Her Majesty the Queen - v. -, 2014 SKPC 162

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 162 Date: August 12, 2014 Information: 46420472 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Alicia Ermine Appearing: Barrie Miller For the Crown Michael Owens For the Accused JUDGMENT D.E.

LABACH , J INTRODUCTION [ 1 ] The accused is charged with possession of cannabis marijuana for the purpose of trafficking contrary to section 5(2) of The Controlled Drugs and Substances Act and possession of hydromorphone contrary to section 4(1) of The Controlled Drugs and Substances Act. The accused pled not guilty to these offences and at the beginning of her trial, Defence counsel made application that

the accused’s right to be tried within a reasonable time as guaranteed by

section 11(

b) of the Charter had been breached. In a written decision dated June 3, 2013 I found no

section 11(

b) Charter breach and dismissed the Defence application. See R. v. Ermine 2013 SKPC 93 . [ 2 ] The Defence then made application that the accused’s

section 8 Charter right to be secure from unreasonable search and seizure had been violated. If this breach was made out, he wanted the Court to exclude any impugned evidence pursuant to section 24(2) of the Charter. As a result, the trial began with a voir dire on this Charter issue. In the course of this Charter voir dire an issue arose as to the admissibility of a conversation that the accused had with the Vice Principal in his office at the school where the alleged offences occurred.

I entered into another voir dire and found that these statements were not voluntarily made by the accused nor were they reliable and as such, they were not admissible. See R. v. Ermine 2014 SKPC 67 . [ 3 ] As the Charter voir dire continued, another issue arose as to the admissibility of statements the accused made to the Vice Principal in the girl’s locker room at the school. Another voir dire was entered into and in an oral decision, I determined that these statements were voluntarily made and admissible in evidence.

At the conclusion of the Charter voir dire , both counsel reserved their arguments to the end of trial. At the request of both parties, all evidence from all three of these voir dires , including all Defence evidence, was admitted into evidence on the trial proper subject only to my rulings on the respective voir dires . Following that, I was advised that neither the Crown nor the Defence had any further evidence to call on the trial proper. The issues the parties identified in closing argument were as follows:

a) Was there a breach of the accused ’s

section 8 Charter right to be free from unreasonable search and seizure?

b) If the accused ’s

section 8 Charter right was violated, should the evidence seized during the search be excluded pursuant to section 24(2) of the Charter?

c) Does the evidence prove beyond a reasonable doubt that the accused was in possession of cannabis marijuana for the purpose of trafficking?

d) Does the evidence prove beyond a reasonable doubt that the accused was in possession of hydromorphone? FACTS [ 4 ] On Friday, April 15, 2011, Mr. Jared Isabelle, was teaching a physical education class in the gymnasium at Nutana Collegiate Institute. The accused was part of this class. The previous date, he had warned students about bringing contraband to school and he advised them that he could search their lockers for contraband or on the grounds of cleanliness.

The accused was present when he raised this with the class. [ 5 ] Either before or while he was teaching physical education on April 15th, a female student spoke to him about an odour in the girls locker room. As a result of this discussion, he locked the gymnasium doors so nobody could leave and went and got the Vice Principal, Mr. Bradley. The two of them returned to the gymnasium and upon entering the girls locker room, immediately smelled the odour of fresh marijuana. The smell appeared to be most prevalent from one particular locker. [ 6 ] The school had a “No Drugs” policy.

Although a locker is considered a student’s own personal space, the school also had a policy that they could search any locker if there was anything in the locker that they felt would jeopardize the security or safety of students or would be a violation of the law. The basis for this policy was the school’s view that the lockers, despite being a student’s personal space, were owned by the school. These policies were set forth in the Students Handbook. [ 7 ] Suspecting that this locker contained drugs, Mr. Bradley opened the locker using a master key.

At this point he did not know whose locker this was but upon opening it, he was able to confirm that the odour of marijuana was definitely coming from this particular locker. Since the locker was being used by a female student, he shut the locker and went to get Ms. Beattie, a female teacher,

to assist. While he did this, Mr. Isabelle went to the gymnasium office and determined that the locker in question was being shared bythe accused and another female student named Bayley Brown. [8] Mr. Bradley, Ms. Beattie, and Mr. Isabelle all returned to the girls locker room, at which time Mr. Bradley asked Ms. Beattieif she smelled anything out of the ordinary in the room. She said she could smell marijuana and indicated that the smell was emanatingfrom the locker that Mr. Bradley and Mr. Isabelle had earlier identified. [9] As a result, Mr. Isabelle went and got the accused and Ms.

Brown from the gymnasium and brought them into the lockerroom. Both girls acknowledged that they were sharing the locker in question. Mr. Bradley unlocked the locker, opened it and asked them if they smelled anything. The accused said that she could smell marijuana in the locker room. Mr. Bradley then asked if there wasanything in the locker that he should be aware of. The accused responded that there was a roach in the locker. Mr. Bradley then had thegirls remove everything from the locker and take it to the phys ed office. In the office, he and Ms.

Beattie had the girls identify whatbelonged to each of them. [10] The accused picked up a purse and some clothing. Mr. Bradley took the purse from her, opened it up and started lookinginside. In the purse he found a bag of what appeared to be marijuana, a scale, a roach, some baggies, a lighter, a pill bottle, a cigarettepackage and identification with the accused’s name on it as well as other personal items. [11] Ms. Beattie went through Ms. Brown’s items but nothing of significance was located. Ms. Brown was asked a few questionsand then allowed to return to class. Mr.

Bradley took the items he had found and told the accused to come with him and Ms. Beattie tothe Vice Principal’s office. While in the office, Mr. Bradley asked Ms. Beattie to weigh the plastic baggie with the suspected marijuana. She did not know how to use the scale that was found in the accused’s purse. Mr. Bradley asked the accused to show Ms. Beattie how towork the scale and she did. Ms. Beattie weighed the suspected marijuana and found it to weigh 26.4 grams. There was a discussionbetween the accused and Mr.

Bradley after which he dismissed the accused and told her that she was suspended from school for threedays. He kept the contraband and the drug paraphenalia he had located and put them in the school safe until the police could be calledand could come and get them. He returned the accused’s purse and her other belongings to her. [12] On Monday, April 18, 2011 at 9:30 a.m., Constable Matt Maloney met with Vice Principal Bradley at Nutana Collegiate.

Atthat time, the Vice Principal gave him a manila envelope containing a cigarette package, a digital scale, a lighter, a pill bottle with thename Brian Morrison on the label, a baggie containing what looked like marijuana, 19 empty baggies (1 sandwich bag and 18 smallerbaggies), a burnt roach and an incident report from the school. The pill bottle contained 14 yellow pills, 1 pink pill, 13 white pills and anumber of pills that he recognized as Tylenol 3's. The baggie of what appeared to be marijuana had a smaller baggie inside it with asmall amount of what also appeared to be marijuana.

Later that day, he took samples of each of the suspected drugs and sent them offfor analysis. The laboratory eventually confirmed that the drugs in the two baggies were cannabis marijuana and that the pink pill washydromorphone. The other drugs were not identified as illicit substances. ANALYSIS

a) Was there a breach of the accused’s

section 8 Charter right to be free from unreasonable search and seizure? [13]

Section 8 of the Charter states that everyone has the right to be secure from unreasonable search and seizure. Since theinception of the Charter, the Supreme Court has dealt with the issue of what constitutes a

section 8 violation on many occasions. In thecontext of searches and seizures conducted by school officials on school property, the leading case continues to be the Supreme Courtdecision in R. v. M.R.M., (SCC), [1998] 3 S.C.R. 393. In that case, a Vice Principal at a high school received reliableinformation from other students that the accused was intending to sell drugs at a school dance and that he had been selling at the schoolin the past. When the accused arrived at the dance, the Vice Principal asked him to come in to his office.

There, in the presence of apolice officer, the Vice Principal searched the accused and found a bag of marijuana. The officer arrested the accused for possession ofa narcotic and took him to his locker. The officer searched the locker but nothing was located. [14] In their decision, the Supreme Court determined that in relation to searches on school property by school officials, if a studentcan establish that in the circumstances he had a reasonable expectation of privacy in the place searched, then in order for the subsequent

search to be valid, it must be based on reasonable grounds that a school rule has been or is being violated and that evidence of theviolation will be found in the location or on the student searched. Moreover, such a search must be reasonable, authorized by statute andappropriate in light of the circumstances presented and the nature of the suspected breach of school regulations. All the circumstancessurrounding the search must be taken into account both in determining if the search was reasonable and whether it was conductedreasonably.

This applies to searches of students on school property conducted by teachers or school officials within the scope of theirresponsibility and authority to maintain order, discipline and safety within the school. This standard does not apply to any actions takenwhich are beyond the scope of the authority of teachers or principals nor does it apply if school authorities are acting as agents of thepolice. See R. v. M.R.M., supra, at paragraphs 31 to 56. [15] In the present case, the offence occurred in Nutana Collegiate and involved a student at that school. In searching the student’slocker and its contents, Mr.

Isabelle, Ms. Beattie and Vice Principal Bradley were all acting within the scope of their authority as grantedby section 231(2)(

d) of The Education Act, 1995, S.S. 1995 c.E-0.2. This

section states that a teacher shall “maintain, in cooperationwith colleagues and with the principal, good order and general discipline in the classroom and on school premises”. In my view, thewording of this

section in The Education Act, must be interpreted broadly in order to give teachers and school officials the ability toprovide a safe and secure learning environment for our children. An ability to search students, their belongings and their lockers onschool property is a necessary corollory of this duty and responsibility. Wording very similar to this has been found in other cases tojustify school officials searching students (R. v. M.R.M., supra, at paragraph 51) and lockers (R. v. J. M., [2012] B.C.J. No. 922(B.C.Prov.Ct.) at paragraphs 206 to 228 and R. v. S.M.Z., [1998] M.J.

No. 587 (Man.C.A.) at paragraph 10). [16] I am also satisfied that none of Mr. Isabelle, Ms. Beattie or Vice Principal Bradley were acting as agents of the police. Thetest to determine whether a person conducting a search was acting as a police agent is whether the search would have taken place in theform and manner in which it did but for the involvement of the police. See R. v. Broyles, (SCC), [1991] 3 S.C.R. 595; R.v. M.R.M., supra at paragraph 56. Here, a student brought to Mr. Isabelle’s attention an odour of marijuana in the girls locker room.

Mr.Isabelle passed this information on to the Vice Principal and the two of them investigated the matter. They involved Ms. Beattie toconfirm that there was an odour of marijuana in the locker room and where it was coming from. After that they determined whoselocker it was and called in the students to speak to them privately. The police were not contacted nor were they present when theteachers and the Vice Principal did these things. It was only after the contraband was located in the accused’s belongings that it wasseized by the Vice Principal and later given to the police.

I accept that this was the standard procedure for dealing with these types ofmatters. The teachers and the Vice Principal were simply carrying out their responsibility to maintain a safe and disciplined school andat no point were they acting as agents of the police. Reasonable Expectation of Privacy [17] The first question then is whether the accused had a reasonable expectation of privacy in her locker and its contents. Whethershe did or not depends on the totality of the circumstances. In R. v.

Edwards, (SCC), [1996] 1 S.C.R. 128 at paragraph45, the Supreme Court said that the factors to be considered in assessing this question include the accused’s presence at the time of thesearch, possession or control of the property or place searched, ownership of the property or place, historical use of the property or item,ability to regulate access, the existence of a subjective expectation of privacy and the objective reasonableness of the expectation. [18] In later cases, the Supreme Court refined these factors stating that they included an examination of the subject matter of thealleged search, a determination as to whether the accused had a direct interest in the subject matter, whether the accused had a subjectiveexpectation of privacy in the subject matter and whether this subjective expectation of privacy was objectively reasonable.

See R. v.Tessling, [2004] 3. S.C.R. 432 at paragraph 32; R. v. Patrick, 2009 SCC 17 , [2009] 1 S.C.R. 579 at paragraph 27; R. v. Cole,2012 SCC 53 , [2012] 3 S.C.R. 34 at paragraph 40. [19] In this case I am satisfied that the accused had a reasonable, albeit diminished, expectation of privacy in her locker and itscontents. The locker in this case was provided to the accused by the school for the purpose of storing her school books, supplies andpersonal belongings while she was at school. The accused shared the locker in question with Bayley Brown.

Despite this sharedarrangement, nobody else was given access to this locker and it was for the sole use of the accused and Ms. Brown. However, accordingto the school’s Students Handbook, lockers were a convenience the school provided to students and they remained the property of theschool and subject to school regulations. The Handbook made it clear that “for reasons of health, safety and school security, the schoolretained the right and responsibility to inspect lockers and to examine the contents”. In addition, Mr.

Isabelle told his students, includingthe accused, that they should not bring contraband to school and that he could search their lockers for contraband if need be. [20] The accused testified that while she was present when Mr. Isabelle told them not to bring contraband to school, she did notrecall being told that the teachers would be able to search their lockers. She also said that she did not get a Handbook and was not awareof the school’s policy regarding lockers. I do not believe the accused’s testimony in this regard. In cross-examination, she admitted thatshe was not paying attention to everything Mr.

Isabelle said to them in class. She may not have remembered him saying that but I am

satisfied that Mr. Isabelle told the class not to bring contraband to school and that he could search their lockers if he suspected they had contraband. I am also satisfied that the accused received a Students Handbook. Again, she may not have read it but I am satisfied that she got one. [ 21 ] It is obvious that the accused would have some expectation of privacy in her personal school locker and certainly in her own purse and that this expectation is objectively reasonable. In both these places, the accused would keep personal and confidential items and information.

What diminishes this expectation of privacy is the fact that the locker where the accused kept her things and her purse was shared with another student, was school property and was always subject to the school’s overarching ability to inspect and examine the contents of these lockers so as to maintain the well being of its students and order and discipline at the school. But notwithstanding that this expectation of privacy was diminished, it was still an expectation of privacy and protected by

section 8 of the Charter . Reasonable Search [ 22 ] Having determined that the accused had an expectation of privacy in her locker, the next question is whether the search was reasonable. Nutana Collegiate had a “No Drugs” policy. Mr. Isabelle reminded the accused and the rest of the class not to bring contraband to school and that he could search their lockers for contraband if need be. On April 15, 2011, a student advised him of an odour in the girls locker room.

He could not recall who this student was or speak to their veracity but that is of no consequence as he got the Vice Principal and the two of them went to check on the smell themselves. Immediately upon entering the girls locker room they both smelled fresh marijuana. The smell appeared to be emanating from one particular locker. They opened the locker and confirmed that that was where the odour was coming from. To further confirm their suspicions, Vice Principal Bradley had Ms. Beattie attend to the locker room and he asked her if she smelled anything out of the ordinary.

She, too, smelled an odour of marijuana and indicated that it appeared to be coming from the same locker that Mr. Isabelle and Vice Principal Bradley had identified. [ 23 ] Suspecting that there were illegal drugs in this particular locker, they checked the locker records and found out that the accused and Bayley Brown were sharing this particular locker. They brought both girls into the locker room and they confirmed that this was their shared locker. When asked if they could smell anything, the accused said that she could smell marijuana.

When asked if there was anything in the locker, the accused said there was a roach. [ 24 ] On these facts, I am satisfied that the teachers and Mr. Bradley had reasonable grounds to believe that the accused had marijuana in her locker and that a search of the locker and its contents would yield the illicit substance. All three teachers smelled marijuana coming from the same locker and the accused, when questioned about it acknowledged that there was a roach in the locker. As a result, the search of the locker and the accused’s purse was reasonable.

Search Conducted Reasonably [ 25 ] Finally, was the search conducted reasonably? As I have already determined, section 231(2)(

d) of The Education Act gives Saskatchewan teachers the power to conduct searches of students in appropriate circumstances. As the Supreme Court pointed out in R. v. M.R.M. , supra , such power is reasonable to allow school officials to maintain order and discipline in the school and to safeguard the health and safety of the students. In this case, appropriate circumstances existed to justify a search of the accused’s locker and its contents.

I am also satisfied on the evidence in this case that the school officials carried our their search in a reasonable manner. [ 26 ] The teachers involved in this matter each confirmed the odour of marijuana and where it was coming from independently of each other. They removed the accused and Ms. Brown from the gym class without telling the rest of the class what was going on. They dealt with the matter in the confines of the girls locker room, the phys ed office and then the Vice Principal’s office away from the eyes of the rest of the student body.

The accused admitted to having marijuana in the locker before its contents were searched. Each girl was asked to remove what belonged to them and a teacher looked through each of their items. Nothing was damaged or tossed around and marijuana and other drug paraphenalia were located in the accused’s purse. Nothing illegal was found in Ms. Brown’s possessions and she was allowed to return to class. The accused was told to go to the Vice Principal’s office but she was not handcuffed, grabbed, dragged, pushed or otherwise physically taken to the office. At all times Ms. Beattie, a female teacher, was present.

Eventually the accused was given back all of her belongings except for the contraband and was allowed to leave the school. [ 27 ] It is true that none of the teachers asked either the accused or Ms. Brown for permission to search their locker or its contents, that they did not make any efforts to get advice or help from the police or inquire about whether a search warrant would be necessary. However, this is not detrimental to the case. Taking all of the facts into account, I am satisfied that Mr. Isabelle, Ms. Beattie and Vice

Principal Bradley were statutorily authorized to do what they did, the search itself was minimally intrusive and was conducted in a sensitive fashion and as a result, the search was carried out in a reasonable manner. [ 28 ] To conclude, the accused had a diminished expectation of privacy in her school locker and its contents however the search conducted by the school officials was based on reasonable grounds that she had marijuana in her locker and that a search of the locker would yield the drug. The search was authorized by statute and carried out in a reasonable manner. There was no breach of the accused’s

section 8 Charter right and I dismiss the accused’s application.

b) If the accused ’s

section 8 Charter right was violated, should the evidence seized during the search be excluded pursuant to section 24(2) of the Charter? [ 29 ] Since I have not found a breach of the accused’s

section 8 Charter right, there is no need for me to consider whether any evidence should be excluded pursuant to section 24(2) of the Charter and I decline to do so.

c) Does the evidence prove beyond a reasonable doubt that the accused was in possession of cannabis marijuana for the purpose of trafficking? [ 30 ] The accused testified that she was a heavy marijuana user and that one to two weeks prior to April 15 th , her and her friend, Bayley Brown, had purchased one ounce of marijuana from a guy on the east side of Saskatoon. He was not her regular supplier but they had purchased marijuana from him before. Despite this, she could not remember his name.

She thought that the total cost of the marijuana they bought was $300 to $350 and they split the cost between the two of them. The marijuana that was found in her purse, in her locker, was what was left of what they had purchased. The roach that was found in her cigarette package was from a marijuana cigarette that her and Ms. Brown had smoked in an alley earlier that morning. [ 31 ] They were storing the marijuana in the locker they shared at school because the accused had no other safe place to store it. The accused said that she could not keep it at home because of her family members.

The scale that was in her purse was used to weigh their marijuana . Ms. Brown had brought the baggies to school so they had something to put the marijuana in once they divided it up. The accused testified that they would only measure out and take what they needed and would leave the big bag of marijuana in their locker. She said that she would only carry around one or two grams because she was worried about being stopped by the police and smaller amounts were easier to conceal. [ 32 ] Unfortunately I do not accept the accused’s testimony as to whose marijuana this was and why it was in her locker at school.

I do not accept her testimony on this point for a number of reasons, not least of which is that her explanation does not make much sense. She told me that she had been using marijuana for at least a year prior to April 15 th and had been using heavily for the last six months. Yet according to her, she did not know what one gram of marijuana would look like. If she was a heavy user, I am surprised that she would not know how much a gram of marijuana looked like. [ 33 ] I note that she said that her and Ms. Brown were storing the drugs in their locker and would only take a gram or two at a time.

When they wanted to take some marijuana they would weigh it on the scale and put it in one of the many baggies they were storing with the drugs. But the drugs, the scale, the baggies and the other drug paraphernalia were not found in the locker itself. All of these items were located in the accused’s purse. No drugs or drug paraphernalia were located in Ms. Brown’s possessions.

It does not make sense that if they were sharing the marijuana, using the locker as a storage facility and weighing out small amounts every time they wanted to use some marijuana that all of the marijuana and drug paraphernalia would be in the accused’s purse. If they were truly sharing the marijuana, I would expect these items to be in the locker proper, not just in the accused’s possessions. [ 34 ] There are other things that cause me to question the truthfulness of the accused’s testimony.

She contradicted herself, was vague, avoided answering certain questions and acknowledged a disregard for her Court ordered undertaking as is evidenced by the following: - in her testimony on the

section 8 Charter voir dire , the accused testified that she was not working in and around April 2011. However, in testimony in an earlier voir dire in relation to the admissibility of statements made by the accused to the Vice Principal in his office, she told me that in April 2011, in addition to being a student, she was working at the 2 nd Avenue Grill, The Barking Fish and The

Granary; - in examination-in-chief, the accused testified that the scale that was in her purse belonged to both her and Ms. Brown. However, in cross-examination she admitted that the scale was hers and not Ms. Brown’s; - at one point in her cross-examination, the accused said that all of the drugs and paraphernalia were in her purse because Ms. Brown had a child. However, she then said that she was not sure what was in her purse. Shortly thereafter she said that not all of the contraband was in her purse but that some of it was in the locker.

She admitted that sometimes she would have her purse with her but then backtracked and said that it was always in her locker. Finally, she had no answer when asked why she would transfer drugs and/or drug paraphernalia between her purse and her locker; - the accused testified that since April 15, 2011 she has not used as much marijuana as she was using before. She went as far as to say that she now only smokes about one-half gram per day.

I note however from the endorsements on the Information that she has been on a court ordered undertaking since the date of her arrest in October 2011, one of the conditions being that she not use or consume illicit drugs. [ 35 ] For all of these reasons, I do not accept the accused’s testimony that her and Ms.

Brown were in joint ownership of the marijuana and were simply sharing it. [ 36 ] Constable Matthew Ingrouille was called by the Crown to give opinion evidence on the methods of packaging, distribution and pricing of marijuana, the general usage, observable signs and effects of marijuana usage, the usage patterns of marijuana users in Saskatchewan and the language and paraphernalia connected to the possession, usage and distribution of marijuana.

The Defence consented to the officer being qualified as an expert to give opinion evidence in these areas. [ 37 ] Constable Ingrouille testified that he obtained the exhibits from the investigating officer in this case and weighed them out himself. He determined that the large sandwich bag found in the accused’s purse contained 19 grams of marijuana and the smaller separate bag found in the larger bag contained one gram of marijuana. In his experience this was an unusual weight to be buying or selling. People normally buy or sell marijuana by the ounce, the ½ ounce, the 1/4 ounce, the 1/8 ounce or by the gram.

Given that an ounce is equivalent to 28 grams and virtually all of this marijuana was in one large sandwich bag, he opined that whoever bought this marijuana had purchased an ounce and had either used or sold some of it. [ 38 ] The officer also testified that by itself, one ounce of marijuana is not necessarily indicative of trafficking. However, he noted that in addition to having the marijuana, the accused also had a digital scale and some 19 empty baggies in her purse. In his view a marijuana user does not carry around a scale, a large number of baggies and approximately an ounce of marijuana.

Someone with these items in their possession would be selling marijuana. [ 39 ] The officer said that it is common for traffickers to keep their marijuana in one big bag because it will stay fresher longer. When they are ready to make a transaction, they weigh out the amount the purchaser wants to buy, put it in a separate plastic bag and make the sale. In this case he pointed to the bag containing one gram, the other empty baggies and the scale as support for his opinion.

In his view, the fact that one gram appears to have been separated off from the larger bag and placed in a small bag indicates that a sale was imminent. Considering that the person who had these items was a student and that they were found in the student’s locker at school, Constable Ingrouille said that this was an example of trafficking in its simplest form.

The fact that no scoresheets or cash were found did not change his opinion. [ 40 ] In cross examination, Constable Ingrouille admitted that it was possible that two people could have been sharing this marijuana and that the scale was used to ensure that each person received an equal amount. However he said that 20 grams of marijuana would last someone quite awhile and in his experience, marijuana users do not do this.

Users buy smaller amounts because it is fresh and marijuana is readily available. [ 41 ] The officer also agreed that a user could have been storing a bag of marijuana in a locker and weigh out a gram to take somewhere whenever they needed to, however he said that this is not that common. In his experience, it was not typical for a user to buy

a big bag of marijuana and then package it up into smaller bags for individual use. Moreover, a user, especially a heavy user, would not weigh out a gram. They would just estimate it and take what they needed from their bag. [ 42 ] I found Constable Ingrouille’s testimony to be very compelling and I accept it. His opinion was based on the facts in the case and his expertise and involvement in the drug subculture in Saskatchewan. He agreed that the Defence theory that the accused was sharing drugs with Ms.

Brown, that they were using the scale to ensure they each got an even amount and that they were just storing their drugs at school and taking small amounts from their stash was possible. But I agree with his assessment that when looking at the evidence as a whole, it was not probable. [ 43 ] On the basis of the evidence which I accept, I am satisfied beyond a reasonable doubt that the accused was in possession of marijuana for the purpose of trafficking.

The marijuana in this case was located in the accused’s locker at Nutana Collegiate and while she shared the locker with another girl, all the drugs and drug paraphernalia were found in the accused’s purse. She admitted that there was some marijuana in her locker, albeit only a roach. She knew about the marijuana, had physically handled the drugs and had control of them. The expert’s opinion convinces me that the marijuana in this case was being sold. The accused had a bag with 19 grams of marijuana in it, a scale, a smaller baggie with one gram of marijuana in it and 19 empty baggies.

It is clear that she was selling marijuana and had a one gram bag ready for sale. I accept that the accused used marijuana. She had a lighter and a roach secreted in a cigarette package and by her own admission, she used. However, I have no hesitation finding that in addition to being a user, the accused was also selling marijuana. In this case, the 20 grams of marijuana that were found in her locker were hers and not only was she using it, but she was selling it.

d) Does the evidence prove beyond a reasonable doubt that the accused was in possession of hydromorphone? [ 44 ] In addition to the marijuana, Vice Principal Bradley also found a pill bottle in the accused’s purse containing a number of pills. The label on the pill bottle bore the name of Brian Morrison. The police tested the pills but none were found to be a controlled substance except for one pink pill. This pill was tested and found to be hydromorphone, a

Schedule I drug under The Controlled Drugs and Substances Act . [ 45 ] The accused testified that Brian Morrison was her little brother’s father. She said that she had had the pill bottle for a couple of weeks or a couple of months before April 15th and was just holding on to the bottle for Mr. Morrison. She had forgot that she had the bottle but her plan was to give it back to Mr. Morrison. She said that she did not know what was in the pill bottle nor did she know what hydromorphone was or what it looked like. [ 46 ] In cross examination, the accused was asked why she had the pill bottle but she did not know.

She thought perhaps she just found it at her residence. She denied that Mr. Morrison gave it to her. However, shortly thereafter she said that she was pretty sure that he asked her to hold on to the pill bottle for him but she was not sure why he asked her to do this. [ 47 ] Again, I do not believe the accused’s explanation as to why she had the pill bottle or that she did not know what was in the bottle. I found her testimony on these points to be confusing and vague. If Mr.

Morrison had left these pills at the accused’s residence and they were not hers, I do not understand why she would be carrying them around in her purse. If Mr. Morrison gave them to her, there would be no reason for her to return them to him. If Mr. Morrison asked her to hold onto them I am sure he would have given her a reason why he wanted her to hold onto them yet she had no idea why he would have asked her to do that.

It appeared to me that the accused fabricated a story about why she had the pills and then changed her testimony to try to suit her purpose. [ 48 ] In this case, I am satisfied that the accused obtained the pills from Mr. Morrison. She acknowledged that she had had them for at least two weeks if not longer. She was keeping the pills in her purse, in a school locker that she shared with another girl. This locker, according to her, was the safest place she knew and also the place she was storing her marijuana. She was not able to give a plausible explanation for why she had these pills.

Based on this evidence, I am satisfied beyond a reasonable doubt that the accused had physically handled the pills and had a measure of control over them. A woman’s purse is akin to a man’s wallet. It contains a number of personal things, others do not have ready access to it and the owner knows what is in it. Considering that the pills were in the accused’s purse and being kept in the most secure place she could think of, it is a reasonable inference that she knew what types of pills she had. Consequently, I am satisfied beyond a reasonable doubt that the accused was in possession of hydromorphone.

CONCLUSION [ 49 ] Having found that there was no violation of the accused’s

section 8 Charter right in this case, all evidence from the Charter voir dire will become evidence on the trial proper. For the reasons aforementioned, the evidence on the trial establishes beyond a reasonable doubt that on April 15, 2011, the accused was in possession of marijuana for the purpose of trafficking contrary to section 5(2) of The Controlled Drugs and Substances Act and further that she was in possession of hydromorphone contrary to section 4(1) of The Controlled Drugs and Substances Act and I find the accused guilty of both of these charges. _______________________ D.E. Labach, J