R. v. Walker, 2019 NLSC 132

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Walker , 2019 NLSC 132 Date : July 10, 2019 Docket : 201804G0168 Her Majesty The Queen v. Douglas Charles Walker Danielle Melina WIGHT Before: Justice Donald H. Burrage Place of Hearing: Corner Brook, Newfoundland and Labrador Dates of Hearing: May 21, 22, 23 and 24, 2019 June 25 and 27, 2019 Appearances: Mark Mills Appearing on behalf of the Crown Trevor S. Murphy Appearing on behalf of Danielle Wight Robby D. Ash Appearing on behalf of Douglas Walker

Authorities Cited: CASES CONSIDERED: R. v. Walker, 2019 NLSC 83; R. v. Brake, 2019 NLCA 20; R. v. Daniels, 2004 NLCA 73; R. v. Pham, (ON CA), [2005] 204 O.A.C. 299, 203 C.C.C. (3d) 326; R. v. Aiello, (ON CA), [1978] 38 C.C.C. (2d)485, 30 N.R. 559 (Ont. C.A.); R. v. Sparling, [1988] O.J. No. 107, 1988 CarswellOnt 1624(S.C. (H.C.J.)); R. v. Villaroman, 2016 SCC 33; R. v. Sandhu, 2016 BCPC 397; R. v. Rideout, 2017 NLTD(G) 34; R. v. Fitzpatrick, 2009NLTD 88; R. v.

W.(D)., (SCC), [1991] 1 S.C.R. 742 REASONS FOR JUDGMENT Burrage, J.: INTRODUCTION [1] Douglas Walker (“Walker”) and Danielle Wight (“Wight”) are jointly charged with possession of cocaine for the purpose oftrafficking, as well as simple possession of cannabis, cannabis resin and methamphetamine (crystal meth).[1] [2] In a previous ruling (R. v. Walker, 2019 NLSC 83) this court held that there were reasonable grounds for the arrest of Walkerand Wight and that the search of Walker’s vehicle incidental to that lawful arrest was reasonable. No breach of the Charter[2] wasfound.

THE DRUGS [3] On 8 February 2017 police stopped a blue Jaguar motor vehicle on the Trans-Canada Highway near Junction Brook, to theeast of Deer Lake, NL. The vehicle was being driven by Walker and the front passenger seat was occupied by Wight. A search of thevehicle disclosed a black duffle bag in the trunk belonging to Walker.[3] The bag was closed.

Upon opening it Constable Brian Green,of the RCMP, found a quantity of men’s clothing, a physiotherapy appointment reminder for Douglas Walker on 9 February 2017, at aclinic in Porters Lake, Nova Scotia, and a quantity of illegal drugs. [4] In particular, the constable found 508 grams of cocaine in a plastic bag wrapped neatly in a towel at the top of the assortmentof men’s clothing in the duffle bag.

The defence conceded that if Walker and/or Wight were found to be in possession of the cocaine inthe duffle bag, then this possession was for the purpose of trafficking. [5] Constable Green observed that the towel was neatly folded, in contrast to the clothing found in the duffle bag. He thought thatit looked “out of place” in the duffle and opined that “people don’t normally travel with a towel,” as they are provided by hotels.

Whether this is true or not, the presence of the neatly folded towel sitting on top of the clothing in the duffle bag stuck in the officer’smind as unusual. [6] In addition, 95 grams of cannabis were found in the duffle bag in a sealed bag inside a plastic shopping bag.

In a zipperedpocket on the outside of the duffle bag police located an additional 4 grams of a cannabis like substance[4], 25 grams of cannabis resin(hash) and a receipt dated 6 February 2017 for a two-night stay at the Howley Tourist Lodge, in Howley, NL.[5] It is not possible todiscern in whose name the receipt was issued.[6] [7] No fingerprints were taken from any of the drugs found in the duffle bag, nor a DNA sample from the towel. [8] Constable Green made no mention of finding the hash in the zippered compartment in his police notes taken at the time, norhis Supplementary Occurrence Report record, written some six days later.

This omission prompted Walker’s counsel to suggest that theconstable was mistaken in attributing the hash to Walker’s duffle bag. However, Constable Green testified that he was” positive” thehash did not come from somewhere else and that he has a “present memory” of finding it in the duffle bag. Further, both his notes andSupplementary Occurrence Report record that he weighed a quantity of hash at 1727 hours on 8 February 2017.

Based on this recordand the constable’s memory, I am satisfied that the hash was indeed found in the zippered compartment of the duffle bag. [9] A subsequent search of the vehicle also disclosed one gram of a white substance in a plastic wrapper, between the frontpassenger seat and the passenger side door. This substance was not analyzed. Initially the police “thought” it was cocaine, but they later“believed” it to be ground up methamphetamine tablets. Whether the substance was cocaine, methamphetamine, or Robin Hood flour,will remain a mystery.

In this case, the absence of analysis is such as to raise a reasonable doubt. Nothing further need be said regardingthis exhibit. [10] Finally, in the vehicle police found one gram of what appeared to be hash in the sunroof visor near the driver’s side.

Thissubstance was not tested, however, and the Crown concedes that it is not to be relied upon in support of a conviction for possession ofcannabis resin. [11] No other drugs were found in the vehicle and neither Walker nor Wight had any drugs on their person at the time of their arrest. [12] Following his arrest, and while in police custody, Walker requested pain medication from his personal belongings. Thesebelongings were kept in a tote container outside of Walker’s cell.

Upon retrieving and opening a pill bottle for morphine in the name of“Douglas Walker”, Constable Green discovered 5-1/2 pills labelled “ICE”. Constable Green candidly testified that he had not seen the

pill bottle prior to it being brought to him by the jailer and had no knowledge of when, or how, it came to be in Walker’s personaleffects. It was not present in the duffle bag. The pills were analyzed as containing methamphetamine, leading to the charge forpossession of this drug. [13] In his testimony Walker acknowledged that the pill bottle was his, but denied any knowledge that the pills in the bottlecontained methamphetamine.

He maintained that he had been given the pills some two weeks previous and believed that they weresimply wake up pills, containing caffeine.[7] No evidence was called respecting the significance, if any, of the letters “ICE” stamped onthe pills. [14] In Wight’s purse, on the front passenger seat, the police found four needles (possibly used), a cellphone and a small pair ofdigital scales. In her cautioned statement, Wight denied that the scales were hers and offered that they may have fallen from thevehicle’s glove box as Walker rifled through it looking for something upon being pulled over by the police.

For his part, Walker alsodenied any knowledge of the scales. No evidence was led on whether the scales were in operating order at the time. [15] In the vehicle police also found two cellphones[8], three $100 bills and various receipts, all in the centre console. the issues [16] Has the Crown proven beyond a reasonable doubt that Walker and/or Wight were: 1) In possession of the 508 grams of cocaine found in the duffle bag.

As noted, if possession is proven, defence counsel agrees that itwas for the purpose of trafficking; 2) In possession of the 95 grams of cannabis found in the duffle bag; 3) In possession of the 25 grams of cannabis resin (hash) found in the zippered pocket of the duffle bag; and 4) In possession of the 5-1/2 pills containing methamphetamine found in the pill bottle in Walker’s personal belongings. The Law [17] Walker and Wight are jointly charged with possession of cocaine for the purpose of trafficking contrary to section 5(2) of theControlled Drugs and Substances Act, S.C. 1996, c. 19( “CDSA”).

This provision reads: 5.

(2) No person shall, for the purpose of trafficking, possess a substance included in

Schedule I, II, III or IV. [18] Walker and Wight are also charged with simple possession of cannabis, cannabis resin (hash), and methamphetamine. [19] “Possession”, in the CDSA is defined in subsection (2)(

l) as meaning “possession within the meaning of subsection 4(3) of theCriminal Code, R.S.C. 1985, c. C-46”. Subsection 4(3) of the Criminal Code, in turn, defines three types of possession, personalpossession, constructive possession and joint possession: 4.

(3) For the purposes of this Act, (

a) a person has anything in his 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 anotherperson; and (

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shallbe deemed to be in the custody and possession of each and all of them. [20] In R. v. Brake, 2019 NLCA 20, our Court of Appeal recently reviewed the elements of possession, as follows (at paragraph 28): 28. The trial judge correctly identified the elements of each type of possession that the Crown must prove beyond a reasonable doubt: [30] S. 4 of the Criminal Code provides that possession may be actual, joint, or constructive.

Actual possession requirescontemporaneous knowledge, consent, and control: see R. v. Hess (No. 1) (1948), (BC CA), 94 C.C.C. 48 (B.C. C.A.)and R. v. Beaver (1957), (SCC), 118 C.C.C. 129 (S.C.C.). It follows that, before the accused can be found guilty ofactual possession of the "brick" of cocaine, the Crown must establish beyond reasonable doubt that he voluntarily had knowledge of itand exercised some control over it. [31] Joint possession also requires proof of knowledge, consent, and some measure of control: see R. v. Fisher 2005 BCCA 444.

[32] In R. v. Colvin (1942), (BC CA), 78 C.C.C. 282, 58 B.C.R. 204 (B.C. C.A.), the British Columbia Court ofAppeal dealt with the meaning of "consent" in the context of joint possession under a predecessor of s. 4(3)(b). In that case, the twoaccused persons were found with another in the other's room in which morphine was also found. They were acquitted at trial on the basisthat, although they had knowledge of the presence of the drug in the room, the Crown was required to establish they had a right toexercise some measure of control over it and their mere acquiescence did not establish any such right.

At para 20, O'Halloran J.A. said asfollows: The "knowledge and consent" which is an integral element of joint possession in sec. 5 (2) must be related to and read with the definitionof "possession" in the previous sec. 5 (1) (b). It follows that "knowledge and consent" cannot exist without the co-existence of somemeasure of control over the subject-matter. If there is the power to consent there is equally the power to refuse and vice versa. [33] In R. v.

Morelli, 2010 SCC 8, 2010 SCC 8 (S.C.C.) at para. 17, Fish J. summarized the requirements of constructive possession asfollows: Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keepthe object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his"use or benefit" or that of another person. [34] Not everyone who drives or rides in a car containing concealed illegal objects necessarily knows the presence or nature of thoseobjects: see R. v.

Amado, [1996] B.C.J. No. 1943 (B.C. S.C.), R. v. McIntosh, 2003 CarswellOnt 1099 (O.S.C.J.), and R. v. Tsang, 2014BCSC 1055, 2014 BCSC 1055 (B.C. S.C.) [21] Actual possession refers to having physical custody, or control of the thing.

On the other hand, constructive possession refers tosituations where a person does not have hands on custody of the thing, but has knowledge of it and the ability to control it, even if theydo not have physical contact. [22] Constructive possession is therefore comprised of three elements: knowledge of the item; intention, or consent to havepossession of the item and control over the item (see also R. v.

Daniels, 2004 NLCA 73). [23] The degree of knowledge required to constitute constructive possession must extend beyond mere quiescent knowledge andmust disclose some measure of control over the item to be possessed (see R. v. Pham, (ON CA), [2005] 204 O.A.C.299, 203 C.C.C. (3d) 326). [24] The elements of constructive possession are not always obvious, as it is not possible to see inside the accused’s mind. Rather,the question is whether knowledge, consent and control can be inferred from all the surrounding circumstances. In R. v. Aiello, (ON CA), [1978] 38 C.C.C. (2d) 485, 30 N.R. 559 (Ont.

C.A.), the Court stated (at paras. 7 - 8): 7. We are all of the view that the learned trial judge fell into a serious error in instructing the jury that the Crown, in order toestablish possession, was required to prove beyond a reasonable doubt that the respondent knew that the package contained heroin. Weare also of the view that the trial judge erred in failing to direct the jury that the knowledge on the part of the respondent necessary toconstitute the offence, need not be proved by direct evidence but could be inferred from all the surrounding circumstances. 8.

In our view the trial judge should have directed the jury that if they were satisfied beyond a reasonable doubt that the respondentassumed control of the package, knowing that it contained a drug, the trafficking in which was prohibited, or was wilfully blind to itbeing such a drug or was reckless as to whether it was such a prohibited drug, then the knowledge necessary to constitute the offence wasestablished.

The trial judge in our view should have further directed the jury that it was not necessary for the prosecution to prove therequired knowledge by direct evidence, but that it could be inferred from the surrounding circumstances, such as, for example, thefinding of the drug on the accused's person in his trouser pant leg, his evidence that he figured that it must be a drug, the circumstancesin which, and the place where he had picked up the package. [emphasis added] [25] In Pham, the Court quoted with approval the following passage of Watt, J. in the case of R. v. Sparling, [1988] O.J.

No. 107,1988 CarswellOnt 1624(S.C. (H.C.J.)): 17. The element of knowledge is dealt with by Watt J. in the case of R. v. Sparling, [1988] O.J. No. 107 (Ont. H.C.) at p. 6: There is no direct evidence of the applicant's knowledge of the presence of narcotics in the residence. It is not essential that there be suchevidence for as with any other issue of fact in a criminal proceeding, it may be established by circumstantial evidence.

In combination,the finding of narcotics in plain view in the common areas of the residence, the presence of a scale in a bedroom apparently occupied bythe applicant, and; the applicants apparent occupation of the premises may serve to found an inference of the requisite knowledge. The court of appeal decision in R. v. Sparling, [1988] O.J. No. 1877 upheld the above passage as being sufficient evidence to infer

knowledge. [26] The Crown acknowledges that its case against Walker and Wight is circumstantial. Circumstantial evidence requires inferencesto be drawn from the evidence as a whole. In other words, the court is to assess the circumstantial evidence in its totality and notconsider it piecemeal. Where the case against the accused is circumstantial, the accused should not be convicted unless the inferences tobe drawn leave no reasonable doubt about the accused’s guilt. [27] In R. v. Villaroman, 2016 SCC 33 the court, in discussing the assessment of circumstantial evidence, stated (at paragraphs 37 –43): 37.

When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonablepossibilities" which are inconsistent with guilt: R. v. Comba, (ON CA), [1938] O.R. 200 (Ont. C.A.) , at pp. 205 and211, per Middleton J.A., aff'd (SCC), [1938] S.C.R. 396 (S.C.C.) ; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11 (B.C.C.A.) , at para. 20; R. v. Mitchell, [2008] QCA 394 (S.C.C.), at para. 35.

I agree with the appellant that the Crown thus may need tonegative these reasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational orfanciful, which might be consistent with the innocence of the accused": R. v. Bagshaw (1971), (SCC), [1972] S.C.R. 2(S.C.C.), at p. 8. "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to theevidence or the absence of evidence, not on speculation. 38. Of course, the line between a "plausible theory" and "speculation" is not always easy to draw.

But the basic question is whetherthe circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference otherthan that the accused is guilty. 39. I have found two particularly useful statements of this principle. 40. The first is from an old Australian case, Martin v. Osborne 55 C.L.R. 367, at p. 375: In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation.

This means that,according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would beaccompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. 41. While this language is not appropriate for a jury instruction, I find the idea expressed in this passage — that to justify aconviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonablealternative — a helpful way of describing the line between plausible theories and speculation. 42.

The second is from R. v. Dipnarine, 2014 ABCA 328, 584 A.R. 138 (Alta. C.A.), at paras. 22 and 24-25. The court stated that "[c]ircumstantial evidence does not have to totally exclude other conceivable inferences;" that the trier of fact should not act on alternativeinterpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not justpossible. 43.

Where the line is to be drawn between speculation and reasonable inferences in a particular case cannot be described with greaterclarity than it is in these passages. [emphasis added] [28] I am thus entitled to apply ordinary human experience and common sense to my assessment of the evidence, but not speculativereasoning. In the absence of evidence to support an alternative inference, I should not consider that alternative as a rational or reasonableprobability (see also, R. v. Sandhu, 2016 BCPC 397, at para. 34).

CASE LAW [29] Of course, each case will turn on its own facts and both the Crown and defence referred to various authorities which they arguesupport, or do not support, a finding of guilt. Some of these decisions are useful, insofar as they are illustrative of the kinds ofcircumstantial evidence which may influence the drawing of an inference from the proven facts. [30] I have considered the cases referred to, but find that Sandhu, as referenced in R. v.

Rideout, 2017 NLTD(G) 34 (at para. 55) asproviding the most useful overview of cases where drugs were found in a motor vehicle operated by an accused (at paras. 38 – 43): 38. Defence Counsel also relies upon R. v. Iturriaga, (BC CA), [1993] B.C.J. No. 2901 (B.C. C.A.) ("Iturriaga"),which was an appeal of a conviction for possession and possession for the purpose of trafficking. The appeal was successful on thegrounds that the evidence could not possibly establish knowledge of the drugs beyond a reasonable doubt. In that case, cocaine was

found under the passenger seat of a car, wrapped in a co-accused's shirt. The Crown stated that there were multiple pieces of evidencefrom which the jury could infer knowledge, including: the appellant slowing down the vehicle upon seeing the police, the appellant'snervousness when being approached by the police, the fact that the drugs were within arm's reach of the appellant, and the fact that theappellant was driving the car.

The BC Court of Appeal stated that it is common for people to be nervous when pulled over by the police.The Court held that this evidence alone cannot establish knowledge of the drugs, given their concealment, and noted that they were notaware of any cases where a conviction was entered on such slim evidence. The appellant was acquitted on both counts. 39. R. v. Anderson, (BC CA), [1995] B.C.J. No. 2655 (B.C. C.A.) ("Anderson") is another case cited by theDefence. It restates the principles of the offence: both knowledge and control must be proven, and the two must have existedsimultaneously at some point.

Knowledge is an essential element of possession, which must be proven for the offence of possession forthe purpose of trafficking. In Anderson, the appellant was arrested after police executed a search warrant on a van he was driving, andfound both marijuana and cocaine. The appellant had not been a target of the undercover operation which resulted in the warrant.Although a considerable amount of narcotics was found, and they were close enough to be accessible for the appellant, they were notvisible without opening the gym bags they were contained in.

Additionally, no fingerprints were found on the narcotics packaging. TheCourt held that there were other rational conclusions that could be drawn from the evidence, such as the appellant's brother, who ownedthe van, having placed the drugs in the vehicle without the appellant's knowledge. As such, they allowed the appeal and enteredacquittals on all counts. 40. Both Crown and Defence referred to R. v. Tsang, 2014 BCSC 1055 (B.C. S.C.) ("Tsang"). The accused was stopped at aroadblock, where a police officer noted that he was not displaying his new driver's sign, and directed him to pull over.

The officerchecked the accused, and found that he had breached his bail conditions by driving a car. The officer searched the accused, a blackcanvas bag on the driver's seat, and the glove compartment incident to arrest. He found $1,665 in the accused's right shorts pocket and afurther $1,325 in the black bag. In the glove compartment, he found a mini M&Ms candy tube, inside of which were 44 small substanceswhich appeared to be drugs. 41. In Tsang, there was no evidence of the accused accessing the glove compartment, as opposed to at the case at bar where Mr.Sandhu repeatedly accessed the belly box.

At paragraph 43, the Court cited R. v. McIntosh, [2003] O.T.C. 246 (Ont. S.C.J.), stating: Not everyone who drives or rides in a car containing concealed illegal objects necessarily knows the presence or nature of thoseobjects...where the prohibited item is concealed or not readily visible in a vehicle driven by the accused, the courts have generallyrequired more than simply evidence of the proximity of the accused and the item: R. v. Green and Rawlins (1993), 5 M.V.R. (3d) 280(Ont. C.A.) at 281; R. v. Bauer, 2003 BCCA 138 , [2003] B.C.J. No. 505 (C.A.) at para. 18; R. v. Anderson, supra at para. 26;R. v.

Iturriaga, (BC CA), [1993] B.C.J. No. 2901 (C.A.) at para. 9. 42. At paragraphs 54-55 in Tsang, the Court cited R. v. Amado (1996), 32 W.C.B. (2d) 156 (B.C. S.C.) [1996 CarswellBC 1897 (B.C.S.C.)] where the Court reviewed the law as well as circumstances which were similar to those in Tsang, and noted that there was nodirect evidence that the accused knew of the drugs. There was circumstantial evidence from which one could argue that they hadknowledge of the drugs, however this was insufficient to prove knowledge beyond a reasonable doubt.

Applying the above quote to thefacts of the case, the Court in Tsang stated at point 4 of paragraph 55: Not everyone who drives or rides in a car containing concealed illegal objects necessarily knows the nature of those objects. If there is tobe a conviction for possession of such objects based on the knowledge of the occupants of the car, the evidence relating to theirknowledge must rise above mere suspicion. 43. R. v. Agnew, 2012 BCSC 1161 (B.C. S.C. [In Chambers]) ("Agnew") is also a defence authority. In that case the accused wasarrested after a police officer smelled marijuana during a routine traffic stop.

The vehicle was registered in Alberta to another person.The police found three bags in the trunk containing a total of over 10 kilograms of marijuana. There was no physical evidence linking theaccused to the bags or the packages of marijuana inside, no evidence of his ownership of the marijuana, and no evidence of any otheritems inside the trunk being linked to him. The Court noted that knowledge was required for possession.

Mentioning Anderson, asdiscussed above, the Court ultimately concluded that it was distinctly possible for the marijuana to have been placed by some otherperson, and thus the accused's knowledge was not the only rational conclusion that could be drawn. [emphasis added] The evidence [31] While not obliged to do so, Walker testified in his own defence. He provided a somewhat rambling account of his priorinvolvement with outlaw motorcycle groups in this province and on the mainland. According to Walker he served as an “enforcer” ofsorts, shutting down drug operations that targeted the vulnerable and youth.

Some years back this activity almost got him killed. Thebeating he received, coupled with a motorcycle accident, has left him with some physical impairment and a bad back. As a result, he hasdifficulty in lifting heavy objects.[9] Approximately six months prior to his arrest he had gotten out of the “business”, as he felt thingswere “closing in” on him.

[ 32 ] The upshot of his evidence was to say that while he has made many friends (and indeed, in his words, some “admirers”) through this line of work, he has also attracted his fair share of enemies. Persons unnamed by him who would like nothing better than to see him in trouble with the law, leaving him to conclude, “I one hundred percent believe that Danielle [Wight] and I were both set up.” [ 33 ] Walker testified that he came to the island in January 2017 looking to purchase a Camaro vehicle from a person he knew just outside of St. John’s.

A friend loaned him $5,000, in cash, he had $10,000 of his own money, plus the Jaguar he was driving. [ 34 ] As he exited the ferry in Port aux Basques he picked up two hitchhikers, Wight and her partner, Owen Barnes. It was late at night, cold and raining. He had not met either of them before. Nevertheless, according to Walker, as Wight and Barnes had nowhere to go he agreed to share a room for the night, “They in one bed, me in the other.” He could not recall the location of the hotel, but it was not far from where Barnes’ cousin lived, a gentleman named Todd White.

The three went to visit White the next day and stayed about 30 minutes. During this time, Walker told White that he was affiliated with an outlaw biker gang and, as a consequence, Walker believed that White assumed he was a “dealer” (a reference to drug trafficking). White said that he didn’t do drugs and at the time Walker saw no evidence of drugs at the house. [ 35 ] Before leaving, White gave him some pills which Walker believed were simply wake-up pills containing caffeine. He put them in his prescription pill bottle, where they showed up in Walker’s personal effects some weeks later following his arrest.

As it turns out the pills contained methamphetamine, as well as caffeine [10] , each pill bearing the inscription “ICE”. Walker testified that had he known the pills contained methamphetamine he hardly would have placed them in a pill bottle bearing his name. As noted, no evidence was called on the significance, if any, of the inscription “ICE” on the pills. [ 36 ] Walker then drove Wight and Barnes to a friend’s place after which he travelled to St. John’s, where he stayed with a friend for the first night and at a motel the next night.

He never bought the Camaro, which according to Walker was his reason for coming to the island in the first place. Walker explained that his money had been stolen. [ 37 ] He then returned to Nova Scotia, via the Port aux Basques ferry. [ 38 ] Walker testified that he next returned to the island in early February 2017, again, via the Port aux Basques ferry. [11] He wished to pursue the car deal once more and get his “$4,800 back,” an apparent reference to the money which had been stolen during his first visit. Walker testified that he also wished to visit Barnes’ mother.

He had heard that she was ill and wanted to offer her free accommodations, while receiving treatments, at a house he owns in Halifax. Finally, he wished to see some caribou “up close” and Barnes had offered to take him out on his skidoo. He travelled alone and met nobody in Port aux Basques. [ 39 ] Upon arriving he called Wight and Barnes. The two met him outside a hardware store in Deer Lake and he followed them in their vehicle to Barnes’ cousin’s house.

According to Walker he did not want to use the washroom when the ferry docked, so they went to White’s so that he might “freshen up.” Barnes carried his duffle bag from the trunk of his car into the house and laid it at the top of the steps by the door. By the time they arrived he was “kind of desperate”, so after retrieving his toothbrush from the duffle bag he headed straight for the washroom. According to Walker, there were no drugs in his duffle bag at the time, leading to his conclusion that persons unnamed placed them in the bag without his knowledge in an effort to “frame” him.

He then spent 20 minutes or so cleaning up. [ 40 ] Unlike his previous visit, this time Walker witnessed White doing lines of cocaine in his bedroom. In fact, according to Walker, White offered to sell him a kilo of cocaine. He declined. According to Walker, the presence of drugs made him nervous and he didn’t want to be there. When he came out of the bathroom White was “jittery and messed up” and wanted everyone to leave. At this point his duffle bag was gone and he assumed it was in the trunk of his car, although he had “no idea” how it had gotten there.

When he left he placed his toothbrush and toothpaste in the glovebox of his vehicle. [ 41 ] According to Walker, the only opportunity for someone else to access his duffle bag was while he was in the washroom at White’s. As far as he knew, the only other persons present were Wight, Barnes and White. [ 42 ] Walker testified that Barnes was not feeling well, so Wight left with him to ensure he did not get lost. They went to an auto store as his car headlight needed repair and then to a friend of Wight’s, where he waited in the car.

They were then proceeding east on the TCH towards the Howley Tourist Lodge where Walker was staying, when stopped by police.

According to Walker, White had agreed to meet them there later. [ 43 ] Owen Barnes, the common-law partner/boyfriend of Wight at the time, and presently, also testified. [ 44 ] Barnes explained that in January 2017 he and Wight were returning to Newfoundland from Brampton, Ontario, via Halifax, as his mother was ill and was either receiving, or scheduled to receive treatment in that city. [ 45 ] He explained that they left a vehicle in North Sydney, as they had insufficient funds to pay for its transport. Once in Port-aux- Basques, as they could not afford a bus ticket to Deer Lake, they resorted to hitchhiking.

After waiting some 12 hours for the next boat, at around midnight they were picked up by Walker. The three had not met before. [ 46 ] They then drove to the Deer Lake Motel where Walker offered to share a room with two beds, as they had no money and nowhere to go. [ 47 ] The foregoing evidence of the first encounter with Walker is generally in accord with Walker’s own recollection, as well as that provided by Wight in her cautioned statement [12] . [ 48 ] Barnes testified that Walker appeared to have some difficulty with his shoulder, so he carried Walker’s luggage into the hotel.

It was a courtesy he was to repeat when Walker returned to the island a few weeks later. [ 49 ] Barnes could not recall how he and Walker parted company on this occasion, but thought that Walker may have given him a

ride to his “buddy’s” house the following day. Both he and Wight were to stay in a room at that house under some form of rentalarrangement. The evidence as to the arrangement was less than precise. [50] A couple of weeks later, at around midday, he and Wight received a call from Walker, saying that he was back on the island andlooking to meet up. Barnes knew that Walker would be returning, as he had expressed an interest in meeting his mother, and doing somesnowmobiling, but he did not know when he would return. He understood that Walker was looking for a place to get cleaned up.

Barnesdeemed the “accommodations” at his buddy’s to be unsuitable, so he and Wight met Walker near the Home Depot, in Deer Lake, anddirected him to Barnes’ cousin’s house a few kilometers away. He could not recall if Walker had met his cousin before. [51] Barnes testified to arriving at his cousin’s house together with Wight and Walker. As he understood Walker experienceddifficulty in lifting, he obligingly retrieved Walker’s duffle bag from the trunk of his vehicle and deposited it in the front porch of thehome. [52] Walker then proceeded to the washroom and Barnes roamed about checking out the house.

White had recently moved in andBarnes had not been there before. [53] When they arrived, White was in his upstairs bedroom snorting some lines of cocaine. Barnes could recall that he was offered asnort, but refused, as at the time he was suffering from an opiate addiction, and in his experience, opiates and cocaine made for badcompany. His memory of where Wight went was vague, but he thought she may have stayed in the living room. [54] The house is a split-entry, and after exploring the basement, he returned to the porch area, where he witnessed White puttingsomething into Walker’s duffle bag.

He could not be sure, but the

article was white in colour and appeared to be either a shirt or towel. He did not say anything and could not recall any discussion with White on what he was doing. When Walker called out asking that hisduffle be put back into his vehicle, he recalled that it was White who carried it out. On reflection he thought this a bit odd, but gave it nothought at the time. [55] Shortly thereafter Barnes left the residence to visit a friend, intending to return, with the expectation that Walker and Wightwould still be at his cousin’s.

However, they showed up at his friends before he could return. [56] Wight did not testify, but in her cautioned and voluntary statement, she denied any knowledge of drugs in the vehicle. [57] Wight confirmed that she first met Walker when he picked her up hitchhiking from the Port aux Basques ferry terminal sometwo weeks prior, although she did not mention whether Barnes was present. She had been visiting Barnes’ mother who required surgeryin Halifax. Analysis [58] As noted, the Crown’s case against Walker and Wight is based on circumstantial evidence.

The circumstantial evidence mustbe consistent with the guilt of the accused and inconsistent with any other rational conclusion (see R. v. Fitzpatrick, 2009 NLTD 88, atpara. 4). A rational explanation must have an air of reality and must be logical and intuitive. It must not be fanciful or imaginary. Inother words, it must make sense and must be firmly rooted in the evidence. [59] Probability is not the test. It is not enough to conclude that Walker and/or Wight were probably in possession of illegal drugs,including cocaine.

Nor does the reasonable doubt standard require the Crown to prove possession with absolute precision. Such astandard is impossibly high. Rather, I ask myself whether I am sure that Walker and/or Wight were in possession of illegal drugs and, ifso, of what? [60] Credibility of the witnesses is relevant to this inquiry. In this regard, while not obliged to do so, Walker testified in his owndefence.

That said, there are issues with Walker’s credibility, such that while there are portions of his evidence which I do accept, thereare others that I do not. [61] I do not accept Walker’s explanation that he first came to the island in January 2017 to purchase a vehicle near St. John’s. Nordo I accept his evidence that he returned two weeks later to retrieve money allegedly stolen, complete the car purchase, meet Barnes’mother and go snowmobiling in quest of caribou. [62] I do not accept his explanation for going straight from the ferry to White’s on his second visit.

That Walker would drive fromPort aux Basques to White’s, just outside of Deer Lake, stop and rendezvous with Wight and Barnes, for the sole purpose of accessing awashroom so that he might clean up, begs credulity. [63] This does not mean, of course, that his purpose was to traffic in cocaine, but his espoused “motivation” for coming to the islandcasts a shadow over his credibility generally. [64] Applying the approach mandated in R. v.

W.(D)., (SCC), [1991] 1 S.C.R. 742, I do not believe Walker when hesaid he had no knowledge of the drugs in the duffle bag, nor am I left with a reasonable doubt by his evidence on the point. If I were,then as it relates to Walker’s guilt, this inquiry need go no further. [65] However, even if Walker’s evidence does not leave me with a reasonable doubt, I must still ask myself whether on all theevidence I do accept I am satisfied beyond a reasonable doubt that Walker is guilty. [66] In this regard, while, as noted, there are portions of Walker’s evidence I do not accept, I do not dismiss his testimony entirely.

In particular, I accept Walker’s testimony that he was previously affiliated with outlaw motorcycle gangs and in this capacity had earnedhis share of detractors, persons who like to see him in trouble with the law. I also accept that Walker first met Barnes and Wight in themanner described by him, as corroborated by Barnes, and that it was Barnes and Wight who introduced him to White. That Walker hasan injury which makes it difficult for him to lift heavy objects was corroborated by photographs, Walker himself, his prescription for

pain medication, and the physiotherapy slip. I also accept that Walker did not carry his duffle bag into White’s nor place it back in his vehicle. Finally, I accept that while at White’s, Walker was offered a quantity of cocaine, but declined. [ 67 ] Like Walker, Barnes’ overall credibility was challenged by the Crown. It was also pointed out that as Wight’s partner he would have a motive to lie. [ 68 ] Barnes candidly acknowledged that he has a criminal record spanning from 1994 to March of this year. However, the record does not contain crimes of dishonesty such as perjury, fraud, or public mischief.

Nor is there a record for trafficking in illegal drugs. [ 69 ] Notwithstanding his prior experience with the courts, Barnes expressed an unease in testifying, as he had not done so before, and was uncomfortable in “ratting out” the drug use of his cousin. His memory was often poor in the recollection of details and at times he became agitated and argumentative over what he perceived as repetitive questioning by Crown counsel. [ 70 ] Recognizing the frailties in his testimony, I am nevertheless not prepared to dismiss his evidence entirely.

In particular, I accept Barnes’ testimony that when he, Wight and Walker, arrived at his cousin’s house he witnessed his cousin doing lines of cocaine in an upstairs bedroom. I further accept his evidence that he witnessed his cousin tampering with Walker’s duffle bag by placing something such as a shirt or towel into it and that Walker was in the washroom at the time.

Finally, I accept that it was his cousin, not he, who returned the duffle bag to Walker’s vehicle. [ 71 ] In the final analysis, considering the totality of the evidence I am left with a reasonable doubt as to whether Walker knew that there were drugs in his duffle bag at the time of his arrest.

Specifically, the cumulative effect of the following facts are sufficient to give rise to an inference that the drugs were placed there without his knowledge, possibly, but not necessarily, as a means of using him as an unwitting “mule” to transport the drugs elsewhere: • Cocaine was present at White’s house as evidenced by the fact White was using cocaine when the others arrived. Walker was offered a large quantity of cocaine for purchase, but declined. • Barnes witnessed White tampering with Walker’s duffle bag by placing what he described as either a white tee shirt or towel into the bag.

No explanation was offered for why White would access Walker’s duffle bag in this manner. • There was only one towel found in the bag when searched, and police found the cocaine wrapped neatly inside. Barnes’ evidence that he did not specifically see the cocaine is not determinative. If he indeed saw White placing what appeared to be a towel in the bag, the cocaine could easily have been concealed within it.

Indeed, this is how the cocaine was found. • The fact the towel was neatly folded is suggestive of it being recently placed in the duffle bag. • Constable Green’s observations of the manner in which the cocaine was found in the duffle bag (neatly wrapped in a towel) and that he thought it “out of place,” leads some credence to the defense argument that it was planted there without Walker’s knowledge. • The duffle bag was carried by White to Walker’s vehicle.

The behavior witnessed by Barnes would be consistent with one, having tampered with the duffle bag, wished to ensure the tampering went undetected. • While Barnes did not witness White placing other items in the duffle bag, the fact White was tampering with the bag is sufficient to open the reasonable possibility that the other drugs were likewise placed there without Walker’s knowledge. [ 72 ] Let me be clear. In acquitting Walker, I am not concluding that White hid the drugs in Walker’s duffle bag. White is not on trial here.

Rather, the question is whether on the whole of the evidence, there exists a reasonable doubt as to whether Walker knew the drugs was in his duffle bag. For the reasons just outlined, I conclude that such a doubt exists. [ 73 ] As for the presence of the methamphetamine pills in his pill bottle, Walker’s evidence alone leaves me with a reasonable doubt as to whether he knew the pills were methamphetamine and not simply caffeine “wake up pills.” He kept the pills in a medicine bottle in his name and specifically requested them from Constable Green while in custody.

This behavior is capable of supporting the inference that he did not know the true nature of the pills, thereby giving rise to a reasonable doubt. [ 74 ] As for the Crown’s case against Wight, other than her presence as a passenger in the vehicle with Walker, there is no evidence linking her to the drugs in question. Further, in the foregoing findings of fact in relation to Walker, there is nothing to implicate Wight in the drugs. As noted, the drugs were in a duffle bag in the trunk of Walker’s vehicle and not in plain view.

The mere presence of Wight in the vehicle, without more, does not establish beyond a reasonable doubt the required degree of knowledge, care and control to constitute possession. Finally, there is no evidence linking Wight to pills containing methamphetamine. Accordingly, Wight is acquitted of all charges. disposition [ 75 ] Both Walker and Wight are not guilty of all charges. _____________________________ Donald H. Burrage Justice