R. v. Hayer Date:, 2017 BCPC 145

Citation: R. v. Hayer Date: 20170109 2017 BCPC 145 File No: 215445-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. PARDIP SINGH HAYER ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D.R. GARDNER Counsel for the Crown: M. Loda Counsel for the Defendant: C. Johnson, Q.C. Place of Hearing: Surrey , B.C. Date of Hearing: October 17, 2016; December 7, 8, 19, 22, 2016 Date of Judgment: January 9, 2017 [ 1 ] Pardip Singh Hayer is charged on court file number 215445-2-C with five counts of possession for the purpose of trafficking, including methamphetamine, heroin, cocaine, OxyContin and fentanyl.

[ 2 ] At 4:48 p.m. on March 15, 2016, two members of the Royal Canadian Mounted Police initiated a traffic stop of a white Chevrolet Cruze where the vehicle pulled over on 128 th Street just north of 65 th Avenue in Surrey. The accused, Pardip Hayer, was the driver and sole occupant of the vehicle. It had been rented by him from Enterprise Rent-A-Car eight days beforehand.

The rental contract specified that no other drivers were permitted to operate the vehicle and that he would return the car by 12:00 p.m. on March 21, 2016. [ 3 ] The vehicle was subsequently searched, and a large amount of illicit drugs and drug paraphernalia were found in the trunk, including a Ricardo-brand hard-shell suitcase. Inside that suitcase, they found four sealed bricks, as well as an open brick of heroin weighing more than four kilograms.

A small duffle bag was found inside the suitcase as well, containing 12 bottles of ephedrine, with 50 pills per bottle, and an Advil bottle with ten fentanyl pills. [ 4 ] The police also found a Coleman-brand gym bag in the trunk which contained six bricks of heroin, one unsealed brick of heroin, and one brick of heroin and fentanyl, weighing about a kilogram. They also discovered other vacuum-sealed and plastic Ziploc bags containing more than four milligrams of heroin and fentanyl.

They also found an Everlast sports bag which had various containers with more than five kilograms of methamphetamine. [ 5 ] In the trunk, they found a Fila-brand gym bag containing more than four kilograms of methamphetamine and more than 4,000 pills containing heroin and fentanyl. [ 6 ] They also found other large quantities of drugs and drug paraphernalia as set out in detail in the Statement of Admissions.

Suffice to say that all of these drugs were clearly for the purpose of distribution and sale. [ 7 ] In the backseat, the officers found a black and grey basket-weave laundry hamper which contained a sandwich bag with a wrapped partial brick of heroin, weighing 124 grams, along with other items consistent with drug trafficking. [ 8 ] In the centre console, they found various items, including a pill bottle with two marihuana cigarettes, a tied-off sandwich bag corner containing 28 grams of heroin powder, a tied-off sandwich bag corner with 30 grams of methamphetamine, and a Samsung cell phone.

Under the driver's seat, there was a black BlackBerry phone. [ 9 ] Mr. Hayer has testified on his own behalf. He is now 31, born in India and came to Canada as an infant. He grew up in Surrey and he has four older sisters. He left home when he was 18, married in 2013, and is now separated. He has a Grade 12 education and at the time of his arrest, was working as a personal trainer. He worked for three years at Steve Nash Fitness Centre. [ 10 ] In December of 2015, he decided to focus his training as a mixed martial arts fighter. He went to another gym, Level UP, and paid to that gym a monthly rental fee.

He had, on average, 30 to 40 clients. One of his clients was someone named Fred Wilson, who he first met at the Steve Nash gym. [ 11 ] In early 2015, Wilson became his client. He had previously worked out alone. Mr. Wilson, who Mr. Hayer believes is in his mid-40s, turns out to be a major drug dealer. [ 12 ] In August of 1999, Wilson was sentenced to 14 years imprisonment in California for possession for the purpose of trafficking. He was transferred to Canada and paroled after serving just under nine years. [ 13 ] On April 13, 2011, he received a 12 month conditional sentence for trafficking in cocaine.

Apparently, the sentencing judge was not made aware of the previous conviction in California. [ 14 ] Between May 1 st and May 4 th of 2012, he committed the offences of possession for the purpose of trafficking in cocaine, methamphetamine; and MDMA, and possession for the purpose of production, ephedrine and muriatic acid, in Vancouver. [ 15 ] On June 30, 2016, three months after the arrest of Mr. Hayer, Wilson was sentenced to seven years imprisonment, which was approximately six weeks after Wilson was arrested. Mr. Hayer says he did not know that Wilson was a drug dealer.

He became aware of that after he was arrested. [ 16 ] The accused's father was an alcoholic, and Mr. Wilson was a successful businessman that the accused looked up to. Wilson was interested in boxing, and Mr. Hayer trained him in that sport on approximately 50 occasions. When he went to work at Level UP Gym, Wilson followed him. He trained him a couple of times, but he never socialized with him. [ 17 ] He admits ownership of the two marihuana cigarettes found in the console at the time. He had a medical marihuana card.

He also admitted possession of the two pills of Xanax which he had received from a friend for his pain and to help him sleep. As for the two golf-sized bags of drugs, he did not know they contained drugs. He also testified that he was not aware of the contents in the laundry bag in the backseat. [ 18 ] Wilson was talking about opening a juice bar and food supplements store in Prince Rupert. Mr. Hayer made a trip there with friends of Wilson, a man named Bick and his girlfriend, and checked out two possible locations. The proposed plan was for Bick and Wilson to own the shop and for Mr.

Hayer to manage it, but that deal was never finalized. [ 19 ] Mr. Hayer testified that he never used drugs growing up, and has never sold drugs. [ 20 ] On the offence date, he arrived at the Level UP Gym just before his 2:30 training session with Wilson, who had apparently been dropped off by a friend. During that session, Wilson checked his cell phone and there was an emergency at his office. He offered to lend him his car. Mr. Hayer sensed that Wilson was stressing out about something. Wilson told him he would try to be back by 4:30 p.m.

The accused was planning on sparring at 7:00 p.m. in a kick-boxing session. He told Wilson he would be finished by 4:30 at Level UP. [ 21 ] At 4:30, Wilson returned and asked Mr. Hayer to follow him into White Rock, which is approximately a 20-minute drive away.

He agreed, and when he got into the rental vehicle, he saw a laundry basket lying on the backseat. Wilson asked him to drive to his office, which was at 124th Street and 82nd Avenue in Surrey. They stopped there to allow him to retrieve his white Mercedes truck. Mr.Hayer was told to follow him to his house in White Rock. [22] As he drove towards White Rock, eventually onto 128th Street in Surrey, just before 68th Avenue, two lanes turned into one. At this point, he says Wilson turned off 128th Street, and Mr. Hayer began checking his rear-view mirror.

He noticed a police vehicle behind him, and it was about a minute after that he pulled over around 65th Avenue. [23] He first became aware of the millions of dollars’ worth of drugs in the vehicle when the police told him about it. He testified hewas in shock. He said he was never paid any money for his efforts. [24] On cross-examination, the accused admitted that he sees Wilson at Surrey Pre-Trial. He also knows that Wilson was arrestedfor a large drug lab in White Rock. He admitted that Wilson was very angry that he was stopped. He is also now aware that Bick andhis girlfriend are drug dealers.

He said that he was focused on his first professional MMA fight in September, and that he neverdiscussed how much money he was going to be paid in Prince Rupert. [25] He also agreed that the car rental was for two weeks and that he knew that no one else was supposed to drive it. He furtheradmitted that when interviewed by the police, he denied ever lending someone the rental car.

He explained that he was scared, as he hadjust been told that there were millions of dollars of drugs in the car, although he did admit hiding Wilson's phone from the police. [26] He was asked about the $963.00 in cash that he had on him when he was arrested, but he said he had just received his incometax refund two days before.

He admits he never asked Wilson what the urgency was, saying, "I didn't think I had the right to ask him what the emergency was." He also admitted not knowing what Wilson's address was, but he did tell them that he lived on 10th Avenueand Marine Drive. [27] I have had the benefit of very helpful closing arguments from both counsel. I have also had the benefit of a thorough writtensubmission provided by Crown counsel, which I have read and re-read. Counsel has submitted the evidence given by the accused is notcapable of belief. [28] Clearly, the issue before me is whether or not Mr.

Hayer had knowledge of the drugs found inside his rental vehicle. As set outin R. v. Morelli, 2010 SCC 8, at paragraph 15: Joint possession covers the situation in which more than one person has possession of something. The person who does not havepersonal possession jointly possesses the item if he knows the other person has custody or possession of it, and either exercises or has theright to exercise control over it. [29] Furthermore: Knowledge must be proved either by direct evidence or by proof of the objective, relevant and admissible facts from which a rationalinference of knowledge emerges irresistibly.

Citing R. v. Aiello (1978), (ON CA), 38 C.C.C. (2d) 485, a decision of the Ontario Court of Appeal, later affirmed bythe Supreme Court of Canada. [30] It is submitted, knowledge is established if the only available inference is that the accused knew what they possessed.

If theaccused is aware of a danger or risk, that conduct is prohibited, but nevertheless persists despite the risks, and takes the chance, if theaccused is "wilfully blind to the nature of the substance;" that is, if he knows enough that further inquiry ought to have been made, butwilfully shuts his eyes or refrains from making the inquiry. [31] Also, knowledge and control may not be proven by direct evidence, and often the Crown will prove possession based oncircumstantial evidence.

Where the Crown rests on circumstantial evidence, the evidence must support a reasonable or rational inference that the accused is guiltyand that there must be no other rational inference that can be drawn from the proven facts. Citing R. v. Griffin, 2009 SCC 28, at paragraph 33. [32] The Crown has argued that in considering whether circumstantial evidence supports an inference of guilt beyond a reasonabledoubt, the court must not examine each individual circumstance in isolation.

The proper approach is to consider whether all the evidencetaken together in its totality proves the accused's guilt and is inconsistent with any other rational conclusion. [33] The court is entitled to bring a measure of common sense to bear on the analysis. The court is not expected to consider the caseas a completely intellectual exercise where no conclusion can be reached if there is the slightest competing possibility. [34] In R. v. Toh, for example, the B.C.

Court of Appeal considered the quantity and value of drugs in a common-sense analysis ofwhether an unknowing person should ever be trusted with their possession. I have reached the conclusion that it would be legitimate on the broad facts of this case to infer beyond a reasonable doubt that theaccused knew the plastic bag contained a prohibited drug. In fact, I think that would be the only reasonable inference which could bedrawn. I believe that not just because the accused was found in physical control of the drugs, but also because of the highly suspiciouscircumstances and the immense quantity of the drugs.

These facts make it so unlikely that such a large quantity of drugs would beentrusted to anyone who did not know what was in the bags, that such a possibility may safely be rejected. In addition, his antecedent,highly-suspicious conduct, most of which was proven affirmatively before he gave his disbelieved evidence, make it impossible to draw

any inferences which would displace the legitimate inference which may be drawn from physical possession that he knew what he waspossessing. Citing R. v. Toh, 1992 BCCA 16, page 22 at paragraph 41. [35] The Crown has also pointed to numerous reasons as to why the accused's evidence should be disbelieved, nor is it capable ofraising a reasonable doubt as to whether he had possession of the drugs. [36] It is submitted by the Crown that Hayer's evidence of Wilson's conduct does not accord with common sense. Hayer testifiedthat Wilson wanted him to drive the rental car to White Rock.

There are two possible motives for this; one, that Wilson wanted todistance himself from the drugs as they moved, to protect himself, or two, that Wilson needed Hayer's vehicle to move them. Neithermotive is consistent, however, with Wilson's actual conduct. If Wilson wanted to distance himself from the drugs, he would haveengaged Hayer's help earlier. More specifically, Wilson would not have driven the drugs from their starting location to the gym at whichhe trains.

He placed himself in the very jeopardy Hayer argues he was trying to avoid. [37] If, on the other hand, the Crown argues, Wilson needed Hayer's vehicle to move the drugs, common sense tells us that he wouldhave asked to keep Hayer's car and drive the drugs himself, rather than risk the involvement and knowledge of an innocent person whohad the potential to report Wilson to the police. This is particularly significant because the drugs were not hidden and occupied all partsof the car, including the centre console.

Additionally, we know that Wilson did not actually need Hayer's vehicle to move the drugs,because Wilson's own vehicle was parked two minutes away from the gym and worked fine. Additionally, it was contended Wilson hadno reason, on Hayer's own evidence, to involve him in the scheme, and thus risk Hayer reporting him to the police or discovering anddisposing of the drugs during the drive. Wilson had a wife, a girlfriend and at least one business partner to whom he could turn in adrug-related emergency.

To suggest that he would involve his boxing coach in the movement of millions of dollars of drugs without hisprior knowledge is absurd. Hayer's participation necessitated that he would know the location to which the drugs were delivered. Itwould be far too dangerous to let him in on that information without knowing that Wilson could rely on his loyalty or trust and hissilence. [38] It is further argued that Hayer's explanation of his own conduct on March 15th is likely nonsensical and does not accord withcommon sense, because Hayer declined to describe Wilson as a friend in his testimony.

He had offered him full access to his rentalvehicle that he was prohibited from allowing others to drive, and Hayer did not ask any questions about Wilson's "emergency"; not whenWilson first was distressed, not when he offered Wilson the rental car, not when Wilson asked him to drive to White Rock, and not whenhe dropped Wilson off at Wilson's own working car. It is contended this is not normal human behaviour. It is even more unbelievable,given that, according to Hayer, Wilson had offered that he become a business partner. Furthermore, Hayer dropped Wilson off at hisown car.

He did not offer to transfer the contents of the rental car to Wilson's own car. He did not suggest it, nor raise it, nor even thinkof it, which the Crown has characterized as nonsense. [39] Defence counsel, Mr. Johnson, has asked the court to accept the evidence of his client that he did not know the drugs were inhis car. He reminds the court that there is no DNA or fingerprint evidence that connects the accused to items seized. Furthermore,whoever owned these drugs, packaged them in a hurried fashion.

The accused's evidence, it is argued, is that he rented a vehicle becausehis own vehicle had been broken into, which explains why he was driving a rented vehicle, and it also defies logic he would rent avehicle simply so he could transport drugs. It is further submitted that Mr. Hayer was pulled over in broad daylight on a fairly busystreet. [40] It is also argued by the defence that some of the evidence supports his client's position. First of all, none of the hidden itemswere in plain sight. Secondly, there was no aroma noticeable until the packages containing the drugs were opened at the police station.

Also, the marihuana joints were visible in the cup holder. It does not make sense that someone would be so careless as to be so easilydetected if that person knew he was transporting a substantial amount of drugs. [41] As for Mr. Hayer's relationship with Wilson, a fair inference from what is set out in the admissions is that the drugs belonged toWilson, because latex gloves were found in the rental car and during Wilson's subsequent arrest. Also, during Wilson's later arrest, drugswere packaged in a similar fashion. [42] Counsel distinguishes the case of R. v.

Toh, as the explanation given by the accused in that case was rejected by the court. It isfurther submitted that the court can conclude that Wilson was in a hurry to move the drugs. [43] Defence counsel have referred me to the B.C. Court of Appeal case in R. v. Iturriaga, (BC CA), [1993]B.C.J. No. 2901. In that case, the accused was convicted of possession of cocaine for the purpose of trafficking.

The accused arguedthat the search resulting in the seizure of the drugs was contrary to s. 8 of the Canadian Charter of Rights and Freedoms, and the trialjudge should have excluded the evidence under s. 24(2), and that the trial judge erred in emphasizing to the jury the accused's failure totestify and in failing to instruct the jury on the lesser included offence of possession of cocaine, and furthermore, that the verdict wasunreasonable and could not be supported by the evidence. That appeal was allowed.

There was no evidence, the court ruled, that theappellant had knowledge of or control over either the marihuana or the cocaine. The appellant slowing down and being nervous when hewas pulled over by the police could not lead to a conclusion that he knew of or had control over the drugs in the vehicle beyond areasonable doubt. The Crown, in that case, submitted there was evidence from which a jury could infer both knowledge and control onthe part of the appellant.

The evidence upon which the Crown relies in this regard is as follows: The court stated: (1) the slowing down of the vehicle when the appellant saw the police and his nervousness when he was approached by the police; (2),the fact that the cocaine and marihuana were within arm's reach of the appellant and the car, although the cocaine was under thepassenger's seat and the marihuana was either in the console or stuck between the console and the driver's seat, and three, the fact that theappellant was driving the car. [44] The court stated, at paragraph 9:

I do not see how the fact that the appellant slowed down and was nervous when he was stopped by the police could lead a jury to conclude beyond a reasonable doubt that the appellant knew that there were drugs in the vehicle he was driving. In my view, it is common for people to be nervous when pulled over by the police, particularly, as here, where they are driving without a licence. Similarly, the fact that the appellant was driving the car and the fact that the cocaine and marihuana were within arm's reach of the appellant in the car cannot, without further evidence than is present here, justify a conviction.

The evidence indicates that both drugs were concealed. These facts simply cannot establish beyond a reasonable doubt that the appellant had knowledge of, or control, over the drugs in question. [ 45 ] I have carefully considered the evidence in this case, the arguments of counsel and the law relating to circumstantial evidence. I agree with the Crown, to a point, that it is the most probable and most logical conclusion to reach; that is, that the accused knew that there were drugs in the vehicle he was driving.

However, I am not convinced that this is the only possible rational conclusion to arrive at. [ 46 ] Another conclusion is that the accused may very well be telling the truth. He is not the best witness that has ever testified before me, but he is a long way from being the worst. With all due respect, which invariably means I am about to say something disrespectful, Mr. Hayer did not strike me as a cunning or sophisticated person. It is obvious to me that he has never had the financial resources to import vast quantities of narcotics into the city. They obviously "belong" to someone else.

It is entirely possible that he has been duped or tricked into this scheme by someone like Mr. Wilson, who, if anyone was going to be caught, better someone other than himself.

It is noteworthy that the accused was never seen handling the drugs and the drugs were obviously placed in the vehicle in a rather hurried fashion, which does support the accused's lack of knowledge. [ 47 ] Accordingly, I have concluded the evidence that he has provided may very well be true, and at the very least, raises a reasonable doubt as to whether or not he had knowledge of the drugs found in the vehicle he was driving. [ 48 ] Accordingly, I find him not guilty of all five counts. (REASONS FOR JUDGMENT CONCLUDED)