Her Majesty the Queen - v. -, 2019 SKPC 18

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 18 Date: March 14, 2019 Information: 90141036 and 90141061 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Cher Lynne Anne Johnson Appearing: Mr. Eric Neufeld, Q.C. For the Crown Mr. George Combe For the Accused JUDGMENT D. KOVATCH , J BACKGROUND [ 1 ] The accused Cher Lynne Johnson, was charged with:

(1) Possession of methamphetamine for the purpose of trafficking;

(2) Possession of cocaine for the purpose of trafficking;

(4) Possession of a machete for a purpose dangerous to the public peace;

(7) Breach of a recognizance by being outside the Province of Alberta;

(8) Possession of an identity document that relates to another person;

(13) Possession of ammunition while prohibited from so doing by a

section 109 order; (On Information 90141061) Possession of oxycodone. (There were other charges which were stayed by the Crown during the trial.) [ 2 ] All of these charges arose out of a police stop on March 4, 2018, at approximately 1:40 in the morning. During the course of the trial and argument, defence counsel admitted that Ms. Johnson was outside of the province of Alberta without the permission of her probation officer, and as a result must be convicted of breach of probation. It was also admitted that she was in possession of a false personal identification document, and must be convicted of the offence under

section 56.1(1) of the Criminal Code . The remaining charges are all for possession of drugs or weapons that were seized from a vehicle that was being operated by Ms. Johnson on March 4, 2018, at 1:40 a.m. Ms. Johnson testified and denied knowledge of the existence of these items. The issue in these proceedings is whether the Crown has proved that Ms. Johnson had knowledge of these items, and thus was legally in possession of the items. THE EVIDENCE [ 3 ] The Crown’s evidence is largely uncontested by the defence.

After 1:00 a.m. on March 4, 2018, Constable Jon Simms and Corporal Keith Kosior were on patrol in and around the town of Stoughton, Saskatchewan. They were together in a marked RCMP vehicle and in full uniform. They testified that within the town of Stoughton, Railway Avenue and Highway #33 run almost parallel to each other. Both intersect with Highway #47, which runs straight north and south. At approximately 1:30 a.m., the officers stopped an individual on Railway Avenue. At several points from Railway Avenue, one can see vehicular traffic on Highway #33.

Just after having finished with a stop on Railway Avenue, the officers were approaching and stopping at the stop sign at Highway #47. They looked to their right and saw a vehicle on Highway #33, as it approached Highway #47 and a stop sign. That vehicle had its left hand turn signal on. If that vehicle had turned left on Highway #47, it would have headed due north, and gone directly in front of the police officers. However, at the last moment, the vehicle cancelled its left hand turn signal, and turned right, heading south on Highway #47.

This caused the officers to be somewhat suspicious that the other vehicle may be attempting to avoid the police. The officers turned right on Highway #47, activated their emergency lights, and stopped the vehicle within two or three hundred yards. [ 4 ] The vehicle was a newer model Ford Flex. It is an SUV style vehicle, with three rows of seating and a hatchback style rear entry. The Court was advised that on this evening the third or rear row of seating, was folded down, which created more room for storage and carriage of bags and other materials.

There were a large number of bags and other items at the rear of the vehicle. The officers testified that immediately upon pulling over the vehicle, they ran the plate and ascertained the vehicle was a rented vehicle from Enterprise. Constable Simms approached the driver’s side of the vehicle, and Corporal Kosior approached the passenger side. The driver of the vehicle was the accused, Cher Lynne Johnson. Seated in the front passenger seat of the vehicle was Mr.

Ryan Dorey. [ 5 ] Corporal Kosior testified that as he approached the vehicle, he shone his flashlight into the back of the vehicle, and saw a green handled machete, in plain view. [ 6 ] Constable Simms testified that he asked the driver, Ms. Johnson, for her driver’s licence and registration. She advised that she did not have them. She then produced a social insurance card with her name on it. Simms returned to the police vehicle and searched the name and the birthdate he was given. He ascertained that Ms.

Johnson was on a recognizance issued out of the province of Alberta, and was not to leave the province of Alberta without the prior written permission of the probation officer. He placed her under arrest and moved her to the police vehicle. [ 7 ] Corporal Kosior began a conversation with Mr. Dorey. He asked him for identification. He asked about the weapons and some of the things in the back of the vehicle and where they were going. He ascertained that Mr. Dorey was quite intoxicated or confused. The officer had difficulty understanding or getting a coherent story from Mr. Dorey. When Mr.

Dorey became agitated, Corporal Kosior directed him to keep his hands in plain sight, and get out of the vehicle. Corporal Kosior moved Mr. Dorey to the police vehicle as well. [ 8 ] Thereafter, the officers searched the Ford Flex vehicle. They located an axe, a pry bar and a machete from the back of the vehicle. There were a number of bags including computers and electronic equipment. The officers testified that they located a “Pink” bag immediately in front of the driver’s seat. This was a black leather bag with bright pink letters written on it reading “Pink”. The bag

was right up against the front edge of the driver’s seat, just below the top front edge of the seat. As a result, someone looking into the vehicle had to adjust their sight lines just slightly, but upon so doing, could clearly see the bag in the front of the driver’s seat. [ 9 ] With both Ms. Johnson and Mr. Dorey detained in the back seat of the police vehicle, the officers searched the vehicle and easily located the pink bag. They opened the bag briefly, and ascertained that it contained a significant volume of what they believed to be illegal drugs. The bag was of course immediately seized.

At the police station, samples were taken and submitted for analysis. The Certificate of Analyses confirmed that these drugs were crystal methamphetamine and cocaine. The expert evidence confirmed that the quantity of the drugs and the packaging were not for personal use, but were for resale and trafficking. [ 10 ] Ms. Johnson’s purse was seized from the center console of the vehicle. The police obtained from it a small silver colored notebook. The expert evidence was to the effect that this book was a “score sheet”, or “drug ledger”. They also seized approximately $800.00 cash from Ms.

Johnson’s purse. [ 11 ] Both Ms. Johnson and Mr. Dorey were arrested at the roadside. They were subsequently transported to Filmore Detachment and then to the Weyburn Police Service and held in custody. Later that same night, Ms. Johnson gave the police a warned statement. That warned statement was largely exculpatory. As a result, Mr. Neufeld did not introduce it in evidence against Ms. Johnson. However, during the trial, he did enter a voir dire and defence counsel admitted that the statement was voluntarily given.

The statement was made an exhibit for identification purposes and subsequently used by Crown counsel in his cross-examination of Ms. Johnson. [ 12 ] The Ford Flex motor vehicle was seized at roadside. It was moved to an RCMP detachment. There was a detailed search and a large number of exhibits seized, analyzed and subsequently entered as exhibits at trial. [ 13 ] When the officers testified, defence counsel cross-examined them as to who was named as the renter of the vehicle, in the rental contract. No rental contract was ever produced for the Court.

As a result, I cannot make any conclusive finding as to who the renter was. However, I am compelled to conclude that there is no evidence that Ms. Johnson was the renter of the vehicle. The evidence is only that Ms. Johnson was the operator of that vehicle, at the time it was stopped by police. [ 14 ] The only witness called by the defence was the accused, Cher Lynne Johnson. She testified that she is 42 years of age, and is originally from Thompson, Manitoba. She has twin boys age five. She identified her criminal record, and it was admitted in evidence as Exhibit D-1.

In 2007 she was convicted of possession for the purpose of trafficking and sentenced to two years and six months. She has no other convictions related to trafficking. However, she had three convictions for simple possession of drugs, one in 2014, one in 2015 and one in 2016. She has various breaches. She testified that she is a meth addict, and has been one for approximately ten years. She described herself as a fairly heavy user, and stated that if she is awake, she is using.

She stated that when she runs out, she stops using and falls asleep. [ 15 ] In addition to the above mentioned convictions, she said that she has a lot of petty fraud charges and theft charges. [ 16 ] She indicated that before these matters arose, she was on social assistance, and living in Edmonton. She received $980.00 per month from Alberta Social Assistance. This money would be directly deposited to her bank account, five days before the end of the month. [ 17 ] Ms. Johnson also advised that prior to this incident, she was charged with offences out of Edmonton. She was on a recognizance for those charges.

One of the conditions for the recognizance required that she not leave the province of Alberta without prior permission of her probation officer. She testified that since the March 4 th incident, all of the Edmonton charges had been withdrawn or dismissed. [ 18 ] She testified that in early March, Ryan Dorey and his girlfriend were at her home. While Ryan was there, the accused received a telephone call from her mother. The accused’s grandmother lived near Russell, Manitoba, on a farm. The accused’s mother, during this telephone call, advised that her grandmother was not doing well.

Further, that if the accused wished to see her grandmother she should come now. This resulted in Ryan Dorey giving her a ride to her grandmother’s in Manitoba. [ 19 ] She testified that it was near the end of February when Ryan and his girlfriend were at her home in Alberta. It was also at this

time that she would have received $980.00 from social assistance, by direct deposit to her bank account. Following the telephone call with her mother, she went to her bank and withdrew the entire $980.00 to take it with her to Manitoba. It was this money that the police found in her purse. On the way to Manitoba, she used some of that money to pay for gas or other items. [ 20 ] The accused testified that she met Ryan Dorey through her children’s father. Ryan regularly used crystal meth. She also said that she smokes meth in a pipe, or uses a “hot railer”.

Her hot railer was one of the items seized from the car, and entered as P-10 at the trial. She also had with her a small butane torch, which was seized and entered as an exhibit. She identified the bag that her clothes and items were packed in. She indicated she had no drugs in her bag. [ 21 ] A number of computers were seized from the vehicle. Ms. Johnson identified her laptop and a tablet. She said she used her computer for pictures and emails. It was password protected. She indicated that she was taking the tablet to give it to her mother. [ 22 ] Several cell phones were also seized from the vehicle.

She testified that two were hers. One of them had no phone chip. She only used it to play games. The other was a Samsung 6 or 7. She said that it was “pay as you go”. [ 23 ] Counsel produced for her what she identified as her purse. It was entered as Exhibit PE-39. He had her take it out of the plastic bag and then open it up. She removed a number of contents from her purse, including a traffic ticket issued to Ryan Dorey, dated February 26, 2018. She stated she had no idea how it got there. She removed her jewelry and wallet from her purse.

She also removed a battery charger for a cell phone, car keys, a small wrench and other keys. She indicated that these last mentioned items were not hers. [ 24 ] Counsel asked her about Exhibit PE-17, the silver book described as the score sheet or drug ledger. She said she saw that book earlier; it was on the tray at the front part of the console. She indicated that Ryan Dorey and herself left Regina at approximately 11:00 p.m. on March 3, 2018. Prior to that they went to the Burger King for something to eat. It was at this time she saw the silver book in the tray area.

She also indicated that she knew the vehicle was a rented vehicle and that it had been rented by Ryan’s ex-wife. [ 25 ] Ms. Johnson testified that for most of the trips, she sat in the second row of seats on the passenger side. The vehicle was fairly messy. There were a lot of bags, cups and other items strewn about. She indicated that Ryan picked her up at her grandmother’s and took her back to Regina. At that time she did not know if he would be able to take her back to Edmonton. If he was not able to do so, she would take the bus. During the trips, Ryan supplied drugs.

In the car they smoked drugs, crystal meth, from a pipe. [ 26 ] They arrived in Regina and went to the home of Ryan’s parents early on Saturday morning. She thought it was around 6:00 a.m. On arrival, they sat in the basement for a while and used some more crystal meth. Then she passed out and slept most of the day. Ryan and his girlfriend woke her up at around 6:00 to 7:00 p.m. Ryan and his girlfriend were arguing. Ryan’s mother was also arguing with the girlfriend, trying to get the girlfriend to leave. Ms. Johnson testified that she woke up, and took quite some time to get ready.

She took a shower and got ready to leave. When she came out of the shower, the girlfriend was no longer there, but there was another female there discussing matters with Ryan Dorey. That woman was Nancy Williamson. Nancy had told Ryan about their mutual friend, Jack. Jack had mental health issues. His dog had died. They were concerned about Jack. Nancy asked Ryan to go to Jack’s farm to check on him. [ 27 ] At about 10:30 p.m., they left Ryan’s parent’s home to go check on Jack, following which Ryan was to take her back to Edmonton. Ryan loaded the car with all of the bags, electronics and other items.

She said she went out to the car, and did not pay attention to what was loaded in the back. She simply got in. They then drove to the Burger King where they had something to eat. After leaving the Burger King, they went to the highway. Ryan was still driving. But Ryan had been awake for a long time. She said he was awake for days. On the highway, he was falling asleep while behind the wheel. This happened twice, and she was afraid of an accident. She told him to pull over and that she would drive.

She knew her driver’s licence had expired, but she did not tell Ryan Dorey that. [ 28 ] Ryan had programmed the navigation GPS. She was following that. He was sleeping. She drove to Stoughton and approached the stop sign. She saw the police on a parallel road to her left. She turned right and saw the police were behind her. She woke Ryan. Almost immediately then the police activated their emergency lights. She hollered at Ryan that they were getting pulled over. She testified that her purse had been sitting on the center console. Ryan was just grabbing things and throwing things into her purse.

She immediately pulled over. The police took a minute or two to run the plate, and then approached the vehicle. [ 29 ] Ms. Johnson said that she had a fake identification card from approximately 2009. It was in her purse, and later discovered by police. However, when she was first pulled over by police and they asked her for identification, she did not even remember that this I.D.

was there. She produced her social insurance card as identification. The officer returned to the police vehicle to check on her I.D. Moments later, he returned to their vehicle and advised he had problems with her birthdate. He asked her to come to the police vehicle, which she did. After she was in the police vehicle, the other officer approached the rental vehicle, where Ryan Dorey was still seated in the passenger seat. [ 30 ] The officer ascertained that she was on a recognizance and was not to leave Alberta without permission of her bail officer. He inquired if she had got hold of the bail officer.

She advised that she was not able to reach the bail officer. Further, that she had gone to Manitoba to visit her grandmother. Shortly thereafter, the other officer brought Ryan Dorey back to the police vehicle, and he was also seated in the police vehicle. That officer advised that Ryan was arrested for possession of marihuana for trafficking. Thereafter, from the back of the police vehicle, she and Ryan Dorey watched as the police officers searched the rental vehicle. She saw them removing a number of items, including an axe and a machete and put them on the roof.

She said that she had no knowledge of these things and was angry with Ryan that they were there. She testified that she never saw the pink bag before it was seized by police. Further, that she was not aware of and had no knowledge of any oxycodone, scales, cocaine, crystal methamphetamine, other pills, bags or a spoon. She did agree with counsel that a large quantity of crystal meth was seized from the vehicle. [ 31 ] Ms. Johnson then went under a very lengthy and very vigorous cross-examination by Crown counsel, Mr. Neufeld. Ms. Johnson said she had difficulty remembering times or dates. Mr.

Neufeld backed her up to the time when Mr. Dorey and his girlfriend arrived in Edmonton, and attempted to reconstruct the timeline. While it is not always clear, I was led to believe that Mr. Dorey and his girlfriend probably arrived at her home some time on Monday, February 26, 2018. [ 32 ] Ms. Johnson believed that Mr. Dorey and his girlfriend Nicki arrived at her home in Edmonton on the Monday before Sunday, March 4, 2018. That would be Monday, February 26, 2018. Mr. Dorey and his girlfriend were coming and going from her place for the next two days. During that time, Ms.

Johnson used a significant amount of crystal meth with them. She indicated that all of the meth was supplied by Mr. Dorey. They would use it together. [ 33 ] She believed that on Tuesday, which would have been February 27, 2018 she received the telephone call from her mother advising that her grandmother was not doing well. In discussions with Mr. Dorey, they agreed that Mr. Dorey would give Ms. Johnson a ride to her grandmother’s farm near Russell, Manitoba. Also, on the Tuesday, Ms. Johnson attended at her probation office to attempt to meet with the probation officer and seek permission to go to Manitoba.

However, she was not able to meet with the probation officer, and never did receive the formal permission. [ 34 ] She also indicated that on the Tuesday she went to her bank and withdrew her social assistance that would have been directly deposited to her account. [ 35 ] She believed that on the evening of Wednesday, which would have been February 28, 2018 the three of them left Edmonton, headed for her grandmother’s home. They drove most of the night to get there and arrived early on Thursday morning. She indicated there were a lot of things in the back of Mr. Dorey’s vehicle.

She did not pay much attention to them. She did not notice an axe, a machete, or any other weapon. She did not notice any drugs. However, she was aware that Mr. Dorey had some drugs as the three of them used crystal meth en route to the grandmother’s home. Once again, this meth was supplied by Mr. Dorey, and not by Ms. Johnson. During this trip, Ms. Johnson rode in the back seat, immediately behind the front seat passenger. She slept for a good part of the way. She also purchased some food items and some gas. She was very unsure about the route that was followed.

She indicated that she was very unfamiliar with Saskatchewan, and not aware as to the best route to be followed. At one point, she said she seemed to recall being in Prince Albert. Mr. Neufeld questioned her about this, suggesting that Prince Albert was not on the most direct route from Edmonton to Russell, Manitoba. [ 36 ] She believed that they arrived at her grandmother’s home near Russell early Thursday morning. Mr. Dorey then dropped her off and said he was going back to Yorkton. She testified that she stayed at her grandmother’s from Thursday morning until Friday night.

She did not smoke any meth while at her grandmother’s home. [ 37 ] Prior to Mr. Dorey dropping her off, she gave Mr. Dorey her phone number. On Friday, Mr. Dorey called her, and advised that he would come pick her up. She wasn’t sure at that time whether Mr. Dorey would be able to return her all of the way to Edmonton. When he picked her up on Friday night, he advised they would have to go to Regina to ascertain if they would have to return the rental car, or whether he would be able to take her to Edmonton. She advised that if he was not able to take her to Edmonton, then she would have to take the bus.

For a good part of the night they drove from Russell, Manitoba to Regina. Once again, the three of them continued to use meth, all of which was supplied by Mr. Dorey. She also advised that it was at this time, that she used her own hot railer, that she had in the vehicle, to smoke the meth. [ 38 ] They arrived in Regina early Saturday morning and went to the home of Mr. Dorey’s parents. At that time, they used some

more meth. Then Ms. Johnson passed out or went to sleep for most of the day. She believed that Mr. Dorey and his girlfriend went out for most of the day. When they returned to the home, it was after supper, in the evening hours. Mr. Dorey woke her up. It was at this time that Mr. Dorey and Nicki were arguing, and Nicki was also engaged in an argument with Mr. Dorey’s mother. Nicki left. Shortly thereafter, Nancy Williamson arrived and she and Mr. Dorey had the conversation about Mr. Dorey going to check on their friend Jack. Ms. Johnson got ready and they left Mr. Dorey’s home at about 10:00 or 11:00 p.m.

At that time she was of the understanding that they were going to check on Jack, and then were going to Edmonton. Again she said she was very unfamiliar with Saskatchewan, and she did not realize that by going to Jack’s, they were going the other way and getting further away from Edmonton. [ 39 ] Mr. Neufeld then played a portion of her videotaped statement to the police. In particular he played the portion of the statement where the police asked about Mr. Dorey travelling about and having no visible means of support. The police suggested to her that he was moving drugs around. Ms.

Johnson said: “I guess maybe he is a mule”. She agreed with Mr. Neufeld that a mule is someone who moves drugs around. He specifically asked if she was a mule, and she denied this. [ 40 ] Crown counsel asked her a number of questions about her addiction. She testified she is an addict and has been an addict for quite some time. Further, that she would do anything to get meth. She agreed that she was a party to a telephone conversation with Mr. Dorey and Nancy Williamson. This telephone conversation occurred while Ms. Johnson was on remand and in the correctional center. She agreed that she asked Mr. Dorey and Ms.

Williamson to hide drugs for her in the washroom of the Weyburn Courthouse, so that she could pick them up and take them back to the correctional center. She advised that no drugs made it to her at the Weyburn Courthouse and she never took any from there to the correctional center. Later however, she did admit that while in the correctional center, she was able to access and use some meth. [ 41 ] She agreed with Mr. Neufled that she drove most of the way from Regina to Stoughton. Further, that she never advised Mr. Dorey that she did not have a driver’s licence.

She agreed that she was the driver and had control of the keys. She advised she did not consider stopping and simply allowing Mr. Dorey to sleep, as there were near blizzard conditions and there was no place to stop. [ 42 ] Ms. Johnson was asked about why she woke up Mr. Dorey. She advised that the police were behind her and they were being pulled over. Then he was freaking out and cleaning up the console area. She later ascertained that he put a bunch of stuff into her purse.

She did agree that her wallet and cigarette package appeared to be right where they were supposed to be, and she easily located those items, after being stopped by police. [ 43 ] Mr. Neufeld asked her about Mr. Dorey going to his ex-wife’s home, while in Regina. She agreed with him that this happened and that she told police that he paid his ex-wife $1,590.00 in cash. [ 44 ] She was asked about what she and Mr. Dorey discussed while they were alone in the police car, and the police were searching the rental vehicle. She said they really did not say anything. During this time, Mr.

Dorey was in and out of sleep, and “was pretty much out of it”. [ 45 ] She agreed with Mr. Neufled that Mr. Dorey drives all over. Further, that she doesn’t know what income he has and agreed that a discussion took place regarding Mr. Dorey possibly being a mule. [ 46 ] She agreed that she had a credit card in the name of another individual who lives in Edmonton. Further, that she had her own false identification. She also agreed that the silver book or score sheet may have been located by the police in her purse. [ 47 ] She denied that she was aware that Mr. Dorey had any other drugs.

She said she did not know that he had any other meth, or she would have been smoking it. She said she did not know who the score sheets belonged to or whose writing appeared in them. [ 48 ] In re-examination, she testified that the police suggested that Mr. Dorey was a mule, and she agreed with their decision. She agreed that his driving all over the place was consistent with him being a mule. THE ARGUMENT

[49] Most of the firearms charges were withdrawn earlier by the Crown. Mr. Combe began his argument by admitting that count8, possession of an identity document in relation to another person, contrary to

section 56.1(1) of the Code was established. He alsoadmitted that Ms. Johnson should be properly convicted of count 7, breach of recognizance for not remaining in the province of Alberta. All of the other charges were in issue. [50] The remaining charges were all essentially possession charges. Mr. Neufeld argued that all of these items were seized from arental vehicle that was being operated by the accused, Cher Lynne Johnson. This was evidence that all of these items were in herpossession. Further, that I could and should conclude that Ms. Johnson’s evidence was completely unbelievable.

I should reject herdenials of knowledge of these items, and conclude she was legally in possession of these items. As I understand his argument, it was tothe effect that if I decided she did not have actual knowledge and control, I should then consider whether she was wilfully blind, andwhether knowledge and possession were established on that basis. [51] Mr. Combe argued that Ms. Johnson was a credible witness and that I should accept her evidence that she did not haveknowledge of these items. This would result in acquittal.

He of course argued that he and his client did not need to prove that Ms.Johnson was completely without knowledge. Rather, it was incumbent upon the Crown to prove that she had the requisite knowledge,and that if I had any reasonable doubt, based upon her evidence, I was required to acquit. [52] He then went on to deal with the issue of wilful blindness. With respect to this issue, he placed particular emphasis on thedecision in R v Vinokurov, 2001 ABCA 113, 156 CCC (3d) 300 [Vinokurov].

He said the standard of proof upon the Crown for wilfulblindness is a high one. “A court can properly find wilful blindness only where it can almost be said that the defendant actually knew.” He said the accused did not know sufficient facts upon which the Court could conclude that she was wilfully blind. [53] Lastly, he argued that even if actual knowledge or wilful blindness were made out, then his client must still be acquitted onthe basis that she had no control over the drugs themselves. He made this argument on the basis that she had no knowledge as to wherethe drugs were located in the vehicle.

In this respect, he referred to the decision in R v April, 2017 SKPC 42 [April], a decision of HisHonor Judge Anand. ANALYSIS Can the Court be satisfied, beyond a reasonable doubt, that Cher Lynne Johnson was knowingly in possession of the drugs and otheritems seized from the vehicle? [54] Section 4(3) of the Code defines the concept of possession. Subsection 3(

a) provides that a person has something in theirpossession when it is in their personal possession, or in the possession of another person or held at another place for his or her use andbenefit. Subsection 3(

b) provides that where two or more persons, with the knowledge and consent of the rest, have something in theirpossession, it shall be deemed to be in the possession of all of them. Either of these provisions might be applied in the case at bar. However, in order to apply either of these provisions, the Court must conclude beyond a reasonable doubt that the accused hadknowledge of these items. There can be no possession of an item without knowledge of it, even if a person is in close proximity to theitem. See R v Beaver, (SCC), [1957] SCR 531 (SCC). The Crown’s argument is fairly simple and straightforward.

TheCrown argues that I can infer that Ms. Johnson has knowledge and is in possession, because these items are all located within a vehiclethat she was operating. Further, that I am entitled and should disbelieve the entirety of her evidence, wherein she denies knowledge. [55] There can be no doubt that the Crown’s argument is sound in law. I am entitled to infer that the accused had possession byreason of location of these items within the vehicle that she operated. At times during her evidence Ms. Johnson did struggle with thetimes and sequence of events. There are inconsistencies.

For example, I don’t know why she would remove all of the money from herbank account to make this relatively short term trip to Manitoba to visit her ailing grandmother. One would have thought that she wouldtake a smaller amount, and leave the balance in her account pending her imminent return. [56] However, while I have questions and concerns about Ms. Johnson’s evidence, I am not comfortable reaching the conclusion,beyond a reasonable doubt, that Ms. Johnson’s evidence is entirely untrue, and that she did have the requisite knowledge.

Stated just alittle bit differently, her evidence, and in particular the evidence regarding her lack of knowledge of these items, could reasonably betrue. I have a reasonable doubt and must conclude she did not have the requisite knowledge for possession of these items. [57] I reached this conclusion for the following reasons. Firstly, the scenario laid out by Ms. Johnson, and particular the scenariofor the night of March 3 and early morning hours of March 4, 2018 could reasonably be true. Attempting to apply to my own personalexperiences, I seldom look in my vehicle before I get into it.

As a result, I do not have much difficulty in believing that Ms. Johnson, did

not look into the vehicle before she got into it, and did not know that a number of those items were present. In addition, all of theevidence, from both the police officers and from Ms. Johnson was to the effect that Mr. Dorey “was clearly out of it”. Everyone spoke ofhim continually falling asleep. The police officers said they believed he was impaired by a drug. As a result, it is certainly believable tome that Mr. Dorey started off driving, and was in danger of falling asleep at the wheel. As a result, Ms. Johnson took over and continueddriving. While we may find it incredible that Ms.

Johnson had so little knowledge of Saskatchewan towns and places and its roadsystems, it seemed apparent to me that she did not have much knowledge of this. If she was knowingly in possession of a lot of drugs, Ithink it unlikely that she would continue to drive to some unknown location in the middle of the night, when the person with her waspassed out and unable to drive or provide assistance or direction. Lastly, on this point, Ms. Johnson testified that she woke Mr. Doreywhen they were being pulled over by police.

Further, that he had a panicky reaction, and was quickly attempting to clean up by grabbingitems and putting them away, some of them into her purse. It seems believable to me that an individual in possession of drugs and otherillegal items might have such a panicky reaction upon being awoken and learning they were being stopped by police. [58] Secondly, overall I would describe Ms. Johnson’s evidence as being coherent and being relatively truthful. There was nodirect evidence to refute or contradict what she had to say.

There was no direct evidence that she had handled any of the drugs, weaponsor money, but for the bills that she identified as having come from her bank. No one testified that they saw her handling any money ordrugs or that they saw her concluding any drug deals. There was no evidence that she had any hand in any preparation of the drug notesor ledger. [59] Thirdly, in examination-in-chief and in cross-examination, Ms. Johnson conceded a number of points that appear to be againsther best personal interest. For example, she freely admitted and spoke of her being a drug addict and a heavy meth user.

She concededher ownership and use of her hot railer and her own butane torch. She could have said that she had no knowledge of these items, as shedid with respect to the other seized items. She did not. She also conceded that she was involved in conversations about bringing methinto the Weyburn Courthouse. She also conceded that while in custody in the correctional center, she was able to access and use crystalmeth. The fact that Ms.

Johnson admitted these aspects, against her interest, cause me to believe that overall, her evidence may betruthful. [60] I cannot conclude that everything occurred exactly as described by Ms. Johnson. But I need not reach that conclusion. I canconclude that it is reasonably possible that matters unfolded as described by Ms. Johnson. I can conclude that it is reasonably possiblethat she did not have knowledge of the drugs and other seized items. All of this causes me to conclude that I have a reasonable doubt andthe Crown has not proved beyond a reasonable doubt that Ms.

Johnson had knowledge and possession of these items. Was the accused wilfully blind as to the knowledge and possession of any of the items located within the vehicle? [61] I begin this

section by stating that in my view, Mr. Combe has accurately set out the law on wilful blindness. In R vJorgensen, (SCC), [1995] 4 SCR 55 (SCC) paras 102 and 103, the Court stated as follows: 102 The second response to the concerns expressed by the Crown relates to the principles of wilful blindness. It is well established incriminal law that wilful blindness will also fulfil a mens rea requirement. If the retailer becomes aware of the need to make furtherinquiries about the nature of the videos he was selling yet deliberately chooses to ignore these indications and does not make any furtherinquiries, then the retailer can be nonetheless charged under s. 163(2)(

a) for “knowingly” selling obscene materials. Deliberatelychoosing not to know something when given reason to believe further inquiry is necessary can satisfy the mental element of the offence. As Glanville Williams wrote in Criminal Law: The General Part (2nd ed. 1961), at pp. 157-58: [T]he rule is that if a party has his suspicion aroused but then deliberately omits to make further enquiries, because he wishes to remainin ignorance, he is deemed to have knowledge. . . . . . . In other words, there is a suspicion which the defendant deliberately omits to turn into certain knowledge.

This is frequentlyexpressed by saying that he “shut his eyes” to the fact, or that he was “wilfully blind”. And, at pp. 158-59, the learned author states: Before the doctrine of wilful blindness applies, there must be realisation that the fact in question is probable, or, at least, “possible abovethe average” . . . . . . . A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact;he realised its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to denyknowledge.

This, and this alone, is wilful blindness. 103 A finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew orstrongly suspected that looking would fix him with knowledge? Retailers who suspect that the materials are obscene but refrain frommaking the necessary inquiry in order to avoid being contaminated by knowledge may be found to have been wilfully blind. Thedetermination must be made in light of all circumstances. In Sansregret v.

The Queen, (SCC), [1985] 1 S.C.R. 570, thisCourt held that the circumstances were not restricted to those immediately surrounding the particular offense but could be more broadlydefined to encompass, for example, past events.

[62] Much of this last mentioned quote was also quoted by the Alberta Court of Appeal in the Vinokurov decision, referred to by Mr. Combe. In the Vinokurov decision, the Court also discussed the concept of recklessness. TheCourt made it clear that wilful blindness is at a higher level than mere recklessness. If the Crown merely establishes that an accused wasreckless, that will not be sufficient to establish wilful blindness. I accept, as pointed out by Mr. Combe, that the burden on the Crown inthis area is a high one.

As pointed out in the quote from Glanville Williams: A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. [63] At the end of the portion quoted from the Jorgensen decision, the Court stated that a judge is not restricted to simply looking at circumstances surrounding the particular offence, but may look to other past events. Theauthority cited for that proposition is Sansregret v R, (SCC), [1985] 1 SCR 570 (SCC). That case actually dealt with acharge of sexual assault.

The accused testified that he did not know that the victim had not consented to sex, and in fact believed that shehad consented. The Court looked at the history of their relationship and past events, and determined there was no consent and theaccused was wilfully blind. [64] With this backdrop, I turn to look at the charge against Ms. Johnson for possession of crystal meth for the purpose of trafficking. I look at the history of her relationship with Mr. Dorey to determine what she did know andwhether she was wilfully blind. [65] By Ms.

Johnson’s own evidence, she is a meth addict, and has been one for about 10 years. She is a pretty heaver user. By the accused’s own evidence, she has known Mr. Dorey for a period of approximately two years. She met him through her children’s father. He sometimes comes to Edmonton. When he comes to Edmonton, he often stays at herhome. They use meth together. He supplies the meth. She does not know what his occupation is or his means of support. She doesknow that he travels a great deal and has been to Edmonton and the North West Territories. On a number of occasions, this travel hasbeen in a rental vehicle.

She also knows that despite having no visible occupation or means of support, that Mr. Dorey has somefinancial means. This is apparent from all of the travel that he does. In addition, under cross-examination by Mr. Neufeld, she admittedthat on Saturday March 3, Mr. Dorey went to see his ex-wife and paid to her the sum of $1,590.00 in cash. [66] In addition, Ms. Johnson testified that Mr. Dorey and his girlfriend arrived at her home, probably on Monday, February 26, 2018. She was with Mr. Dorey and his girlfriend for a great deal of time between Monday and themorning hours of Friday, March 2, 2018.

During that time, they were all together in Edmonton, and then drove together from Edmontonto the home of Ms. Johnson’s grandmother near Russell, Manitoba. During this time the three individuals, together, consumed asignificant amount of crystal meth. According to Ms. Johnson, she had not seen and had no knowledge of Mr. Dorey having slept in daysbecause of his use of crystal meth. All of the crystal meth consumed by any of the three individuals came from Mr. Dorey. It wasapparent that he had a significant supply. In the videotaped statement, when the police officer confronted Ms.

Johnson with a number ofthese facts, she conceded that Mr. Dorey may have been a mule, and might be transporting drugs. She also made a statement to the effectthat she did not ask. [67] When I look at all of these facts, I am satisfied beyond a reasonable doubt that Ms. Johnson was suspicious that Mr. Dorey was in possession of significant quantities of crystal meth, and that he was transporting them. Further, that she just did not ask. I am satisfied beyond a reasonable doubt that she was wilfully blind that Mr. Dorey was in possessionof crystal meth for the purpose of trafficking.

Further, that in the early morning hours of March 4, 2018, she was assisting him bydriving the vehicle, because Mr. Dorey was constantly falling asleep, and was not able to drive that vehicle. As a result, she was incontrol of that vehicle and knowingly in control of the crystal meth within that vehicle. Mr. Combe argued that she was not in control ofany drugs, and thus could not be convicted of possession of crystal meth. I disagree. In my view the decision of Judge Anand in April isdistinguishable. I would conclude that she was in control. [68] I am satisfied beyond a reasonable doubt that Ms.

Johnson was wilfully blind with respect to Mr. Dorey’s possession of crystal meth, and that she must be convicted of the charge of possession of crystal meth for thepurpose of trafficking. [69] I turn briefly to the other possession offences. In the case of R v Pilgrim, 2017 ONCA

309, 2017 ONCA 309 , 347 CCC (3d) 141 the Court dealt with two individuals, who each faced various charges of possessionof drugs for the purpose of trafficking. At paragraph 68 the Court stated: Although it was never articulated, it would appear that the trial judge used his erroneous belief that Ms. Parent was wilfully blind to Mr.Pilgrim’s marijuana trafficking as evidence of Ms. Parent’s wilful blindness to Mr. Pilgrim’s sale of oxycodone and/or Percocet. Forreasons already stated, Ms. Parent was not wilfully blind to the sale of marijuana.

It was not appropriate to transfer this apparent mentalstate about one drug to another, especially in the absence of a specific finding. [70] Simply stated, the Court concluded that wilful blindness of one drug for the purpose of trafficking could not be used to establish wilful blindness for another drug for the purpose of trafficking. [71] In the case at bar, there is no other evidence to establish any wilful blindness of any other drug, or any wilful blindness with respect to any of the weapons.

My conclusion of wilful blindness with respect to the crystal methcannot be used to establish wilful blindness regarding any of these other items. [72] In the result, I find Ms. Johnson guilty of possession of crystal meth for the purpose of trafficking. I also find her guilty of breach of the recognizance and possession of the false identity document. I find her not guilty of all of the other charges. Dated at the City of Regina, the Province of Saskatchewan this 14th day of March, 2019. ____________________D. Kovatch, J