposition that the knowledge element of possession can be satisfied if theaccused is aware that drugs are somewhere in a residence even in the absence of knowledge of the precise location of the drugs insidethe home.

In R v Cantrill, 2011 ABQB 273, [2011] 12 WWR 575 [Cantrill] the court was dealing with a situation involving an accusedwho was the chief tenant, albeit not the only resident, of a house in which the police found two bags of marijuana. One of the bags wasconcealed in a bathroom cupboard, and the other was in a white plastic grocery bag in the kitchen. Drug-related paraphernalia, such asdigital scales, drug packaging, and score sheets, was found in common areas in the residence.

The court held that the knowledge elementof possession was satisfied in this case by virtue of the accused’s awareness of the presence of large amounts of marijuana in the house(as opposed to specific knowledge of the drugs in the bathroom cupboard and/or the grocery bag). [35] In order to make out the knowledge element of possession, the court in Cantrill utilized the concept of wilful blindness.

Wilfulblindness is seen as a substitute for knowledge in cases where an accused subjectively sees the need for further inquiries about theexistence of prohibited consequences or circumstances but deliberately fails to make such inquiries because he or she does not want toknow the truth (R v Briscoe, 2010 SCC 13, [2010] 1 SCR 411 at paras 21 and 24).

I agree with Professor Kent Roach about theextremely narrow scope that should be attributed to the doctrine of wilful blindness: In order to be equated with knowledge and distinguished from recklessness, willful blindness should require more than a subjectivesuspicion about a mere possibility but rather a well founded suspicion that is closer to knowledge of a probability that the prohibitedcircumstances or consequences will occur.

The fact that the accused should have been suspicious or only recognized the possibility asopposed to the probability of the unlawful act occurring should not be sufficient if wilful blindness is truly to be the equivalent of guilty knowledge. (Kent Roach, Criminal Law, 5th ed (Toronto: Irwin Law, 2012) at 191.) In Cantrill, the presence of drug paraphernalia in common areas of the residence where it would be seen by the accused, led to theinference that he was cognizant of the probability of the presence of drugs somewhere in the residence.

If he then declined to makeinquiries because he did not wish to know the truth, he was wilfully blind. Indeed the court in Cantrill explicitly indicated that theaccused either knew or was wilfully blind to the presence of the marijuana in the residence. [36] The control element of possession has been described in many ways. In R v Dipnarine, 2014 ABCA 328 [Dipnarine] the AlbertaCourt of Appeal stated that the measure of control required does not mean exclusive control nor pre-dominant control.

At para 18 ofDipnarine, the court held that, “for the purposes of ‘control,’ the accused must be proven to be in a position to ‘exercise a directing orrestraining power’ over the [substance].” Control is not established by a mere passive acquiescence to the presence of the illegalsubstance (R v Williams (1998), (ON CA), 125 CCC (3d) 552 (Ont CA)).

In R v Daniels, 2004 NLCA 73, 191 CCC(3d) 393 at para 12, Welch J.A. explained the concept of control in these terms, “It is the element of control, including deciding whatwill be done with the material, that is essential to possession.” [37] The ability to decide what will be done with the substances or material in question requires location-specific knowledge (see R vBertucci (2002), (ON CA), 169 CCC (3d) 453 (Ont CA) at para 20 and Cantrill at paras 90-91). Thus, in order to

establish the control element of possession, either the accused or someone he or she has the authority to direct would have to know precisely where the item was located. Consequently, knowledge that drugs were somewhere in a residence would be insufficient to constitute control. [ 38 ] As a result, my analysis of the relevant authorities suggests that knowledge of the specific location of a substance or material is a necessary prerequisite to a finding of possession of that substance or material, but not because of the knowledge element associated with possession.

The knowledge element of possession, which can be satisfied by virtue of the doctrine of wilful blindness, requires that the accused have knowledge of the nature of the substance or material in question, but the accused need not know the precise nature of the substance or material as long as knowledge of the substance or material’s illicit character is established. In addition, the knowledge element of possession requires that the accused know, or be wilfully blind to, the general location of the substance or material in question within a building, receptacle, or place.

The control element of possession, which requires that the accused must be able to exercise some measure of control over the substance or material, is satisfied if the accused has the ability to decide what will be done with the substance or material. To have this ability, the accused or someone he or she has authority to direct would have to know precisely within a building, receptacle, or place where the items are located.

Although the authorities reviewed do not contain such explicit statements of law pertaining to possession, a close reading of the cases suggests that they can be relied upon to support these propositions. Moreover, albeit that I am not bound by many of the judicial decisions cited, I see no reason in law or policy to depart from them. IV. ANALYSIS Did Mr. April have the requisite element of knowledge to find him in possession of the drugs? [ 39 ] Mr.

April’s presence on the main floor of the residence at the time the police made entry into it on December 18, 2015 coupled with ample evidence of indicia of trafficking, which would have been in plain view of anyone on that floor at the time, lead to an irresistible inference that he either knew or was wilfully blind to the presence of drugs in the residence.

More specifically, the evidence of fortifications made to the entrances of the residence, particularly the front door and the door off the dining room, the score sheets found on the kitchen counter, on the living room table, and on the dining room table, the drug packaging found on the dining room and living room tables, and the scales found on the living room table all lead to the conclusion that Mr. April, at a minimum, was cognizant of the probability that drug trafficking activities were occurring in the residence. If he chose not to confirm these suspicions, he did so because he wanted to deny knowledge.

In such circumstances, the law presumes that he knew the drugs were present through the doctrine of wilful blindness. The Crown need not establish that Mr. April was aware that the specific type of drug stored in the house was methamphetamine nor does the Crown need to establish that Mr. April knew the specific location of the drugs in the house for the knowledge element of possession to be made out. Did Mr.

April have the requisite element of control necessary to find him in possession of the drugs? [ 40 ] The Crown’s theory is that someone in the residence, at the time when it was searched, was tasked with protecting the stash of drugs, and therefore that person or persons had knowledge of the precise location of the drugs in order to perform this function. Thus, the person or persons in question would have had control over the drugs. After examining the evidence as a whole, the only conclusion that can be drawn is that the Crown’s theory is correct.

I also agree with Crown counsel that the evidence of barricading, coupled with the expert evidence tendered in this case as to why drug traffickers would barricade the entrances to a residence, buttresses this conclusion.

The person or persons who placed the drugs in the bedroom wall and fortified the entrances to the house would not, given all of the precautions implemented to secure the drugs, leave the home without designating someone in the residence to protect the stash. [ 41 ] Another piece of particularly cogent evidence in this case that further supports this conclusion is the evidence of the disassembled cell phone in the dog food container.

The only reasonable inference that can be drawn from this evidence is that someone in the house was trying to destroy evidence upon learning that the police were attempting to gain entry into the home. That person or persons must have also been given the task of protecting the stash and had control over the drugs. [ 42 ] But is the only reasonable inference that Mr. April was that person? In her written submissions, Crown counsel submits that there is no other reasonable inference other than Mr. April and/or Mr. Erickson being responsible for controlling the stash at the time of police

entry. Crown counsel further submits that there is no reasonable inference other than Mr. April or Mr. Erickson or both dumping the cell phone found in the dog food container in the kitchen after removing its SIM card in an effort to hide evidence of their drug trafficking. Because Mr. April is found with more cash on his person than is found on the person of Mr. Erickson, the Crown contends that the inferential links tie Mr. April, more than any other occupant, to control over the stash. [ 43 ] While all of these submissions have merit, the fact that Mr.

April is the occupant most likely to have control over the stash does not preclude a reasonable possibility that he was not the occupant with control. Indeed, when one examines the evidence in its totality, it is still a reasonable possibility that Mr. Erickson was the individual tasked with protecting the stash, that he disposed of the cell phone found in the dog food container, that he was the only one in the house that knew of the exact location of the drugs, and that Mr. April was merely passively acquiescent pertaining to the activities going on in the home.

The likelihood of this latter scenario representing the true state of affairs is bolstered by the fact that the dogs found in the residence seemed equally comfortable with both Mr. April and Mr. Erickson. In addition, the Crown’s own expert did not conclude that the cash seized from Mr. April constituted proceeds of crime, and there is evidence that Mr. April had only recently, one day prior to the search, taken up residency in the home. [ 44 ] In many respects, this case is similar in nature to R v Macleod, 2013 MBCA 48 .

In this case, a loaded handgun was found buried in the snow in a dog run in the back yard of a residence occupied by both accused. The evidence of possession of the handgun was wholly circumstantial. In convicting both accused of firearm offences, the trial judge found that the only rational inference to be drawn was that one or more of the occupants of the residence (i.e., the accused) would have the ability to control the dog and therefore have access to the dog run where the gun was buried, and that they were jointly in possession.

The Manitoba Court of Appeal allowed the accused’s appeals against conviction and held that, although it was open to the trial judge to infer that one or more residents of the house possessed the handgun, this inference cannot lead to the conclusion that they both possessed it, because there was an equally rational inference that only one of them possessed it. [ 45 ] Of course, the Supreme Court of Canada has made clear that the “beyond a reasonable doubt” standard of proof is not met only when there is an equally rational inference other than guilt.

The criminal standard of proof is also not met when there are reasonably possible inferences that could be drawn other than guilt ( R v Villaroman , 2016 SCC 33 at para 35 ). [ 46 ] More cogent evidence would be required to allow a trier of fact to conclude that the only reasonable inference was that it was Mr. April who was tasked with protecting the stash and that he, therefore, knew of its precise location in the residence. Such evidence might consist of Mr. April’s fingerprints on the disassembled cell phone and/or his fingerprints on the plastic bags containing the methamphetamine.

However, this type of evidence was not presented at the trial. Nor was any evidence heard that indicated that Mr. April had any form of authority over the other people found in the home. V. CONCLUSION [ 47 ] The evidence tendered at the trial raises grave suspicions that Mr. April was responsible for the stash, either on his own or jointly with Mr. Erickson, and that Mr. April knew of its precise whereabouts giving him the requisite level of control. But a conviction cannot rest on mere suspicion of such an essential element.

That element must be proven beyond a reasonable doubt and, in a circumstantial case such as this one, the evidence must be such that the only rational inference is that Mr. April knew exactly where the stash was located. In this case, there is at least one other reasonable inference that can be drawn from the evidence. Consequently, and with much reluctance, I have no choice but to find Mr.

April not guilty of the offence of possession of a controlled substance, specifically methamphetamine, for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act . __________________ S.S. Anand, J