R. v. Hardy Date:, 2013 BCPC 66

Citation: R. v. Hardy Date: 20130221 2013 BCPC 0066 File No: 195451-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHRISTOPHER LEE HARDY ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: K. MacWilliam Counsel for the Defendant: P. Ferguson Place of Hearing: Surrey , B.C. Dates of Hearing: December 18, 2012, January 24, 2013 Date of Judgment: February 21, 2013 [ 1 ] THE COURT : Christopher Lee Hardy is before the court on his trial following his plea of not guilty to the charge on Count 1

of Information 195451-1 that in company of Cory Stewart Mutchler, on or about the 19th of September 2012, at or near Surrey, BritishColumbia, he did unlawfully traffic in a controlled substance, to wit: crack cocaine, contrary to s. 5(1) of the Controlled Drugs andSubstances Act. [2] At this trial the Crown has called two witnesses; the undercover officer, Cst. Elam, and an arresting officer, Cst. Galos, and Mr.Hardy gave evidence in his own defence. [3] Cst. Elam stated that on September 19th of 2012 she was tasked in an undercover role to purchase cocaine through a dial-a-dope number.

She understood that she was to ask for "Junior" when she telephoned that number. [4] At about noon on that day she called the dial-a-dope number and asked for Junior. A male voice asked what she wanted andshe replied, "I want 40 hard," meaning crack cocaine. The male spoke to someone in the background. A meeting was then set up. Theundercover officer stated that she was Brittany and she was at the Best Buy parking lot at 100th Avenue and the King George Highwayin Surrey. The male voice then stated they will be right out, they are on their way, they will be ten minutes. [5] At 12:02, Cst.

Elam was dropped in the Best Buy parking lot by her cover team. At 12:20, she called the dial-a-dope numberagain, saying, "It's Brittany. I'm still waiting." The response from the same male voice was she relates in her evidence, "I told them togo there. They should be there in a black Honda.

I'll call them and tell them to get there fast." She then received a further call from thesame male voice stating that they are almost there. [6] These responses from the unknown male voice are admissible not for the truth of their contents, but in order to give context tothe actions of the constable and to explain how it is subsequent events came to occur. In any event, I have concerns about the preciseaccuracy of the words used, bearing in mind that time passed before those words were recorded by Cst. Elam. [7] At 12:27 p.m., a black Honda with tinted windows drove into the lot and parked in a stall. Cst.

Elam says there was apassenger looking out the window. She stated that she made eye contact with that passenger. The passenger window was partway downin the vehicle. She walked to the passenger's side of the vehicle and she leaned down. She looked inside. The driver had a clear plasticsandwich bag between his legs. The driver looked at her and said, "Are you Brittany?" She answered, "Yes. I thought you forgot aboutme." The driver stated, "It was 40 hard, right?" She responded, "Yes, 40. Here's the money." Cst. Elam stated that she took out two 20-dollar bills.

She handed them through the window to the passenger, while the driver reached into the bag and pulled out two small beigeitems which were wrapped. The passenger received the money from the constable. The driver handed the constable the two wrappeditems. [8] The driver said words to the effect, "Don't forget the number," and the passenger said, "Oh, right, the number." The passengerlooked in the console and then handed a pink piece of paper to the undercover officer with the handwriting stating "Cory/Zach," and aphone number.

The driver said to give her a lighter and the passenger got a lighter from the console area and gave that to Cst. Elam. [9] The constable stated the transaction lasted 30 to 60 seconds. She then walked away. She identified Mr. Hardy in court as thepassenger in the Honda. She was then picked up by members of her cover team and they drove to a Petro-Can station not far awaywhere the passenger and the driver were by that point in the custody of police. [10] In cross-examination Cst.

Elam agreed her notes of the conversation at the vehicle were put together at least 45 minutes afterthe transaction and may not be exact. She encapsulated what she says was the general conversation. There was other conversationwhich I ruled inadmissible at an earlier stage in this trial and at times the two individuals spoke over each other. The words of Mr.Hardy, "Oh, right, the note," spoken by Mr. Hardy on the evidence of Cst. Elam are from her memory and are not recorded in her notes,but it is what she says she recalls at this time. She cannot confirm or deny whether the driver said to Mr.

Hardy to give her the phonenumber. Most conversation was with the driver. She denied the suggestion that the driver took the money, not the passenger. [11] Cst. Galos, as the cover officer for Cst. Elam, observed her speaking with two occupants of a vehicle in the Best Buy parkinglot. He observed that Cst. Elam spoke at the passenger's side of the vehicle. He took certain photographs, which are marked in a bookletas Exhibit 3. Photographs 2 and 5 show the passenger's seat of that motor vehicle set back slightly from the driver's seat.

He participatedin surveillance of the vehicle from the Best Buy parking lot to a Petro-Can station at 96th and King George Highway. He saw thevehicle at a pump. Both individuals, Mr. Hardy and Mr. Mutchler, were out of the vehicle. He assisted in handcuffing Mr. Hardy. [12] He searched the vehicle and located a BlackBerry and pink Post-It notes. He searched Mr. Hardy and when he did so he found$160 in cash on his person. The buy money was not among that cash. That buy money, the two 20-dollar bills, was among $60 in cashwhich were seized from Mr. Mutchler.

Also seized from the co-accused, Mutchler, were 20 rocks of cocaine wrapped in cellophane,totalling 4.9 grams, and 11 pieces of heroin, totalling 1.1 gram. No drugs were found on Mr. Hardy. Hardy had a phone which rang justone time over a number of hours that it was in the possession of police and it was a call which cannot be related to drugs or drugtrafficking. [13] In cross-examination, Cst. Galos agreed that the time elapsed from the arrival of the vehicle at Best Buy to the signal from Cst.Elam that the transaction had concluded was less than a minute.

No drug related materials, packaging, score sheets or similar relatedmaterial were found in the possession of Mr. Hardy. [14] Mr. Hardy gave evidence. At the outset he acknowledged his criminal record. He has 23 adult convictions. I summarized theextent of that record in my ruling on a voir dire addressing admissibility of seven drug related convictions, most recently four convictionsin January of 2012. I ruled that he could be examined on all of those convictions.

In addition, his record includes five breachconvictions, three assault convictions, two dangerous driving convictions, one flight from police conviction, one driving whiledisqualified under the Criminal Code, one conviction for mischief and one conviction for theft. They covered the period August 2005 toJanuary 2012. [15] I as a trial judge may only consider that history for purposes of addressing Mr. Hardy's credibility as a witness. In that ruling Ireviewed the Supreme Court of Canada decision in R. v. Corbett (1998), (SCC), SCJ 40 (SCC), and the British

Columbia Court of Appeal decision in R. v. Fengstad (1998), BCJ 2931 (BCCA) . I have the constraints expressed in those decisions in mind as I assess the evidence of Mr. Hardy. [ 16 ] On September 19 of 2012, Mr. Hardy said he was living with his girlfriend on 132nd Street in Surrey. He spent about an hour working on his car that day with a friend named Bill, who he does some casual work with in an auto mechanic's business. Bill left, but then called Mr. Hardy and told him to meet him at the Canadian Tire store on King George Highway in the area of the Whalley Ring Road.

Apparently this related to a couple of parts needed for Mr. Hardy's car repairs. Bill said he was waiting there. [ 17 ] Mr. Hardy called his friend, Cory Mutchler, to arrange a lift to the Canadian Tire store. Mutchler said he could be at Mr. Hardy's shortly and to watch for him. Mutchler picked Mr. Hardy up and drove him to the Canadian Tire. Bill was there, but said that Mr. Hardy would have to now go to the Lordco store around 72nd and the King George Highway to obtain the parts he needed. Mr. Hardy said that the $160 found on him later by police was for the purchase of those parts. [ 18 ] Mr.

Hardy said that en route to Lordco, Mr. Mutchler unexpectedly drove into the parking lot of the Best Buy store. Mr. Hardy did not anticipate this, nor had he been told why the stop was being made. He says that he asked Mutchler, "What are you doing," and Mutchler replied, "Hold on a sec, I'll be quick." [ 19 ] Mr. Hardy says that Mutchler parked in a stall and sat up to look across Mr. Hardy and out the open passenger window. He waved to someone outside. Mr. Hardy looked and saw a person approaching the open passenger's side window. It was Cst. Elam in her undercover role.

He denies making eye contact with this individual. [ 20 ] Mr. Hardy related a conversation very similar to that related by Cst. Elam. Mutchler said, "Brittany, right?" She replied, "Yes." Mutchler said, "It was 40 hard, right?" She said, "Yes." [ 21 ] Hardy said he was a little concerned as Cst. Elam approached the car as to what was going on, but it was only at the point Mutchler referred to 40 hard that he knew this was a drug transaction. [ 22 ] He said she produced the money, which she passed in through the window.

He cannot say whether he took the money and passed it to Mutchler or whether it was Mutchler who did so. At that point Mutchler pulled a clear plastic bag from his pants and handed the two rocks of cocaine to Cst. Elam across Mr. Hardy's lap as he sat in the passenger's seat. [ 23 ] Mr. Mutchler then told Mr. Hardy to give Cst. Elam his number. Hardy said, "All right." Mutchler said it was in the centre console. Hardy found a Post-It note there and handed it to Cst. Elam. She said words to the effect, "Oh, cool. Thank you." He thinks he said, "You're welcome." Mutchler then asked Mr. Hardy to give Cst.

Elam a lighter. He handed her a lighter from the driver's door. Elam walked away and Mutchler drove out of the parking stall and they left the parking lot. [ 24 ] Mr. Hardy says it took about ten seconds for Cst. Elam to initially reach the car window, 20 to 30 seconds for the interaction to occur at the window, and within ten seconds thereafter they were leaving. He said he did not take steps to leave the vehicle or to protest because the events occurred so suddenly and unexpectedly.

He said he froze up and it was only a matter of about 40 seconds before it was over and the buyer was walking away. [ 25 ] Nothing was said as they drove on to the Petro-Can station nearby. They parked at a pump. Mr. Hardy says Mutchler went into the gas station. Mr. Hardy says he collected his personal items, got out and wanted to get away from there. He was walking away to a nearby Tim Hortons when he was arrested. He says that he got three or four steps on that route before his arrest took place. [ 26 ] He says no discussion or forewarning of this transaction was given by Mutchler.

The Mutchler telephone did not ring. [ 27 ] In cross-examination, Mr. Hardy says that he did not recall seeing Cst. Elam waiting until he noted her coming towards their vehicle. He denied making eye contact with her. He repeated that he did not know why she was approaching until the conversation was underway with Mutchler. He recalls saying only the words "Here you go" and "You're welcome" to her. If he took the money from her he said it was only in his hand a brief second before he passed it on. He knew at that moment it was money to buy drugs. He knew the number on the pink slip was Mutchler's number.

Hardy does not go by the name Junior, Cory or Zach and he does not know anyone named Zach. [ 28 ] He said in cross-examination he did not leave Mr. Mutchler's vehicle because he froze and was nervous and everything occurred quickly. He wanted to leave as soon as it happened. He has no logical explanation he says for handing over the slip of paper with the number on it or the lighter. He says he just wanted to get out of there. He agreed that he was composed enough to do these acts, but said he was not composed enough to leave, and as soon as she walked away the car was already in motion.

He denied being involved in a joint venture or activity to sell drugs with Mr. Mutchler. [ 29 ] Early in his cross-examination, Mr. Hardy was asked if he knew Leroy Batten. He denied he knew Leroy Batten. When pressed by Crown counsel he then admitted this answer was untrue. He agreed that Leroy Batten was his father. He said there was no reason for him to deny knowing Leroy Batten. In re-direct, Mr.

Hardy said that he did not expect to testify about his father and was surprised at that question which led him to answer initially as he did. [ 30 ] By admissions filed at the trial, the parties agree that the substance in issue here was cocaine. [ 31 ] Mr. Hardy faces the single count of trafficking in crack cocaine on September 19, 2012 contrary to s. 5(1) of the Controlled Drugs and Substances Act . [ 32 ] The Crown says Mr. Hardy's evidence is not to be believed and on the Crown's evidence I should find he is guilty of the offence of trafficking because he actually committed the offence with Mr. Mutchler.

In any event, the Crown says even were I to accept his evidence or in the event it raises a doubt as to how he came to be in the vehicle with Mr. Mutchler at a point contemporaneous with the transaction or its onset, he acquired knowledge of the purpose of the stop and the encounter with Cst. Elam and he then aided Mutchler

in its commission and thereby committed the offence. [33] Resolving whether all, part or none of Mr. Hardy's evidence should be accepted or whether it in any aspect raises a reasonabledoubt are necessary steps in resolving the issues at this trial. [34] Relevant to the assessment of the evidence are the following provisions of the Criminal Code addressing the definition of"parties" and "possession." [35] Section 21(1) of the Criminal Code states: Every one is a party to an offence who (

a) actually commits it; (

b) does or omits to do anything for the purpose of aiding any person to commit it; or (

c) abets any person in committing it. [36] Section 4(3) of the Criminal Code states the following: 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 ofanother 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 shallbe deemed to be in the custody and possession of each and all of them. [37] It is well understood that Mr. Hardy cannot be convicted of the offence simply on the basis that he was present at the time of itscommission. (R. v. Dunlop, (SCC), [1979] 2 SCR 881 (SCC)) [38] Whether the Crown says he actually committed the offence under s. 21(1)(

a) or aided in the commission of the offence under s.21(1)(b), the Crown must establish both the relevant actus reus and the mens rea of that offence. [39] Although the offence of trafficking does not require proof that Mr. Hardy had possession of the drugs, such a finding wouldsupport that argument.

The definition of possession set out above contemplates proof that the accused had both knowledge of the drugand was in a position to exercise control over it because it is in his actual possession or because it is knowingly in a place or with anotherperson for his use or benefit or under his direction. [40] There is no evidence that Mr. Hardy had any drugs at any time in his actual possession as contemplated in s. 4(3)(a)(i). [41] In respect of constructive possession, the evidence supporting that argument is the following. He was in the same vehicle. Hepassed money from the undercover operator to Mutchler.

He passed a note with a phone number for future use, although neither of thetwo names are associated to him. One is associated to a co-accused; the other is entirely unknown. That fact provides some support tothe argument that he was not a person who exercised any control over the drug. He passed the note essentially at the request of the otherperson, and similarly the lighter. [42] Mr. Hardy has taken the witness stand and said under oath that he did not know of the purpose of this encounter with Brittanyuntil the last possible moment as the transaction was underway.

He passed the money as a conduit he says from the undercover operatorto Mutchler, essentially on the sudden as it was passed in the window. That is the extent of his participation in the trafficking transactionhe says. He says he had no forewarning of it, although some concern or suspicion as the undercover operator came towards the vehicleabout what was occurring. [43] If I accept this evidence I could not conclude that Mr. Hardy had constructive possession, nor could I find that he had jointpossession with Mutchler of the drugs. [44] Mr.

Hardy's evidence does not differ dramatically as to the circumstances of the transaction itself from that given by Cst. Elam. An introduction occurred with the driver, Mutchler and confirmation of the amount of drug for an amount of cash, using crypticlanguage. The drug was passed in a wrapped condition by Mutchler to Elam, the money passed by Elam into the car I find was taken byMr. Hardy and immediately handed to Mutchler. [45] Hardy's evidence is that he was in the car for a legitimate, lawful purpose. He had no forewarning of the transaction until itactually occurred. He took no

part in it beyond taking the money and passing it on and handing over a note and a lighter at the request ofMutchler. [46] If I accept his evidence or if it raises a doubt I could not find him to be the principal in the drug transaction as contemplated bys. 21(1)(

a) on the basis that he actually committed the offence. [47] In assessing Mr. Hardy's credibility, I have taken account of his past criminal history for that limited purpose. I have taken

account of what was clearly untruthful evidence about the identity of his father and the subsequent explanation of that untruthful answer. The identity of his father was never shown to be relevant on the circumstances of this case before me. [ 48 ] I have concluded that these considerations do not provide a basis to reject Mr. Hardy's evidence. Further, his evidence was not otherwise shaken on cross-examination.

His explanation for the reason he was in the car, to purchase car parts, and providing an explanation for the cash he carried, the route being taken to reach the store and its convenience to the meeting location set up for the undercover transaction, the delay in getting to that location, evidenced of Cst. Elam's follow-up call to the dial-a-dope operation, the fact the cash was simply passed on by Mr. Hardy, that he never handled the drugs themselves, that his name is not on the slip of paper that he was asked to hand to Cst.

Elam, and similarly that he was asked to hand a lighter to her, all these points are supportive of and do not detract from his sworn explanation as to why he was present when this transaction occurred. [ 49 ] The question whether eye contact was made with Mr. Hardy by Cst. Elam as she says, or not as he says, does not really contribute to resolving this issue. It is too subjective a conclusion to say it did or did not happen or what, if it did occur, should be taken from that. [ 50 ] There is no evidence to contradict Mr.

Hardy's sworn evidence. [ 51 ] I have concluded that I can accept his explanation of the events leading up to the transaction occurring. Those facts do not support a conclusion that Mr. Hardy had at any point possession of the drugs under any aspect of the definition in s. 4(3) of the Criminal Code . [ 52 ] On that basis I conclude he did not actually commit the offence as contemplated in s. 21(1) (

a) of the Criminal Code . [ 53 ] The issue then is whether the evidence supports a finding on those facts and beyond a reasonable doubt that Mr. Hardy aided Mutchler in the commission of the offence and is therefore guilty pursuant to s. 21(1) (b). [ 54 ] I will summarize what must be proven for this purpose by slightly rewording the statement by Madam Justice Bruce of the Supreme Court in this province in a case called R. v. Kumar at paragraph 22. To establish this basis for the offence the Crown must prove that Mr.

Hardy had knowledge that Mutchler, the driver of the vehicle and the principal in the transaction, was intending to commit the offence of trafficking or was wilfully blind to that and acted with the intention of assisting him in the commission of the offence. ( R. v. Kumar 2006 BCSC 1686 at para. 22 ) [ 55 ] The limited evidence supportive of the Crown's argument here, based on my findings of fact and acceptance of Mr. Hardy's evidence, is that although he had some concern as Cst.

Elam approached, it was only at a later point, he believes that to be when Mutchler referred to 40 hard, that he realized this was a drug transaction. He says he froze up and in this state passed on the $40 cash handed in the window by Cst. Elam to Mr. Mutchler. [ 56 ] By the simple act of receiving and handing on the cash he facilitated the transaction and the commission of the offence.

I find this act, despite its very modest contribution to the consummation of the deal, in these circumstances amounts to the actus reus of aiding the commission of the offence of trafficking. [ 57 ] I will note here that this was a transaction which one can only conclude would have occurred whether Mr. Hardy was of assistance or not. If Mutchler could reach Cst. Elam to hand over the product, he could also have reached the cash offered by the constable. There is no evidence that he asked Mr. Hardy to take the money. That again in my view provides some consistency or at least is not inconsistent with Mr.

Hardy's description of his role. He simply reacted. [ 58 ] That then leads into the consideration of the mens rea of aiding this offence. [ 59 ] As I noted previously, the mens rea of aiding in the commission of the offence of trafficking requires Mr. Hardy know Mutchler's intention to commit the offence or was wilfully blind and acted with the intention of assisting him. [ 60 ] The Crown says first that Mr. Hardy had the knowledge. The Crown says this issue is resolved on its facts. At the time he took the money and passed it on, Hardy had heard reference to 40 hard and he knew this was a drug transaction.

With this knowledge he performed that act, aiding Mutchler to commit the offence. [ 61 ] The defence relies on a decision from the Ontario Court of Justice in 1998 called R. v. Lewin . In that case the accused was charged with trafficking in crack cocaine. He found himself in a vehicle with the principal offender and the buyer and with no warning at the point the transaction occurred he realized that this was a drug sale. He passed both the money and the drug as a conduit between the parties, the events occurring in a matter of seconds.

The facts suggest a stronger basis to be suspicious in that case than in the present case. There was no basis on those facts the Court concluded to find the accused had possession of the money or the drugs. In that case the Court reviewed a variety of authorities addressing purpose and timing and knowledge of the events and of the plans of the principal parties and at paragraph 21 the Court stated: In the case before me Mr. Lewin had no advance knowledge of what was going to transpire in Froggy's car, much less that he would be asked to assist.

The earliest point at which he could possibly have formed the intention to assist was the moment at which the substance was passed to him by Froggy. If that fleeting moment of time is insufficient to form the intent to accept possession and assert control of the drugs, then surely it must also be insufficient to form the intention to assist in the act of trafficking in a narcotic. The few seconds which transpired would barely be enough time to even register consciously that this was a drug transaction. It was not enough time in my view to conclude that Mr.

Lewin must have realized that this was a drug transaction and to have decided to assist in its commission by facilitating the transfer of drugs and money between Froggy and Mr. Hamad. The mere reflex type action of passing along something passed to you is not sufficient to establish the mens rea required to aid in the commission of the offence of trafficking. Since the essential ingredient of intention has not been proven Mr. Lewin is not guilty of aiding the commission of the offence by Froggy. ( R. v. Lewin , [1998] OJ 2929 (Ont. C.J. Molloy, J.) )

[62] Essentially, the same circumstances apply here. Although Mr. Hardy acknowledges that he knew a drug transaction wasoccurring, that information came at the last possible moment before the drugs and the money were produced for exchange. He had noforewarning with time to consider whether he would play a role. Indeed, he was never asked to play a role. The money I wouldconclude suddenly appeared in front of him and he passed it on. [63] The evidence before me of a state of knowledge and the timing of the acquisition of that knowledge relative to the modestcontribution made by Mr.

Hardy is no stronger, and arguably weaker, than was the case in Lewin. I conclude the Crown has not provenmens rea on that basis. [64] The Crown goes on to argue that the mens rea is established on the basis of wilful blindness. [65] In R. v. Briscoe in 2010 the Supreme Court of Canada discussed the concept of wilful blindness as it applies to the mens rea ofaiding and abetting. The Court said the following, at paragraph 21 and following: Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge wheneverknowledge is a component of the mens rea.

The doctrine of wilful blindness imputes knowledge to an accused whose suspicion isaroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. The Court then refers to its earlier decisions in R. v. Sansregret, (SCC), [1985] 1 SCR 570, and R. v. Jorgensen, (SCC), [1995] 4 SCR 55, and then the following is taken from the decision of Mr. Justice Sopinka in the Jorgensen case: ...

"[a] finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew orstrongly suspected that looking would fix him with knowledge?” [66] In the Sansregret decision the Supreme Court of Canada distinguished wilful blindness from recklessness, stating at page 584: ... while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that theprohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to makethe inquiry because he does not wish to know the truth.

He would prefer to remain ignorant. The culpability in recklessness is justifiedby the consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused’s fault indeliberately failing to inquire when he knows there is reason for inquiry. [67] In R. v.

Briscoe, the Court adopted the following statement by the well known criminal law commentator, Glanville Williams,and at paragraph 23 included the following statement from his general criminal law text: The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law. It is, at the same time, anunstable rule, because judges are apt to forget its very limited scope. A court can properly find wilful blindness only where it can almostbe said that the defendant actually knew.

He suspected the fact; he realised its probability; but he refrained from obtaining the finalconfirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness. It requires in effecta finding that the defendant intended to cheat the administration of justice. Any wider definition would make the doctrine of wilfulblindness indistinguishable from the civil doctrine of negligence in not obtaining knowledge. (Criminal Law: The General Part (2ndEdition, 1961) at p. 159) [68] In R. v.

Briscoe at paragraph 24, the Court referred to the expression "deliberate ignorance" and stated the following: ... the expression "deliberate ignorance" seems more descriptive than "wilful blindness," as it connotes "an actual process of suppressinga suspicion." Properly understood in this way, "the concept of wilful blindness is of narrow scope and involves no departure from thesubjective focus on the workings of the accused’s mind." While a failure to inquire may be evidence of recklessness or criminalnegligence, as for example, where a failure to inquire is a marked departure from the conduct expected of a reasonable person, wilfulblindness is not simply a failure to inquire but, to repeat Professor Stuart’s words, "deliberate ignorance." [69] The points of evidence which might support an argument for wilful blindness include a sudden unexplained detour into the BestBuy parking lot, the absence of any clear explanation as to the reason, the presence of a suspicion on the part of Mr.

Hardy thatsomething might be up, and the approach of a person towards the vehicle. I repeat here that wilful blindness has a very limited scope. Itonly applies, as Glanville Williams has stated, where it can almost be said that the defendant actually knew. [70] The facts here as I have found them do not support that conclusion. Mr. Hardy has given evidence in this case which I haveaccepted. Mr. Hardy has not stated that he had the strong and compelling suspicion that a drug transaction was about to occur whichthese passages describe as supporting wilful blindness.

Further, those circumstances do not on their face support that inference as theonly reasonable inference to be drawn. There is no basis to conclude Mr. Hardy acted to suppress a compelling suspicion or that herefrained from obtaining final confirmation because he wanted to be able to deny knowledge. The Crown has failed to prove mens rea onthe basis of wilful blindness. [71] In respect to the outcome here, I have the benefit of the evidence of Mr. Hardy given under oath, which was not the case in

several of the authorities relied on by the Crown in addressing the mens rea issue, including R. v. Briscoe, supra, R. v. Ivie , [2011] BCPC 18, R. v. Kumar , supra, and, it appears on my reading, in R. v. Nguyen 2003 BCCA 556 . [ 72 ] Mr. Hardy is acquitted on the single charge he faced, trafficking in cocaine on September 19th, 2012. (REASONS FOR JUDGMENT CONCLUDED)