R. v. Soiles Date:, 2012 BCPC 179

Citation: R. v. Soiles Date: 20120607 2012 BCPC 0179 File No: 202422 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. Petros Peter SOILES REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W.J. KITCHEN Counsel for the Crown: Anita Chan & Christopher B. Tait Counsel for the Defendant: David Fai Place of Hearing: Vancouver , B.C. Date of Hearing: May 17, 2012 Date of Judgment: June 7, 2012 [ 1 ] On June 3, 2010 the Vancouver Drug Squad obtained a search warrant and searched the apartment of the accused where they

found 106 grams of cocaine, 18 grams of heroin, 41 grams of marihuana, $29,000 Cdn, $3,245 US, and a pistol in a safe. As a result the accused has been charged with possessing those illicit drugs for trafficking, and also charged with the two firearms offences. [ 2 ] The accused gave evidence that he had been a heroin and cocaine addict for 20 years. He had resided in the apartment where the drugs were found since 2009. He did not pay rent but was allowed to live there by friends, Michael and Coco. They would also sell him the cocaine and heroin that he used.

He had supported himself primarily by “fencing” stolen property. An indication of this was the large quantity of old jewellery found in the safe along with the pistol. He said that the $29,000 was what remained of money given to him by his friend, Monica, who was a witness in these proceedings. [ 3 ] The accused said that the money he had from Monica, and the income from selling stolen property, permitted him to buy drugs in quantity and that all of the drugs found in the apartment were his for his own use.

He denied that he possessed the drugs for trafficking and said that any of his activities observed by the police were him buying drugs, not selling them. He also said he might have been buying stolen property. He said that he would smoke the cocaine in a pipe, and the heroin he would smoke on tinfoil.

He asserted that pipes and tinfoil would have been in the apartment, even though the officers who searched the apartment did not report finding such items and no witnesses were asked whether they saw such items when they executed the search warrant. [ 4 ] When asked about a quantity of 57.95 grams of crack cocaine that had been cooked up in the microwave and was found by the police the accused said that he had prepared that for his own use, even though there was a considerable quantity of other crack cocaine already on the premises. [ 5 ] Soiles said that Michael and Coco had access to the apartment, having their own keys and fobs.

He also said that “others” had access to the apartment – “There were a lot of people in and out of the apartment” & “There were people there all the time”. He said that the pistol was not his and must have been placed there by someone else, although the money in the shoe box and jewellery in the safe were his. [ 6 ] He said that two persons, Summers and Boland, who had both been seen with were indeed drug users or traffickers as the police suspected but he had been buying stolen property from them, not selling them drugs. [ 7 ] He said that when he was arrested on these charges he was taken in a police wagon.

Approximately five grams of cocaine were found in the wagon compartment he had been in, but he said he had no knowledge of it. [ 8 ] Monica Van Renesse Van Cuivencode was the friend of Soiles who gave evidence that she had given $40,000 to Soiles earlier in 2010. She said they had known each other for over 20 years, having met as addicts on the street. She said that she had the money from real estate investments from which she had realized over $500,000, still having some unsold properties.

She had given Soiles $40,000 of the money because he was like family to her and he was a good man – she said that she did not owe it to him. She had given him the money in cash because she knew he did not have a bank account. [ 9 ] In cross examination she provided details of the investments, her financial advisors, and the lawyers who had assisted her in the past. She said she had liquidated and withdrawn the money some two years earlier when she was “going into treatment.” She had kept the $40,000 for Soiles, and had used some of the money for her own expenses.

When pressed for details as to where the cash was kept while she was in treatment and why it was kept for so long in that form, her responses could only be described as evasive. She finally stated, “You’re trying to confuse me” when that was clearly not the case – the questions were simple and direct. Several times she would reply by saying, “It was a long time ago”. When asked concerning the notice she gave to the bank for such a large cash withdrawal, and what denominations were given and other details of the bank transaction, she paused and delayed answering for long periods of time with no ready answers.

The same was the case when she was asked about whether there was any American money in the amount she gave Soiles. [ 10 ] I conclude I must reject the evidence of Ms. Van Renesse Van Cuivencode. It is difficult to accept that a person with a drug problem for twenty years could make sensible business decisions and accumulate any large amount of money. It is even more difficult to understand why that person, after having gone through treatment herself, would give $40,000 to someone she had met on the street, knowing that person still had a drug problem and that the money would be used to buy drugs.

Finally the manner of her giving evidence and her inability to properly provide details of the transaction that she said occurred only two years ago made her evidence completely incredible. I must reject all of her evidence. [ 11 ] There is a considerable amount of surveillance and other evidence led by the Crown that must be considered in determining whether the evidence of the accused might reasonably be true or raises a reasonable doubt. This surveillance by the police began after Soiles’ apartment manager, Joel Godding, had reported Soiles to the police.

He gave evidence that he had seen Soiles meet people outside on the sidewalk leading to the Costco stairs near their building. This would happen 20-30 times each day and Godding said that some of these persons who met Soiles “would stagger back towards me which really got my attention.” He said that from that point on, Soiles was “on the radar” and he checked the fob computer records to corroborate the numerous times Soiles was leaving and returning each day. [ 12 ] As a result the police began to make observations of Soiles in May of 2010. Here is the chronology: May 14, 2010 - At 19:28 Det.

Scally saw Soiles northbound on Beatty St., near his apartment at 131 Regiment Square. - At 19:55 Soiles was seen a half block away by Scally in the lane south of Pender and west of Abbott. - At 20:04 Cst. Trenkel saw Soiles leave the Skytrain Station nearby and walk to the top of the adjacent Keefer Stairs with an unknown male where Soiles tossed a black cigarette size package to the male. Soiles then spoke on his cell phone for a few moments and tossed another item, a smaller white marble sized item to the male. The two then parted, with Soiles returning to 131 Regiment Square, his apartment.

- At 21:30 Scally saw Soiles out of 131 Regiment to meet an unknown male 200’ east of the Costco elevator on the Dunsmuir Viaduct. They appeared to engage in a hand to hand transaction, then Soiles went back through a security gate to 131 Regiment. May 18, 2010 - At 20:05 Soiles was seen by Scally leaving 131, eastbound on the viaduct to GM Place. - At 20:06 Cst. Soo saw Soiles, having walked eastbound on the Dunsmuir Viaduct, go down stairs by GM Place, meeting an unknown male who had also come along the viaduct, and they went to an alcove off the stairs.

After a time they came out of the alcove and went down the stairs. - At 20:09 Scally saw Soiles northbound on Abbott to Keefer into the Tinseltown Mall. - At 21:43 Soiles was seen by Scally on the Keefer Stairs by the entrance to the Skytrain Station. After two minutes he met an unknown male and had a hand to hand transaction with him. - At 21:48 Soo saw Soiles back at the top of the stairs, returning to 131. May 21, 2010 - At 18:21 hours Cst. Kyle Davies observed Soiles sitting on the benches with Ray Boland in front of Tinseltown Cinema at Pender and Abbott Streets.

Boland had with him a very unique motorized red bicycle. Observing the same incident, Soo saw Soiles and Boland stand up and Soiles pulled something with his left hand from his pocket and handed it to Boland’s right hand. Boland then put that hand in his pocket. They then parted ways. May 22, 2010 - At 19:29 hours Cst. Davies was in the underground parking lot of 131 Regiment Square and saw Ngoc Le (Michael) enter a Corolla, license number 915 EMP. He drove up the ramp to the exit. - At 23:19 hours Davies saw Ngoc Le enter the same vehicle in the underground parking lot carrying a black leather computer bag.

May 28, 2010 - At 14:40 hours at Beatty and Dunsmuir Streets in Vancouver Davies saw the accused Soiles meeting with Winston Summers and walking northbound on Beatty Street in front of the Stadium Skytrain Station. Summers had a bicycle and a brown bag over his shoulder. Soiles had his hands behind his back beside each other, palms open and facing back. Summers passed a plastic bag to Soiles open right hand, and Soiles passed something back to Summers.

Davies followed them north to Pender, then east to Taylor Street where they went south for ½ block before Summers rode away on his bicycle back to the north on Taylor. Davies followed Summers east on Pender to Carrall Street, then north ½ block to the south lane of the Unit Block East Hastings Street. May 31, 2010 - Soiles’ cell phone which was later seized by the police showed a text message from “Weside” (Winston Summers) at 15:02 saying, “2 min.

U CALL ME WHEN LEAVING” - At 15:04 Soiles replied, “k”. - At 15:25 Soiles texted to Summers “out my door”. - At 15:35 hours Davies was off duty and saw Soiles leave the area of 131 Regiment Square on foot and walk north on Beatty where he met Winston Summers. After the two of them walked north for ¾ block Summers rode away on his bicycle. - At 15:41 Soiles texted to Summers, “if u think theres nuf tester tu split for ty waks then that’s one more opinion go fr it” - At 19:45 Soiles texted to Summers, “Sample yay or nay”. Summers replied “Yay” and Soiles then replied “cool”.

June 1, 2010 - At 20:09 Summers texted to Soiles, “Need both shirts & pants 1100”. Prompt replies from Soiles said, “Buzz you when I leave” and then “on my way bus stop.” June 2, 2010 - At 15:05 hours Davies saw Ngoc Le driving a White Lexus 318 XAG into the parking lot, stall 636, at 131 Regiment Square with his wife, Zhen Liu (Coco) as a passenger. When they exited the vehicle Le was carrying keys and Liu had a large black purse. - At 15:17 Le and Liu returned to the White Lexus from the elevator lobby, observed by Davies. - At 21:42 Soiles received a text message from Summers, “950 hard”.

Soiles replied a minute later, “Bus stop cal u wen I leev”. - At 21:51 Soiles sent a text to Summers “leaving bus stop few mnts”. - At 21:56 Scally saw Soiles northbound on Beatty near Dunsmuir.

- At 21:58 Davies saw Soiles on Beatty Street north of Dunsmuir pacing back and forth for several minutes. For a time he was on his cell phone and he would stop moving on occasion. He went north to Pender Street and out of sight for a few seconds, then came back south to the Keefer Stairs near Dunsmuir Street. - At 22:11 he finally met up with Winston Summers on Beatty just north of the Skytrain Station and they continued walking to Pender. Soiles passed something to Summers’ right hand and after moving 15 feet further, Summers put something down the back of his pants.

Summers then left to the north, last seen by Davies eastbound on Pender Street. Cst. Soo had also witnessed Summers receive something from Soiles and then get on his bicycle and ride to Abbott, where he was intercepted by Constables Lindsay and Black. - Cst. Lindsay received a radio call from Soo to stop Summers, which he did. He searched Summers and found a bag of crack cocaine in the back waistband of Summers’ pants. Cst. Trenkel found the package contained 22 grams of cocaine in the form of 11 rocks of crack cocaine and a flap of powder cocaine, the latter weighing 3.22 grams. The Crown’s drug expert Cst.

Newlans gave evidence that this amount of cocaine was approximately ¾ of an ounce and would be valued at approximately $950. - At 22:23 Scally saw Soiles walking in the area of the Skytrain Station, back to 131 Regiment Square. June 3, 2010 - Le and Liu were seen by Davies in the area of 131 Regiment Square and Davies directed that their vehicle be followed and they be arrested. - At 18:15 Davies attended Andy Livingstone Park at the corner of Keefer and Taylor Streets where Soiles had been arrested by other officers.

Davies searched a compartment in a police wagon to ensure there was nothing in it, then placed Soiles in the compartment for transport to the City Jail. - At 19:15 Davies performed a cursory search of the wagon compartment, removed Soiles from it and took him to the pre-holding searching area.

Davies then returned to the wagon compartment to perform a full search and found a clear plastic bag containing suspected rock cocaine pushed behind a lock on the wagon door inside the compartment. [ 13 ] The surveillance evidence shows that the accused very frequently left his apartment for brief encounters with other persons at nearby locations. This was seen by the Crown’s drug expert Cst. Newlans as an indication the accused was operating a “dial-a-dope” business - he was responding to requests from drug buyers and meeting them to sell them drugs.

The accused said these were occasions when he was purchasing stolen property. [ 14 ] The incidents that occurred on June 2, 2010 were significant. Summers sent a text saying “950 hard”. The accused agreed “hard” on the street means crack or rock cocaine. After the two of them met Soiles was seen to pass something to Summers and Summers was seen to put it in the back of his pants. When Summers was immediately arrested he had a bag of mostly rock cocaine in the same location in the back of his pants.

The Crown drug expert said it was worth about $950 and so could be characterized as “950 hard”. [ 15 ] The defence argued that the text messages, including this one, gave no indication of who was buying and who was selling to whom. I must conclude that on the contrary, it is readily apparent that Soiles was the seller. The text messages on May 31, 2010 show that Soiles asked Summers if there is enough “tester” and he later asks how he liked the “sample”. It is clear from this that Soiles was providing something to Summers, who was the buyer.

Then, the next day, it was Summers who said in a text message that he needed something – shirts and pants – and it was Soiles who responded to this request. Soiles was again providing something. [ 16 ] The nature of the meeting that followed the June 2, 2010 text message concerning “950 hard” and the evidence found on Summers leads to only one conclusion - Summers asked for $950 worth of crack cocaine and Soiles responded by delivering it.

The explanation given by the accused that he was buying stolen property cannot reasonably be true. [ 17 ] The evidence of the police was that they hoped that when they arrested the accused he would be in possession of cocaine. They could not search him in the public location where he was arrested and had to take him to the jail to do that. I conclude that their search at the scene of the arrest was cursory and not intended to be their final search. It makes sense that they would search the wagon compartment before and after they transported him and two officers gave evidence that was exactly what they did.

After Soiles had been in the wagon compartment the police found five grams of cocaine partially hidden there. I conclude that Soiles had possessed this cocaine, which was a greater quantity than he could have consumed himself on an evening away from his apartment. He possessed that cocaine for the purpose of selling it to others. [ 18 ] The evidence given by the accused concerning his apartment cannot be accepted as true. The accused claimed in evidence that many people, some unknown, had access to his apartment.

He said that he had $29,000 on the premises and a considerable quantity of drugs worth thousands of dollars. He also had jewellery inside a safe accessible to Michael and Coco. It makes absolutely no sense that the accused would leave his possessions, particularly the drugs and the money, so poorly secured. Other than the evidence given by the accused, all other evidence from the landlord and the police was to the effect the accused was careful to meet other persons at locations well away from his apartment.

I conclude that the evidence of the accused is not true and that he had full and complete control of the apartment and its contents to the exclusion of all others except Coco and Michael. I further conclude that he maintained the apartment as a location from which to traffic in illicit drugs to purchasers in the nearby downtown eastside area. The drugs in the apartment were his supply for that purpose and the $29,000 was associated with that business.

The evidence of the accused does not raise a reasonable doubt concerning this – I must conclude that his evidence concerning the money and his possession of the drugs for his personal use is a complete fabrication. [ 19 ] The gun found by the police in the safe was an item I conclude that he knew about, and was under his control. However, although it was a firearm and a prohibited weapon, it was not designed as such but had been modified by having the barrel drilled out. It had apparently originally been manufactured as a starter’s pistol.

Although the accused knew of the gun, there is not evidence from which to conclude beyond a reasonable doubt that he knew the nature of the item - that it met the definition of firearm and was

prohibited. Neither its appearance nor its name, “Little Joe”, would suggest it was more than a starter’s pistol. [ 20 ] I therefore conclude that the accused possessed the drugs in the apartment for the purpose of continuing to traffic in drugs. He is guilty on the first three counts and not guilty on the last two concerning the firearm. BY THE COURT