R. v. Corsor Date:, 2011 BCPC 212

Citation: R. v. Corsor Date: 20110609 2011 BCPC 0212 File No: 174597-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. WAYNE GLENN CORSOR REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. RAVEN Counsel for the Crown: N. Khan Counsel for the Defendant: S. Nozick Place of Hearing: Surrey , B.C.

Dates of Hearing: May 10, 11, 2011 Date of Judgment: June 9, 2011 [ 1 ] THE COURT : Wayne Glenn Corsor is charged on Information number 174597 with possession of cocaine and heroin for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act. [ 2 ] On May 10, 2011, I rendered a decision on a voir dire in this case. I found that the police had reasonable and probable grounds to stop a vehicle driven by Wayne Corsor on June 14, 2009, in Surrey, B.C. I also found the police had reasonable and probable grounds to arrest Mr.

Corsor and to conduct a lawful search of his vehicle pursuant to their common law power to search a vehicle incidental to a lawful arrest. In addition, I admitted into evidence statements given to the arresting police officer by unknown persons who called a cell phone in Mr. Corsor's possession at the time of his arrest. These calls, answered by the arresting officer, were from individuals asking to purchase drugs. [ 3 ] During the search of Mr. Corsor's vehicle a marihuana roach, a quantity of powder heroin and a quantity of rock cocaine were discovered and seized by the police.

I admitted into the trial proper the drugs and other items seized, including cash, scissors, a crack pipe and a cell phone. [ 4 ] Following the voir dire ruling, and by consent of Crown and defence counsel, all of the evidence given on the voir dire was admitted as evidence in the trial proper. At that point in the trial, defence counsel did not object to entry of the certificates of analyst proving the substances seized contained narcotics.

[5] The Crown called one further witness following the voir dire; that witness was Cpl. Element who was qualified as an expert inthe area of possession of heroin and cocaine for the purpose of trafficking, use, distribution, price and packaging of heroin and cocaine inSurrey, B.C., particularly in the context of dial-a-dope operations.

He testified the quantity of the drugs found in the vehicle, the mannerof packaging, and the presence of a cell phone called by perspective buyers of drugs are all indicative of possession of drugs for thepurpose of trafficking as opposed to personal use. [6] At the end of the trial, defence counsel submitted all charges against the accused should be dismissed because the Crown had notproven identification beyond a reasonable doubt.

In addition, it was argued the certificates of analyst were not admissible because theCrown had not proven notice of intent to rely upon them at trial was served on the accused as required by s. 51(3) of the ControlledDrugs and Substances Act. A third argument relating to whether the Crown should have tendered the actual drugs that are the subject ofthe charge was not pursued by defence counsel. I have not considered that third argument in this decision. [7] Cpl.

Element gave no evidence with respect to identification of the accused; therefore, all of the evidence with respect toidentification was given on the voir dire. None of the officers were asked to identify the accused in court. [8] A transcript of the evidence given on the voir dire indicates the following testimony given with respect to identification. Thearresting officer, Cst. Rysanek, testified. I approach the driver's window and I asked the driver to produce a driver's licence.

The driver did produce a valid British Columbiadriver's licence and I was able to compare the picture and the driver's licence with the gentleman sitting in the driver's seat, anddetermined they were one and the same individual. [9] When asked what name appeared on the driver's licence, Cst. Rysanek responded, "The name was Wayne Corsor." Cst. Rysanekobserved the driver appeared nervous in producing the driver's licence, he was trembling, shaking and had a nervous demeanour. Oncross-examination Cst. Rysanek described the driver as fairly tall with a slender build. Cst.

Rysanek radioed for assistance after hestopped the vehicle, noticed an odour of burnt marihuana emanating from the vehicle, and saw a marihuana roach in the vehicle'sconsole. [10] Cst. Lucic arrived within a few minutes. Cst. Lucic described the driver of the vehicle as a "white male in his 40's, possibly 50's"who appeared nervous and fidgety. Following Mr. Corsor's arrest, Cst. Lucic took physical custody of him and placed him in thebackseat of his police vehicle. Cst.

Lucic was asked the following question: "Did you take any notes or do you recall any details of thedriver that you were dealing with?" He responded: Yes. I obtained a driver's licence – the driver's licence from Cst. Rysanek once he was finished dealing with it, and I noted in mynotebook the driver's licence number and the details of the driver, to which I confirmed that the picture on the driver's licence matchedthat of the driver.

Question asked following that: "Can you recall those details now?" Answer given, "Of a description of the driver?" Q Yes, whatever you said you indicated in your notes in terms of the driver's licence of the driver. A Yes, I have in my notes the driver's licence I wrote down and the name and the address that was on the licence. The name of thedriver was Wayne Corsor, born July 17th, 1958, and the address was 19759 64th Avenue. Q Is there a unit number? A Unit 227 in Langley, British Columbia. And I noted down his British Columbia driver's licence as 3274954.

I also confirmed hisidentification through our police checks, where I noted his -- we call it the FPS number, the fingerprint -- I'm not really sure what theacronym -- At which point defence counsel objected, and Crown counsel indicated, "No problem. That's fine." Later in his evidence Cst. Lucicstated he transported Mr. Corsor to the Surrey cells where he "processed, fingerprinted and photographed him".

That is all of theevidence with respect to identification in this case; the accused presented no evidence at the trial. [11] The Crown submits the evidence with respect to identification of the accused proves beyond a reasonable doubt that theindividual Cst. Rysanek and Cst. Lucic dealt with on June 14, 2009, is one and the same person as the accused Wayne Glenn Corsorbefore me. The Crown relies upon the decision in R. v.

Schryvers, (BC SC), [1963] 2 CCC 286 (BCSC) in arguingthat the element of identification may be proved where, in the absence of evidence to the contrary, a person has produced a driver'slicence to an officer bearing the same name as the accused. In the Schryvers case, the person arrested not only produced a driver'slicence with the same name as the accused, he admitted it was his licence and address. Similarly, in the cases of R. v. Chandra, [1975]BCJ No. 1035 Court of Appeal, and R. v.

Smith, 2003 BCPC 347, cited by the Crown, the accused admitted their identity to the policeofficer who stopped them for Motor Vehicle Act infractions. [12] I do not have any evidence of a statement made by the driver of the vehicle stopped by Cst. Rysanek admitting he was the personnamed on the driver's licence he produced. [13] The case of R. v. Westlake 2005 BCSC 93 considered whether a statement from the accused confirming his identity was requiredin order to prove identity in circumstances that were otherwise similar to those in the cases of Schryvers, Chandra and Smith.

InWestlake, the accused was stopped for speeding. He produced a driver's licence to the police officer who compared the photo on thelicence to the driver of the motor vehicle and was satisfied they were one and the same person. The accused did not state he was theperson specified on the driver's licence that he produced to the police. That case cited the reasoning in R. v. Noble, (SCC), [1997] 1 S.C.R. 874 at paragraph 79 as follows: The silence of the accused means that the evidence of the Crown is uncontradicted and therefore must be evaluated on this basis, without

regard for any explanation of those facts that does not arise from the facts themselves. No inference of guilt is drawn from the silence ofthe accused; rather, the silence of the accused fails to provide any basis for concluding otherwise once the uncontradicted evidencepoints to guilt beyond a reasonable doubt. [14] The accused appearing before me bears the name of Wayne Glenn Corsor. The name on the driver's licence produced by thedriver of the vehicle stopped by Cst. Rysanek is Wayne Corsor. Are these individuals one and the same person?

There was no evidencefrom any Crown witness about the process to bring the accused before the court, nor were any documents entered into evidence whichcould tie the accused person before me to the driver stopped by Cst. Rysanek on June 14, 2009. No Crown witness identified theaccused in court and the physical description of the accused as a white male in his 40's or 50's, tall and with a slender build, is too vagueto prove identification.

Although there was evidence that the accused was photographed at the police station following his arrest, thosephotos were not entered into evidence. [15] According to the decision in R. v. Bazinet 1997 BCJ No. 1778, I am not entitled to rely upon the contents of the court file toprove identity of the accused unless the contents were filed as exhibits, nor can I rely upon the fact that the accused appeared in court torespond to the criminal charges in the Information before me to prove he is one and the same person Csts.

Rysanek and Lucic dealt withon June 14, 2009. [16] The offences set out in the Information before me are serious, with significant consequences for the accused in the event of aconviction. I must be satisfied beyond a reasonable doubt that the person appearing before me is one and the same person that wasarrested by Cst.

Rysanek on June 14, 2009, before convicting him of possessing drugs for the purpose of trafficking. [17] Considering all of the evidence presented by the Crown, I am left with a reasonable doubt on the issue of whether the WayneCorsor stopped by the police is one and the same person as Wayne Glenn Corsor appearing before me.

I find the Crown has producedcontradictory evidence with respect to the name of the accused and the identity of the accused. [18] Considering the evidence as a whole, I find the Crown has not proven the element of identification beyond a reasonable doubt;therefore, I acquit Wayne Glenn Corsor on all counts. [19] In the event I am required to address the argument with respect to whether notice of intent to rely upon the certificates of ananalyst was given within the meaning of s. 51(3) of the Controlled Drugs and Substances Act, I find as follows: The Crown's ability totender certificates of an analyst pursuant to s. 51 of the Controlled Drugs and Substances Act constitutes a shortcut to proving an accusedpossessed a controlled substance.

In order to avail itself of this section, the Crown must strictly comply with the provision of notice. Insupport of this principle is the case of R. v. Henry (BC CA), 1972 9 CCC (2d) 52, a decision of the British ColumbiaCourt of Appeal. However, the time to determine whether a certificate of an analyst is admissible is prior to its entry as an exhibit. [20] In this case, no objection was taken to the entry of the certificates of an analyst; in fact, defence counsel consented to their entryat the end of the voir dire into the trial proper.

The silence of the accused at the point of entry of the exhibits may be taken as a tacitadmission of the admissibility of the certificates, and in support of that principle I cite the decision of R. v. Bowles (1974), (ON CA), 16 CCC (2d), 425, a decision of the Ontario Court of Appeal. Where the defence chooses to wait until the end of thetrial to raise an objection to entry of the certificates of an analyst, the Crown may re-open its case to prove notice, and that principle iscited in R. v.

Marcil, [1976] 31 CCC (2d), a decision of the Saskatchewan Court of Appeal. [21] On the facts of the case before me, I find the Crown did not specifically prove that notice of intent to rely on the certificates of ananalyst was given to the accused; however, the accused at no time objected to the entry of the certificates at the end of the voir dire. Hadthere been an objection then, the Crown could easily have led evidence on the trial proper with respect to the notice issue.

As theobjection was raised at the end of the trial, I find the issue of notice has not been proven as required by s. 51(3) of the Controlled Drugsand Substances Act; however, I would allow the Crown to re-open its case to prove the issue of notice. [22] In view of my reasons on the issue of identification, the accused is entitled to an acquittal on all counts. (REASONS FOR JUDGMENT CONCLUDED)