R. v. Beaulac, 2018 NLSC 148

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Beaulac , 2018 NLSC 148 Date : July 6, 2018 Docket : 201608G0073 Her Majesty The Queen v. Richard Beaulac Barbara ANN Mercer Before: Justice Frances J. Knickle Oral Reasons for Judgment (Edited) Place of Hearing: Happy Valley-Goose Bay, Newfoundland and Labrador Dates of Hearing: May 7, 8 and 9, 2018 Date of Oral Judgment: July 3, 2018

Summary: After receiving information from a reliable known source that sometime during the last weekend in April 2013 contraband marijuana would be transported from Labrador City to Happy Valley-Goose Bay via the Trans Labrador Highway, the police stopped the vehicle being driven by Ms. Mercer with passenger Mr. Beaulac. They seized an excess of three kilograms of marijuana from the vehicle, with a street value of as high as $70,000. The marijuana was packaged in half-pound bags. The packaging was consistent with packaging for sale.

The explanation provided by both Accused that the bag fell from the back of a passing truck was not only incredible, it did not raise a reasonable doubt as to the Accused’s’ intentions with respect to the contraband. Both Accused were found guilty of possession for the purposes of trafficking. Appearances:

Mark Mills Appearing on behalf of Her Majesty the Queen Richard Beaulac Appearing on his own behalf at Trial Jonathan D. Regan Appearing for Mr. Beaulac on Charter Application Susan M. Day Appearing on behalf of Ms. Mercer Authorities Cited: CASES CONSIDERED: R. v. Marakah, 2017 SCC 59; R. v. Caslake, (SCC), [1998] 1 S.C.R. 51; R. v. Simpson(1993), (ON CA), 12 O.R. (3d) 182, 14 C.R.R. (2d) 338 (C.A.); R. v. Mann, 2004 SCC 52 , [2004] 3 S.C.R.59; R. v. Clayton, 2007 SCC 32; R. v. Savage, 2011 SKCA 65; R. v. Mackenzie 2013 SCC 50; R. v. MacCannell, 2014 BCCA 254; R. v.Harding, 2010 ABCA 180; R. v.

Power (2011), 311 Nfld. & P.E.I.R. 26, 92 W.C.B. (2d) 620 (N.L. Prov. Ct.); R. v. Grant, 2009 SCC 32;R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320; R. v. Starr, 2000 SCC 40; R. v. W. (D)., (SCC), [1991] 1S.C.R. 742; R. v. Villaroman, 2016 SCC 33 STATUTES CONSIDERED: Controlled Drugs and Substances Act, S.C. 1996, c. 19; Canadian Charter of Rights and Freedoms, PartI of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11; Highway Traffic Act, R.S.N.L. 1990, c. H-3 REASONS FOR JUDGMENT Knickle, J.: INTRODUCTION [1] Richard Beaulac and Barbara Mercer are jointly charged with possession of an excess of three kilograms of CannabisMarijuana for the purpose of trafficking contrary to section 5(2)of the Controlled Drugs and Substances Act , S.C. 1996, c. 19: 5(2) Possession for purpose of trafficking No person shall, for the purpose of trafficking, possess a substance included in

Schedule I, II, III, IV or V. [2] Specifically, the indictment states: On the 28th day of April, 2013, at or near the town of Happy Valley-Goose Bay, in the Province of Newfoundland and Labrador, didunlawfully have in their possession, for the purpose of trafficking, in excess of three (3) kilograms Cannabis Marihuana, a substanceincluded in

Schedule II of the Controlled Drugs and Substance Act, S.C. 1996, c. 19, and did thereby commit an offence contrary toSection 5(2) of the said Act. [3] This is the decision on verdict. [4] Initially, both Accused elected to be tried by a judge and jury; however, with the consent of the Crown, there was a re-election to judge alone. There were several delays in bringing the matter to trial. The delay is not raised as an issue by either Accused. Much of the delay was at the request of either Ms. Mercer or Mr. Beaulac. [5] The trial commenced with an application by both Accused to exclude evidence under section 24(2) of the Canadian Charterof Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the“Charter”). It was agreed by the parties that the evidence called on the Charter application would be adopted as part of the trial properto avoid unnecessarily having to recall evidence. The decision in relation to the Charter application was given as an oral judgment, with

reasons to follow. Those reasons are included in this decision on verdict. The Charter Application [ 6 ] In their written arguments, the Accused alleged not only that they were arbitrarily detained under

section 9 of the Charter , but also that arbitrary detention resulted in an unreasonable search and seizure under

section 8 of the Charter . [ 7 ]

Section 8 of the Charter states: 8. Search or seizure Everyone has the right to be secure against unreasonable search or seizure. [ 8 ]

Section 9 of the Charter states: 9. Detention or imprisonment Everyone has the right not to be arbitrarily detained or imprisoned. [ 9 ] Section 24(2) of the Charter states: 24.

(2) Exclusion of evidence bringing administration of justice into disrepute Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. The Issue of Standing [ 10 ] Before dealing with the merits of the application, it is necessary to address the issue of standing of Mr.

Beaulac; raised by the Crown in oral argument. Crown Counsel, albeit not forcefully, asserted that it was not clear that Mr. Beaulac had standing in relation to the search of the motor vehicle, as he was not the owner of the vehicle but a passenger only. Ms. Mercer was the driver, so there was no dispute that she established an expectation of privacy. The onus is on Mr. Beaulac to establish he has standing ( R. v.

Marakah , 2017 SCC 59 at para. 22 ). [ 11 ] Counsel for both Accused provided further facts: The Accused were a couple in a long-term relationship, and with their son, possessed an “interest” in the vehicle. Ms. Mercer registered the vehicle on behalf of her son, and while it was registered to their son, Mr. Beaulac paid the insurance. Ms. Mercer was the one who primarily used the vehicle. The Crown did not take issue with these facts. [ 12 ] Considering the totality of the circumstances ( Marakah at para. 10 ), I was satisfied that Mr. Beaulac, along with Ms.

Mercer, had an expectation of privacy in the vehicle, sufficient to trigger his ability to argue that his rights under

section 8 were violated. That is to say, given the search was of a motor vehicle, which was effectively the couple’s or the family’s shared vehicle, and Mr. Beaulac was with his partner, the co-Accused driver, coupled with the other evidence that it was essentially a “joint” venture in going to Labrador City from Goose Bay, I am satisfied that Mr.

Beaulac had a subjective expectation of privacy in that vehicle, and that expectation of privacy was objectively reasonable ( Marakah at para. 11 ). [ 13 ] Having said that, as was recognized by the parties, a person’s expectation of privacy in a motor vehicle is more attenuated than say perhaps in someone’s home or cell phone or their DNA. As is well established in the jurisprudence, a reasonable expectation of privacy may exist on a continuum, considering the place and nature of the search (For example, see Marakah at paras. 10 - 11 ). [ 14 ] Mr. Beaulac’s expectation of privacy perhaps was not as high as Ms.

Mercer’s, but I am nonetheless satisfied that he established an expectation of privacy sufficient to argue whether or not he was the victim of an unreasonable search and seizure. It is not a high threshold to meet ( Marakah at para. 22 ). The Evidence on the Charter Application [ 15 ] The Crown conceded that there had been a warrantless search of the vehicle, and as such, there was a presumption that the search was unreasonable. The onus was on the Crown to overcome this presumption.

The Crown called the investigating officer Corporal Kenneth Maher to provide evidence in relation to the vehicle stop and subsequent arrest and search, in support of its position that the search was within the ambit of

Section 8, and that the detention was not arbitrary. Corporal Kenneth Maher [ 16 ] Corporal Maher testified that he has been a peace officer with the Royal Canadian Mounted Police (RCMP) for 14 years. He was currently stationed in Twillingate, Newfoundland and Labrador, but had been stationed in Labrador between 2012 and 2016. He was involved in investigating “serious crime”, as well as street-level crime, which included investigating “street-level” drug offences.

At the time this offence was alleged to have occurred, April 2013, he was part of the unit that investigated drug offences. [ 17 ] Corporal Maher testified that his first dealings with the Accused occurred in 2011. He prepared a file in the capacity of an expert on drug trafficking, regarding both Accused for Happy Valley-Goose Bay, Newfoundland and Labrador.

It was in preparing this report that he learned that both Accused were involved in the drug trade in Labrador. [ 18 ] On April 26, 2013, just two days prior to the impugned seizure, Corporal Maher received information from a known confidential informant that the local dealers in Goose Bay were “low” in their supply of marijuana and that someone would be heading to Labrador City on the coming weekend to receive a shipment. The tip was that “someone will be going to Lab City to pick up a load of

weed on the weekend, and return to Goose Bay on the weekend.” There were no details as to who would be transporting the marijuana, nor a description or identification of the vehicle that would be used. [ 19 ] On the Sunday evening of that weekend, April 28 th , 2013, at about 6:15 p.m.

Corporal Maher received a telephone call from a Sergeant Wentzell of the Royal Newfoundland Constabulary (RNC) in Labrador City that the Accused’s vehicle had been intercepted in Churchill Falls, (about two hours outside Labrador City) and was en route to Happy Valley-Goose Bay (Goose Bay). [ 20 ] At the time of the stop in Churchill Falls, Ms. Mercer was described as “fidgety.” Also observed was that the Accused did not stop to buy gas in Churchill Falls. The fact that no gas was purchased in Churchill Falls was of significance to Corporal Maher.

He explained that the distance between Labrador City and Goose Bay, Route 500, was some 560 km and roughly a five-hour drive. There was nothing in between except for the town of Churchill Falls. It was his experience that drivers heading to Goose Bay would “top up” their fuel in Churchill Falls to ensure they would have enough gas to make the journey. [ 21 ] He testified that in his view, the fact that the Accused did not stop for gas was consistent with someone who might be transporting contraband.

He said this would be consistent with such behavior, because in his experience, persons who were transporting contraband by motor vehicle, tended to want to have as little contact with others as possible or have to stop their vehicle as little as possible. [ 22 ] As a result of the information, Corporal Maher testified that he obtained permission from his supervisor, and he and Constable Mosher drove an unmarked vehicle to an area outside of Goose Bay on Route 500, just at the “edge of” cellular telephone service.

Corporal Maher explained that they chose the location for a number of reasons. [ 23 ] He explained that Labrador City is the “main source community” for drugs coming into Labrador. Most drugs come to Labrador through Quebec and are then distributed from Labrador City. The only highway between Labrador City and Goose Bay is Route 500. He testified that in his experience, persons traveling with drugs on that highway “were doing several things” to avoid detection. There might be a vehicle swap or there might be an effort to change over to another route, just before Goose Bay, and go to the community of Sheshatshiu.

He said persons also sometimes stashed drugs on the highway or at a cabin.

In his view, to set up surveillance at a point where cell coverage ended for the Goose Bay area, would help to minimize persons travelling with contraband in avoiding detection. [ 24 ] While waiting for the Accused to come by, the officer observed a vehicle pass them at an “incredible speed.” Corporal Maher testified that they stopped that vehicle and, while speaking with the driver, the Accused’s white Jeep drove by. [ 25 ] The first stop ended, and the officers got back in their vehicle and pursued the Accused, “using their emergency equipment.” The officer followed the Accused until a safe location to pull over was located.

Corporal Maher, who was the driver, exited the unmarked car and went to the driver’s side of the Jeep. [ 26 ] Corporal Maher testified there were three main pieces of information that he relied upon in deciding to stop the Accused: the information provided by the informant, of whom he had found to be reliable in the past, that both Beaulac and Mercer were known to him to be involved in the drug trade; the observations that had been made at the traffic stop in Churchill Falls, that Ms.

Mercer was “fidgety;” and that they did not stop for gas in Churchill Falls. [ 27 ] Corporal Maher testified that upon going up to the vehicle the first thing he noticed was that the Ms. Mercer, who was driving, was smoking a “fresh” cigarette and staring straight ahead. Corporal Maher stated he identified himself and found that she was “short with her answers.” Corporal Maher testified that he found this unusual because in his past dealings with Ms. Mercer he found her to be talkative and comfortable speaking with him. [ 28 ] Corporal Maher testified that while speaking to Ms.

Mercer, he also observed that there were ‘a lot’ of air fresheners in the vehicle. He testified that the fact Ms. Mercer was smoking a fresh cigarette just as he went to speak with her, and that there were several air fresheners in the car was significant. In his experience, fresh marijuana emitted a strong odour, especially in large amounts.

It was typical for persons traveling with contraband marijuana to try masking that odour by smoking cigarettes or having multiple air fresheners in the vehicle. [ 29 ] Corporal Maher stated that shortly after he arrived at the vehicle Constable Mosher had approached the passenger-side window where Mr. Beaulac was seated. Mr. Beaulac then rolled down his window to speak with Constable Mosher. When Mr. Beaulac rolled down his window, Corporal Maher testified that he observed a very strong odour of what he recognized as fresh marijuana.

He testified that fresh marijuana had a distinct smell with which he was very familiar. [ 30 ] With those further observations, Corporal Maher stated he formed his reasonable grounds to believe that the Accused were transporting marijuana and immediately placed Ms. Mercer and Mr. Beaulac under arrest. Both Accused were given their rights to counsel. Corporal Maher stated he primarily dealt with Ms. Mercer, and Constable Mosher dealt with Mr. Beaulac.

There was no issue by either Accused as to whether or not they had been properly advised of their rights. [ 31 ] Both Accused were placed in the unmarked police car, and a search was immediately conducted of the Jeep. Corporal Maher stated that there were gas cans in the back of the car among bags with “Walmart” on them. Underneath these items was a large garbage bag. When the garbage bag was opened, it contained many plastic bags with re-sealable closures – what Corporal Maher described as “Ziploc” bags.

The bags were all the same size and contained what Corporal Maher believed to be fresh marijuana. [ 32 ] Corporal Maher testified that a marked police unit arrived to transport both Accused back to the detachment, however because there was no tow truck available to transport the Accused’s motor vehicle, Ms. Mercer agreed to drive her vehicle. [ 33 ] Corporal Maher testified that once reaching the detachment, a closer examination of the garbage bag and its contents showed that it contained eight pounds of what he believed to be marijuana. Each re-sealable plastic bag contained about a half pound.

[34] Corporal Maher testified that he was confident the contents was marijuana. He was familiar with the smell of “raw” marijuanaas opposed to “burnt” marijuana. He testified that between 2008 and 2012 he was in the drug unit of the RCMP and in fact had beenqualified as an expert in trafficking of contraband. He testified the odour of the marijuana on this occasion was “distinctly fresh.” [35] On cross-examination Corporal Maher testified that he was familiar with the Accused’s vehicle from working in the drug unit.

He re-affirmed that when he lifted the rear door to search the car, the smell was quite distinct. [36] When asked if either Accused had ever been involved in a traffic stop previous to the night in question Corporal Mahertestified that he had dealt with both Accused on several occasions. He testified he was certain he had spoken to Ms. Mercer on at least oneprevious occasion “at a checkpoint.” [37] It was pointed out to Corporal Maher that in his preliminary evidence he had not mentioned the speeding car that was stoppedprior to stopping the Accused.

Corporal Maher agreed that it did not come up at the preliminary inquiry, but he did remember thevehicle, which he described was a stop “solely” for purposes under the Highway Traffic Act, R.S.N.L. 1990, c. H-3. He testified that hisintention was to tell the young driver to slow down. [38] When asked about the information received from Sergeant. Wentzell, Corporal Maher testified that it was usual for the twoforces to share information. There was regular contact, if not weekly, then on a bi-weekly basis.

Corporal Maher testified that there wasso much drug activity in Labrador, there was reason to share information regularly. [39] When asked if there were ever any other stops made based on information received from the RNC, Corporal Maher could notrecall a specific occasion without reviewing police files but was certain there were other occasions. [40] When asked why not conduct surveillance, for example, follow the Accused back to Goose Bay before initiating a stop,Corporal Maher testified that the only time surveillance would be used would be in larger investigations.

There was not the “manpower”at his detachment. It was difficult to effectively conduct surveillance in a small community like Goose Bay without being recognized. The unmarked car was well known. [41] It was put to Corporal Maher that the two main factors that he relied upon to support stopping the vehicle was the informationfrom the confidential source and knowing who the Accused were. Corporal Maher agreed he would have stopped the Accused if he hadknown only these two things.

In re-direct, Corporal Maher stated that given his knowledge of the drug trade in Labrador City at thattime, with the information from the confidential source and the date it was given, and knowing who the Accused were, he would havestopped the Accused. However, he also maintained that he relied on all the information he had received. [42] Constable Mosher did not testify, as he was on medical leave at the time of trial and unable to testify. Neither Accusedtestified on the voir dire. The Position of the Parties [43] Both Accused asserted the initial stop was nothing more than a fishing expedition.

The officers had only a vague tip. Theystopped the Accused only because of who they were; based on nothing more than a hunch. In their view, this hunch was insufficient toestablish a reasonable suspicion to detain the Accused, and the detention was arbitrary. Given this, any information or observationsobtained after the initial arbitrary detention was tainted by the unconstitutional conduct. This meant that the arrest was grounded ontainted evidence as was the subsequent search.

It was submitted all the evidence subsequent to the detention should be excluded. [44] The Crown conceded that the when the police stopped the vehicle this was a detention. The Crown submitted however thatthe detention was not arbitrary as the officers held a reasonable suspicion that the Accused were involved in the offence in question. They were entitled to detain the Accused as an investigative detention. Once the vehicle was stopped, the officers almost immediatelymade further observations to support the detention culminating in the strong smell of fresh marijuana.

The totality of these observationssupported the formulation of reasonable grounds to believe that an offence was being committed, which then supported the arrest of theAccused. ISSUES [45] Although the written arguments referred to separate breaches relating to both the detention and arrest of the Accused, undersections 9 and 8 of the Charter, respectively, in oral argument the parties agreed that if the initial investigative detention was notarbitrary the resulting arrest was lawful and the search was lawful as incident to arrest (R. v.

Caslake, (SCC), [1998] 1S.C.R. 51). [46] However, if the Accused were arbitrarily detained from the outset everything that followed: the further observations, thearrest, and search and seizure of the marijuana was unconstitutional. [47] I agree that the pivotal issue is whether at the time the officers initially stopped the Accused they possessed sufficientinformation to support reasonable grounds to suspect that the Accused were implicated in criminal activity.

The lawfulness andconstitutionality of their conduct subsequent to stopping the vehicle depends on the lawfulness of that initial detention. [48] The issues in relation to the alleged Charter violations can be framed as follows: 1. Did the police have a reasonable suspicion to detain the Accused or was the detention arbitrary and contrary to

section 9 of theCharter?

2. If there was an arbitrary detention, did it result in an unlawful arrest? 3. If so did this unlawful arrest result in an unreasonable search or seizure contrary to

section 8 of the Charter? 4. If there were any violations under the Charter, should the evidence be excluded pursuant to Section 24(2) of the Charter? ISSUE 1: Did the police have a reasonable suspicion to detain the Accused or there was an arbitrary detention? THE LAW [49] There is no dispute that stopping the motor vehicle constituted a detention (R. v. Simpson (1993), (ON CA),12 O.R. (3d) 182, 14 C.R.R. (2d) 338 (C.A.)). If that detention was lawful for investigative purposes, it will not be arbitrary (R. v. Mann,2004 SCC 52 , [2004] 3 S.C.R. 59, at para. 20; R. v. Clayton, 2007 SCC 32 at para. 20).

In order for such a detention forinvestigative purposes to be lawful, in Simpson, at paragraph 61 the Ontario Court of Appeal stated there must be: 61 … a constellation of objectively discernable facts which give the detaining officer reasonable cause to suspect that the detainee iscriminally implicated in the activity under investigation. [50] In Mann, at paragraph 34 the determination of the lawfulness of an investigative detention was framed this way: 34 … The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing theofficer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence.

Reasonablegrounds figures at the front-end of such an assessment, underlying the officer's reasonable suspicion that the particular individual isimplicated in the criminal activity under investigation.

The overall reasonableness of the decision to detain, however, must further beassessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to performthe officer's duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of theWaterfield test. [51] The threshold to warrant detaining someone for the purposes of an investigative detention is lower than the grounds requiredto effect a lawful arrest. In R. v.

Savage, 2011 SKCA 65, a case similar to the facts of the present case, the Saskatchewan Court ofAppeal overturned an acquittal, based on the trial judge’s error in finding there was insufficient evidence to support a reasonablesuspicion that the Accused was in possession of marijuana.

In speaking for a unanimous court, Smith, J.A., at paragraph 18 stated: 18 Although neither requires proof beyond a reasonable doubt, there is a significant distinction between the test of objectivelyreasonable and probable grounds to believe that a crime has been committed and the test of objectively reasonable suspicion that a crimeis being or has been committed. The former requires that the factors relied upon have enough probative value to establish the probabilitythat the suspect is implicated in criminal activity. This is the threshold required for a lawful arrest and a physical search incident toarrest.

The standard for reasonable suspicion, the threshold for investigative detention and for the deployment of a sniffer dog, is lessstringent. This requires that the police have more than a mere hunch, based on intuition gained by experience. They must be able to pointto objective facts that support the suspicion. However, the lower standard does not require that the officers be able to point to factorssufficient to establish the probability of the crime. Reasonable suspicion is a lower standard and can be established by less evidence, withless probative value, than reasonable and probable cause. See R. v.

Brown and this Court's decisions in R. v. Bramley and R. v. Yeh, 2009SKCA 112, 248 C.C.C. (3d) 125 (Sask. C.A.). [52] The police need only point to objectively discernable facts (Savage, at para. 30). Reasonable grounds to detain means“reasonable grounds to suspect” (R v. MacKenzie, 2013 SCC 50 at para. 38). [53] As stated earlier, Corporal Maher testified that there were three factors he relied upon to formulate his decision to stop anddetains the Accused: (

i) the information from the confidential informant; (ii) his knowledge and experience that the Accused wereinvolved in the drug trade; and (iii) the observations that had been made of the Accused when stopped at Churchill Falls. [54] I found Corporal Maher to be a credible witness. His evidence was detailed and consistent. He is an experienced officer,especially in the investigation of drug crime, and has been qualified as an expert in this area on other occasions.

While he was not askedto be so qualified in this matter, there was no dispute with his testimony in explaining why he acted as he did with regard to stopping theAccused. [55] He had excellent (but certainly not perfect) recall of the events in question, notwithstanding the passage of time. He did notembellish his evidence and was candid when he was mistaken about particular facts. His evidence was not seriously challenged oncross-examination. [56] One of the main arguments of the Accused that the arrest was arbitrary, was that the information from the informant was toovague to be compelling or probative.

In her written argument, counsel for Ms. Mercer suggested that the source was “unknown” andtherefore unreliable. I disagree. [57] Corporal Maher testified that although the informant who provided the information was not an informant that he personally“handled,” because of the size of the detachment in Goose Bay he was “quite familiar” with this particular informant and that the officersregularly shared information about all the informants. Corporal Maher testified that this informant had been used “numerous” times inthe past.

His information had been found to be reliable in the past resulting in numerous seizures of other contraband. Corporal Maherwas also candid in noting the informant had been paid in the past. Corporal Maher stated that in the past, information given by theinformant had also been able to be corroborated. Given the reliability of the informant in the past, I am satisfied Corporal Maher wasentitled to rely on the information.

[ 58 ] I also do not find the information provided by the informant to be vague as asserted by the Accused.

While the information did not identify who would be bringing the contraband or the particular vehicle, it was specific as to when, where and how the contraband would be transported: over the coming weekend via Labrador City to Goose Bay, and that persons would be coming from Goose Bay to Labrador City to obtain the shipment. [ 59 ] When the information from the informant is coupled with his experience and knowledge of the transport of drugs in Labrador, I am satisfied that it was reasonable for Corporal Maher to rely on this information and believe that there was a shipment of marijuana being transported as described by the informant. [ 60 ] I also see no difficulty with his reliance on his knowledge of the Accused.

The officer was entitled to rely on his experience and knowledge to assess whether or not the information from the informant was compelling ( Savage at para. 26 ). This was not a case of an officer singling out the Accused based solely on his knowledge of their background.

When all the information became known to Corporal Maher that these particular Accused were travelling between Labrador City and Goose Bay on this particular date, given the information from the confidential informant, this was a significant development. [ 61 ] In this case, the information that drugs would be transported from Labrador City to Goose Bay must be seen in context. There is no other road, other than Route 500, to Goose Bay from Labrador City.

It was clear from Corporal Maher’s evidence that in his opinion, it was significant not only that it was the Accused that were observed but that they were observed in Churchill Falls en route to Goose Bay and were not taking the typical steps travelers did, for example re-fueling when making such a journey. [ 62 ] When the information from the informant is taken together with the other observations of the Accused and Corporal Maher’s knowledge of the recent involvement of the Accused in the drug trade, I am satisfied that together they constituted a “constellation of discernable factors” that objectively give rise to a reasonably based suspicion that the Accused may be implicated in the criminal activity under investigation. [ 63 ] While I take no issue that each of the factors relied upon by Corporal Maher, standing alone would be insufficient, the law does assess the veracity of the information by piecemeal.

The “constellation” of factors is determinative. As stated in Savage at paragraph 29 : 29 … no one factor is likely to have compelling probative value, and the value of some may be very weak, having significance at all only when considered together with other factors. … [ 64 ] I am also satisfied the detention was necessary. ( Mann at para. 45, MacKenzie at para. 35). In the circumstances, it was unrealistic for the officers to take other steps. [ 65 ] For these reasons, I am satisfied that the detention of the Accused was lawful and well within the confines of

section 9 and the requirements under Mann . ISSUE 2: If there was an arbitrary detention, did it result in an unlawful arrest? [ 66 ] From that initial detention, the further almost immediate observations made by Corporal Maher strengthened the officer’s belief that both Accused were implicated in criminal activity. The Accused was smoking a fresh cigarette, and several air fresheners could be seen in the car. Ms. Mercer was also less talkative than usual. Upon the passenger window being rolled down, a very strong and distinctive odour was recognized by Corporal Maher as fresh marijuana.

As testified by Corporal Maher, this all happened within a matter of minutes. [ 67 ] These further observations, in particular the strong smell of marijuana, provided more than ample grounds to arrest the Accused for the possession of marijuana ( R. v. MacCannell , 2014 BCCA 254 ; R. v. Harding , 2010 ABCA 180 ; and R. v. Power (2011), 311 Nfld. & P.E.I.R. 26, 92 W.C.B. (2d) 620 (N.L. Prov. Ct.) ). Therefore there was no arbitrary detention in this regard. ISSUE 3: If so did this unlawful arrest result in an unreasonable search or seizure contrary to

section 8 of the Charter ? [ 68 ] The answer is no. Finally, as conceded by the parties, by finding the arrest lawful, the search too was lawful as incident to arrest ( Caslake ), and there is no violation under

section 8. [ 69 ] For these reasons, the application under the Charter is dismissed. ISSUE 4: If there were any violations under the Charter , should the evidence be excluded pursuant to Section 24(2) of the Charter ? [ 70 ] Given my finding that there were no violations under the Charter , it was unnecessary to determine whether the evidence should be excluded under section 24(2) of the Charter . However, if there was an arbitrary detention, the evidence should nonetheless be admitted. [ 71 ] The decision in R. v.

Grant , 2009 SCC 32 provides a framework for the assessment of the circumstances in determining whether to exclude evidence obtained in the course of a Charte r violation. The assessment addresses three broad categories: 1. The seriousness of the Charter infringing state conduct; 2. The impact of the breach on the Charter protected interests; and 3. Society’s interest in the adjudication of the case on its merits . The seriousness of the Charter infringing state conduct [ 72 ] Corporal Maher was a credible witness and I accept his evidence that he believed in good faith he had sufficient basis to detain

the Accused. To his credit, he did not try to mask what was clearly a drug investigation under the guise of a traffic stop, but stated he relied on the information he had obtained. If there was an insufficient basis to detain the Accused it was just shy of reasonable suspicion for possible drug trafficking and was strengthened almost immediately. Constable Maher was courteous and reasonable in his dealings with the Accused. This is not a case where the Court needs to disassociate itself from the conduct of the police. This tends to favour the admission of the evidence.

The impact of the breach on the C harter protected interests [ 73 ] If there was an arbitrary detention, it was minimal at best. The operation of a motor vehicle is a highly regulated activity. Indeed, both Accused had been stopped earlier that evening. However, if there was an arbitrary detention by Corporal Maher, there is no dispute it was the basis for the further intrusions that followed. While the police were courteous and only intruded upon the liberty and privacy of the Accused to the extent necessary, that initial violation precipitated a series of events that culminated in an arrest.

In that regard, while the initial breach was minor insofar as the intrusion was minimal, the impact was serious because of what it facilitated in terms of the investigation. This tends to militate against the admission of the evidence. Society’s interest in the adjudication of the case on its merits [ 74 ] There is no dispute that the admission of the marijuana seized by the police is essential to the Crown’s case. Society’s interest in the prosecution of large-scale trafficking of contraband is significant. Without this evidence the prosecution will fail.

The evidence was not conscripted and is highly reliable physical evidence. This tends to militate in favour of the admission of the evidence. [ 75 ] On balance, in my view the evidence should be admitted. It is real evidence. The police acted in good faith. The violation was minimal, and they believed they were acting in accordance with the law. In these circumstances, to exclude the evidence would be more likely to bring the administration into disrepute, and I would admit the evidence.

THE TRIAL [ 76 ] As stated earlier, the evidence called on the Charter application was adopted as part of the trial evidence and has been considered along with the other evidence called on the trial proper. Mr. Beaulac’s Dismissal of His Counsel [ 77 ] The evidence and argument regarding the Charter application was completed in less than a day. The decision was given orally the next morning and a brief adjournment was given for the parties to consider the next steps. When the Court returned from the recess, Jonathan Regan, counsel for Mr.

Beaulac advised that he was seeking leave from the Court to withdraw as counsel. He advised there was a breakdown in the solicitor-client relationship with Mr. Beaulac. Mr. Beaulac confirmed this on the record and advised that he no longer wished for representation by his defence counsel. [ 78 ] Mr. Beaulac requested that he be able to obtain counsel. However, in my view it was not in the interests of justice to delay this trial further. While it is always preferable that an Accused person have legal representation, Mr. Beaulac chose to fire his counsel. Mr.

Beaulac fired his lawyer at the last minute after the trial had commenced. The Crown was ready to proceed with its witnesses. The matter had been significantly delayed already. [ 79 ] Consequently, Mr. Beaulac was advised by the Court that given the number of delays in this matter, in particular, delays at the request of one or both of the Accused, and that he was essentially firing his counsel in the middle of the trial, the trial would not be postponed further. This was a relatively straightforward matter and it would not be in the interest of justice to delay the matter because Mr.

Beaulac was unhappy with his counsel at this late stage. [ 80 ] While it was not stated explicitly, the timing of breakdown in the relationship was not lost on the Court. It was the conclusion of the unsuccessful Charter application. [ 81 ] Mr. Beaulac was given some time to re-consider his position. The Crown also provided him with his copy of the disclosure. Mr. Beaulac confirmed he would represent himself. Counsel for Ms. Mercer confirmed that there were no issues for their part, and they were ready to proceed with the trial. [ 82 ] Mr. Beaulac was represented by counsel since the indictment had been filed.

All the appearances on behalf of Mr. Beaulac were made by counsel including at the pre-trial conference previously in April where agreements had been made by both Accused with respect to the evidence. For example, both Accused agreed that their statements to the police were voluntary, that the expert analysis of the substance as marijuana was admitted. There was no issue with the continuity of the exhibits.

Nor was there any dispute with the qualifications of Constable Emberley who was to give expert evidence in relation to such issues as the nature of drug trafficking, the use of marijuana, the significance of the manner of the packaging, and quantity of marijuana. [ 83 ] These were reasonable but significant concessions by both Accused. [ 84 ] Because Mr. Beaulac was now self-represented, he was given the opportunity to challenge the admissibility of the evidence as it related to the above as the issues arose notwithstanding the agreements made by his counsel. However, on each occasion Mr.

Beaulac was content to maintain the previous consent given by his previous counsel. The Further Evidence at Trial [ 85 ] Corporal Maher was recalled to the stand to continue with his evidence as to his dealings with the Accused on the date in question. A book of photographs was entered showing the vehicle and the marijuana that was seized. Of note, the multiple air fresheners could be seen hanging in the car. The garbage bag, later identified to contain the contraband, could be seen in one of the photographs beneath items in the back of the Jeep.

There was also a photo of the car ashtray filled with cigarette butts. There were

photos that showed the individually packaged amounts in the plastic re-sealable bags. [ 86 ] Corporal Maher testified that the total weight of the marijuana was 3510.9 grams (3.5 kilograms) or about or 7.73 pounds. The individual packages weighed about a half pound each. Corporal Maher testified that it appeared that at least one of the sealable bags had come open because there were loose contents of marijuana in the garbage bag, and he observed one bag with the seal open. [ 87 ] There were other items seized including two cell phones and a purple note book.

While there was extensive cross-examination in relation to the notebook Corporal Maher testified that in his view he believed it contained nothing of relevance. [ 88 ] Corporal Maher testified that samples of the contents of the individual re-sealable bags were sent for analysis. The certificate of analysis identifying the contents as marijuana was entered as an exhibit. As stated, notwithstanding that his previous counsel had agreed to the admissibility of the certificate of analysis Mr. Beaulac was given an opportunity to challenge the certificate. He did not so challenge.

The Cautioned Statements of the Accused. [ 89 ] Corporal Maher testified that both Accused were interviewed and gave cautioned statements When asked whether or not he wished to challenge the admissibility of the statement, Mr. Beaulac was clear that he did not oppose it being tendered. While the Court did not hear from one of the officers who had dealings with Mr. Beaulac, with Mr. Beaulac’s consent that there was no issue with the statements’ admissibility when Mr.

Beaulac was represented by counsel, and hearing the circumstances of the interview (not the content of the statement), I was satisfied to allow the statement to be tendered. [ 90 ] There was no issue with Ms. Mercer’s statement. [ 91 ] There was a transcript of both interviews. The audio recording of the interview was tendered and listened to in Court. Both statements are largely exculpatory in the sense that each Accused provided an explanation for being in possession of the marijuana (indeed, it was Mr. Beaulac’s wish that the statement be entered for this reason). Mr.

Beaulac’s Statement [ 92 ] In his interview with Corporal Maher, Mr. Beaulac stated the bag fell out of the back of a green pickup truck with a white cab that had been traveling in front of them going in the same direction. He stated that when the driver of the pickup saw them coming, he “give it to her.” He stated that they almost went off the road because the bag was right in front of the Jeep. He stated that he was the one that got out of the car and picked up the “bag of weed.” [ 93 ] He asked the officer what was in the bag because he stated he did not look into the bag.

But he also stated that “obviously” it was marijuana because “you can smell it.” He stated that he could smell it as soon as he picked it up. He suggested to Corporal Maher that when the Accused were stopped by the police at Churchill Falls, if they had had the marijuana then, one might have expected the officer to notice the smell. [ 94 ] When asked why he picked it up, Mr. Beaulac stated that he would not leave it on the road. When asked about the air fresheners, he stated they had been there for a while, were not new, and were because he had “smelly feet.” Ms. Mercer’s Statement. [ 95 ] In her interview, Ms.

Mercer also stated that the bag had fallen off the back of a green pickup truck. It was going too fast for her to catch them. She stated that “Beaulac got out, just took the bag and just threw it in.” She stated she did not bother to look. She stated that “obviously” the marijuana could be smelled once it was in the Jeep. Ms. Mercer stated she did not use “weed” so she had no use for the marijuana. When asked why not get rid of it once she knew what it was, her response was “Just found it. Why would I care?” or “Why wouldn’t I?” She stated she knew it was illegal.

She agreed that she had no problem driving around with that amount of marijuana. Ms. Mercer denied she was doing a “run” and stated if she was going to do a “drug run”, she would not do it for “weed”. She agreed that she had used cocaine in the past, but now used pills, or the “scatter morphine”. She stated she took Tylenol 4s from her doctors. [ 96 ] Ms. Mercer stated she knew the police were behind her and stated that “I know every cop vehicle around here. I even knows the undercover ones.” Ms.

Mercer stated because she knew the police were behind her she had “lots” of time to hide or get rid of the marijuana if she had wanted to so do. [ 97 ] She could not be specific as to where the marijuana was picked up, just somewhere between Churchill Falls and Goose Bay. [ 98 ] When asked why there were so many air fresheners in her car, Ms. Mercer stated it was because she was a heavy smoker. Cross-examination of Corporal Maher [ 99 ] Under cross-examination by Ms. Mercer’s counsel, Corporal Maher confirmed that he did not smell the marijuana until Mr. Beaulac rolled down his passenger window.

Much time was spent regarding exactly how many air fresheners were observed in the car. [ 100 ] It was also put to Corporal Maher, that given the interview with Ms. Mercer, it appears that the vehicle approached by the police, prior to encountering the Accused did not involve an actual stop but was a pursuit only. The pursuit of that vehicle was abandoned when the officer’s saw the Accused’s Jeep go by (see page 4 of Ms. Mercer’s interview).

[ 101 ] The officer agreed that the nature of the exchange at that point in the interview suggests that there was no actual stop. Corporal Maher testified that he thought that they had actually stopped the car, but he could be wrong. Constable Dave Emberley [ 102 ] The Crown next called Constable Dave Emberley from the Combined Special Forces Enforcement Unit of the RNC to give expert evidence on the shelf life of marijuana, the nature of the drug trade, including the packaging, pricing and distribution of drugs, including the difference between how much one might have in their possession for personal use.

Although Ms. Mercer, through her counsel, did not object to Constable Emberley’s qualifications, Mr. Beaulac was given an opportunity to challenge the officers qualifications if he so wished. [ 103 ] Mr. Beaulac did not oppose Constable Emberley’s qualifications. Constable Emberley testified as to his qualifications. Upon review of his qualifications, his testimony and his resumé which was tendered in evidence, I was also satisfied that Constable Emberley could be qualified in the areas as requested by the Crown. [ 104 ] Constable Emberley’s testimony was not contradicted.

He had prepared a written report and that report was filed by consent. He testified that the amount of marijuana seized was well beyond what could be considered for personal use. He explained that marijuana has a shelf life and after about six months loses its potency. [ 105 ] However, the large amount seized, 3500 grams (8 pounds) would be sufficient to last an individual using a typical amount, for almost five years. This calculation was based on assuming a heavy user using two grams of marijuana a day.

Even if shared between two individuals (given there were two Accused), the time would still extend well past the shelf life of marijuana and would be expected to last well over two years. For this reason, in his opinion, it would not make sense for someone to possess so much solely for personal use.

The amount, in his opinion, was consistent with someone who intended to traffic the contraband. [ 106 ] Constable Emberley further testified that the packaging was consistent with being for sale and that it was typical for those trafficking to sell amounts by the half pound as was observed of the individual bags that were seized. [ 107 ] Constable Emberley testified that given the value of that amount of marijuana it would be dangerous for someone to be in its possession.

If the wrong person found out one was in possession of such a quantity of drugs such a person could “become a target.” [ 108 ] Constable Emberley stated that in his opinion the amount of marijuana, the way it was packaged, and that there were multiple air fresheners observed in the car were all consistent with trafficking. [ 109 ] Constable Emberley testified that the street value depended on how it was sold. If sold by the half gram, the eight pounds could yield as much as $70,000.

If sold by the pound, one would likely yield between $20,000 and $24,000. [ 110 ] He also testified that Quebec was one of two sources for such drugs. He testified that in his experience it was common for such drugs to come to Goose Bay through Labrador City, originating in Quebec. [ 111 ] There was no further evidence from the Crown. The Defence Evidence [ 112 ] Both Accused testified. Ms. Mercer testified that she is 48 and at the time of the arrest she was living in Goose Bay.

She testified that she and Richard Beaulac had driven to Labrador City the day before the arrest to pick up a suit for her nephew for his graduation. She testified she purchased the “whole suit for 80 dollars” at the Walmart in Labrador City. On the way over the car broke down, and they had to wait in the car for daylight before they could fix it. She was the driver. [ 113 ] After they went shopping, they went to play the “slots” and then went to the McDonald’s restaurant. She stated they started to head home around 2:00 p.m.

She said there is only one road between Labrador City and Goose Bay and it took generally five hours, if the road was good; three and a half hours if “you drove 180.” She testified that on the way back, they “hauled in to sleep” before they got to Churchill Falls. [ 114 ] In Churchill Falls, they were pulled over by a “young cop.” He asked her “[h]ow she was” and stuck his head in the window. She said she told the officer she would have another nap. [ 115 ] Ms. Mercer testified that she took her time traveling back to Goose Bay.

It was somewhere after Churchill Falls that they observed a green pickup truck traveling in front of them, going in the same direction. She did not know where exactly this occurred. She said that “Beaulac said to stop and pick it up.” They did not know what was in the garbage bag. She testified she assumed it was garbage, and that she had in the past picked up “lots of bags of garbage” from the road. [ 116 ] Ms. Mercer testified that Mr. Beaulac got out of the Jeep, picked up the bag and threw it in the back, and they continued their drive. She said Mr. Beaulac first recognized the smell.

She asked him what it was, and he said it was “weed.” [ 117 ] She testified they just drove on after that. She wanted to get home because her nephew had his graduation. She testified that she was going to deal with the bag the next day. She testified she did not use her cell phone to report to the police what they had found. [ 118 ] Ms. Mercer stated they did try to catch up to the pickup truck from which the bag had fallen but because the Jeep could only do drive 70 to 80 kilometres per hour, she was unsuccessful. Ms.

Mercer testified that she definitely did not want “it” (meaning the marijuana in the garbage bag). [ 119 ] On cross-examination, Ms. Mercer reiterated that she did not know the location where they saw the bag fall off the truck. She could not say if it was closer to Goose Bay or closer to Churchill Falls. She did not know if it was still daylight. She did not know how

long after they left Churchill Falls or for what period of time they attempted to catch up to the pickup truck; she thought maybe an hour. When asked how she tried to get the attention of the driver of the green pickup she did not know and thought maybe through honking thehorn. She did not know how long afterward that they were stopped by the police. She explained that five years have passed since thearrest, and she was not writing it down. [120] She agreed that she could smell the marijuana but not right away; it was almost before they were stopped by the police.

Shesaid she was not a user and she did not think it was a big deal that they were in possession of the marijuana. She said it was her regularpractice to pick things up from the road if it was in her way. She was definite that she would not turn it over to the police. She said itwould be the same if it was a bag of cocaine. Ms. Mercer then stated that actually she might turn it over to the police. [121] Ms. Mercer admitted that she had four convictions for fraud and four convictions for uttering a forged document. [122] On re-direct, Ms. Mercer stated that she knew about the “drug world,” and knew how it works.

She said it had nothing to dowith her. Ms. Mercer stated she “got caught once” with four grams of cocaine and now the police believed “she’s a big-time drugdealer.” [123] Mr. Beaulac also testified. Again, because Mr. Beaulac was self-represented, the Court took some time to explain to him that hewas not required to testify and that it was solely a matter of his choice. If he did choose to testify, he would be questioned by the Crown. Mr. Beaulac was clear that he wanted to testify. [124] Mr. Beaulac testified that he was born in 1974. Mr.

Beaulac stated that “every time we’re on the highway we gets stopped.” This was a re-occurring complaint of Mr. Beaulac during his interview with the police and during his testimony. He testified that he feltthat he and Ms. Mercer were harassed by the police. [125] He denied picking up the marijuana in Labrador City, but like Ms. Mercer testified that the bag fell of the back of a green pickuptruck with a white cab that was traveling in front of them. [126] In a moment of chivalry, and not said in his statement, Mr. Beaulac testified that the Court should not find Ms. Mercer guilty.

He stated it was “all his idea” and he was the one that made her stop to pick up the bag. He testified that he told her that he would havejumped from the Jeep if she did not stop. [127] While he was also unsure exactly where they saw the green pickup, Mr. Beaulac also recalled that it was 45 minutes to an houroutside Churchill Falls on a big hill. [128] Mr. Beaulac stated he could smell right away that it was “weed.” He stated the plan was not to keep it but to give it back oncethey got to Goose Bay.

He stated they could not catch up to the green pickup because the Jeep only went 80 kilometres per hour. [129] He agreed that he knew they could not catch up with the pickup, and stated he did not know what his intention was when theygot to Goose Bay. [130] Mr. Beaulac said it was just a coincidence that there were multiple air fresheners in their vehicle. [131] When asked about the stop in Churchill Falls, Mr. Beaulac said there was only one officer that stopped them in Churchill Falls.

He stated that when they were stopped later by Corporal Maher and Constable Mosher, one of the officers stated “You got that in LabCity,” meaning the marijuana. Mr. Beaulac then stated, “But the cop in Churchill Falls didn’t smell anything.” ANALYSIS [132] In a criminal trial, the onus is on the prosecution to prove all the elements of the offence charged beyond a reasonable doubt. That onus never shifts (R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320). The standard of proof beyond a reasonable doubt iscloser to absolute certainty than it is to the balance of probabilities (R. v. Starr, 2000 SCC 40).

That is, it is not enough to be satisfiedthat the Accused “probably” or “more likely than not” committed the offences. [133] On the criminal standard, a court must be satisfied well beyond this level of certainty. [134] In this case, because the Accused testified, in deciding whether or not the offences have been proven, the Court must also bealive to the instruction in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742 and the three-tiered approach to the assessment of theevidence.

This approach is to ensure that in a case such as this the court does not fall into the trap of simply choosing between twocontesting versions of events, but renders its verdict on an assessment of all the evidence.

It is always helpful to review the framework ofW. (D.) [135] Firstly, in this case, if the evidence of the Accused is believed, it would support a finding of not guilty on the offence oftrafficking, and the Court must find the Accused not guilty. [136] Secondly, even if the evidence of the Accused is not believed, if the Court is left with a reasonable doubt by the evidence, thenthe Accused must be acquitted. [137] Finally, even if the evidence of the Accused does not raise a reasonable doubt, the Court must still assess all the evidence that itdoes accept to determine whether or not the evidence supports, beyond a reasonable doubt, that the offences occurred. [138] In this case, counsel for Ms.

Mercer conceded that, with regard to her client, the offence of simple possession was established. She conceded the evidence established possession of the contraband on the evidence of Ms. Mercer alone. [139] The real issue in this case was whether or not the evidence established that the Accused possessed the necessary mens rea thatthe possession was for the purposes of trafficking.

[ 140 ] The evidence of the intent of the Accused is circumstantial. As such, the evidence must establish beyond a reasonable doubt that the only reasonable inference to be drawn is the guilt of the Accused (see R. v. Villaroman , 2016 SCC 33 at paragraph 30 ).

As stated in Villaroman at paragraph 34 , “if there are reasonable inferences” that can be drawn from the evidence about the intent of the Accused other than guilt, then the Crown has not proven beyond a reasonable doubt that the Accused are guilty. [ 141 ] The evidence must be assessed logically and in light of human experience and common sense. ( Villaroman at para. 36 ). Application of the law to the facts [ 142 ] I do not believe the evidence of either Accused as to how they came into possession of the marijuana.

The explanation provided by both Accused is that the only reason they were in possession of thousands of dollars’ worth of marijuana is because a garbage bag fell off the back of a pickup truck, and they decided to stop and pick up the bag. [ 143 ] Not only do I not believe this explanation for the possession, it does not raise a reasonable doubt. [ 144 ] Firstly, the explanation that some unknown person allowed a possible street value’s worth of marijuana of as much as $70,000 to bump around in the back of a pickup where it conveniently falls out in front of the Accused, and then not stop to retrieve it themselves, is not only implausible, it borders on ludicrous. [ 145 ] As Constable Emberley testified (and I accept his opinion in this regard), the unintended possession of that amount of marijuana could be dangerous if it became known.

Given this, it is not logical that some unknown person purported initially in possession, would so casually transport such a valuable commodity and so easily let it fall from their possession. [ 146 ] The evidence of both Accused is incredible, and defies both logic and human experience that this is what happened. [ 147 ] The explanation was also devoid of details. Neither Accused could explain where and when this was supposed to have happened. In his testimony, Mr.

Beaulac seemed to think it was 45 minutes to an hour outside of Churchill Falls on a big hill when the bag fell, but of course, as discussed below, this is not in keeping with his original description (vague as it was) to the police in his statement. [ 148 ] Nor does the description of the how the Accused came into the possession of the bags comport with some of the other evidence. For example, Ms.

Mercer testified at trial and also stated in the interview that the bag was simply “thrown in the” back of the Jeep, which suggests that it should have been readily seen by the officers on top of the several other items when they searched the vehicle. [ 149 ] However, both Constable Maher’s testimony and the photographs contradict this description. The photographs speak for themselves and it is clear that the garbage bag is not on top of the other items, but concealed beneath other items. [ 150 ] This also means that Mr. Beaulac or whoever put the bag in the Jeep had to take the time to cover it.

While not determinative that the bag was clearly covered it is not consistent with innocently carrying a garbage bag of unknown contents thrown into the back of the Jeep but more consistent with carrying something clandestine that one wants to keep from view. [ 151 ] It was argued that because there is no evidence that the police officer who stopped the Accused in Churchill Falls noticed any odour that this was consistent with the Accused having picked up the bag after leaving Churchill Falls. [ 152 ] The officer who conducted that traffic stop was not called as a witness so it is difficult to know what that officer did or did not smell.

If the Accused were in possession at that time, there could be any number of reasons why the odour may not have been detected.

For example, as stated by Corporal Maher, it was not until both front car windows were rolled down that he noticed an odour. [ 153 ] Without knowing more details of the traffic stop in Churchill Falls, it is difficult to conclude that this is compelling evidence in support of the Accused’s explanation as to how they came into possession of the marijuana. [ 154 ] Further, if the possession was innocent, something that was just happened upon, it does not make sense why neither Accused attempted to contact the police to turn over the contents once they realized what they had.

When stopped by the Corporal Maher there was no such effort. While I accept that neither Accused were entirely trusting of the police, the fact is if their possession was as innocent as they claimed there was no reason for them not be direct and straightforward with the police either by being proactive and contacting them or when stopped. [ 155 ] They did tell the police about the green pickup, but this was only after the marijuana was discovered.

Again, standing alone, this is not evidence that is determinative of guilt, but like the garbage bags being locate under items, it does not accord with their explanation that the possession was innocent.

Failing to say anything about their special cargo until the marijuana was found, is more consistent with trying to avoid the bag being detected than possession due to accidentally having come across the bag, as asserted in their explanation. [ 156 ] If the possession was innocent, logic and common sense would suggest that one would want to divest themselves of any responsibility for possession of illegal contraband at the first opportunity. [ 157 ] Nor is it credible from Ms. Mercer’s testimony that it was some time before she realized what was in the bag. She was also inconsistent on this point.

The evidence from Corporal Maher was that the odour from the car once the passenger window was rolled down was distinct and very strong. Even Mr. Beaulac in his interview conceded that the smell was almost immediately noticeable and recognizable. [ 158 ] Logic and human experience supports that the smell must have been very strong in the car before the windows were rolled down. Given Corporal Maher’s evidence that Ms. Mercer was involved in the drug trade and Ms.

Mercer’s own admission that “she knew the drug world,” it is simply not credible that she did not notice any odour or did not know what it was until informed by Mr. Beaulac as per her testimony. In her interview, she was a little more candid in that she seemed to concede to Corporal Maher that she

knew the contents because of the smell. [ 159 ] While both Accused testified in a similarly vague fashion, as they spoke in their interviews, Mr. Beaulac’s interview was inconsistent with his testimony in one significant regard. In his interview, when asked about when and where it was that the bag fell off the truck, Mr. Beaulac had stated that it was “towards Goose” and was emphatic that the police would have had to have seen the green pickup (page 6 of transcript). Since the police were parked just at the edge of cell service from Goose Bay, this means that if Mr.

Beaulac was correct then the bag fell off much closer to Goose Bay than to Churchill Falls. [ 160 ] However, as noted earlier in his testimony, Mr. Beaulac testified that he thought it was about 45 minutes to an hour outside of Churchill Falls, which means the encounter with the green truck was much closer to Churchill Falls than it was to Goose Bay. [ 161 ] This was a discrepancy between his evidence and interview that weighs against his overall credibility and undermines that the event ever occurred.

Given the distance between Churchill Falls and Goose Bay, of which I take judicial notice is almost 300 kilometers, there is a substantial difference between the garbage bag falling off the truck occurring just at the edge of cell service for Goose Bay and 45 minutes to hour outside of Churchill Falls. [ 162 ] For the above reasons, not only do I not believe his evidence, when considered with all the evidence, keeping in mind the instruction in Villaroman , the evidence does not raise reasonable doubt.

It was a concocted story that is implausible on its own; more so when measured against the other evidence that is available. [ 163 ] I am satisfied that when all the evidence is considered the only reasonable inference is that both Accused were in possession of that quantity of marijuana for the purposes of trafficking, to sell themselves, or in conjunction with some other person once they returned to Goose Bay. [ 164 ] The expert evidence from Constable Emberley was that the amount of marijuana seized from the Accused’s vehicle cannot realistically be intended for personal use as that amount would last well beyond the “shelf life” of the marijuana – even for a heavy user. [ 165 ] I accept his opinion that the style of the packaging is consistent with intending to sell the marijuana.

His evidence was straightforward and not contradicted. [ 166 ] Considering all the circumstances, logic and common sense permit no other finding than both Accused were in possession of the marijuana for the purposes of trafficking [ 167 ] I find both Accused guilty as charged. _________________________________ FRANCES J. KNICKLE Justice