R. v. Ivie and McKenny Date:, 2011 BCPC 18

Citation: R. v. Ivie and McKenny Date: 20110111 2011 BCPC 0018 File No: 181740-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GRANT IVIE and STEVEN MCKENNY REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G. RIDEOUT Counsel for the Crown: A. Rice Counsel for the Defendant Mr. G. Ivie: D. Geller Counsel for the Defendant Mr. S. McKenny: M. Stern Place of Hearing: Vancouver, B.C.

Dates of Hearing: May 20, 21; June 14, 15; October 12, 13, 2011 Date of Judgment: January 11, 2011 INTRODUCTION [ 1 ] In the early morning hours of January 5, 2007, Constable Lamontagne of the Highway Patrol of the RCMP clocked a Hummer speeding by him, registering a speed of 110 kilometres per hour in a 90 kilometres per hour speed zone. [ 2 ] Constable Lamontagne pulled over the Hummer pursuant to the Motor Vehicle Act of British Columbia. At the time of the pull over, Mr. Ivie was the front passenger and Mr. McKenny was the driver.

The investigation quickly turned to a dual investigation, as Constable Lamontagne believed that there were drugs either on Mr. Ivie or Mr. McKenny or within the Hummer. [ 3 ] Other RCMP members arrived on the scene and as the investigation under the Controlled Drugs and Substances Act proceeded, Constable Lamontagne presented Mr. McKenny with a Consent to Search Form for the Hummer, which was subsequently signed by Mr. McKenny.

A thorough search was conducted of the Hummer and located in a concealed location within the engine compartment were two vacuum sealed plastic bags of cocaine wrapped in duct tape weighing 1107.9 grams and 1085.9 grams. Also located in the engine compartment was one Ziploc bag of cocaine weighing 1008.5 grams located in a white grocery bag, along with one Ziploc bag of ecstasy weighing 1006.4 grams. The value of the drugs is substantial. [ 4 ] Mr. Ivie and Mr. McKenny now face charges of unlawfully possessing cocaine and ecstasy for the purpose of trafficking contrary to the Controlled Drugs and Substances Act .

ISSUE

[5] Has the Crown established beyond a reasonable doubt that Mr. Ivie, or Mr. McKenny, or both, were in possession of the drugs? BACKGROUND [6] On September 16, 2010, this Court released a Ruling (2010 BCPC 226 , 2010 BCPC 0226) in relation to applications byMr. Ivie and Mr. McKenny that their rights pursuant to ss. 8, 9 and 10 of the Canadian Charter of Rights and Freedoms were violated. In that Ruling, I found that there were no breaches of the Charter. I found Mr.

McKenny had signed an Informed Consent to search theHummer. [7] The background circumstances contained in that Ruling detail circumstances which led to the discovery of the drugs within theengine compartment. [8] Admissions were filled at the commencement of this trial and those Admissions are appended to this Judgment as Appendix A. Of significance was the admission that a right thumbprint matched to Mr. Ivie was located on the outside of one of the two vacuumsealed bags, which was then wrapped in duct tape. Also located on that vacuum sealed bag were seven other unidentified fingerprints.

Itwas unknown how long Mr. Ivie’s print had been on that bag. There were no additional fingerprints of Mr. Ivie located on any otheritems that were seized. [9] On January 5, 2007, Mr. McKenny held the lease with respect to the Hummer. From the statements provided to the police byMr. Ivie and Mr. McKenny it was also clear that both had been very close friends for an extended period of time. [10] After the close of the case for the Crown, Mr. Ivie and Mr. McKenny elected not to testify. However, Mr. Ivie called twowitnesses: Chris Kennedy, who resided with Mr. Ivie and Mr.

McKenny in their residence at Westwood Plateau, and Donna Sheer, whowas a friend of Mr. Ivie. POSITION OF THE PARTIES [11] The Court had the benefit of both written argument and oral submissions from Ms. Rice on behalf of the Crown. Ms. Ricesubmitted that while the case was circumstantial, in applying s. 4(3) of the Criminal Code, the Court should find that both Mr. Ivie andMr. McKenny were either in personal possession, constructive possession or joint possession of the seized drugs. [12] Ms.

Rice submitted that while the case was largely circumstantial, when one examines the totality of the circumstancessurrounding the seizure of the drugs, the Crown meets their burden of proof and the totality of the circumstances is inconsistent with anyother rational conclusion. [13] Ms. Rice referred the Court to our Court of Appeal decision in R. v. Ngo (2009), BCCA 301, at paras. 53 and 54 to support herposition. Ms. Rice further submitted that the Court was entitled to bring a “measure of common sense” to bear on the analysis. On thatpoint, Ms. Rice referred the Court to our Court of Appeal in R. v.

To (2002), 16 BCAC 23, at para. 41, which reads in part: The criminal law requires a very high degree of proof, especially for inferences consistent with guilt, but it does not demand a certainty. I do not think it could properly be said that an inference of knowledge in this case would be unreasonable or unsupported by theevidence. [14] In relation to the thumbprint of Mr. Ivie, Ms. Rice argued that whether or not the inference of possession may be drawn from thepresence of fingerprints is not subject to a hard and fast rule. It is a question of fact which depends on all of the circumstances of thecase.

In that regard, she relied upon the Supreme Court of Canada decision in R. v. Lepage, (SCC), 95 CCC (3d) 385(SCC), at para. 25. [15] Additionally, Ms. Rice noted that the thumbprint of Mr. Ivie located on the vacuum sealed bag was highly probative ofpossession of cocaine by Mr. Ivie. She argued that though the thumbprint was not found on the drugs themselves, but rather on theexterior bag, such was merely a factor to be taken into account in deciding whether or not to draw the inference of possession. Again,Ms.

Rice relied upon the language of the Supreme Court of Canada in Lepage at para. 31. [16] In applying the submitted law to the evidence at trial, it was the position of Ms. Rice that the only rational inference is that bothaccused were parties to the offence. She reminded the Court as to the quantity and value of the drugs and the expert evidence ofSergeant Murphy which supported the contention that where these amounts of drugs were involved, that innocent third parties were notemployed as couriers. [17] Ms. Rice noted that the lessee of the vehicle was Mr. McKenny and that in Mr.

McKenny’s statement to the police, he wasattached to this vehicle. She further noted that he had not lent the vehicle out to anyone since about Christmas of 2006. [18] Ms. Rice noted that weapons were located within the passenger compartment of the vehicle, including a plastic dagger in thecentre console and a can of bear spray in the pocket behind the driver’s seat. [19] Ms. Rice noted that Constable Lamontagne testified that both Mr. Ivie and Mr. McKenny acted in a very nervous manner afterthe pullover and, in particular, it was Mr. Ivie who directed the conversation at the roadside. Ms.

Rice noted that Constable Lamontagnetestified after he accessed computer information and then returned to the Hummer that he noted that there was a fresh smell of cologne inthe air, which in the opinion of Constable Lamontagne, was consistent with a masking agent. [20] It was the position of Ms. Rice that the common sense approach proposed by Chief Justice McEachern in To should persuade theCourt that such a large quantity of drugs would not be abandoned or left unattended in the engine compartment, which would beconsistent with the expert evidence of Sergeant Murphy. [21] Returning to Mr. Ivie’s thumbprint, Ms.

Rice noted that not only was that thumbprint located on a vacuum sealed bag, but duct

tape was then applied over the whole of the vacuum sealed bag. [22] Ms. Rice further took the position that the evidence of Mr. Kennedy was speculative and unreliable. In particular, Ms. Riceargued that the Court should not accept the evidence of Mr. Kennedy when he referred to Ziploc freezer bags being in the kitchen asestablishing an exculpatory explanation. On the facts before this Court, Ms. Rice argued that this was not a Ziploc freezer bag, butrather, a sturdy plastic vacuum sealed bag. [23] Attached as Appendix B of this Judgment is the full list of cases relied upon by Ms. Rice. [24] Mr.

Geller, submitted that the evidence fell short of establishing proof beyond a reasonable doubt that Mr. Ivie was in possessionof the drugs located in the engine compartment. In particular, it was submitted that Mr. Ivie was only connected to the Hummer as apassenger through his friendship with Mr. McKenny. [25] Conceding the thumbprint of Mr. Ivie had potential probative value, Mr. Geller submitted that such value was greatly diminishedby the fact that there was no evidence as to when that thumbprint was placed on the outside of the vacuum packaging.

On this point, Mr.Geller argued: All we know, and I say all we know, is that a print at some point, of one print, not several, of Mr. Ivie’s landed on one bag out of many ina car controlled, owned by Mr. McKenny. (Transcript, October 12, 2010, page 61, lines 38-42) [26] It was further submitted that while bear spray and a dagger, along with a Gerber tool and scissors with marihuana residue locatedon the cutting edge, were circumstances to consider in evaluating all of the evidence, that little weight should attach to those items asthey pertain to Mr.

Ivie, as he was not the lessee of the Hummer; rather, he was merely a passenger. [27] Mr. Geller relied on several fingerprint cases including R. v. Khan (1998), (BC CA), 129 CCC (3d) 45. Rashida Khan was convicted by a jury in relation to the second degree murder of her daughter-in-law. As noted by Mr. Geller, one ofthe evidentiary features of that case turned on forensic evidence that one of the standard kitchen Glad garbage bags that were used todispose of the body had the fingerprint of the accused. It was noted by Mr.

Geller that the fingerprint examiner conceded that there werevarious ways that the print could attach to the garbage bag, including the possibility that Ms. Khan touched the bag underneath thekitchen sink at some point prior to the death of the victim. [28] It was further submitted by Mr. Geller that the Khan case would be analogous to the case before this Court. He argued there wasa possibility that his client’s thumbprint came to be on the vacuum sealed bag from Mr. Ivie’s use of the Coquitlam residence’s kitchen.

As the Crown could not establish when the thumbprint came to be on the bag, the Court should find that factor was entirely consistentwith an exculpatory explanation. On this point Mr. Geller submitted that the evidence of Mr. Kennedy would support such a possibility. [29] It was further argued that when the Court factors in the evidence that there were seven other unidentified prints the evidencecould not collectively establish beyond a reasonable doubt that Mr. Ivie was in possession of cocaine or any of the other drugs. [30] Mr.

Geller relied on several other fingerprint cases, including a decision of the Ontario Court of Appeal in R. v. O’keefe (1958), (ON CA), 28 C.R. 184. As noted by Mr. Geller, the O’keefe decision involved the recent possession of allegedlystolen property. Part of the Crown’s case was based upon the fact that some of the alleged stolen goods had fingerprints matched to Mr.O’keefe. Mr.

Geller noted that in that decision the Court found that fingerprint evidence was not determinative in the following languageat paras. 16-17: The mere fact that a person has handled stolen goods and left his finger prints on them is not conclusive proof that he had possession inlaw of them. That fact alone does not raise any presumption that they came into his possession in a dishonest or lawful manner....

In my opinion, the Crown failed to establish a prima facie case against the accused because there was no sufficient proof that any of thestolen articles were in the possession of the accused at any time. [31] In addressing the demeanour of Mr. Ivie at the roadside when he was pulled over by Constable Lamontagne, Mr. Gellersubmitted that Mr. Ivie’s unusual behaviour was of no significance due to the fact that many people display nervousness or unusualbehaviour when pulled over by the police. On that point, Mr.

Geller referred the Court to a decision of our Court of Appeal in R. v.Iturriaga, (BC CA), 43 BCAC 161, at para. 9, where Prowse, JJ.A. commented: In my view, it is common for people to be nervous when pulled over by the police particularly, as here, where they are driving without alicence. Similarly, the fact that the appellant was driving the car and the fact that the cocaine and marijuana were within arms reach ofthe appellant in the car cannot, without further evidence than is present here, justify a conviction. The evidence indicates that both drugswere concealed.

These facts simply cannot establish beyond a reasonable doubt that the appellant had knowledge of or control over thedrugs in question. [32] Mr. Geller concluded his submissions by again referring the Court to the Court of Appeal decision in Khan submitting that thisCourt really “should not care” about the presence of the thumbprint and that on the totality of the evidence, the Court must have areasonable doubt as to the guilt of Mr. Ivie. [33] Attached as Appendix C of this Judgment is the full list of cases relied upon by Mr. Geller. [34] Mr. Stern, for Mr. McKenny, argued that the statement given by Mr.

McKenny to the police was significant. It was submittedthat the Court should carefully review that statement and when looking at the totality of the other evidence, that the Crown had notestablished a prima facie case against Mr. McKenny.

[ 35 ] Mr. Stern further submitted that the circumstantial evidence against his client was insufficient to establish knowledge, consent and control in relation to the drugs found in the engine compartment. [ 36 ] It was further submitted that it was clear that Mr. Ivie was closely associated with the Hummer through his many years of friendship with Mr. McKenny, and that Mr. Ivie was often a passenger in the vehicle. It was further submitted that Mr.

McKenny signed an Informed Consent to Search his vehicle and that such would be inconsistent with common sense if he was aware that there were drugs located in the engine compartment. [ 37 ] In relation to the nervous behaviour displayed by Mr. McKenny when he was under investigation by Constable Lamontagne, Mr. Stern noted that it is common that drivers’ become nervous when pulled over by the police and, therefore, that nervousness would be of little evidentiary value. [ 38 ] Mr.

Stern further emphasised that no fingerprints were located on any of the drugs or drug packaging and that if any explanation was required to answer the case, it would come from the presence of the thumbprint of Mr. Ivie and not Mr. McKenny. [ 39 ] It was further noted by Mr. Stern that in the statement Mr. McKenny gave to the police; his answers were responsive to questions put to him during his interrogation by two police officers at approximately 2:09 in the morning on January 5, 2007. Mr.

McKenny consistently denied any knowledge whatsoever of the drugs in the engine compartment. [ 40 ] Attached as Appendix D of this Judgment is the full list of cases relied upon by Mr. Stern. I. Events at the Roadside after the Pull Over of the Hummer [ 41 ] When Constable Lamontagne pulled over the Hummer and attended at the driver’s side, he observed that both Mr. Ivie and Mr. McKenny were acting in a very nervous manner. He noted some shaking, stuttering and avoidance of eye contact by both. Constable Lamontagne found it very unusual that Mr.

Ivie appeared to be overly polite and was responding to questions that were directed towards Mr. McKenny. He also noted that at that time, there was an overwhelming odour of cologne in the vehicle which he felt was unusual. [ 42 ] When Constable Lamontagne had completed paperwork in relation to the Motor Vehicle Act investigation, he then re-attended at the Hummer. He noted at that time a new and fresh smell of cologne of a different odour than that he had smelled earlier. Constable Lamontagne testified that he felt it was very odd that either Mr. Ivie or Mr.

McKenny would both be spraying cologne during a traffic stop. He subjectively believed that either or both accused were trying to mask the odour of drugs, in particular, marihuana. [ 43 ] In relation to the Consent to Search, Mr. McKenny told Constable Lamontagne that he would not find any weapons, marihuana or cocaine. [ 44 ] Constable Lamontagne further told Mr. McKenny that if the search revealed anything “illegal”, that both Mr. Ivie and Mr. McKenny could be arrested. There was no indication that Mr.

McKenny objected to the search of the Hummer in light of Constable Lamontagne’s caution. [ 45 ] Constable Lamontagne also testified that as a result of officer safety issues, Mr. McKenny cooperated in relation to a cursory pat- down search in which there were negative results. Another police officer, Constable Young, conducted an officer safety pat-down search of Mr. Ivie with negative results. [ 46 ] Following the completion of the Consent to Search Form, a search was conducted of the Hummer at the roadside.

Constable Lamontagne was assisted by Constable Titchecott. [ 47 ] Constable Titchecott testified that he noted the odour of fresh marihuana from within the Hummer and that he informed Constable Lamontagne of this observation. Constable Lamontagne testified that he did not smell any marihuana, but he clearly smelled the odour of cologne within the Hummer. [ 48 ] In the glove box of the Hummer, Constable Lamontagne located a pair of scissors, along with a Gerber multi tool which had residue on one of the blades which, in the experience of Constable Lamontagne, smelled of dried marihuana or marihuana resin.

He testified that he had observed a similar smell before through prior investigations. Constable Lamontagne also located a pair of red scissors with the same residue and the same smell on the floor behind the front passenger seat. [ 49 ] Located in the centre console was a very hard plastic knife of a dagger style. Behind the driver’s seat, in a pocket for maps and magazines, Constable Lamontagne located a canister of bear spray. [ 50 ] As a result of locating those items within the Hummer, both Mr. Ivie and Mr.

McKenny were told that they were under arrest for possession for the purpose of trafficking in marihuana and were both advised of their respective rights under the Charter . [ 51 ] Following the arrest of Mr. Ivie and Mr. McKenny, a more thorough search was conducted of the vehicle, including the engine compartment where the ecstasy and cocaine were located. II. Voluntary Statements of Mr. Ivie and Mr. McKenny [ 52 ] Mr. Ivie was interviewed on January 5, 2007, at approximately 4:25 in the morning. He was interviewed by Constable Grabb and Constable Chow. It would appear from a review of the statement that Mr.

Ivie did not know either Constable Grabb or Constable Chow, as Constable Grabb introduced himself as “Johnathon” and his partner as “Pat”, and that they were RCMP members who wanted to have a “chat” with Mr. Ivie. [ 53 ] Without prompting by either Constable Grabb or Constable Chow, Mr. Ivie volunteered: “I didn’t know there was any drugs

there.” There was no reference whatsoever by either Constable Grabb or Constable Chow as to where drugs were located. [ 54 ] As the interrogation continued, Mr. Ivie asserted on numerous occasions that he had the right to remain silent. Though aware of that right, Mr. Ivie did give some limited details as to what he was up to on that particular evening. [ 55 ] In particular, he indicated that he was simply catching a ride with his friend Mr. McKenny and that was essentially all he knew. When discussing his past with the two police officers, Mr.

Ivie revealed that he had a problem with crack cocaine, but that he was now over that problem. [ 56 ] Mr. Ivie further confirmed with the two police officers that he lived with Mr. McKenny and some other “buddies” in Westwood Plateau in Coquitlam. [ 57 ] Mr. Ivie further told both police officers that he was working and that he had no financial difficulties. He also confirmed that Mr. McKenny came from a wealthy family and that Mr. McKenny never had any financial difficulties. [ 58 ] When it was put to Mr.

Ivie that there would be a fingerprint analysis of the duct tape and various bags located in the engine compartment, he denied that his fingerprints would be located on any of those items. [ 59 ] Mr. McKenny was interviewed by Constable Grabb and Constable Chow several hours prior to the interview of Mr. Ivie. [ 60 ] Mr. McKenny confirmed that he also used marihuana and had experienced problems with crack cocaine, but that in the past, he had gone through a residential recovery program and the only thing that he now smoked was cigarettes. [ 61 ] Mr.

McKenny was responsive to questions put to him and provided details as to what he was up to on that particular night. He told the police officers that he had gone with Mr. Ivie to one of The Keg restaurants in downtown Vancouver. He recalled that they had been there sometime between 9:00 and 10:00, but he could not be sure, as he did not wear a watch. [ 62 ] Mr. McKenny confirmed that he lived with Mr. Ivie at the Westwood Plateau residence and that he lived in the basement of that residence. [ 63 ] Mr. McKenny also confirmed that he leased the Hummer and that the Hummer was indeed his “dream vehicle”.

He further confirmed that he would sometimes let other people borrow the Hummer, though he recalled the last time someone borrowed the Hummer was around Christmas of 2006. [ 64 ] Though questioned at length, principally by Constable Grabb, he asserted that he had no knowledge whatsoever of any of drugs located in the engine compartment. He told both officers that after dinner, with Mr. Ivie and Mr. Ivie’s girlfriend, that he had dropped her off in North Vancouver and was proceeding eastbound on Highway 1 with Mr.

Ivie when he was pulled over. [ 65 ] He further told both officers that he had to urinate and that he was speeding along Highway 1 to find an appropriate spot to pull off and urinate. [ 66 ] When Constable Chow told Mr. McKenny that three kilograms of drugs were located in the vehicle, Mr. McKenny asked if it was “marihuana”. He indicated surprise when he was told that it was cocaine. When it was put to him that the cocaine was his, the following exchange took place: G So it’s your’s then? M I don’t know anything about it. This is all news to me. C So is the cork, coke your’s? M No. Nope.

G Would you take this, just out of curiosity would you take a lie detector test? M Sure. (Statement, Page 17) [ 67 ] Mr. McKenny further told both the police officers that he was not going to take a “bullet” for anybody and that he simply had no knowledge whatsoever of any drugs in the Hummer. [ 68 ] Mr. McKenny confirmed that he was working full time and did not have any financial problems.

He told both officers that he was working for the family business and was making a decent income. [ 69 ] When it was put to him that there would be a fingerprint examination of various items that were seized, he told both officers that there would be no reason why his fingerprints would be on any of the seized items. He was quite adamant that they would not locate any of his fingerprints on any seized items. III. Evidence of Chris Kennedy and Donna Sheer Called on Behalf of Mr. Ivie [ 70 ] Mr. Kennedy confirmed that he was living with Mr. Ivie and Mr. McKenny at the Westwood Plateau residence.

There were one or two girlfriends also living at this residence. He confirmed that the house had three levels and that there was more than one kitchen. He testified that Mr. Ivie and Mr. McKenny, along with their girlfriends, would also use the kitchen that he used. He testified that in the kitchen, there were items such as: “tinfoil, freezer bags, pans, Saran Wrap, and other accoutrements.” He testified that he saw both Mr.

Ivie and Mr. McKenny preparing food items. [71] He further testified in direct examination that there were both freezer bags and sandwich bags in the kitchen. Upon questioningby the Court as to whether or not these bags were freezer bags or vacuum packed bags, Mr. McKennedy responded that he could not tellthe “difference” between the two. [72] In cross-examination by Ms. Rice, in relation to freezer bags, the following exchange took place: Q What’s a freezer bag? A It’s a plastic bag that you would put your food in and seal it up and then put it in the freezer. Q And does it Ziploc?

A Usually. (Transcript, October 12, 2010, page 38, lines 5-9) [73] Upon further questioning by the Court, Mr. Kennedy confirmed that Mr. McKenny was the driver of the Hummer and that Mr.Ivie would be frequently driven around by Mr. McKenny as a passenger in the Hummer. They had been friends “for some period oftime”. [74] Donna Sheer testified in direct examination that she was a good friend of Mr. Ivie and that she recalled picking Mr. Ivie up onJanuary 4, 2007, and going shopping with him for approximately four to five hours.

She recalled that they went downtown and that itwas her usual practice to go to the Robson shopping district or Pacific Centre Mall. [75] After the two of them went shopping, she testified that they had dinner and then went back to her place in North Vancouver. After a few drinks and dinner, she recalled that Mr. Ivie was picked up by somebody at around 8:00 pm or even later. [76] In cross-examination by Ms. Rice, Ms. Sheer recalled that they had dinner at The Keg restaurant on Thurlow Street. She deniedthat Mr.

McKenny was present at that dinner. [77] She confirmed that after dinner, she went back to North Vancouver with Mr. Ivie and that he was picked up at some later point. She did not see Mr. McKenny at all on that particular date. [78] In cross-examination by Mr. Stern, Ms. Sheer testified that Mr. McKenny did drive a Hummer, but she did not recall any time atwhich Mr. Ivie drove that vehicle. She did recall that Mr. Ivie would be a passenger in the Hummer, but she never saw him driving theHummer. ANALYSIS AND FINDINGS RELATING TO POSSESSION (

i) Analysis [79] Section 4(3) of the Criminal Code of Canada reads 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 himself or 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 or possession, it shall bedeemed to be in the custody and possession of each and all of them. [80] The elements to each form of possession were discussed by our Court of Appeal in R. v. Webster, 2008 BCCA 458, at para. 16, inthe following language: The elements of each form of possession are set out in R. v. Pham (2005), (ON CA), 203 C.C.C. (3d) 326 (Ont.C.A.), affirmed [2006] 1 S.C.R. 940, 2006 SCC 26.

With respect to deemed possession under s. 4(3)(b), "there must be knowledge,consent and a measure of control on the part of the person deemed to be in possession" [81] The elements to establish constructive possession were discussed by the Supreme Court of Canada in R. v.

Morelli, at para. 17 inthe following language: Constructive possession is established where the accused did not have physical custody of the object in question, but did have it "in theactual possession or custody of another person" or "in any place, whether or not that place belongs to or is occupied by him, for the useor benefit of himself or of another person" (Criminal Code, s. 4(3)(a)).

Constructive possession is thus complete where the accused: (1)has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that placebelongs to him, and (3) intends to have the object in the particular place for his "use or benefit" or that of another person. [82] Joint possession covers the situation in which more than one person has the possession of something. In R. v. Barreau, Mr.Justice MacFarlane discussed the elements of joint possession at para. 23 in the following language:

In order to constitute joint possession pursuant to s. 4(3)(

b) of the Criminal Code there must be knowledge, consent, and a measure ofcontrol on the part of the person deemed to be in possession of this provision. Knowledge may be proven by both direct andcircumstantial evidence. [83] It is further established that if a person aids another who actually commits the offence that person may also be guilty of theoffence through the application of s. 21(1) of the Criminal Code of Canada. Before an accused can be convicted of being a party byaiding and abetting, two elements must be established.

First, it must be proved beyond a reasonable doubt that the accused hadknowledge that the principal intended to commit the offence and, second, that the accused aided and abetted that person (see R. v.Barreau at para. 24). [84] The evidence at this trial cannot be considered in any piecemeal fashion. Rather the whole of the evidence must be considered todetermine whether or not the Crown has discharged their burden in establishing that either Mr. Ivie or Mr. McKenny or both were inpossession of the drugs located in the engine compartment.

Further, whether by operation of s. 21(1) of the Criminal Code does theevidence establish that they did aid and abet each other. [85] It is established law that the Crown may prove the essential elements of an offence through direct or circumstantial evidence, or acombination of both. This was discussed by the Court of Appeal in R. v. Ngo at para. 53 in the following language: The Crown may prove the essential elements of an offence through direct or circumstantial evidence, or a combination of both.

Wherethe case rests on circumstantial evidence, the trier of fact must be satisfied beyond a reasonable doubt that the guilt of the accused is theonly reasonable inference to be drawn from the facts: R. v. Vu (T.T.), 2004 BCCA 381, at para. 31, 201 B.C.A.C. 293.

However, thecriminal standard of proof is not to be applied to each individual piece of evidence. ... [86] With respect to an examination of the evidence relating to possession where the circumstantial evidence is a significant feature ofthe Crown case, it is incumbent on a trial court to examine all of the evidence, rather than an examination of each piece of evidence inisolation. This was discussed by the Court of Appeal in R. v.

Ngo, at para. 54 in the following language: In considering whether the circumstantial evidence supports an inference of guilt beyond a reasonable doubt, the trier of fact must notexamine each individual circumstance in isolation. Instead, the proper approach is to consider whether all the evidence, taken together,establishes the guilt of the accused and is inconsistent with any other rational conclusion: R. v. G.L.J., [1997] B.C.J. No. 2994 at para.29 (C.A.); R. v.

Aylward (1993), (BC CA), 36 B.C.A.C. 14, at paras. 5-7. [87] Fingerprint evidence has been used as an investigatory tool for many years to identify individuals who may be involved incriminal activity. Indeed, fingerprint evidence can be highly probative in cases where possession with respect to items is in issue (see R.v. Lepage at para. 31). However, I cannot be overwhelmed by fingerprint evidence.

It is but one of the features of this case which mustbe considered in combination with all of the evidence. (iii) Findings Relating to Possession [88] I find that Constable Lamontagne gave his evidence in a clear and forthright manner. I accept his evidence of his observations atthe roadside after the initial pullover. He testified that both Mr. Ivie and Mr. McKenny appeared to be nervous, which raised ConstableLamontagne’s suspicions that more was taking place than just a Motor Vehicle Act infraction. [89] I also find it noteworthy that it was Mr.

Ivie who essentially directed the conversation when questions were put to Mr.McKenny. This would be unusual as Mr. McKenny was the driver and not Mr. Ivie. [90] I also find that Mr. McKenny had the opportunity to carefully review the Consent to Search form and that he signed the Consentto Search form after being fully apprised by Constable Lamontagne that he did not have to sign the Consent to the Search. I acceptConstable Lamontagne’s evidence that he fully advised Mr.

McKenny that he was not compelled to sign the form. [91] I accept the evidence of Constable Lamontagne that two different cologne odours were noted on two separate occasions at theHummer when Constable Lamontagne was investigating the Motor Vehicle Act infraction. I accept his belief that the cologne was beingused as a masking agent. [92] I accept the evidence of Constable Titchecott that he noted an odour of marijuana when the search of the Hummer was beingconducted.

The seizure of the dagger and the bear spray were items identified by Sergeant Murphy as consistent with items which couldbe used by persons involved in drug activity to defend any attempt to steal the drugs. I accept Sergeant Murphy’s opinion. [93] I further accept the evidence of Sergeant Murphy when he testified that innocent third parties would not be employed as couriersfor the amounts of drugs that were seized from the engine compartment in this case. I accept his evidence when he testified that it wouldbe highly unlikely that the drugs located in the engine compartment were abandoned.

Time and effort were employed in the packagingof the various drugs and clearly, a good hiding place was a significant consideration in transporting the drugs. [94] The location of the thumbprint of Mr. Ivie on the outside of the vacuum sealed bag was highly probative evidence. Thesignificance of the location of the fingerprint on the vacuum sealed bag was noted by Sergeant Murphy. I accept his evidence asestablishing that care and attention was exercised in relation to the packaging to protect the cocaine in the vacuum sealed plasticcontainer with the additional application of the exterior duct tape.

The integrity of the thumbprint analysis was not challenged. [95] Sergeant Murphy further testified that care and attention was exercised in relation to the location where the drugs were concealedin the Hummer. I accept his evidence that it would only be “trusting” individuals that would conceal the drugs in the enginecompartment of the Hummer. This was described by Sergeant Murphy as a means by which people involved in the drug trade would“maximize their profit” through security protocols.

[ 96 ] I agree with the argument of Ms. Rice when she submitted that Mr. McKenny had “a high degree of control” over the Hummer. He was the lessee of the vehicle and he was clearly attached to the vehicle from the statement he provided to the police. [ 97 ] The evidence also established that Mr. Ivie was a close friend and housemate of Mr. McKenny. They had known each other for many years. I find that the evidence established that Mr.

Ivie was a regular passenger in the Hummer and would, therefore, have the time and ability to access all areas of the Hummer. [ 98 ] I find that the nervous behaviour displayed by both Mr. Ivie and Mr. McKenny was unusual, particularly as it relates to Mr. Ivie. However, it is clear that generally little weight should attach to a driver being nervous after being pulled over by a police officer. [ 99 ] In relation to the use of the cologne and presence of the dagger and bear spray, those are circumstances which were relevant to the case presented by the Crown. [ 100 ] The Consent to Search signed by Mr.

McKenny was clear on its face. In that Consent to Search, Constable Lamontagne indicated that he would be searching for weapons, marihuana or stolen property. There was no area of exclusion identified in the Consent to Search Form, and as such, I find that Mr. McKenny must have anticipated that the whole of the vehicle would be searched, including the engine compartment. [ 101 ] The statement provided to the police by Mr. McKenny was also of significance. It was argued by Mr. Stern that Mr.

McKenny was responsive to questions by the police and he was adamant when he gave his statement to the police that he had no knowledge whatsoever of the drugs located in the engine compartment of the Hummer. [ 102 ] I find that there was a flow to the conversation between the two police officers and Mr. McKenny. Mr. McKenny was not undermined or overwhelmed by the police interrogation and stood by his assertion that he was innocent. Indeed, I find that it was very significant that when he was asked if he would submit to a lie detector test, he responded in the affirmative. [ 103 ] Additionally, Mr.

McKenny told the police that they would not find any of his fingerprints on the drugs or drug items, as he did not know that they were hidden in the vehicle. [ 104 ] There was evidence which connected Mr. McKenny to the drugs located in the engine compartment of his Hummer. In particular, he leased the Hummer and that it was his “dream car”. It was also significant that he was closely associated with Mr. Ivie and that the two of them were found together in the Hummer in the early morning hours of January 5, 2007.

However, I am not able to find that upon consideration of all of the evidence that a prima facie case has been made out against Mr. McKenny. [ 105 ] In relation to Mr. Ivie, it was clear from the evidence that in January of 2007, Mr. Ivie was residing in the same residence as a housemate with Mr. McKenny in Coquitlam. I also find that the evidence was clear that Mr. Ivie and Mr. McKenny were close friends and were frequently together. [ 106 ] I also find that Mr. Ivie relied upon Mr. McKenny for transportation and that Mr. Ivie was frequently provided with rides by Mr.

McKenny in the Hummer. [ 107 ] Having accepted the evidence of Constable Lamontagne relating to his observations after the initial pullover of the Hummer, I also find that the physical behaviour by Mr. Ivie to be unusual. He was not the driver of the vehicle and did not appear to be facing any jeopardy, and yet, displayed nervousness. He also responded directly to many questions directed by Constable Lamontagne to Mr. McKenny. [ 108 ] I also find that the use of the cologne by either Mr. Ivie or by Mr.

McKenny, or both, was for the purpose of masking other odours and not designed to enhance the appeal of either Mr. Ivie or Mr. McKenny. [ 109 ] The presence of the dagger and the bear spray within the Hummer was troubling as there did not appear to be any explanation for the presence of those items. I find that the location of both the dagger and the bear spray was consistent with the theory of the Crown, supported by Sergeant Murphy, that these items were not present for some innocent purpose. [ 110 ] Upon reviewing the statement provided by Mr. Ivie to the police, he did assert his right to remain silent.

However, as noted earlier, Mr. Ivie, without prompting, volunteered to the two police officers that: “I didn’t know there was any drugs there.” When reviewing that statement it was clear that neither Constable Grabb nor Constable Chow had indicated to Mr. Ivie where drugs were located. I consider that comment to be both unusual and in the context of the whole of the statement, one circumstance which I must consider when weighing all of the evidence relating to possession. [ 111 ] The location of Mr. Ivie’s right thumbprint on the vacuum sealed plastic bag was a significant feature relating to possession.

Although there were seven unidentifiable fingerprints also located on that vacuum sealed bag that does not, in my opinion, diminish the evidentiary value of Mr. Ivie’s right thumbprint. [ 112 ] I accept Sergeant Murphy’s evidence that time and effort went into the packaging and concealment of the drugs located within the Hummer. From the photographs, it was clear that this vacuum sealed bag was not simply some freezer-type Ziploc bag.

Rather, the cocaine appeared to be tightly contained within that bag, and then, significantly, wrapped in duct tape. [ 113 ] I find that in weighing all of the evidence presented by the Crown that the Crown has established a prima facie case of possession in respect of Mr. Ivie. DISPOSITION [ 114 ] Having found that the Crown has not made out a prima facie case of possession against Mr. McKenny, the burden of proof then falls solely on the shoulders of the Crown to establish beyond a reasonable doubt the guilt of Mr. McKenny in relation to the possession

of the drugs in the Hummer. [115] There is a clear link between reasonable doubt and the presumption of innocence. That link was analyzed with care by JudgeLytwyn of this Court in the recent decision of R. v. Bacon and Bacon, 2010 BCPC 48 , 2010 BCPC 0048 at paragraphs 7 and8. [116] It has been restated time and again in numerous decisions at all levels of Courts across Canada that a reasonable doubt is not afanciful or frivolous doubt. A reasonable doubt does not elevate the establishment of guilt to an absolute certainty.

Rather, theevidentiary threshold must remain high before finding guilt to avoid a wrongful conviction. [117] I find that the Crown has not established beyond a reasonable doubt that Mr. McKenny was in possession of the drugs located inthe Hummer, and having so found, I must find him not guilty of all charges. [118] While Mr. Ivie did not testify, Mr. Kennedy and Ms. Sheer did testify on behalf of Mr. Ivie. [119] I find that the evidence given by Mr. Kennedy, in particular with respect to the Coquitlam residence, was vague in relation todetail.

He testified that there were two kitchens within the residence, but gave vague details only in relation to one of the two kitchens. No evidence was adduced as to whether or not there was in fact a freezer or freezers in this residence. The only evidence in relation to afreezer would appear to be a standard utility freezer attached to a refrigerator. Again, the type and size of fridge and freezer was neverdetailed. [120] At best, Mr. Kennedy described the presence of sandwich bags or freezer bags as essentially being Ziploc type of bags. Whenthe Court asked Mr.

Kennedy if he was aware of any difference between freezer bags and vacuum packed bags, he indicated he could nottell the “difference” between the two. [121] Likewise, as observed earlier in this decision, he described the freezer bag as “a plastic bag that you would put your food in andseal it up and then put it in the freezer”. In response to the question by Ms. Rice as to whether or not this bag would zip-lock, Mr.Kennedy’s response was “usually”. [122] Upon examination of the photographs filed by Crown, it was clear that the vacuum sealed plastic bag was of a sturdyconstruction and sealed shut.

The relevance of this packaging was noted by Sergeant Murphy, whose evidence was not undermined. [123] There was no evidence provided by Mr. Kennedy as to what apparatus would be required to vacuum seal such a bag, nor did hisevidence establish that he had any knowledge as to whether or not such a vacuum bag sealing system was present at the premises inCoquitlam. [124] In relation to Ms. Sheer, I found that she was a rather excitable witness and vague on detail. She had also been drinking wine inthe evening with Mr. Ivie, which I find impacted her memory and bore on the reliability of her evidence.

At best, she was with Mr. Iviefor a period of time, but in any event, in her evidence, he was picked up at some point at around 7 or 8 pm January 4, 2007, by anunknown male. He was next seen in the company of Mr. McKenny when Constable Lamontagne pulled over the Hummer hours later. [125] Mr. Geller placed a great deal of emphasis on our Court of Appeal decision in R. v. Khan, as well as the Supreme Court ofCanada decision in R. v. Lepage. In the Khan decision, the appellant was convicted by a jury of the second degree murder of herdaughter-in-law.

A fingerprint on a Glad type of orange garbage bag was only part of the evidence against the appellant. There weresignificant issues with respect to opportunity, conscientiousness, guilt, motive and various conversations that were tendered by theappellant to her husband which were all in play on appeal. [126] In relation to the orange Glad bag, the Court of Appeal determined that as other orange garbage bags were used to dispose of thebody, that the bag with the appellant’s fingerprint could be reasonably inferred as coming from the same place.

However, it was clearthat in the appeal there were problems with respect to the fingerprint evidence as noted at paragraphs 58 and 59 of the decision. [127] It is also established from cases cited by Mr. Geller, in particular, by reference to R. v. Lepage, that the mere presence offingerprints on a bag or bottle containing drugs may not be sufficient evidence to find a conviction for possession.

Rather, it requiresthat a trial court must weigh the totality of the surrounding circumstances of the case, and all of the evidence adduced, to determinewhether or not the inference of possession has been established by the Crown. [128] I find in this case that the evidence of Mr. Kennedy did not assist Mr. Ivie. I find that it would be speculative for this Court tofind that the evidence of Mr. Kennedy relating to sandwich bags and freezer bags amounted to a possible exculpatory explanation for thepresence of Mr. Ivie’s thumbprint on the bag containing cocaine overwrapped by duct tape. [129] Mr.

Ivie elected not to testify. As was noted by the Supreme Court of Canada in R. v. Lepage, at para. 29, no adverse inferencecan be drawn if there was no case to answer. However, where the totality of the evidence against an accused mounts the failure of theaccused to testify may result in an adverse finding.

On this point, Sopinka, J. for the majority of observed: Although I have concluded above that Pardu, J. did not draw any adverse inference from the respondent's failure to offer an explanationfor the presence of his fingerprints, I note that once the Crown had proved a prima facie case, the trial judge would be entitled to drawsuch an inference in any event. [130] I am also mindful of the comments of Chief Justice McEachern in R. v.

To, at para. 41, that trial courts should not treat real lifecases “as a completely intellectual exercise where no conclusion can be reached if there is the slightest competing possibility”. [131] I have concluded that the evidence presented by Mr. Kennedy and Ms. Sheer is unreliable. I conclude the evidence adducedagainst Mr. Ivie remains prima facie undiminished.

[132] Mr. Ivie’s failure to testify was but one feature of this case. However, it was also indicative of the absence of an exculpatoryexplanation; in particular, as it relates to the thumbprint of the Mr. Ivie located on the vacuum sealed bag and overwrapped by duct tape. I find on all of the circumstances of this case and the evidence adduced that the Crown has established beyond a reasonable doubt thatMr. Ivie is guilty of possession for the purpose of trafficking in cocaine. [133] Clearly there were others associated with the ecstasy located in the engine compartment of the Hummer.

It is probable that thepackaging, handling and transportation of the drugs in their entirety were part of a joint operation involving Mr. Ivie and others. However, I find that it would be dangerous, considering all of the evidence, to find that Mr. Ivie was also in possession of the ecstasy forthe purpose of trafficking and accordingly find him not guilty of that count. ____________________________ The Honourable Judge G. Rideout Provincial Court of British Columbia APPENDIX A For the purpose of the Trial, in the above matter, the following facts are admitted by consent: 1.

On January 5, 2007, Constable Lamontagne seized the following items from a Hummer with the BC Licence plate 118 JPF (the“Vehicle”). A search of the engine of the Vehicle yielded the following (the “Items”): (

a) Two vacuum sealed plastic bags of cocaine wrapped in duck tape, weighing 1117.9 grams and 1085.9m grams (the “Vacuum SealedBags”); (

b) One Ziplock bag of cocaine in white grocery bag, weighing 1008.5 grams; (

c) One Ziplock bag of ecstasy, weighing 1006.4 grams; and (

d) One tube of an unknown substance in clear plastic wrapping, weighing 723.2 grams. 2. All of the items were tested for fingerprints. Mr. Ivie’s right thumb print was located on the outside one of two Vacuum SealedBags. The bag with Mr. Ivie’s print also had seven other fingerprints on the outside of it. It is unknown how long Mr. Ivie’s print hadbeen on the bag. No additional fingerprints of Mr. Ivie were found on any of the items. 3. The identity of Mr. Ivie is admitted. 4. None of Mr. McKenny’s fingerprints were found on any of the Items. 5. Mr. McKenny and Mr.

Ivie each provided statements to the Royal Canadian Mounted Police on January 5, 2007. Transcripts ofthese statements shall be entered as exhibits in these proceedings without the need for the Federal Prosecutor to call evidence as to same. The voluntariness of the statements is admitted.7 6. Possession for the purpose of trafficking is admitted, if possession is proven, without the need for the Federal Prosecutor to callevidence as to same. 7. If sold at the kilogram level, the value of the cocaine is approximately $75,000.00 - $96,000.00.

If sold at the gram level, thevalue of the cocaine is approximately $240,000.00. 8. If sold at the kilogram level, the value of the ecstasy is approximately $35,000.00. If sold at the gram level, the value of theecstasy is approximately $125,000.00. APPENDIX B Crown's Book of Authorities: R. v. lturriage, (BC CA), [1993] BCJ No. 2901 R. v. Gosselin, [2002] BCSC 1484

R. v. Sheehy, [2002] BCPC 398 R. v. Olson, [2004] BCSC 377 R. v. Tran, [2002] BCCA 550 R. v. Parchment, [2004] BCSC 1806 R. v. To, (BCCA) R. V. Morelli, 2010 SCC 8 R. v. Barreau, December 18, 1991, (BCCA) R. v. Fisher, 2005 BCCA 444 R. v. Webster, 2008 BCCA 458 R. V. Chualna, 2003 BCCA 650 R. v. Ngo. 2009 BCCA 301 R. V. LePage (1995), (SCC), 95 CCC (3d) 385 (SCC) APPENDIX C Defence Book of Authorities — D. Geller on Behalf of Mr. Ivie R. v. Khan (1998), (BC CA), 129 CCC (3d) 45 R. v. Okeefe, (ON CA), 121 CCC 273 R. V. Lepage, [1995] 1 SCr 654 R. V. Iturriagel, (BC CA), 43 BCAC 161 R. V. Sweezey, (ON CA), 27 CRNS 163 R. v. Kuhn, 15 CCC 92d) 17

R. v. Breau, 33 CCC 93d) 354 R. v. Mehrabnia, (ON CJ), 26 CR (4d) 98 R. v. Terrence, 4 CCC (3d) 147