Her Majesty the Queen - v. -, 2017 SKPC 102

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 102 Date: December 1, 2017 Information: 36657969 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Imran Khan Appearing: C. Carlson For the Crown B. Pfefferle For the Accused JUDGMENT D.C. SCOTT , J Introduction [ 1 ] The accused Imran Khan is charged that on October 20, 2015: 1) he had in his possession a controlled substance, cocaine, for the purpose of trafficking, contrary to s. 5(2) of the Controlled

Drugs and Substances Act [ CDSA ]; 2) he had in his possession a controlled substance, methamphetamine, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act ; 3) he had in his possession, property or proceeds obtained by the commission of a crime, in a value exceeding $5000 contrary to s. 354 and s. 355 (

a) of the Criminal Code . [ 2 ] The trial in this matter was heard on October 10 and 11, 2017. The Crown and defence filed a written ‘Admission of Facts’. In addition, the Crown called as witnesses Cst. Michael Johnson, Cst. Cody Bishop, Cst. Cameron Graves, Cst. Gregory Pozniak, Cst. Kelly Tryon, Retired Sgt. Donald Buratenski, Cst. James Ferguson, and Sgt. Brock Lynden. As well, a number of exhibits were tendered by the Crown and admitted by consent.

The accused Imran Khan testified on his own behalf. [ 3 ] The sole issue in this case is whether the accused was in possession of the cocaine, methamphetamine and cash seized by the police. Background [ 4 ] On October 17, 2015, a Buick Verano (the “Verano”) bearing licence plate 915 JLZ was the subject of surveillance by the Integrated Organized Crime North Unit (IOCN) of the Saskatoon Police Service. On that date, officers observed two unidentified males enter the vehicle and drive from a 7 th Street apartment building, located at 2301 - 7 th Street East, to other locations in Saskatoon.

The vehicle had been rented by the accused Imran Khan. [ 5 ] On October 20, 2015, during surveillance by IOCN, the Verano was observed travelling from the 7 th Street apartment building to an apartment building located at 102 Willis Crescent. Later that day, officers with IOCN conducted a takedown of the Verano vehicle in a McDonald ’ s drive-thru. The driver of the vehicle was Jesse Secher. Passengers in the vehicle were Nicholas Valcamp and Brody Laronge. The accused, Imran Khan, was not present. Seized from Jesse Secher were two cell phones and the keys for the rental vehicle.

As well, house keys were located on the car key chain. It was later determined that the house keys were for the apartment on Willis Crescent, subsequently searched. In the console of the vehicle was found a rental agreement in the name of Imran Khan and a speeding ticket in his name.

Cash in the amount of $320 was found in the Verano console. [ 6 ] On the same day, Saskatoon Police Service officers also entered with a search warrant, three locations in Saskatoon, being #2 – 2301 – 7 th Street East ( “ 7 th Street Apartment ” ); #1105 – 102 Willis Crescent (the “ Willis Crescent Residence ” ); and a storage locker at #208, 3010 – 11 th Street West. [ 7 ] The 7 th Street Apartment was rented by Benjamin Pearson. The Willis Crescent Residence was rented by the accused Imran Khan and Christopher Manila.

The storage locker was rented by Nicholas Valcamp. [ 8 ] Property seized included cocaine, methamphetamine and cash. At the Willis Crescent residence, 136 grams of cocaine and 45.8 grams of methamphetamine were found packaged in varying amounts in individual baggies. Also found was phenacetin, a cutting agent, weighing 158.8 grams and packaged in one large and one small baggie, and a baggie of marijuana. The cocaine was found in the kitchen and in a locked safe within a suitcase in the closet of the smaller of two bedrooms. Most of the methamphetamine was found in the same safe.

Various drug paraphernalia and other indicators of drug trafficking were located at the Willis Crescent Residence, including baggies and score sheets. [ 9 ] A total of $32,000.00 in cash was found at the Willis Crescent Residence in varying denominations, primarily $20.00 bills. Except for $1,930.00 found in the kitchen stove-top and $550.00 found in the smaller bedroom nightstand, all of the cash was located in the safe in the smaller bedroom.

[ 10 ] A passport, identification and a cell phone belonging to Benjamin Pearson were also located in the smaller bedroom nightstand. A cell phone belonging to Brody Laronge was found at the Willis Crescent Residence. Jesse Secher’s wallet and Nicholas Valcamp’s licence were located in the living room. Other cell phones, baggies and score sheets were also found at the Willis Crescent Residence. [ 11 ] A Promise to Appear document, dated July 30, 2015 and issued to Mr. Khan, was located in the master bedroom of the Willis Crescent Residence. [ 12 ] Sgt.

Blomquist located three fingerprints suitable for comparison on a digital scale seized from the Willis Crescent Residence. Prints R1 and R2 were located on the silver portion of the scale on the top; R3 was located on the black portion of the scale on the underside. R1 was compared to two sets of known prints from the accused Imran Khan and both were a match to his left thumb. Due to insufficient detail, neither the left thumb of Mr.

Khan or pinky finger of Brody Laronge could be positively identified or excluded as a match for R2. [ 13 ] At the 7 th Street Apartment, a wallet with Secher ’ s documents, score sheets, baggies, various keys and an iPhone were seized. [ 14 ] In the storage locker, score books for “Chase” “Jesse” and “Wayne” were located along with a safe, vehicle rental receipts, and prepay cell phone receipts. A rental agreement in the name of Mr. Khan in relation to a Honda Civic was also located in the storage locker. [ 15 ] On October 20, 2015, Mr.

Khan was not present in the Verano or at the Willis Crescent Residence, the 7 th Street Apartment or the storage locker. [ 16 ] None of the officers had any dealings with the accused Imran Khan on October 20, 2017 or at any time prior to the events of October 20, 2017. [ 17 ] With consent of the defence, Cst. James Ferguson of the RCMP was qualified to give expert testimony with regard to: (1) methods of packaging, distribution and pricing of cocaine and methamphetamine; (

b) value, usage and trafficking of cocaine and methamphetamine; (

c) general usage, effects and observable signs of cocaine and methamphetamine use and usage patterns; (

d) language and paraphernalia associated with possession, use and distribution of cocaine and methamphetamine; and (

e) use and possession of cell phones to facilitate the trafficking of cocaine and methamphetamine. [ 18 ] Cst. Ferguson’s expert witness report was tendered by consent. According to Cst. Ferguson, the quantities and packaging of the drugs, along with the paraphernalia and the cash seized, was consistent with drug trafficking. The items were not consistent with someone possessing the drugs for their personal use. [ 19 ] A number of cell phones were seized. According to Cst. Ferguson, the text messages extracted from the cell phones were consistent with drug trafficking through a dial-a-dope operation.

Drug dealers working as a team will operate a number of different cell phones when arranging their deals. Officers seized an envelope full of cut-out slips of paper on which the number “306-241-8376” was written. Cst. Ferguson believes this was the dial-a-dope number being used by the group. The cell phone associated with this number was found in Secher’s pocket. [ 20 ] It was the expert’s opinion that Mr. Khan, Secher and Valcamp were in possession of cocaine and methamphetamine for the purpose of trafficking. [ 21 ] Mr. Khan testified on his own behalf.

He is from British Columbia and acknowledged being in Saskatoon between June or

July of 2015 and early October 2015. Mr. Khan was on bail conditions in British Columbia, but obtained permission from his bail supervisor to travel to Saskatchewan for work. [ 22 ] He admitted that he had rented two or three vehicles while in Saskatoon, including the Verano. Some were rented from Thoen’s and the Verano from Enterprise. He testified that one of the Thoen vehicles had been involved in an accident. He owed Thoen’s money so he switched to Enterprise. He rented the Verano on a monthly basis because it was cheaper than renting it by the week.

He paid by cash deposit and the balance by credit card. [ 23 ] Mr. Khan testified that he and a co-worker, Christopher Manila, entered into a one-year lease of the Willis Crescent Residence on September 6, 2015. Mr. Khan had come to Saskatoon to work in construction for his British Columbia employer. He did not receive the full-time hours that he expected, so he decided to return to British Columbia. Mr. Manila also left Saskatoon. During his time in Saskatoon, Mr. Khan met and became friends with Benjamin Pearson, who offered to take over the lease of the Willis Crescent Residence in early October 2015. Mr.

Khan asked Pearson to return the Verano for him. By mid-October, Mr. Khan had left the province. [ 24 ] Mr. Khan denied knowing that Mr. Pearson was involved in the trafficking of cocaine and methamphetamine or that he would be using the Willis Crescent Residence for that purpose. Mr. Khan denies knowing Jesse Secher or others in the Verano at McDonald’s. He stated he did not know the Verano would be used for drug trafficking. Mr. Khan testified nothing at the Willis Crescent Residence belonged to him, including the drugs, safe, cash and scale. According to Mr. Khan, the scale belonged to Christopher Manila.

He and Mr. Manila would purchase marijuana, splitting it between the two of them. They used the scale to weigh the marijuana. He acknowledged he may have touched the scale at some point. Crown Position [ 25 ] The Crown alleges the accused was involved in a joint enterprise with others, including Pearson and Secher, to sell cocaine and methamphetamine using cell phones and that the drugs found at the Willis Crescent Residence were for re-sale by them.

The Crown alleges that the cash seized was proceeds from the sale of cocaine and methamphetamine. [ 26 ] It is the Crown’s position that a reasonable inference can be drawn from the circumstances that the accused had the requisite knowledge and control over the cocaine, methamphetamine and cash found in the Residence. Defence Position [ 27 ] It is admitted by the defence that the drugs were possessed for the purpose of trafficking and that the cash was obtained by the commission of an offence.

The defence submits the Crown has failed to prove beyond a reasonable doubt that the accused was in possession of the drugs and cash. [ 28 ] The defence argues that the evidence obtained by the police does not indicate the accused had knowledge of what was in the Willis Crescent Residence. The defence argues that while the accused had signed a lease for the Willis Crescent Residence and had at one time resided there, establishing a link between the accused and the apartment, this connection is insufficient from which to infer that he knew there were drugs in the Willis Crescent Residence.

Discussion [ 29 ] The sole issue is whether Mr. Khan was in possession of the drugs and the cash. Law re: possession

[30] The definition of “possession” for the purposes of s. 5(2) of the CDSA is found in s. 4(3) of the Criminal Code 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 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. [31] Therefore, possession can be personal, constructive or joint. In order to establish that an individual is in possession, it must beproven that the individual had knowledge of and control over the substance. [32] Personal possession under s. 4(3)(

a) of the Criminal Code requires physical custody or manual handling of the item,as well as knowledge as to the nature of the item and some act of control over it: R v Beaver (SCC), [1957] SCR 531(SCC). [33] Constructive possession under s. 4(3)(a)(

i) and 4(3)(a)(ii) of the Criminal Code requires that the accused (1) hasknowledge of the character of the object; (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs tohim; and (3) intends to keep the object in the particular place for his “use or benefit” or that of another person: R v Morelli, 2010 SCC 8para 17, 252 CCC (3d) 273. [34] In R v Pham, (ON CA), 203 CCC (3d) 326, [2005] OJ No 5127 (QL) [Pham], the Ontario Courtof Appeal addressed the issue of constructive and joint possession.

The court held that “to constitute constructive possession…theremust be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to bepossessed”: para 15. [35] To constitute joint possession, “there must be knowledge, consent, and a measure of control on the part of theperson deemed to be in possession”: Pham, para 16. “If there is the power to consent there is equally the power to refuse and vice versa.

They each signify the existence of some power or authority which is here called control, without which the need for their exercise couldnot arise or be invoked”: R v Terrence (SCC), [1983] 1 SCR 357, quoting R v Colvin and Gladue, (BCCA), 78 CCC 282 245, [1943] 1 DLR 20 at p. 25 (BCCA). [36] Proof that the accused has knowledge of the presence of narcotics may be established by circumstantial evidence: Rv Sparling, [1988] OJ No 107 (QL) (HCJ) at p. 6, upheld on appeal: R v Sparling, [1988] OJ No 1877 (QL) (Ont CA).

The onus is onthe Crown to prove beyond a reasonable doubt all of the essential elements of the offence of possession by direct evidence or byinference from circumstantial evidence. [37] In R v Switucka, 2009 SKQB 260, 336 Sask R 311, Chief Justice Popescul dealt with proof of joint and constructivepossession by circumstantial evidence. The Court recognized that in a circumstantial case, it must be satisfied beyond a reasonable doubtthat guilt is the only reasonable inference to be drawn from all of the proven facts.

Further, the court must be careful that the inferencesdrawn be distinguished from conjecture or speculation. Circumstantial evidence

[38] There is no direct evidence of Mr. Khan possessing the controlled substances or the cash. The Crown must rely oncircumstantial evidence to prove Mr.

Khan was in such possession. [39] The rule in Hodge’s case provides that the Court must be satisfied “not only that the circumstances are consistentwith the accused having committed the act but that the facts were inconsistent with any other rational conclusion than that the accused isguilty.” The Court must be satisfied beyond a reasonable doubt that the only rational inference to be drawn from the circumstantialevidence is that the accused is guilty: R v Griffin, 2009 SCC 28, [2009] 2 SCR 42 at para 33.

In R v Villaroman, 2016 SCC 33 [Villaroman], Cromwell J. suggests that while the term “rational” in this context is correct, the court prefers the term “reasonable”inference: paras 32-34. [40] When assessing circumstantial evidence, the court should consider “other plausible theories” and “other reasonablepossibilities” that are inconsistent with guilt.

The question is whether the circumstantial evidence, viewed logically and in the light ofhuman experience and common sense, is reasonably capable of supporting an inference other than that the accused is guilty: Villaroman,paras 37-38. [41] To justify a conviction, the circumstantial evidence assessed in the light of human experience should be such that itexcludes any other reasonable alternative: Villaroman, para 41. The alternative inferences must be reasonable, not just possible:Villaroman, para 42. W.(D.) [42] Because Mr.

Khan testified on his own behalf, I am mindful of the principles of and analytical framework set out in thedecision of R v W.(D.), (SCC), [1991] 1 SCR 742. If I believe the accused, I must acquit. If I do not believe theaccused, but if I am left in reasonable doubt by the accused’s testimony, I must acquit. If I do not believe the accused and am not left indoubt by his evidence, I must consider whether I am convinced of Mr. Khan’s guilt beyond a reasonable doubt on the whole of theevidence that I do accept. [43] In applying that framework, I must consider Mr.

Khan’s testimony in light of all of the evidence when assessing his credibilityand determining whether the Crown has proven the offence beyond a reasonable doubt. I recognize the burden is on the Crown to provethat the evidence as a whole establishes Mr. Khan’s guilt beyond a reasonable doubt. [44] The following circumstances have been proven: 1. Mr. Khan was a lessee of the Willis Crescent Residence along with Manila; 2. The lease was signed only by Mr. Khan on September 6, 2015; 3. Mr. Khan remained the lessee of the Willis Crescent Residence after leaving Saskatoon; 4. Mr.

Khan continued to pay the rent for the Willis Crescent Residence, although he testified Pearson reimbursed him; 5. Most of the drugs and cash were seized from a safe within a suitcase in the small bedroom closet of the Willis CrescentResidence;

6. The key to the safe was not located by police; 7. Identification and a cell phone belonging to Pearson and $550 cash were located in the small bedroom night stand; 8. Smaller amounts of pre-packaged cocaine and a small amount of methamphetamine and $1,930.00 cash were located in the kitchen at the Willis Crescent Residence; 9. A Promise to Appear issued to Mr. Khan on July 30, 2015 was located in the master bedroom of the Willis Crescent Residence; 10. On September 24, 2015, Mr. Khan entered into a monthly contract for the rental of the Verano; 11.

Three people, Secher, Laronge and Valcamp were found in the Verano at McDonalds on October 20, 2015; 12. Secher possessed keys to the Verano and to the Willis Crescent Residence; 13. $320 cash was found in the Verano; 14. A speeding ticket issued to Mr. Khan on September 27, 2015, was found in the Verano; 15. On October 20, 2015, the Verano was observed travelling from the 7 th Street Apartment and Willis Crescent Residence, driven by Secher; 16. Pearson was the renter of the 7 th Street Apartment; 17.

When Secher was arrested he was found in possession of keys to the Verano and to the Willis Crescent Residence; 18. Personal items belonging to Secher were found at 7 th Street Apartment; 19. A key to the storage locker was found at the 7 th Street Apartment; 20. The storage locker was rented by Valcamp on October 15, 2015; 21. Seized from the storage locker on October 20, 2015 was evidence of a dial-a-dope operation, including car rental receipts, pre-pay cell phone receipts and score cards; 22. A rental agreement in Mr. Khan’s name for a Honda Civic was found in the storage locker; 23.

According to the rental agreement, the Honda Civic had been rented on September 9, 2015 and was to be returned on October 16, 2015;

24. A fingerprint belonging to the accused was located on a digital scale seized from the Willis Crescent Residence; 25. No other fingerprints, including those of Pearson or Manila could be located on the scale; 26. Mr. Khan was not present when items were seized from the Verano, the 7 th Street Apartment, the Willis Crescent Residence or the storage locker. [ 45 ] I accept the expert’s opinion, based upon the evidence seized, that the individuals who possessed the drugs, cash and other paraphernalia were involved in a dial-a-dope operation.

According to the expert, the cell phone associated with the dial-a-dope operation was found in Secher’s pocket. There is no evidence that any of the seized phones were associated with Mr. Khan. The expert testified that drug dealers working in a group typically do not use their own vehicles. Instead, rental vehicles are commonly used. This allows dealers to change vehicles from time to time to avoid detection. Nonetheless, he did state that it was not uncommon for small or mid-level dealers to engage in trafficking from their own vehicles or residences.

The Accused ’s Testimony [ 46 ] It is within the context of the foregoing proven facts that I must assess Mr. Khan’s testimony. He denies any knowledge of the drugs or cash. Further, he denies any knowledge of a drug trafficking operation associated with the Willis Crescent Residence. He denies knowing that Pearson trafficked in drugs. [ 47 ] As mentioned, Mr. Khan entered into a one-year lease for the Willis Crescent Residence on September 6, 2015. He acknowledged that as early as nine days later, he began thinking about returning to British Columbia. According to Mr.

Khan, by mid- October 2015, he had returned to British Columbia. [ 48 ] Mr. Khan explained his decision to return to British Columbia was two-fold. First, by mid-September, he lacked full-time work hours. Further, he explained that, having grown up in Vancouver, he did not wish to spend a cold winter in Saskatoon. Mr. Khan grew up in Canada, but stated he did not know it would get as cold as “minus 40”. This explanation is not credible, given his testimony that he made his decision to leave in September, when it is not typically that cold.

Further, he would have known about the Saskatchewan climate before committing himself to the extended residential lease. I do not accept Mr. Khan’s reasons for leaving Saskatchewan. [ 49 ] Mr. Khan explained that he continued to pay the rent for the Willis Crescent Residence with reimbursement from Pearson, so as not to alert or concern the landlord. He explained that he had paid the rent on the Verano for one month and did not think he could return it earlier. [ 50 ] I agree with the Crown that it defies logic or common sense for Mr.

Khan to have entrusted the responsibility for the Willis Crescent Residence and rental car to Pearson, someone he had known for only a few months. There were approximately 10 ½ months remaining on the Willis Crescent Residence lease. No credible explanation was given for why Mr. Khan did not simply arrange for Pearson to take over the lease for the Willis Crescent Residence directly with the landlord. Further, Pearson already rented the 7 th Street Apartment and therefore if he were reimbursing Mr. Khan, Pearson would have been paying rent on two apartments. [ 51 ] Mr.

Khan testified that he rented two or three vehicles during the time he was in Saskatoon in the summer and early fall of 2015. He stated he used these small or mid-sized vehicles for employment purposes in the construction industry. [ 52 ] It appears Mr. Khan had rental agreements on more than one vehicle for a period of time. He rented a Honda Civic on

September 9, 2015, which was to be returned on October 16, 2015. He also rented the Verano on September 24, 2015 for one month.Yet, by mid-September 2015, he had begun to consider returning to British Columbia. It would not have been reasonable to rent theVerano for one month at that time, given his uncertainty with his job. Further, Mr. Khan did not adequately explain why he could nothave returned the Verano before he left Saskatoon, rather than leaving it in the hands of Pearson. [53] Mr. Khan also testified that he did not know Secher or any of the other individuals referred to during the trial.

This wouldhave included Valcamp. Yet, Mr. Khan’s rental agreement for the Honda Civic was found in a storage locker rented by Valcamp. [54] Attached to the Promise to Appear was a paper with handwritten information about Dave Pierce Construction, various worklocations, a job description and wage. The Crown alleges this was Mr. Khan’s “cover story” in case he was asked by anyone about hisactivities in Saskatchewan. Mr. Khan explained that he had been charged with violating his conditions by being in Saskatchewan.

Heexplained to the police that he had permission from his bail supervisor to be in Saskatchewan for employment purposes. He was toprovide this information to his bail supervisor in British Columbia and the police in Saskatchewan. On the back of the Promise toAppear is an itemized list of information he was to provide, along with a British Columbia fax number and Cst. Weslowski’s name. Mr.Khan’s explanation is reasonably plausible. [55] In addition, I find his explanation regarding the fingerprint on the digital scale to be plausible. However, I reject Mr.

Khan’s explanations for renting the Willis Crescent Residence and Verano, his reasons for turning them over toPearson, and for returning to British Columbia. [56] Left with these questions about the accused’s evidence, I must consider, on the evidence that I do accept, whether the Crownhas proven beyond a reasonable doubt that Mr. Khan was in constructive and/or joint possession of the cocaine, methamphetamine andcash. Is the only logical inference from the circumstantial evidence that Mr.

Khan knew of the drugs and cash, consented to the drugsand cash being kept at the Willis Crescent Residence in his absence, and that he maintained some measure of control over the drugs andcash? [57] Mr. Khan remained the lessee of the Willis Crescent Residence and continued to pay the rent, but had turned over thepremises to Pearson. The drugs and money were found primarily in the safe within a suitcase inside the closet in the smaller bedroom,where Pearson’s passport, identification and cell phone were located, although small amounts of drugs and cash were found in other areasof the Willis Crescent Residence.

A single fingerprint and a Promise to Appear were the only items found in the Willis CrescentResidence associated with Mr. Khan. The key to the Willis Crescent Residence was found on Secher. According to Cst. Ferguson, whiletraffickers tend to use rental vehicles and stash houses to maintain secrecy, it is not entirely uncommon for smaller level traffickers to selldrugs out of their homes and vehicles. [58] The defence argued that by continuing as the lessee and paying rent on the Willis Crescent Residence, Mr. Khan did notnecessarily maintain control over or have knowledge of its contents.

On that point, the defence relied on the following cases: [59] In R v Bertucci (2002), (ON CA), 169 CCC (3d) 453 (Ont CA), cocaine was found hidden inthe ceiling of a basement bedroom and a closet adjacent to the bedroom, and drug paraphernalia in the bedroom area. On appeal, aconviction was reversed, where the trial judge’s jury charge suggested the accused could be convicted for possession of the drugs if hehad knowledge of the drugs and was responsible for the bedroom.

The Court held that “more than mere responsibility for a room inwhich drugs are found is required in order to establish possession”: p. 459. [60] In R v Sappleton, [2009] OJ 708 (QL) (SCJ), the Court could not infer beyond a reasonable doubt that the accusedhad possession of two loaded handguns located under cushions of the couch on which he and two others were sitting when the policearrived. The guns were in the accused’s mother’s residence and while he lived elsewhere, he had slept at her residence on one or twooccasions.

The guns could have been secretly placed in the couch by any of the three people present. [61] In R v Tse, (ON CA), [2002] OJ No 966 (QL), 157 OAC 127 (CA), the Court found there wasinsufficient evidence upon which the jury could find the accused had knowledge of drugs found in a residence which she frequented.

[62] The Crown relied on the following cases: [63] In R v Ngo, 2009 BCCA 301, 273 BCAC 174, the accused’s conviction was upheld where he was arrested leaving aresidence which contained a marihuana grow-operation. Neither the residence nor the utilities were in his name. No fingerprints werefound on items relating to the grow-operation. A vehicle registered in the accused’s name, associated with a different address wasparked in the driveway. Two other vehicles present were registered to other persons.

Personal items belonging to the accused, includinga driver’s licence in a wallet and photographs of him were located in numerous areas of the residence. Based upon the circumstantialevidence, the Court found that the accused had both knowledge and control of the grow operation or at least had aided and abetted aprincipal party. [64] In R v Dipnarine, 2014 ABCA 328, 316 CCC (3d) 357 (Dipnarine] , the accused and his co-accused wererenters of a house where cocaine and packaging material were located in plain view in a basement. Both individuals had signed the leasefor the residence. There were no other occupants.

The landlord collected cash rent from both. When the search warrant was executedby the police, the accused was not home and had not been observed during their surveillance. The only evidence against the accused wasthe cocaine, packaging material and personal documents in his name.

The Court of Appeal in upholding the conviction, stated that themeasure of control required is not “exclusive control nor pre-dominant control”: para 18. [65] The Court in Dipnarine referred to R v Wu, 2010 BCCA 589, 298 BCAC 84, where the Court stated that the Crownmust prove an accused had the ability to exercise some power (i.e. some measure of control) over the item in issue.

It is not necessary forthe Crown to prove that such power was in fact exercised: paras 20-21. [66] The Court of Appeal in Dipnarine found there was no evidence to support a proposition that the cocaine wasexclusively under the control of the co-accused and the accused was not in a position to “exercise a directing or restraining power” overthe cocaine or that he lacked any “measure of control” over it. The drugs were found in the middle of the floor of a large, unfinishedbasement room with an unlocked door leading to it.

The Court stated that it was demonstrated that whoever was handling the drugs inthe residence held a level of trust, so as to support a common sense inference about co-participation: para 26. [67] The present case is distinguishable from Dipnarine to some extent. The bulk of drugs and cash found locked in asafe in Pearson’s bedroom might not suggest co-participation, as in Dipnarine, where the drugs were found in the middle of the basementfloor behind an unlocked door.

The same could not be said, however, for the balance of seized items scattered throughout the residencein plain view, where the accused had resided only a few days prior to their seizure.

These items included baggies, score sheets, scales andsmaller portions of drugs as well as the not insignificant amount of cash totalling $1,930.00 found in the stove-top, all evidence of drugtrafficking. [68] As previously mentioned, according to Villaroman, when assessing circumstantial evidence, the court shouldconsider “other plausible theories” and “other reasonable possibilities” that are inconsistent with guilt. [69] One possible inference that might be drawn from the evidence, is (1) that Pearson was involved in a traffickingoperation with Secher, Laronge and Valcamp without any involvement by Mr.

Khan; (2) that Pearson offered to assume responsibilityfor the Willis Crescent Residence and the vehicle, as a favour to Mr. Khan, with a view to using the Willis Crescent Residence andvehicle for his operation, without disclosing his intention to Mr. Khan; and (3) that Pearson took possession of the Willis Crescent Residence without informing Mr.

Khan that he intended to maintain the 7th Street Apartment. [70] However, this theory does not take into account significant aspects of the evidence. [71] The evidence is clear that Pearson, Secher and Valcamp were jointly engaged in a commercial dial-a-dope enterprise out ofthe Willis Crescent Residence. Mr. Khan was close enough to Pearson to trust him with the leased residence and Verano. I haverejected Mr. Khan’s testimony regarding the reasons for renting the Willis Crescent Residence and Verano when he did and for turningthem over to Pearson. Furthermore, Mr.

Khan was secretive in doing so, by continuing to pay the rent while failing to notify the landlordthat the residence had changed hands. I also reject Mr. Khan’s stated reasons for leaving Saskatchewan so abruptly. Mr. Khan’sdeparture so soon after entering into a long-term lease suggests he never did have the intention of living there long-term and that heleased the residence for other purposes.

[ 72 ] The evidence discloses connections between Mr. Khan, Valcamp and Secher, contrary to his assertion that he did not know these individuals. The Verano was used by Secher and Valcamp. Mr. Khan’s Honda Civic rental receipt was found, along with evidence of a dial-a-dope operation, in the storage locker rented by Valcamp. This evidence is significant; there is no logical explanation unless Mr. Khan knew about the operation. [ 73 ] Consistent with the expert’s testimony regarding dial-a-dope operations, Mr. Khan rented a number of different vehicles, some of them at the same time. [ 74 ] The evidence of Mr.

Khan’s fingerprint on the scale, on its own, would not be conclusive of Mr. Khan’s participation. However, it is not inconsistent with his guilt either. Similarly, his explanation regarding the so-called “cover story” may be plausible, but the notes are also consistent with the Crown’s evidence that they amounted to a cover story in case he was stopped. Mr. Khan’s lack of truthfulness on other matters, casts doubt on these explanations as well. [ 75 ] Any inference that drug trafficking from the Willis Crescent Residence was operating independently of Mr.

Khan and without his knowledge and consent cannot be supported by the evidence. [ 76 ] The evidence, taken in its totality, leads to the conclusion that the only logical inference to be drawn is that Mr. Khan knew of the dial-a-dope operation and that he participated in it. He made available the Willis Crescent Residence, as a location where the drugs and cash could be stored. He provided the Verano, which was used by Secher and Valcamp. That Mr.

Khan turned over the residence and the vehicle to Pearson, Valcamp and Secher, indicates his consent to their being used for the drug trafficking operation. [ 77 ] In all of the circumstances, the only reasonable explanation for Mr. Khan having entrusted the Willis Crescent Residence and Verano to Pearson was that Pearson was responsible for the drug trafficking operation in Mr. Khan’s absence. The only reasonable inference to be made is that Mr. Khan knew the Willis Crescent Residence was being used for the drug trafficking operation and that he consented to it.

He lived in the residence until only days before October 20, 2015, when the drugs and cash were found there. Because he maintained his status as the lessee of the premises, he continued to be responsible for the premises and would have been entitled to enter the premises at any time, thereby having some measure of control or authority of the known contents of the premises. [ 78 ] The circumstantial evidence, taken as a whole, is sufficient to establish beyond a reasonable doubt that the only reasonable inference is that Mr.

Khan knew of the drugs and cash and that he had some measure of control, power or authority over them. [ 79 ] I therefore find the accused Imran Khan guilty on all counts. _______________________ D.C. Scott, J