Her Majesty the Queen - v. -, 2013 SKPC 120

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 120 Date: July 24, 2013 Information: 24439579 Location: Melfort _____________________________________________________________________________ Between: Her Majesty the Queen - and - Grant J. Hill Appearing: Trent Forsyth For the Crown Jonathan Bodvarson For the Accused JUDGMENT I. CARDINAL , J INTRODUCTION [ 1 ] Mr.

Hill is charged with possessing cannabis marihuana and psilocybin mushrooms for the purposes of trafficking as well as simple possession of cannabis resin, contrary to the provisions of the Controlled Drugs and Substances Act . [ 2 ] On June 17, 2012, the RCMP were investigating a car which had been found in a farmer’s field in the Spalding area. At

[2] On June 17, 2012, the RCMP were investigating a car which had been found in a farmer’s field in the Spalding area. Atapproximately 10:00 p.m., they received a dispatch call to attend to the residence of Grant Hill as he was concerned about his wife’sbehaviour. The Hill residence was very close to where the car was located in the field and the police immediately attended to the farmyard. The police diffused the situation between the Hills, and subsequently seized drugs and drug related items from the residence.

Avoir dire was held with respect to the admission of a number of exhibits tendered at the trial and all of the items seized from theresidence were tendered into evidence and made full exhibits on the trial proper. (See ruling on Charter application: R. v. Hill, 2013SKPC 82 , 2013 SKPC 082.) [3] Mrs. Hill voluntarily turned over a bag of psilocybin mushrooms weighing 266 grams (Exhibit P-1) and a bag of cannabisresin weighing 20 grams (Exhibit P-2) which she had located in a beer box on a chair in the office.

Located on the kitchen counter inplain view was a tray with a scale, zigzag papers, scissors, a plastic bag and grinder (Exhibit P-11). [4] Mrs. Hill also turned over a Samsung cell phone (Exhibit P-5) which contained text messages between Mr. Hill and a personby the name of Cody April and another person by the name of Smoke. These text messages were transcribed by the police and a copy ofthe two messages were entered as Exhibit P-12 and are reproduced in the expert report of Cst. Knodel (Exhibit P-14). [5] Mrs. Hill allowed the police to conduct a search of the residence with her consent and with her assistance.

From an armoirein the area between the kitchen and living room a bag of cannabis marihuana weighing 96 grams (Exhibit P-3) was located along with asecond bag of cannabis marihuana weighing 158 grams (Exhibit P-4). The total amount of cannabis marihuana seized was 254 grams. [6] Mr. Hill does not dispute that he was aware the cannabis marihuana was in the residence, as he testified he had moved itfrom the fridge freezer to the armoire as he saw the police drive up to the residence. He denies that he possessed it for the purposes oftrafficking.

Instead, he testified that he is a heavy user of cannabis marihuana and that his wife Joanne Hill also smoked cannabismarihuana. He testified that all of the cannabis marihuana was simply for their personal use. [7] With respect to the psilocybin mushrooms, he testified that he did not realize these were anything other than wildmushrooms and was not aware they were a drug.

He said he received them from a friend in June 2011, and had forgotten all about themuntil they were discovered during the search of his residence in June 2012. [8] Concerning the cannabis resin, he testified he did not even realize it was in the box with the mushrooms. ISSUES

(1) Has the Crown proven beyond a reasonable doubt the accused possessed the cannabis marihuana for the purposes of trafficking?

(2) Has the Crown proven beyond a reasonable doubt that the accused knowingly possessed psilocybin mushrooms for the purpose oftrafficking?

(3) Has the Crown proven beyond a reasonable doubt the accused knowingly possessed the cannabis resin? ANALYSIS [9] It is clear from the evidence the accused is well experienced in the use of not only cannabis marihuana but other drugs aswell. He has a long history of drug use and dependance involving alcohol and hard drugs such as cocaine. Although he had a period ofsobriety, that ended in 2003 when he began using cannabis marihuana. He admitted that he had discussions with a person by the name ofCody April about buying Ritalin pills for himself.

The text messages between himself and Cody April and Smoke also illustrate he iswell familiar with the jargon in the buying and selling of controlled drugs and substances. [10] Mr. Hill was quick to extol the virtues of cannabis marihuana and how it has helped him through depression and arthritis andassists both him and his wife to “mellow out” and relax. He said it is better than valium and similar to chocolate and coffee in that a

person can just stop taking it anytime. He mentioned that he had stopped using cannabis marihuana approximately three weeks prior to the search on June 17, as he was going to be working at a mine site and it was likely he would be tested for drugs. [ 11 ] When he is using, Mr. Hill testified that he is a heavy user, smoking 15 to 20 joints a day. He said he would take the marihuana, weigh out a half ounce, grind it, then roll approximately 10-12 joints from that. He admitted he used the grinder and scales and other items in Exhibit P-11 to do so.

He said on average his joints would weigh around a gram, some more and some less. Between him and his wife, they would smoke close to an ounce of cannabis marihuana a day. He went on to say they smoked every day and continuously throughout the day. He said they did not smoke to get high but rather that it was something that helped them both relax and they both enjoyed it. Mrs. Hill would use it every time he did. A pound of marihuana would last the two of them about a month. [ 12 ] In her evidence, Mrs.

Hill admitted she and her husband smoked cannabis marihuana together and that she had “maybe a couple puffs with him” and maintained she only had “a puff or two a day”. She agreed he was a heavy user and he smoked 20 -30 joints a day or approximately one ounce a day. She agreed that he was on the road a lot and stated that whenever he left the house he took the cannabis marihuana with him but did not take the mushrooms. Her evidence was clear that he took all of the marihuana in whatever quantity he happened to have whenever he left the house.

Since his evidence was that he bought a pound of cannabis marihuana a month, that would mean at times he was taking up to a full pound of marihuana with him. [ 13 ] Constable Jeremy Knodel of the Royal Canadian Mounted Police was qualified as an expert able to provide opinion evidence in the areas of price, packaging and sale of cannabis marihuana, psilocybin and cannabis resin, together with jargon associated with the use and sale of cannabis marihuana, psilocybin, and cannabis resin and the indicia of a person in possession of cannabis marihuana, psilocybin and cannabis resin for the purpose of sale.

Cannabis Resin and Mushrooms [ 14 ] In examination-in-chief, Mr. Hill maintains he did not even know the cannabis resin was in the box with the mushrooms. He said the girl who gave him the box with the mushrooms must have given it to him to “piss off” her boyfriend whom she wanted Mr. Hill to speak to about his drug problem. She told him the mushrooms were good on steak. Mr. Hill never did speak to this boyfriend, whom he did not know, as he did not show up for a meeting arranged by the girlfriend. [ 15 ] In cross-examination, Mr.

Hill filled in more details, saying he met this girl (whose name he was not certain of but thought it was Lucy) when he was picking up food at the grocery store in Melfort as he was on his way to a job in Hinton, Alberta. He said he knew her from AA and that she wanted him to talk to her boyfriend, whom he did not know, about his drinking problem as he had been on a tear for four days. He went to her house and sat in the kitchen and had coffee with her, her dad and her grandma. An uncle was there but was not feeling good. The boyfriend never showed up so he left after visiting for two hours.

As he was leaving she gave him the mushrooms in the porch, saying they were good on steak and stew. He went home, unloaded groceries and put the box in the porch. When he returned home about a month later, he moved them from the porch to under the bed. [ 16 ] Mr. Hill’s explanation falls flat. While it may be that “Lucy” gave him the box (of which I am not entirely convinced), if the mushrooms were simply good for cooking, one would expect that Mr. Hill would have taken them with him as part of his groceries.

Coupled with his broad knowledge of various drugs and controlled substances, I find he knew these were in fact psilocybin mushrooms. I find he was knowingly in possession of psilocybin mushrooms on June 17, 2012. [ 17 ] Mr. Hill was in possession of 266 grams of psilocybin mushrooms or nearly one half pound. The expert evidence indicates that a person will consume the mushrooms either on their own or made into a tea and will do so at a rate of three grams per day for a maximum of three days in a row.

If the person continued to use the psilocybin on the 4 th , 5 th and 6 th day, there would be no effect as it takes three days to build up in one’s system. If one is using marihuana too, then the rule does not apply and a person would have to wait until the 8 th or 9 th day to use the psilocybin as one has to stop using other drugs in order to feel the effect of the psilocybin. [ 18 ] Psilocybin mushrooms are sold by the gram ($15-$20), 1/4 ounce ($50-$60), ounce ($175-$225) and pound ($1,500).

Using these figures, the 266 grams of psilocybin seized had a street value of between $3,990 (at $15/g) and $2,200 ($50/quarter ounce). As with other substances such as cannabis marihuana, the expert was of the belief that a user would not have such a large quantity as was found here as they have a lot more to lose if they are caught with such an amount. Although there was no text messages regarding the psilocybin mushrooms, the weight of the package found, being around a half pound, was sufficient in the expert’s opinion to believe Mr. Hill was in possession for the purpose of trafficking.

He also noted that a normal user has either cannabis marihuana or psilocybin, but not both because of the effect of the drug. I accept the expert’s evidence and find the Crown has proven the offence beyond a reasonable doubt and I find Mr. Hill guilty of Count 2, possession of psilocybin mushrooms for the purpose of trafficking.

[ 19 ] With respect to the cannabis resin, I find that I do not believe Mr. Hill when he testified he did not know it was in the box with the mushrooms. Thus, I find the Crown has proven the offence beyond a reasonable doubt and I find him guilty of Count 3, the simple possession of the cannabis resin. Cannabis Marihuana [ 20 ] Mr. Hill testified it is very difficult to purchase cannabis marihuana in this area and that is why he bought it by the pound from people he knew in the Saskatoon area. The evidence of Cst. Knodel, the expert witness, was that cannabis marihuana is easy to find anywhere in Saskatchewan.

Mr. Hill acknowledged in cross-examination that when he started using cannabis in 2003, it was from a joint given to him by a relative. I accept the evidence of Cst. Knodel that cannabis marihuana is easily obtained in Saskatchewan in virtually any quantity. I also accept while it would be cheaper to purchase it by the pound, such a practice is riskier as if one is found in possession of larger amounts it suggests the possession is for the purpose of trafficking. [ 21 ] Cst.

Knodel testified, and I accept his evidence, that cannabis marihuana is often purchased in small amounts, with an 1/8 ounce being the most common. This is so because if one gets caught by police, they will only lose a small amount; it avoids being “ripped off” by the seller; and most users cannot afford to buy large amounts as they do not have the money to do so. [ 22 ] Further, the quality of the marihuana affects its price. On average, the price of a pound of cannabis marihuana is $2,200, with higher quality selling for up to $3,000 per pound.

An ounce sells for approximately $250, with a gram going for $10 and a joint for $5. Using these prices, the average street value of the 254 grams of cannabis marihuana seized is between $2,500 ($10/gram) and $2,350 ($250/ounce). [ 23 ] He testified that an average user will consume approximately one gram, or 6-8 joints, per day. While it is possible to use more, it is not necessary as once a person is high there is no point in smoking any more as it does not benefit the user. If a person was smoking a gram per day they would be high most of the day.

Here the sheer quantity of cannabis marihuana located, 254 grams, led Cst. Knodel to the opinion that the possession was for the purpose of trafficking. [ 24 ] In relation to the scales found in the Hill residence, Cst. Knodel testified that users seldom or never carry scales as they trust the dealer. Rather, it is dealers who have scales to weigh out the amount of a substance they are selling to another. I accept this evidence as there is no reason for a user to weigh out an amount before grinding it and using it as described by Mr. Hill in his cross-examination. There is no need for Mr.

Hill to keep track of his own use if he is simply smoking all day, every day. He would know when he was running low on drugs simply because he was in control of them. His explanation as to why he had the scales, is in my opinion, contrived. [ 25 ] Further, Cst. Knodel was of the opinion the text conversations between Mr. Hill, Cody and Smoke found on the cell phone belonging to Mr. Hill were related to drug trafficking. [ 26 ] In the first text conversation recorded June 07, 2012 at 9:35 a.m. from Mr. Hill to Smoke, the expert testified that this conversation is in regard to Mr.

Hill, who is at work, telling Smoke that he, Mr. Hill, has good drugs and asks if Smoke has the money. [ 27 ] Mr. Hill testified that it was he that was telling Smoke that he, Mr. Hill needed another pound of cannabis marihuana. [ 28 ] I do not accept Mr. Hill’s explanation. He testified that approximately three weeks before June 17, 2012, he had quit using cannabis marihuana as he was going to a mine site and knew he would be tested for drugs. It makes no sense that Mr.

Hill would be looking to purchase another pound of marihuana for his own use when in fact he was not using at the time of this conversation and had not been using for quite a few days. It makes sense that Mr. Hill was in fact seeking to sell cannabis marihuana to Smoke. [ 29 ] The second text conversation of June 13, 2012 to June 14 is between Mr. Hill and Cody. Both the expert witness and Mr. Hill agree that Cody is asking Mr. Hill if he knows anyone who would buy Ritalin for $10 each and he can get as many as he wants. Mr. Hill

replies he would like to try 20. Mr. Hill agrees this is what the conversation was about and that he “must have” said yes to Ritalin as his response in the text was “20 would be cool”. He said the deal never went through as the price was now $15-$20 each which was too much according to Mr. Hill. [ 30 ] Mr. Hill agrees that Cody asked him if he needs “grass” (marihuana) at the same time as the Ritalin. This conversation illustrates that Cody was supplying Mr. Hill with marihuana and offering to sell him other drugs. [ 31 ] On June 14, 2012 around 4:58 p.m. to 5:06 p.m., Cody texts Mr.

Hill: I got blues for $7 each. Mr. Hill replies that “Just had a Bud wanting reds working hard no sleep”. Cody responds: “Down? Like morphine?” Mr. Hill responds: “Not my thing I like to rock.” Cody responds: “This guy has blue Ritalin for 7 each.” In his evidence, Mr. Hill testified that when he told Cody about a Bud wanting reds, he was just making up “flim flam”. He said his reference to reds was regarding uppers, a “kinda trucker pill”. I accept the expert’s evidence that Mr. Hill was telling Cody that he had someone ask him if he had any reds for sale because he was working hard and needed to stay awake.

I do not accept Mr. Hill’s explanation that he was simply making this up. I find he was in fact looking to supply others with drugs. [ 32 ] In the last text message of June 14, 2012 from 5:10 p.m. to 5:24 p.m., the expert testified Cody asked Mr. Hill if he should weigh some unknown drugs out for him. Mr. Hill replies yes, he wants 40 and will be in Saskatoon tomorrow. Cody tells him the price is $280. Mr. Hill testified that he wanted the blue Ritalin for $7 each as he eats them to get his energy level up.

He wasn’t working at the time and would use the Ritalin at the same time as he was using the cannabis marihuana. [ 33 ] I find that Mr. Hill was downplaying the extent of his involvement in the drug trade and exaggerating his drug use. He is very knowledgeable about drugs and well versed in the jargon that accompanies drug users and drug traffickers. The text messages are a further indication that he is connected and purchasing more drugs from others. Although Mr. Hill testified he is a heavy user of cannabis marihuana, I do not accept that evidence. Further, I do not accept the evidence of Mrs. Hill that Mr.

Hill would smoke such a large amount of cannabis marihuana in one day given that he was gone a lot, taking the cannabis marihuana with him, and she would not see his use on a regular basis. [ 34 ] Mr. Hill would have the Court believe that he was able to maintain employment and work around his acreage while smoking close to an ounce of cannabis marihuana per day, coupled with taking Ritalin pills. Furthermore, he could just turn off his drug use like a tap and quit when he was required to be sober for employment purposes on a job site.

I found his evidence both unconvincing and unbelievable and I reject his evidence. [ 35 ] I found Cst. Knodel to be a reliable and unbiased witness. He was forthright in his responses and was not evasive in any manner. Mr. Hill however, was evasive and seemed to be fabricating his evidence as he was testifying. Where there is a conflict as between the evidence of Cst. Knodel and Mr. Hill, I accept the evidence of Cst. Knodel. [ 36 ] On all of the evidence I do accept, I find I am convinced beyond a reasonable doubt that the possession of the cannabis marihuana was for the purpose of trafficking and I find Mr.

Hill guilty of Count 1. ________________________________ I. Cardinal, J