Her Majesty the Queen - v. -, 2017 SKPC 70

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 70 Date: December 13, 2017 Information: 38010467 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Brody Nicholas George Senger Appearing: Carol Carlson For the Crown Brian Pfefferle For the Accused JUDGMENT B.G. MORGAN , J I. Introduction [ 1 ] Mr.

Senger was one of four individuals arrested in the early morning hours of August 19, 2016, and charged with possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act (CDSA) . This is a largely circumstantial case in which the central issue is whether it can be inferred that Mr. Senger had sufficient knowledge and control to constitute possession under s. 4(3) of the Criminal Code .

[ 2 ] The overall circumstances are really not in dispute, and at the outset of this decision I want to thank both counsel for their handling of this case. Mr. Pfefferle candidly admitted things that were not in issue, and Ms. Carlson as well agreed to processes which saved considerable court time and allowed everyone to focus on the central issue. [ 3 ] I will start by dealing with the overall facts, relying on some admissions, although primarily on the evidence of the two arresting officers as to the circumstances they encountered.

I will deal with disputed facts when I look into the credibility and reliability of each of the two defence witnesses, namely the accused, and Mr. Braden Earis, an individual who was originally charged but maintained that the charges against him were dropped. I will comment on the credibility of the various police witnesses where necessary although, as indicated, much of what they said is really not in dispute.

I will then set out the applicable law, apply that law to the facts, filling in more detail where necessary and resolving disputes at that time, and then give my ruling on the ultimate question of whether or not the Crown has established the guilt of Mr. Senger beyond a reasonable doubt. II. The Facts [ 4 ] At approximately 3:00 a.m., closing time, Constables Foster and Trelnuk, each of the Saskatoon Police Service, were in a marked police vehicle cruising through the parking lot of a local bar.

They observed a number of people in the lot, generally milling around, as might be expected at closing time, and in particular, a male and female who were engaged in a verbal altercation that appeared to be escalating. Constable Trelnuk brought the police vehicle to a stop approximately 15 feet away from a vehicle which was immediately adjacent to these people, planning to keep these two individuals under observation in case things got out of hand. The vehicle was a 2011 Yukon SUV, which was owned by Mr.

Senger’s mother. [ 5 ] This Yukon had bucket seats in the first row, bench seats in the second row, and a third row of seats. Based on all of the evidence, I am absolutely satisfied Mr. Senger was in the driver’s seat, and the front passenger seat was vacant. Mr. Earis was directly behind Mr. Senger in the middle row, with Mr. Sinclair behind the unoccupied passenger seat in that same second row. Mr. Moyer was in the third row. All four individuals in the vehicle were arrested, as will soon be explained. [ 6 ] What led to these arrests can be attributed to Mr.

Sinclair, who asked the arguing parties if they would like to “do a line”, obviously referring to cocaine, and likely in an attempt to defuse their verbal sparring. Unwisely, he held out his hand, holding what Cst. Trelnuk referred to as a “flat surface with white lines”, white lines being the cocaine being proffered to those individuals. Constable Trelnuk told Constable Foster he saw cocaine, and both officers quickly exited their patrol vehicle and approached Mr. Sinclair, who was promptly arrested by Constable Trelnuk for possession of a controlled substance. [ 7 ] Constable Foster saw Mr.

Earis “discreetly opening” the second row driver’s side door and throwing a bag on the ground. That officer promptly arrested him, the bag later being determined to contain .44 grams of cocaine. This led to a search of the people in the vehicle pursuant to arrest, and where Mr. Sinclair had been sitting, the police located a large bag of cocaine, knotted at the top, sitting on the seat. This contained 19.68 grams of cocaine. [ 8 ] Mr. Sinclair also had a wallet with $540.00 in $20.00 bills in it, with a further $100.00 bill outside of the wallet on the seat. There was also a cheque to Mr.

Sinclair in the amount of $2,500.00, a score sheet, and a room key to a local hotel, all located in his wallet. He also had a knife. It was an agreed fact that Mr. Sinclair subsequently pled guilty to possession for the purpose of trafficking and proceeds of crime based on what was found on him and in his immediate vicinity. [ 9 ] Found in the centre console between the bucket seats in the front row of the vehicle was a sandwich bag, which itself contained 51 individually wrapped bags of cocaine, each bag ranging in weight from .3 to .5 grams.

The total of the cocaine seized from the console was 21.65 grams, which packaged as it was had a retail value of between $2,040.00 and $2,550.00. [ 10 ] As well, four cell phones were seized, although Mr. Moyer’s phone was subsequently returned to him. It turned out that Mr. Sinclair’s phone and Mr. Earis’s phone were both password protected, and a subsequent search of those phones was unsuccessful, as the security code could not be cracked. Mr. Senger’s phone was also seized, and although it was “swipe” protected, police were able to

extract and reproduce 2,953 text messages, covering the period of July 1 to August 19, 2016 (there were actually 20,798 text messages on the phone, but the focus was on recent activity). [ 11 ] Constable Keith Veldman was tendered as an expert witness qualified to give opinion evidence in the following areas:

a) methods of packaging, distribution and pricing of cocaine;

b) value, usage and trafficking of cocaine;

c) general usage, effects and observable signs of cocaine use as well as the usage patterns in Saskatchewan;

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

e) use and possession of cell phones and currency to facilitate the trafficking of cocaine. [ 12 ] His opinion was that the packaged cocaine found in the console was “consistent with possession for the purpose of trafficking”, a conclusion that is not seriously in dispute by the defence. Put simply, if Mr. Senger is found to be in possession of the 51 packets from the console, he possessed it for the purpose of trafficking. [ 13 ] Having set out the main background facts, I will now review the defence evidence. [ 14 ] Mr. Senger testified that he knew each of Mr. Sinclair, Mr. Moyer and Mr.

Earis to varying degrees, all of them being roughly the same age and being within a year of each other at the high school they had all recently attended. He referred to Mr. Sinclair as an acquaintance and admitted that he knew Mr. Sinclair was involved with drugs. He also knew Mr. Earis who he described as a friend and said that he knew that Mr. Earis did sell drugs in the past. He did not think Mr. Moyer used any drugs. [ 15 ] Mr.

Senger went on to say that he was driving his mother’s vehicle on the night prior (i.e., the evening hours of the preceding day), and had gone to the Brewhouse bar/restaurant for supper, then to the Longbranch, the parking lot of this latter bar being where the events occurred. He testified that he was not drinking that day, as he was driving, and that as he was in the vehicle and about to leave, Mr. Sinclair knocked on the window and asked to be let in. Mr. Senger believes Mr. Moyer got in the back with Mr. Sinclair at that time. [ 16 ] Mr. Senger testified that Mr.

Earis had earlier asked him for a ride home, Mr. Earis apparently having had a fight with a girlfriend he was at the bar with, presumably thus being left without a ride, and he stated that Mr. Earis was in the car with him, “shotgun”, as he referred to Mr. Earis’ position, when Mr. Sinclair knocked on the window. [ 17 ] Mr. Senger was adamant that he did not know the drugs were in the vehicle, referring to the drugs found in the console, and that he did not know Mr. Sinclair had drugs until the latter offered the drugs to the arguing couple, imprudently doing so right in front of two police officers. Mr.

Senger said he then “freaked”, and he, of course, was subsequently arrested when the police came to the vehicle within seconds of the offer of cocaine being observed. [ 18 ] Mr. Earis could not recall how he got to the bar, or where he was prior, although he thought that he was going to get a ride with Mr. Senger when the bar closed. Mr. Earis claimed ownership of the drugs found in the console. [ 19 ] I reinforce at this time the fact that the only drugs in issue vis à vis Mr.

Senger, and his alleged possession of same, are the drugs that were found in the centre console. [ 20 ] I turn now to further analysis of the credibility and reliability of various witnesses. I will start with Mr. Senger. [ 21 ] Generally speaking, Mr. Senger was quite vague on many matters. As one example, he had a poor recollection of who he might have gone with, if anyone, to the Brewhouse and/or bar. [ 22 ] Despite overwhelming evidence to the contrary, he was also very firm in his belief that Mr. Earis was “shotgun”, that is, sitting next to him in the front seat. He remained firm in his belief that Mr.

Earis was so situated, but I find as a fact that the individuals

were seated as set out in paragraph 5 of this decision, based on the observations of the police officers, which were totally consistent on this point. Of note, Mr. Earis himself is clear where he was sitting, that is, directly behind Mr. Senger. [ 23 ] I am not overly concerned about Mr. Senger’s lack of memory on what would have been, prior to the police involvement, an otherwise ordinary night. It is apparent that Mr. Senger, as well as his friends, often went to the bar and there would be no need or reason to distinguish one night from another.

As such, I do not find his lack of detail on these inconsequential matters to be due to any deliberate attempt to mislead. [ 24 ] However, I did find his lack of recall on some fairly important issues troublesome.

Again, even allowing latitude, when pressed in cross-examination as to when he may have gone out to the vehicle, or if he had lent his keys to anyone, these questions being of importance on the question of who had access to the vehicle, and thus access to the console, his answer was that he did not believe he had done either thing. [ 25 ] When asked in-chief to explain the text message that was unquestionably sent from Mr. Senger’s phone at 1:11 a.m. (“where u at I gotta sale”), sent to and replied to by Mr. Earis (I will return to the text messages), his response was “I do not believe I was selling narcotics”.

When one is charged with the offence of possessing cocaine for the purpose of trafficking, and testifying on that particular point, I would have expected an accused person to have a better idea whether or not he did or did not sell drugs. [ 26 ] Further, there were significant differences between what Mr. Earis and Mr. Senger had to say on certain particulars. As some examples, I note that Mr. Senger thought that Mr. Earis was in the vehicle with him for about ten minutes when Mr. Sinclair and Mr. Moyer came to the vehicle; Mr. Earis said that Mr. Sinclair and Mr. Moyer were in the backseat when he arrived.

Further, Mr. Earis said the couple observed arguing outside the vehicle had actually been in the vehicle and jumped out just prior to the argument escalating, an observation that Mr. Senger made no mention of. [ 27 ] Another inconsistency is that Mr. Senger testified that Mr. Earis was at the Longbranch with his girlfriend, although Mr. Earis states that he simply happened to run into her at the bar and was not with her throughout the evening, as Mr. Senger seemed to suggest. [ 28 ] I do note, however, that Mr.

Senger was clear and unshaken in his evidence that he had no idea drugs were in the vehicle he was driving that night. His evidence was vague, and his recall poor, on some issues, but he remained firm on this critical point. [ 29 ] I have carefully considered Mr. Senger’s evidence, and whereas I have concerns as indicated by the above examples, I found him to be credible and reliable on things of import. [ 30 ] Mr. Earis, on the other hand, was a most unsatisfactory witness.

He was very vague on all manner of things, including how he got to the bar in the first place, where he had been prior, and he did not recall where his own vehicle was, opining that it was “probably at home”. Further, when asked about throwing the bag out of the door, he stated he may have tried to throw a bag out. His evidence was peppered with phrases such as something would be “most likely” (referring to the plan to get a ride home with Mr. Senger).

Perhaps the best example of the manner of his answering questions is demonstrated by his response to the question as to what he was wearing: “I was definitely wearing jeans I think”. [ 31 ] Again, a certain lack of recall on inconsequential matters by Mr. Earis is not all that surprising, considering all the circumstances, which includes the same observation I made respecting Mr. Senger: going to the bar was a routine occurrence for these individuals and one night would hardly be expected to stand out from any other, until such time as the police showed up. Of particular concern, however, is that Mr.

Earis’s evidence was particularly sparse as to precisely when he put the cocaine in the centre console, as he claimed he did. I conclude that he claims to have done this at the time, or immediately prior to the time, that police officers came to the vehicle, and he definitely did so in direct response to their presence at the scene. I note that he was quite firm that the police came to the vehicle within mere seconds of Mr. Sinclair offering cocaine to the couple outside the vehicle. [ 32 ] I did not find Mr.

Earis to be particularly reliable in his recall, particularly with respect to collateral matters, and I did not find his evidence particularly credible in general. He was simply too cavalier in the manner in which he presented his evidence. On matters

where his evidence conflicts with Mr. Senger’s, I prefer and accept Mr. Senger’s evidence. [ 33 ] I therefore accept the evidence of the accused on the matter of who was in the vehicle and when they arrived, despite the fact that he was adamant, and mistaken, as to where Mr. Earis was sitting. No one else testified on these matters, and between the two of these witnesses, I attribute Mr. Senger’s lack of clarity to memory issues; he was at least trying to recall, as opposed to Mr.

Earis, who left me with the distinct impression that he was ill-prepared and not all that interested in assisting the court process. [ 34 ] As to the officers generally, I found Cst. Foster’s evidence to be both credible and reliable. He was thoughtful and detailed, and relied appropriately on his notes when required. When unsure of something, he admitted to that. Cst. Trelnuk confirmed much of what Cst. Foster said happened, and although generally he had good recollection, he could not recall, for example, where he seized Mr. Senger’s phone, or exactly where Mr. Senger’s wallet was located.

Details respecting these matters came into evidence by him referring to documentation he made on these points at that time. Further, he mistakenly testified that the middle row (where Mr. Earis and Mr. Sinclair were sitting) had bucket seats, whereas I am fully satisfied that the front only had bucket seats, the others being bench seats. [ 35 ] However, some of these matters, as was the case with some matters Mr. Senger testified to, were collateral. He was firm on the main points, and the versions of Cst. Foster and Cst. Trelnuk are confirmatory of each other.

In fact, everyone who testified provided the same overall version as to what the police did, minor variations aside. [ 36 ] I do not intend to deal with the assessments of the evidence of either of Cst. Holonaty (who analysed the contents of the seized phones) or Sgt. Olafson (who actually seized the cocaine in question, having come to the scene to assist): both of these witnesses were fair and thorough, and there was nothing contentious in what each said. Cst.

Veldman’s opinion that the seized cocaine was for the purpose of trafficking is likewise accepted, as noted earlier, although I do have some concerns as to his evidence respecting the text messages, which I will soon address. [ 37 ] Thus, I find that the four individuals were all sitting in the Yukon when Cst. Foster and Cst. Trelnuk observed Mr. Sinclair proffer drugs to the two individuals outside, both of whom were actually known by Mr. Earis. I also find that these officers responded to that observation immediately, and that Mr. Sinclair, then Mr. Earis, were quickly arrested, with Mr. Senger and Mr.

Moyer being dealt with within minutes of the first two arrests, each having been under general observation from the time the police came on scene (I am mindful that the existence of Mr. Moyer in the back was not immediately known, the point I make being that whereas Mr. Sinclair and Mr. Earis were the immediate objects of the officers’ attention, Mr. Senger and Mr. Moyer were generally under observation at this time as well). I find that Mr. Earis put the drugs in the console in direct response to the police arrival, and I find that Mr. Senger was not aware that this had occurred.

This was an extremely hectic, chaotic and brief period of time as the police secured the Yukon, and I am not convinced Mr. Senger would have noted the depositing of the drugs in the console. III. The Law [ 38 ] The relevant definition of trafficking in this case is set out in s. 2 of the CDSA as follows: “traffic” means . . .

a) to sell, administer, give, transfer, transport, send or deliver the substance; . . [ 39 ] “Possession” within the meaning of the CDSA means possession as set out in s. 4(3) of the Criminal Code , which reads: Possession

(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. [40] In R v Morelli, 2010 SCC 8, [2010] 1 SCR 253 [Morelli] para. 15, the Court stated that the above definition includes personalpossession, constructive possession, and joint possession. As personal possession is not in issue here, no drugs actually being found onMr. Senger, constructive possession and joint possession need to be considered.

Paragraph 17 of Morelli says this of constructivepossession: [17] Constructive possession is established where the accused did not have physical custody of the object in question, but did have it “inthe actual possession or custody of another person” or “in any place, whether or not that place belongs to or is occupied by him, for theuse or 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. [41] The concept of joint possession is discussed in R v Fisher, 2005 BCCA 444, 200 CCC (3d) 338 at para. 24, where it is stated: [24] As is evident from my

summary of the law, neither constructive possession nor joint possession requires proof of manualhandling... To establish joint possession, the Crown was required to show that someone other than the appellant had possession of thecocaine with his knowledge and consent and that he had some measure of control over it. [42] In this case, no matter which type of possession is contemplated, the question still comes down to whether or not Mr. Sengerhad knowledge that the drugs were in the vehicle.

In R v Briscoe, 2010 SCC 13, [2010] 1 SCR 411 it was held that wilful blindness canconstitute knowledge, that is, wilful blindness: [21] ....can substitute for actual knowledge whenever knowledge is a component of the mens rea. The doctrine of wilful blindnessimputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, butdeliberately chooses not to make those inquiries. [43] In Re: Chambers and The Queen, (ONCA) the court held: . . .

In our view, the respondent’s right to grant or withhold her consent to the drug being stored in her room gave her the necessarymeasure of control over the drug essential to constitute “consent” within s. 3(4)(

b) of the Code. Thus, one does not have to expressly grant consent or deny consent. However, one has to have the right to do either, and that, in theproper circumstances, may be sufficient to establish the necessary measure of control. R v Webster, 2008 BCCA 458, 238 CCC (3d)270 provides a useful example. Mr. Webster was the driver of a vehicle in which a certain Mr. Lepitre was the front seat passenger. When the police pulled the vehicle over, the arresting officer detected the smell of freshly burnt marihuana. Mr. Lepitre had a “joint”tucked behind his left ear, that is, the ear facing Mr. Webster.

In those circumstances, the Court held this was sufficient to constituteknowledge on Mr. Webster’s part as to the presence of marihuana. [44] In R v Griffin, 2009 SCC 28, [2009] 2 SCR 42, para 33 the Court reiterated that the test for conviction based on circumstantialevidence is that a jury: “. . . must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from thecircumstantial evidence is that the accused is guilty”. IV. Analysis

[ 45 ] Firstly, I note that this was not Mr. Senger’s vehicle; rather, it was owned by his mother. I am not persuaded that the reasoning in cases such as Chambers , supra , and other cases in which items were found in an individual’s room, can be carried over to the facts of this case. Each case is, of course, dependent on its facts. However, I do see a major distinction between contraband found in a room that is clearly under the control of an individual, and in many cases has been for some period of time, and a situation where drugs are found in a borrowed vehicle.

I appreciate there are cases in which drugs being found in the latter case can ground a conviction, but in the case before me, the drugs were found in the centre console, and out of sight. While Mr. Senger was the closest individual to that console, I do have the evidence of Mr. Earis that he placed the drugs there, and suspect though much of what Mr. Earis said is, it is certainly plausible that he placed them there in the frantic few seconds immediately prior to Mr. Earis’s arrest.

He certainly took that opportunity to divest himself of the .44 grams of cocaine in the small bag that he threw out the door. [ 46 ] Secondly, I am satisfied that Mr. Sinclair and Mr. Moyer arrived to the vehicle while Mr. Senger and Mr. Earis were sitting in it. I do not accept Mr. Earis’s evidence that a number of people had been sitting in that vehicle for perhaps as much as ten minutes prior to the arrival of the police. However, even if that second scenario is in fact what occurred, there is no evidence to suggest that any drugs were being passed around, or openly displayed, such that Mr.

Senger would have knowledge of the drugs being present. Under the scenario that I am accepting, I cannot find that Mr. Senger would know that the drugs were placed in the console at that time immediately prior to the police arrival. Even if he was aware, this occurred mere seconds before the police opened the door and he would hardly have had time to consent, or withhold consent, to the drugs being placed there., [ 47 ] Thirdly, I note that the bag which Mr. Earis threw outside of the vehicle, and the baggies contained in the sandwich bag that was found in the console, were similar in all ways.

This would provide some support for Mr. Earis’ claim that he owned those drugs. As Ms. Carlson rightly points out, however, the issue here is not ownership of the drugs: the issue remains possession. Put another way, the drugs could easily be owned by Mr. Earis, and possessed by Mr. Senger alone, or Mr. Senger and Mr. Earis (and perhaps others) jointly. I have considered those possibilities and they are certainly open to me to so conclude but I do not necessarily have to draw that conclusion. I point it out at this stage since the similarity of the drug Mr.

Earis had, and the drugs found in the console, show a direct connection to Mr. Earis. [ 48 ] Fourthly, I note that Mr. Senger was not found in personal possession of anything that would connect him to a drug trafficking operation (I will deal with the messages on the phone later), and that he was according to Constable Trelnuk “absolutely” cooperative and calm. This is, of course, not consistent with “freaking out”, as Mr. Senger claims he did.

The point I make is that his actions and demeanour throughout the course of the evening with the police are entirely consistent with a lack of knowledge of the drugs being in the vehicle. Cst. Veldman did agree that a suspect’s demeanour when encountering police can be relevant, a usual response of many offenders being nervousness. [ 49 ] With respect to the text messages, the expert Constable Veldman agreed that the only messages that he found in examining Mr. Senger’s phone that had anything to do with the drug trade were the three that were dealt with in his report.

I will now turn to them. [ 50 ] Turning to the texts generally, Exhibit P-3 contains, among other things, a complete record of text messages sent and received from Mr. Senger’s phone from July 1, 2016 through to August 19, 2016. There are a total of 2,953 messages either sent or received, mostly short messages back and forth between friends and/or relatives. [ 51 ] The earliest one of the set of messages of possible significance is from July 21, between 11:09 p.m. and roughly 11:19. These are messages between Mr. Senger and Mr. Braden Earis in the following order: Senger: u up? Braden: going to branch?

Senger: u r? Braden: yeah Senger: r u home yet? Braden: try to sell drugs lol Senger: well I’m at home with fuck all to do Braden: come here

Senger: r u at the branch or home? Braden: branch Senger: Kk yeah I’m comming [ 52 ] Constable Veldman’s opinion is that ...“Earis [Braden] has replied to Senger that he is out trying to sell drugs. There is no mention about what drugs he is selling, and it does appear that Senger does have knowledge that Earis traffics narcotics and that Senger will also participate in selling drugs”. [ 53 ] It may be that Mr. Earis is saying that he is trying to sell drugs, but the meaning of that phrase is ambiguous at most. As for Mr. Senger having knowledge that Mr. Earis traffics narcotics, that is no doubt the case: Mr.

Senger testified that he knew that Mr. Earis sold drugs in the past on the second day of the trial, July 5, 2017, approximately one year after that text exchange. [ 54 ] As for Constable Veldman’s conclusion that “Senger will also participate in selling drugs”, I do not accept the correctness of that opinion. There is nothing in that exchange to in any way suggest that Mr. Senger would also participate in selling drugs. [ 55 ] Further, in looking through these selected text messages generally covering that time period, there are numerous messages between Mr. Senger, Mr.

Earis, and/or others referring to getting together at “ the Branch” or elsewhere. This also accords with Mr. Senger’s evidence that going to the bar was not a particularly unique experience. [ 56 ] The second message is one received by Mr. Senger on August 10, 2016 at 2:22 a.m. It is from telephone number 306 - 251 - 2802, and reads... “Got this number going again. Text me if u need white. 80 a g 160 for 2 8ball 240". The opinion from Constable Veldman is that this was a generic message, one that Mr. Senger did not reply to. He notes that the amounts referred to are: “typically user amounts.

Even though Senger did not reply, this cocaine dealer does have his number in his phone and it is a possibility that Senger could have purchased cocaine from this dealer in “user - only” amounts, making Senger the customer”. [ 57 ] I would agree with the observation that Mr. Senger did not reply to that message, at least through this phone, as there is no record of any text back to that number after the message was received and the end of the downloaded messages of the texts on August 19. It may well also be true that Mr.

Senger had purchased drugs from whoever sent that text in the past, but I note that this number is not in Mr. Senger’s phone’s memory, so it may be nothing more than a mass message sent to anyone on that sender’s phone. Mr. Senger testified that he had used cocaine maybe 10 or 15 times, the first time being approximately six months prior to his arrest. It is undisputed that Mr. Senger was, around this time, using cocaine.

I am not prepared to infer that because he used cocaine he necessarily trafficked in cocaine. [ 58 ] The third message is from August 19, at 1:11 a.m., slightly less than two hours before these individuals were arrested. The two messages contained in Constable Veldman’s

summary are as follows: 1:11:17 Senger to Braden: where u at I gotta sale, and 1:11:35 Braden to Senger: doors. [ 59 ] To this, I add one further text from Mr. Senger to Mr. Braden at 1:27:57: text me when u r good to go. [ 60 ] Constable Veldman refers to the first two, and states: Based on the evidence located and seized by officers, as well as the content of the message where Senger mentioned that he has a “sale”, it is my opinion that Senger is referencing that he has a customer willing to purchase cocaine.

I believe that once Earis replied that he was at the doors, the sale would have taken place shortly after. [ 61 ] With respect, I think that is all conjecture, and I’m not sure how that conclusion can be made that Mr. Senger is referencing a

[ 61 ] With respect, I think that is all conjecture, and I’m not sure how that conclusion can be made that Mr. Senger is referencing a sale of cocaine, except for Constable Veldman’s comment that this connects up to what was later found in the vehicle. As I noted earlier, I found Mr. Senger’s reply to the question as to whether or not that was a drug sale to be rather unconvincing: “I do not believe I was selling narcotics”. In his evidence, Mr. Senger stated he couldn’t recall details of that text message. [ 62 ] In context, one could conclude that Constable Veldman is correct, and that Mr.

Senger had a pending sale of cocaine arranged. If so, however, that would be the only text reference at any point by Mr. Senger in some 3,000 text messages to a drug transaction, let alone a transaction in a specific drug, and it is rather vague. I cannot safely conclude it refers to a sale of drugs, let alone cocaine, although I acknowledge it could. [ 63 ] Further, if in fact it was an invitation for Mr. Earis to come to the door and make the sale, why is the next message in that text string confirming what Mr. Senger says happened that night, that is, he agreed to give Mr. Earis a ride home?

Why does it not mention the drug, the price, the quantity? If Mr. Senger knew of the drugs in the console, why call Mr. Earis at all: he could simply have gone to the vehicle, obtained the drug, and made the sale himself? This would require, of course, that the drugs were both in the console, and known to be there, by Mr. Senger. [ 64 ] All in all, I am not persuaded by the evidence of the text messages that Mr.

Senger ever had knowledge that anyone had drugs of any type in the vehicle he had borrowed from his mother the night before. [ 65 ] I am of course aware that it is inappropriate to weigh each piece of evidence in a piecemeal fashion and somewhat add up each item as if one were tallying a bowling score. I am further aware that a trier of fact is not to speculate; I refer to possible alternate scenarios not because I find they occurred, as that would be conjecture, but rather in analysing the Griffin test, that is, is guilt the only “rational inference” I can draw?

Guilt is not the only rational inference I can draw. [ 66 ] I have also considered, and rejected, the doctrine of wilful blindness in this case. There is nothing in the evidence I accept to conclude that there was anything for Mr. Senger to be suspicious of. In fact, his evidence (which I accept on this point) is that the first he knew of Mr. Sinclair having drugs was about the time the police came upon the scene. There is nothing to suggest that he knew Mr. Earis had drugs in the vehicle. I find these individuals were not in the vehicle for long prior to the police arrival. At best, Mr. Senger knew that Mr.

Earis had sold drugs, and that Mr. Sinclair did sell drugs, but I cannot say that knowing those persons’ propensities, in these circumstances, ought to have alerted Mr. Senger to make further inquiries. [ 67 ] Overall, there is reason to be suspicious with respect to Mr. Senger. However, for the reasons given, and on the totality of the evidence, I am not able to say that I am convinced beyond a reasonable doubt by that evidence of his guilt. On all the evidence, I am left in a state of reasonable doubt as to Mr. Senger’s guilt.

I am required to give him the benefit of that doubt, and I find him not guilty. _______________________ B.G. Morgan, J