Her Majesty the Queen - v. -, 2016 SKPC 53

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 053 Date: April 14, 2016 Information: 24360478 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Ronald Charles Learning Appearing: Douglas G. Curliss, Q.C. and Dorinda M. Stahl For the Crown Glenn A.P. Verdurmen For the Accused JUDGMENT M. BEATON, J 1 . Ronald Charles Learning is charged with having in his possession on or about October 1, 2011, cocaine for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act .

The main issue to be determined is whether the Crown has proven beyond a reasonable doubt that the accused knew that cocaine was hidden in the vehicle which he was driving upon his arrest. OVERVIEW 2 . Mr. Learning was charged as a result of a lengthy police investigation into the transportation of cocaine from California into Canada via the Saskatchewan/Montana border south of Val Marie, Saskatchewan. By way of background, Brock Palfrey, who resided in Vernon, British Columbia, was the lead player in this trafficking scheme. T.N. was employed by Mr. Palfrey to transport cocaine from

California to the Saskatchewan border where the cocaine was then transferred to individuals who transported the cocaine to its final destination in Canada. Although one of the Canadian couriers was caught by police in May, 2010, T.N.’s involvement in this scheme was not discovered by police until he was caught by American border officials on April 28, 2011. After speaking to both American and Canadian police, T.N. agreed to become a police agent. He was subsequently involved in two controlled drug transfers as an agent whereby cocaine was delivered to a courier named Larsen. 3 .

The third and final delivery by T.N. as police agent took place at approximately 1:00 a.m. on October 1, 2011. A few days previously, at Paulfrey’s direction, the agent had obtained 30 kilograms of cocaine from suppliers in California which he then turned over to police. After taking “possession” of the cocaine, the agent was in regular communication with Palfrey and believed that Larsen would be the one receiving the cocaine at the border. However, the agent later discovered that the courier would be someone unknown to the agent.

The agent continued his communication with Palfrey, Larsen, and now the unknown courier by Blackberry PGP messaging and later by texting on an inexpensive flip cell phone as the courier made his way to the meet site. During one of the communications with the courier, the agent asked him to bring donuts (which the agent later gave to police) in order to verify his identity at the meeting place. 4 . South of the Montana/Saskatchewan border, police officials gave the agent 30 kilograms of cocaine substitute (sham cocaine) which included 9 grams of actual cocaine and a tracking device.

While wearing an audio recording and transmission device, the agent proceeded to cross the border on an all terrain vehicle in order to meet the courier in this remote part of Saskatchewan. 5 . Police had obtained a description of the vehicle which the courier would be driving and set up surveillance in a number of locations as the courier’s vehicle made its way to the meet location near Val Marie, Saskatchewan and then to Salmon Arm, British Columbia where the vehicle was finally stopped by police. The first surveillance started in Medicine Hat, Alberta.

Police officers noted one occupant in the target vehicle when they first saw it entering Medicine Hat at 6:08 p.m. on September 30, 2011. This vehicle, which was a Ford Windstar minivan, was seen again at the Motel 6 at approximately 6:30 p.m. At this time, a member of the surveillance team took a photograph of the driver of the van. The photograph was entered as Exhibit P-8 in the trial. Police noted that the driver did not match Larsen’s description.

Subsequently, the agent, in communicating with Palfrey, discovered that he was going to be meeting a different courier and passed this information on to police. 6 . The surveillance team observed the van attend the Medicine Hat mall where the driver entered Walmart and then returned to the Motel 6 at approximately 7:00 p.m. At 9:08 p.m. the van was observed leaving Medicine Hat eastbound on Highway #1. It was seen again travelling westbound on Highway #1 and then turning south at Gull Lake, Saskatchewan at 10:50 p.m. making its way towards the American border.

The van was again observed at 11:21 p.m. travelling southbound through Shaunavon which is situated north of Val Marie. 7 . The courier eventually met the police agent in an abandoned farmyard a few miles north of the border. The courier took possession of the sham cocaine and gave packages of pills and $10,000.00 cash to the agent for delivery into the United States. The agent observed that the pills and cash had been hidden in secret compartments in the van and that the sham cocaine was later placed in these same compartments. One of the compartments was located under the floor behind the front passenger’s seat.

The other compartment was located under the centre console between the driver’s and front passenger’s seat. The agent noted that the compartments were accessed with a type of allen key. 8 . According to the agent, the night was very dark and the only light available during the transfer of drugs came from flashlights and the van’s interior lights. Police officers who were observing the transfer from hidden locations around the farmyard could see or hear the transfer taking place. Only two people were either seen or heard. In particular, Sgt.

Topping could see headlights and two individuals moving around the vehicles. 9 . During the meet the courier advised that he had been given poor directions and showed the agent a piece of map which he had been given. The courier also spoke of having a bigger vehicle to transport larger amounts of drugs and to preferring hidden compartments which used hydraulics. He also advised the agent that he would be spending the night in Medicine Hat and that he was low on gas. After the exchange of drugs, which took approximately 30 minutes, the agent drove back into the United States and the courier left the farmyard.

No one other than the driver was in the van. 10 . According to Sgt. Poulin, who was the officer in charge of co-ordinating the surveillance of the van after the exchange of drugs, officers were assigned to keep the van in sight at all times until it was intercepted. Various officers took turns following the van, including Calgary police officers who followed the van through Calgary. The driver of the van took very few breaks after he left the meet location except for the stops in Gull Lake and Medicine Hat which totalled five hours.

11 . The Court heard testimony from several members of the surveillance team. In particular, police saw the van turning into the Co- op Gas Station in Shaunavon at 3:42 a.m. As the gas station was closed, the van continued northbound. It was observed entering Gull Lake at 4:44 a.m. where it stopped at the gas station. This gas station was also closed and did not open until 6:00 a.m. The van stayed at the gas station until it opened and at 6:20 a.m. it was observed leaving Gull Lake westbound towards Medicine Hat.

At 7:02 a.m. the van was seen at the intersection of Highways #21 and #1 and was again observed at the Motel 6 in Medicine Hat at 8:00 a.m. At that time the driver was seen walking into the motel while carrying black bags. At 10:16 a.m. the driver was seen entering the van at the Motel 6 while carrying a black bag. He was seen leaving Medicine Hat at 10:34 a.m. travelling westbound on Highway #1. The van was seen again at 1:15 p.m. at the A & W drive-thru restaurant in Strathmore, Alberta. 12 .

While the van was being followed in British Columbia, police decided that the driver should be arrested in Salmon Arm, British Colombia. At 7:20 p.m., when the van was stopped at a red light, officers surrounded it and arrested the accused who was the driver and sole occupant of the van. The van was seized and searched. The sham cocaine was located in the two hidden compartments which the agent had described. The hidden compartment beside the driver’s seat was located underneath a fake stereo. An allen key, ratchet and socket were located in the dash console.

These tools were used by police to open the hidden compartments. Also located in the van were four cell phones, a torn piece of a Saskatchewan map showing part of the route travelled and a circle around Shaunavon (Exhibit P- 2), pills prescribed to the accused, the accused’s wallet and identification, $600.00 cash, A & W food wrappers and three energy drink bottles, one of which was empty. Police also located a receipt for a Blackberry Curve cell phone and SIM card which had been purchased with cash at Future Shop in Medicine Hat on October 1, 2011. 13 .

A room receipt from the Motel 6 in Medicine Hat which showed that someone had paid cash for a room for the night of September 30, 2011 and registered under the name Ronald Learning was tendered as evidence. (Exhibit P-6) 14 . The cocaine which the courier was expected to be carrying would have had a value of between 1.2 million and 2.3 million dollars, depending on how the cocaine was to be broken down and sold. Defence counsel admitted that possession of 30 kilograms of cocaine would have been for the purpose of trafficking. 15 .

I accept Constable Sperlie’s expert opinion evidence that cell phones are used to conduct the drug trade and that these phones or their SIM cards are switched on a regular basis in order to avoid electronic surveillance. Traffickers also use “throw away” phones for the same reason. The expert noted that the risk of a courier being caught increased the longer that courier was on the road. Therefore, the goal of traffickers was to move the drugs quickly. He acknowledged that sometimes risks may be taken in order to keep the drugs moving.

I find that it is common sense that individuals with an interest in valuable cargo, legal or illegal, would normally want that cargo to be in safe hands during transport and protected from theft or from otherwise falling into the wrong hands. EYEWITNESS IDENTIFICATION EVIDENCE 16 . In the present case, T.N. identified the accused in court as the person with whom he had exchanged drugs on October 1, 2011. He admitted that he had been previously shown a photograph of the accused while preparing to testify on this matter on an earlier occasion.

During his testimony in chief, T.N. described the accused as follows (T351): Q Okay. And the – the fellow that you were dealing with out there, the guy with the donuts, can you give a general description of what he looked like at the time? A About my age, maybe, you know, 30 – roughly around 30. I don’t know, five eight, five nine maybe, you know, shorter, kind of stocky, really short hair. And that’s about it, I didn’t really – Q And how tall are you? You seem to be a pretty tall guy. A I’m six six, yeah. 17 . During cross-examination, T.N. described the accused as follows (T415): ......

A Maybe six – maybe around five ten, six feet, roughly. I mean, I didn’t – we didn’t stand up beside each other or anything so – Q Was that a guess?

A Yeah, I didn’t measure him so, yeah, it’s a guess. Q And how much did he weigh? A I don’t know, shorter than me and stocky so I – I mean, I don’t know, I’m not good with guessing weights, but 200 pounds. I don’t know, I mean I could be off. Q Build? A I – it was hard to tell. We were – I mean we were both – you know, baggy clothes and hoodies and that kind of thing and I mean, I wasn’t really – maybe an average build. Q Eye colour? A I couldn’t – I don’t know. Q Hair colour? A I couldn’t – I couldn’t say. 18 .

Constable Daigneault observed the van leaving the Motel 6 on September 30, 2011 in Medicine Hat at 6:35 p.m. and followed it to Wal-Mart and then back to the Motel 6. At this time, Constable Daigneault described the driver as being “a Caucasian male, blonde with facial hair and a blue shirt.” (T 204). On October 1, 2011, Constable Daigneault saw the van with one occupant arrive at the Motel 6 at approximately 8:00 a.m. He could not identify the driver. The driver was seen leaving the Motel 6 at approximately 10:15 a.m. and headed westbound on Highway #1.

Constable Daigneault followed the van to a gas station in Strathmore, Alberta. He could not identify the sole occupant of the van. 19 . Constable Sawatzky observed the driver of the van on September 30, 2011 at 6:35 p.m. walking away from the Motel 6 in Medicine Hat towards the van. She described him as being a Caucasian male, and having brown, brush cut hair, a short beard, and a muscular build. She photographed him at that time (Exhibit P-8). This male was wearing a blue shirt.

Constable Schmidt arrested the accused in Salmon Arm, British Columbia on October 1 , 2011 and transported him to Vernon, British Columbia. At the Vernon detachment, he spoke to the accused and facilitated a call to counsel. He also dealt with the accused the next day during the remand hearing before a justice of the peace. He described the accused as having a chin-strap type beard, being taller than 5' 10" and stockier than himself. He testified that the person depicted in Exhibit P-8 was the same person who he had arrested in Salmon Arm. POSITION OF THE PARTIES 20 .

Although it is not disputed that the accused had control of the cocaine which was hidden in the van when he was arrested in Salmon Arm, defence counsel submits that the Crown has not proven that the accused knew the cocaine was in the van. Defence counsel submits that the identity of the courier who met with T.N. on October 1, 2011 is central to the Crown’s case and that the Crown has not proven that the accused was that courier.

In particular, he states that T.N.’s in-court identification of the accused should be given no weight as T.N. had previously been shown a lone photograph of the accused which tainted the identification. Defence counsel also notes that T.N. gave a very general description of the courier during his testimony. As well, his opportunity to observe the courier on the night in question, a man he had never seen before, was impacted by the lack of light.

Additionally, defence counsel suggests that T.N. felt obligated to identify the accused as the courier since T.N. was a police agent who had received money from police and avoided prosecution in exchange for assisting with police investigations. 21 . Defence counsel argues that police did not have the van under constant surveillance after it left the meet location and when surveillance members believed that they saw the van, many times no licence plate number was viewed. Police descriptions of the driver varied.

Therefore, the Crown cannot prove that the accused was the driver of the van other than when he was stopped in Salmon Arm. Defence also argues that the Crown has not proven that the accused had knowledge of the cocaine being in the van. In particular, the defence states that there is no rebuttable presumption of knowledge and control for purposes of determining possession, based solely on the fact that a person is the operator with control of the vehicle.

As well, the defence points to the agent’s testimony of having had a conversation with Palfrey about using a courier who did not know what he was transporting. 22 . The Crown argues that evidence, whether direct or circumstantial, is to be assessed in the context of all other evidence and not in isolation and that only the elements of the offence need to be proven beyond a reasonable doubt, not each fact or piece of evidence.

In this case, the Crown submits that based on all of the evidence, the only reasonable inference is that the accused had control of the cocaine, knowledge that he was transporting cocaine, and that he was therefore in possession of it.

POSSESSION 23. Section 4(3)(

b) of the Criminal Code which is applicable to a drug prosecution by virtue of section 2(1) of the Controlled Drugsand Substances Act defines “possession” as follows:

(3) For the purposes of this Act, (

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

i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himselfor 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 orpossession, it shall be deemed to be in the custody and possession of each and all of them. 24. According to this section, possession includes personal, constructive and joint possession. Of these three forms of culpablepossession, only the first two are relevant in this case. Knowledge, which extends beyond mere quiescent knowledge, and control areessential elements common to both personal and constructive possession: R v Morelli, 2010 SCC 8 at para 15, [2010] 1 SCR 253[Morelli].

In order to show personal possession of illegal drugs, the Crown must establish the following two elements in addition tophysical control of the drug by the accused: (

a) awareness of physical control; (

b) and knowledge of the nature of the substance: Morelliat para 16. 25. Constructive possession is established where the accused: (1) has knowledge of the character of the drugs, (2) knowingly puts orkeeps the drugs in a particular place, whether or not that place belongs to him, (3) has some measure of control over them, and (4)intends to have the drugs in the particular place for his “use or benefit” or that of another person: Morelli, at para 17. 26. Knowledge is most often determined based on inferences to be drawn from proof of objective, relevant and admissible facts.

Where the Crown’s case rests on circumstantial evidence, the evidence must support a rational or reasonable inference that the accusedis guilty, and there must be no other rational or reasonable inference that can be drawn from the proven facts. In other words, a trier offact must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from theproven facts: R v Cooper, (SCC), [1978] 1 SCR 860. The accused is not burdened with having to establish facts whichare inconsistent with guilt: R v Pryce, 2014 BCCA 370 para 10, 361 BCAC 301.

When looking at inferences which may be drawn, theCourt is entitled to bring a measure of common sense to bear on the analysis: R v To (1992), (BC CA), 16 BCAC 223(BCCA). The circumstantial evidence test is simply a category of analysis used to reach a conclusion regarding proof beyond areasonable doubt: R v Griffin, 2009 SCC 28, [2009] 2 SCR 42. 27. In a circumstantial case, even the most innocuous piece of evidence may, when evaluated against the rest of the case, lead to alogical inference.

Pieces of evidence should not be analyzed out of context with the whole of the evidence: R v Stewart (SCC), [1977] 2 SCR 748. A trier of fact must refrain from speculation in its examination of the inferences which may be drawn.Speculative or fanciful possibilities which do not arise from proven facts cannot ground a reasonable doubt: R v Vu, 2002 BCCA 659,179 BCAC 262; R v Fisher, 2005 BCCA 444, 216 BCAC 197. 28.

Some courts have held that there is no rebuttable presumption of knowledge and control for purposes of determining possession,based solely on the fact that a person is the operator of a motor vehicle: R v Lincoln, 2012 ONCA 542. However, the Alberta Court ofAppeal in R v Nicholson, 2005 BCCA 444 , 2011 ABCA 444 at para 9, 216 BCAC 197 stated that “the finding of a prohibiteditem within a motor vehicle owned and operated by an accused is prima facie proof of possession by the accused”. EYEWITNESS IDENTIFICATION 29. Eyewitness identification can be relevant to the issue of identity.

However, eyewitness identification of a stranger can be“deceptively credible” because an honest, sincere and convincing witness may be mistaken: R v Hibbert, 2002 SCC 29, [2002] 2 SCR

445. Courts dealing with eyewitness identification testimony look to the existence of compelling confirmatory evidence of identificationto assess the safety of a conviction: R v Phillips and Baker (2001), (ON CA), 154 CCC (3d) 345 (Ont CA). 30. It is essential to recognize that it is the reliability, not the credibility, of the eyewitness’ identification which must be established. The reliability of the identification evidence depends on a close examination of the basis for the witness’ conclusion.

Justice Hill in R vGonsalves, (ON SC), 2008 56 CR (6th) 379 (Ont Sup Ct) at para 39 reviewed case law and enumeratedcircumstances which would impact the reliability of eyewitness identification: 1. Was the suspect a complete stranger or known to the witness? 2. Was the opportunity to see the suspect a fleeting glimpse or something more substantial? 3. Was the setting in the darkness of night or in well-illuminated conditions? 4. Was the sighting by the witness in circumstances of stress? 5. Did the witness commit the description to writing or report the description to the police in a timely way? 6.

Is the witness’ description general, generic or vague or is there a description of detail including distinctive features of the suspect andhis or her clothing? 7. Were there intervening circumstances, capable of tainting or contaminating the independence of the identification, between thewitness’ initial sighting of the suspect and the rendering of the descriptive account to the police or the court? 8.

Has the witness described a distinguishing feature of the suspect not shared by the accused or conversely has the witness’ descriptionof the suspect failed to include mention of a distinctive feature of the accused? 9. Is the eyewitness identification unconfirmed? 31. In-court identification may not be reliable if the accused has been exposed to the witness, either on television newscasts or at priorcourt appearances. Courts have also held that permitting a witness to see a single photograph of a suspected person can only prejudicethat person and is improper: Rex v Smierciak (1946), 87 CCC 174 (Ont CA).

The use of inappropriate pre-trial identification proceduresaffects the weight of the subsequent identification. 32. Obviously, discrepancies in description of the suspect may greatly reduce the weight of the identification evidence. However,such discrepancies may not be relevant provided that the requisite standard of proof is discharged on the whole of the evidence:Gonsalves. 33. A non-expert may give an opinion as to the identity of a person. The reasons which support the opinion will affect the weight tobe given to that opinion by a trier of fact: R v Browne (1951), (BC CA), 99 CCC 141 (BCCA).

A non-expert may alsoprovide opinion evidence as to the identity of an individual seen in a photograph or video recording, if that non-expert had a prioracquaintance with the person in the recording and thus is in a better position than the trier of fact to identify the person depicted: R vBerhe (2012), 2012 ONCA 716 , 292 CCC (3d) 456 (Ont CA). The trier of fact can also view such recordings and concludeidentity independently of the testimony regarding identity: R v Leaney (SCC), [1989] 2 SCR 393.

However, this opinionmay not be the most cogent or reliable given that a trier of fact is unlikely to have been previously acquainted with the accused. ANALYSIS 34. Defence counsel urged the Court to disregard the agent’s evidence. However, I found the agent to be a credible witness and I accept most of the police agent’s testimony. Notwithstanding his admission of having a poor memory, his testimony was very detailedand in

part corroborated by other evidence. However, I must be careful in accepting the agent’s identification of the accused in courtgiven that the opportunity for him to view the accused at the meet was impacted by the limited lighting and that the accused was astranger to him. Based on the evidence presented, I believe that the agent’s identification could have been influenced by seeing aphotograph of the accused on a prior occasion and it would therefore be dangerous to accept this identification evidence on its own.

However, I disagree with defence counsel’s submission that the identity of the accused as the courier who took possession of the cocaineis dependent on the agent’s testimony. Additional evidence relevant to the issue of identification was presented. 35. Based on the whole of the evidence, I am satisfied that the van which the accused was driving when he was stopped in SalmonArm is the same van which was observed by police officers in Medicine Hat, Gull Lake, and Shaunavon on September 30, 2011 on its

way to the meet with the agent and in Shaunavon, Gull Lake, Medicine Hat and Strathmore on October 1, 2011 after the meet. I note that the courier who met with the agent advised him that he would be spending the night in Medicine Hat. This is confirmed by police officers who saw the van at the Motel 6 in Medicine Hat the morning of October 1. As well, the receipt from the Future Shop in Medicine Hat which was found in the van is another piece of evidence linking the van to Medicine Hat. The agent testified to being shown a piece of a map depicting the meet location when he met with the courier.

His description of this map matches the piece of map which was located in the van in Salmon Arm and marked as Exhibit P-2. The courier also advised the agent that his vehicle was low on gas. Police saw the vehicle stop at gas stations in both Shaunavon and Gull Lake as it made its way to Medicine Hat. 36 . I am also satisfied that the accused was in Medicine Hat the evening of September 30 and again the morning of October 1. I accept Constable Schmidt’s opinion that the man in the photograph marked as Exhibit P-8 is the accused as the photograph is clear and the individual depicted therein resembles the accused.

The Motel 6 receipt for the night in question and in the accused’s name confirms Constable Schmidt’s opinion. When the van was stopped in Salmon Arm it contained at least one black bag containing clothes and the accused’s prescription medication from which it could be inferred that the accused was involved in an overnight trip. There was no evidence that more than one person was ever in the van. 37 . In

summary, the whole of the evidence points to no other reasonable conclusion other than that the accused was the courier who met with the agent. In fact, I am convinced beyond a reasonable doubt that the accused had possession of cocaine for the purpose of trafficking. He was in control of the cocaine as soon as he received it from the agent. Based on the conversation which he had with the agent and the manner in which the cocaine was concealed, the accused was well aware that he was receiving illicit drugs to transport to British Columbia.

He was also prepared for this task as he possessed numerous cell phones, had the tools required to open the hidden compartments, and had energy drinks to keep him awake during his trip. 38 . I therefore find the accused guilty as charged. ___________________ M. Beaton, J