R. v. Tsang Date:, 2014 BCPC 79

Citation: R. v. Tsang Date: 20140331 2014 BCPC 0079 File No: 217489-3-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHI LING ADRIAN TSANG EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. GIARDINI Counsel for the Crown: S. Paulson Counsel for the Defendant: J. Myers Place of Hearing: Vancouver , B.C.

Date of Hearing: March 31, 2014 Date of Judgment: March 31, 2014 INTRODUCTION [ 1 ] THE COURT: Mr. Tsang is charged with three counts of possession of a controlled substance for the purpose of trafficking arising from a motor vehicle stop on December 25th, 2012. Specifically, he is charged with possession of Oxycodone for the purpose of trafficking, possession of cocaine for the purpose of trafficking, and possession of morphine for the purpose of trafficking. [ 2 ] On February 2014, I issued two rulings, one on the Charter voir dire and the other on the exclusion application under s. 24(2) of the Charter .

In those rulings, I reviewed the evidence of the two police officers who dealt with the accused on December 25, 2012. I do not intend to review all the evidence in detail, but I will briefly review the events of that evening in these reasons. [ 3 ] Two police officers, Constable Robinson and his partner, Constable Peck, were in a police vehicle in the vicinity of Oak Street and 13th Avenue in Vancouver. Their attention was drawn to a grey Hyundai which executed a left turn from Oak Street east onto 13th Avenue.

The police also turned onto 13th Avenue and saw that the Hyundai had stopped in the middle of the road halfway between Oak Street and Laurel Street. [ 4 ] Two persons were standing beside the driver's side of the Hyundai. They looked towards the police car and quickly walked away towards a residential area. After that, the Hyundai accelerated quickly and turned right from 13th Avenue onto Laurel Street without stopping at a stop sign. As the police officers followed the Hyundai, they saw it drive through another stop sign at 14th Avenue and Laurel Street.

The Hyundai accelerated through that intersection and drove towards 14th Avenue. [ 5 ] The Hyundai continued driving south on Laurel Street and, at 15th Avenue, it turned left at a high rate of speed. One of the officers, Constable Robinson, described the vehicle as making an erratic turn and travelling at excessive speed for a residential area. Constable Robinson, who was the driver of the police vehicle, said he was trying to catch up to the Hyundai to do a traffic stop. [ 6 ] While travelling east on 15th Avenue, the Hyundai accelerated quickly as it approached Willow Street.

At that point, Constable Peck saw what looked like a white bottle coming out of the passenger-side of the vehicle. It looked like a pill bottle, but she could not definitely say what it was. Constable Robinson also saw an object come out of the passenger-side window as the Hyundai was driving east. However, he could not say what the object was. [ 7 ] Constable Peck saw the container land on the roadway. She said the item went up in the air and dropped by the side of the vehicle. She also said it was not possible that the container was simply dropped from the car.

She saw it going with a trajectory out of the window. What I inferred from that language is that she saw it coming out with some force. It was not merely dropped; but it was thrown. [ 8 ] According to Constable Peck, just before she saw the container come out of the passenger-side window, Constable Robinson turned on the emergency equipment in the police vehicle.

However, Constable Robinson's recollection is that he activated the red and blue lights and the siren on the police car after he had seen the object leave the Hyundai. [ 9 ] It took to the end of the next block, that is, the block after Willow Street, before the Hyundai came to a complete stop. When it did, Constable Robinson remained in the police car and Constable Peck walked to the driver's side of the Hyundai. She asked the accused to step out of the vehicle and told him he was being detained for possession of a narcotic.

She told him she had seen a container, which she believed to be drugs, thrown out from the vehicle. She also told him she was going to go back to get the container. [ 10 ] When Constable Peck had first approached the driver's door, she noted for the first time that there was a female passenger in the Hyundai as well as the driver. Later, after dealing with the driver, she also asked the passenger to step out, placed her in handcuffs, and advised her that she was being detained for possession of a narcotic. [ 11 ] At this juncture, Constable Peck did not search the accused, the passenger, or the vehicle.

She left both the passenger and the accused with Constable Robinson and left the area to look for the container. Constable Peck retrieved a clear prescription bottle with a white lid. The bottle was sitting on the southeast corner of the road at Willow Street and 15th Avenue. [ 12 ] There was a label on the bottle which read, "Oxycodone," but the patient's name and the prescription number had been ripped off. There were 15 white pills in the prescription bottle with "TEC" stamped on them. [ 13 ] Constable Peck returned to the Hyundai. Both the accused and the passenger were given their Charter rights.

Constable Peck searched the passenger. She found no drugs or drug paraphernalia on her. Constable Robinson searched the accused and found $1,600 on him. That money was in the following denominations: 7-$100 bills, 39-$20 bills, 7-$10 bills, and 11-$5 bills. [ 14 ] Constable Peck searched the Hyundai. She found two spitballs wrapped in plastic sitting on the driver-side seat. They were sitting on top of the seat like they had been dropped there. There was a also a cellphone on the driver's seat.

A small open M&M plastic container was lying on the driver-side floor just where the feet would have been if someone was sitting in the driver's seat. There were no M&Ms on the floor. Constable Peck also found several cellphones, I believe it was three, on top of the console area where the gearshift was. ANALYSIS OF DRUGS [ 15 ] Next, I will address how the drugs analyzed. In the pill bottle, there were 15 pills for a total weight of 8.62 grams which analyzed as Oxycodone. One of the spitballs found on the driver's seat was a combination of morphine and codeine and weighed .015

grams. The other spitball was rock cocaine which weighed .035 grams. EXPERT EVIDENCE [ 16 ] I now turn to the expert evidence. Subsequent to my ruling on February 14, 2014, the Crown called Detective Constable Troy Griffiths whose qualifications to give opinion evidence on the use, price, packaging, and distribution of Oxycodone, cocaine, morphine, and codeine were admitted by the defence.

However, the defence reserved the right to argue what weight, if any, should be given to Detective Constable Griffiths' evidence. [ 17 ] Detective Constable Griffiths opined, based on a hypothetical that in essence mirrored the evidence heard in this case, that the activity of the Hyundai was consistent with a pre-arranged drug transaction. He reached that conclusion based on the following: the two men seen at the door of the car, the time the incident occurred, the driving pattern, and the white object thrown from the car. [ 18 ] He took into account the value of the drugs.

The 15 Oxycodone pills had a total maximum value of $150. However, the value would be less if bought in bulk. The rock cocaine had a value of $30 and the codeine-morphine mixture, which he believed was likely held out to be heroin, had a value of $20. [ 19 ] He also took into account the $1,600 found on the accused. He said that was a significant amount of money which was consistent with drug trafficking. He noted, however, that the seven $100 bills may not point to trafficking because $100 bills are not typically used in dial-a-dope operations.

However, there were smaller denomination bills including 39-$20 bills. [ 20 ] Detective Constable Griffiths also considered there were four cellphones in the car. This added weight to his opinion. Drug traffickers often use multiple cellphones. Another factor which added weight to his opinion was the fact the Hyundai was a rental car. [ 21 ] He also took into account that the Oxycodone was in a prescription bottle with the name ripped off. He said drug traffickers do not provide containers. They just provide contents.

In this case the name being ripped off was consistent with drug trafficking because some drug traffickers do this to show the purchasers that the contents are Oxycodone. [ 22 ] He was asked whether the fact pattern he had been given was consistent with the persons in the Hyundai purchasing drugs. He said that was not the case. It was more consistent with trafficking. He based this on his experience. Normally, traffickers use vehicles to get to purchasers, not the other way around.

There was a large amount of cash found on one of the occupants, and while he could not say categorically that a purchaser would not carry around a large amount of cash, in his experience it did not happen because there is a possibility the purchaser could be ripped off. [ 23 ] The presence of multiple cellphones was also another factor taken into account in reaching his conclusion. [ 24 ] Detective Constable Griffiths was asked whether his opinion would change if nothing had been exchanged between the two men outside the vehicle and the occupants of the vehicle. He said it would not.

He would still be of the opinion that drugs were possessed for the purpose of trafficking. [ 25 ] Detective Constable Griffiths said the fact an occupant of a vehicle is found to possess 15 Oxycodone pills looked at in isolation and on that basis alone may amount to possession and not possession for the purpose of trafficking. He said many people possess that number of pills. It is not a large amount. A user could easily use that amount in one day.

Therefore, in isolation, the possession of 15 pills of Oxycodone would not point to possession for the purpose of trafficking. [ 26 ] He was also asked to consider the two spitballs found on the driver's seat looked at in isolation. He said that those two spitballs considered in isolation would not, in his view, amount to possession for the purpose of trafficking, but to simple possession. [ 27 ] Detective Constable Griffiths was asked about the role a passenger might play in a dial-a-dope operation.

He said the majority of dial-a-dope operations consist of two persons, although there are some where one person operates alone. Having two people allows one of them to focus on the drug operation by answering the phone, arranging the deal, and so on. He noted either person could have the drugs in his or her possession or the drugs could be in the car.

Having a second person is an additional measure of security because one of the two could keep an eye out for police as well as what the buyers are doing. [ 28 ] Detective Constable Griffiths was asked whether it affected his opinion that nothing of significance was found on the passenger. He said it did not affect his opinion. Sometimes a driver has the drugs on him, other times the passenger has the drugs. The fact nothing was found on the passenger did not sway his opinion. [ 29 ] He said he had never dealt with a dope trafficker driving a vehicle that had an innocent passenger.

He said the dial-a-dope business works in shifts. If someone is working to sell drugs, he or she would not be picking up passengers. However, he acknowledged that does not mean it would not be possible. [ 30 ] In cross-examination, he acknowledged the following. Hand-to-hand transactions are often seen in dial-a-dope interactions, but there were no such transactions in this case. He agreed it was possible the two men at the side of the car could have been asking for directions. He also agreed it was physically possible those two men could have been giving drugs to the persons in the vehicle.

He did not agree it was equally likely that the two men were selling drugs to the people in the vehicle. He said it was possible, but on the totality of the circumstances, he did not think it was likely. [ 31 ] He also said $100 bills are uncommon in a dial-a-dope operation, especially multiple $100 bills. The fact that no text message was observed on the cellphones would not change his opinion, but it lessened the weight of the significance of the four cellphones. [ 32 ] He agreed the total value of the drugs found in the Hyundai was $200.

He agreed it was possible that all of the drugs could be consistent with simple possession. However, he had reservations on that point because the quantity of drugs was not the basis for his opinion. The circumstances indicated possession for the purpose of trafficking.

[ 33 ] He acknowledged that in the circumstances, he thought the passenger might be involved. He would have initially arrested the passenger. This was based on the evidence of pills being thrown out of the passenger window, where the cellphones were found and so on. POSITION OF PARTIES [ 34 ] I now turn to the position of the parties. The Crown's theory is that the prescription bottle and pills which analyzed as Oxycodone came out of the Hyundai, and therefore the accused can be found in possession of those pills as well as the two spitballs that were found on the driver-side seat in the Hyundai.

The Crown says the accused was either jointly or constructively in possession of Oxycodone and he was in personal possession of the spitballs found on the seat.

Moreover, the Crown submits, looking at the facts cumulatively, it has proven that the accused was in possession of those drugs for the purpose of trafficking. [ 35 ] The Crown submits the cumulative facts which establish the accused's knowledge and control and possession for the purpose of trafficking are: the time when this incident occurred, namely, 2:00 a.m.; the pill bottle that came out of the Hyundai; several cellphones were found in the car; an empty M&M container was found in the car; the car was a rental vehicle; two persons approached the car when it was first seen by the police; the pattern of driving was suspicious and evidence of a guilty mind; no drug paraphernalia was found; a large sum of cash was found on the accused; and there were a number of different kinds of drugs. [ 36 ] The Crown argues that looking at the evidence as a whole supports a finding of possession as well as possession for the purpose of trafficking.

The Crown argues that the court need not first make a finding of possession and then consider whether possession for the purpose of trafficking has been proved. Instead, the court should take a holistic approach. [ 37 ] The defence argues that the Crown has not established the accused had knowledge and control of the drugs seized by the police. The defence notes there was a passenger in the car. It further notes the police reached the conclusion that because the drugs were on seat they must belong to the driver. The defence says this is not a reasonable conclusion in the circumstances.

In this case, an equally rational conclusion is that the drugs on the seat belonged to the passenger. [ 38 ] The defence notes that the pill bottle left the car from the passenger-side seat. Moreover, the defence also notes that the passenger was left alone in the car, by his estimate, for one or two minutes while Constable Peck dealt with the accused. The defence further notes that Constable Peck made no observations of what was inside the car when the accused was first asked to step out.

At that time, the passenger was still inside the vehicle. [ 39 ] The defence argues the Crown's case is largely based on circumstantial evidence, but there are other rational inferences that can be drawn from the evidence other than that the accused was in possession of the drugs. LEGAL PRINCIPLES [ 40 ] I am now going to review several aspects of the law, first, circumstantial evidence. This review is based on the case of R. v. Banovic , [2012] B.C.J. No. 2447 , a decision of our Court of Appeal.

I will summarize the points made in paragraph 24 to paragraph 28 in that case, but I will not refer to the case law referred to therein. In order for circumstantial evidence to be relevant or logically probative of a fact, it must tend "to make the existence of a fact in issue either more or less probable" ... [ 41 ] Circumstantial evidence has been described by Chief Justice McLachlin and Mr. Justice Bastarache as: ... evidence that tends to prove a factual matter by proving other events or circumstances from which the occurrence of the matter at issue can be reasonably inferred ... [ 42 ] In R. v.

Banovic , the court reviewed the text book, The Law of Evidence , and extracted this description of circumstantial evidence from that textbook: Evidence is relevant where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than the proposition would appear to be in the absence of that evidence.

To identify logically irrelevant evidence, ask, "Does the evidence assist in proving a fact that my opponent is trying to prove?" ... circumstantial evidence not have to establish the fact, but only "contribute logically to a finding about a material fact" ... It is also trite to say that the most innocuous piece of evidence may, when considered with the whole of the evidence, lead to a logical inference ... [ 43 ] The Supreme Court of Canada has on many occasions reiterated the proposition that each piece of evidence is not to be analyzed separately, out of context with the whole of the evidence, but as a whole.

Knowledge and control does not need to be proved by direct evidence. Such a finding can be based on circumstantial evidence, but only when a trier of fact is satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts ... [ 44 ] I now turn to legal principles relating to possession for the purpose of trafficking. Section 5(2) of the Controlled Drugs and

Substances Act sets out two of the central elements of the offence of possession for the purpose of trafficking, namely, possession and intent to traffic. In order to establish the actus reus of the offence, the Crown must prove the accused possessed a substance and that the substance he possessed is named under one of the schedules of the Controlled Drugs and Substances Act . [ 45 ] Case law establishes that the mens rea of the offence includes proving knowledge of the nature of the substance and that the person possessed it for the purpose of trafficking; see R. v. Liu , 2011 BCSC 1269 . Accordingly, in this case, the Crown must establish that: (

a) the accused was in possession of one or more of the substances named in the three counts; (

b) the substance was Oxycodone, cocaine, and/or morphine; (

c) the accused knew that the substance was Oxycodone, cocaine, and/or morphine; and (

d) the accused had possession of Oxycodone, cocaine, and/or morphine for the purpose of trafficking in it. [ 46 ] The Controlled Drugs and Substances Act adopts the definition of "possession" contained in s. 4(3) of the Criminal Code . The Criminal Code definition of "possession" provides that possession can be personal, constructive, or joint. Under all of these three theories of liability, knowledge and control must be established to prove possession. [ 47 ] Personal possession requires manual handling of the illicit drug, knowledge of the nature of the substance, and some measure of control over it.

In order to constitute constructive possession, there must be proof that the accused had knowledge of the nature of the illicit substance and had some measure of control over it. Proof of manual handling is not required to prove constructive or joint possession. [ 48 ] In R. v. Fisher , [2005] B.C.J. No. 1995 , the court provided a clear and concise

summary of what the Crown must prove in order to make out a case of constructive possession. I quote from paragraph 24: As is evident from my

summary of the law, neither constructive possession nor joint possession requires proof of manual handling. To establish constructive possession, it was incumbent upon the Crown to prove beyond a reasonable doubt that the appellant knew of the presence of the cocaine and that he had some measure of control over its location. [ 49 ] To prove joint possession, the Crown must prove knowledge, consent, and some measure of control on the part of the accused deemed in possession of the illicit drug. For these propositions, also see R. v.

Giles , 2008 BCSC 367 , a decision of Madam Justice MacKenzie, as she then was, and R. v. Lee , 2012 BCSC 1489 , a decision of Mr. Justice Romilly. ANALYSIS [ 50 ] I now turn to my analysis. In this case, neither the accused nor the passenger was found in personal possession of the Oxycodone pills or the two spitballs. Accordingly, I must consider whether the circumstantial evidence in this case supports an inference that the accused was in possession of the drugs and a further inference that the possession was for the purpose of trafficking.

I am aware that, in considering the circumstantial evidence, I must consider its cumulative effect and not simply focus on the individual pieces of evidence. [ 51 ] I will first consider whether possession of the Oxycodone was proved. Constable Peck testified that after the Hyundai turned left onto 15th Avenue and Laurel Street and was driving east on 15th Avenue, it accelerated. At that point, Constable Peck saw what looked like a white bottle being thrown from the passenger-side of the vehicle.

She could not definitely say what it was, but it was something white and it looked like the size of a pill bottle. [ 52 ] Constable Peck testified that because of the force with which the object exited the window, she thought it had come from the driver's side. Constable Peck also said the item went up in the air and dropped by the side of the vehicle. She said it was not possible that it was simply dropped from the car. She saw the object going out of the window with a trajectory.

It was not merely dropped; it was thrown. [ 53 ] At that point, according to Constable Peck's later testimony, she did not know there was a passenger in the vehicle. She only discovered that when the vehicle was pulled over and she approached it at Heather Street and 15th Avenue. [ 54 ] Constable Robinson also saw an object come out of the passenger-side window as the Hyundai was driving east. He could not say what came out of the window. The significance of the observations made by Constable Peck and Constable Robinson is that neither of them saw who threw the object out of the passenger-side window.

In fact, both of the officers only saw an object coming out of the window. They did not see a hand or an arm. [ 55 ] Given that Constable Peck did not realize there was a passenger in the car at the time she saw the container being thrown out of the passenger window, I must exercise some caution in assessing her evidence about the force with which the object exited and her conclusion that it was thrown by the driver. I am not suggesting that Constable Peck purposely misled the court or that she tailored her evidence to fit the known facts.

However, she obviously reached a conclusion at the time based on what she perceived the facts to be. At that juncture, those facts did not include knowledge that there were two people in the car. [ 56 ] A similar issue, albeit in a different factual context, was considered by Judge Dhillon in R. v. Sitchon and Cruz , an unreported decision in the Vancouver Registry dated May 24, 2013. In that case, Cruz was driving a vehicle that belonged to the co-accused, Sitchon, who was prohibited from driving and therefore was the passenger. The police stopped the vehicle to investigate a suspected prohibited driver.

In the course of the vehicle pulling over, a baggie of suspected rock cocaine was thrown out from the passenger-side

front window. The police arrested both occupants for a drug-trafficking offence. [ 57 ] In considering which of the two persons had possession of the rock cocaine, Judge Dhillon considered the various scenarios that might explain who threw the cocaine out of the window: 1. The first scenario was that the party in question knew the police were stopping the vehicle and acted to get rid of the drugs. If the driver, Cruz, personally possessed the rock cocaine, he needed to make a quick decision and dispose of it.

The easiest means for the driver to do so while the vehicle was in motion would be to use the driver's window. That is not what happened in that case. 2. The second scenario would require the driver to ensure that the passenger's window was rolled down and then aim for the window and succeed in getting rid of the drugs, all the while driving with the police behind the vehicle. Judge Dhillon found that seemed to be a rather complicated response to something that needed to be done quickly and concluded it was unlikely. 3.

The third scenario for a driver needing to discard drugs in his personal possession would be for the driver to give the baggie of drugs to the passenger and to have the passenger dispose of them. In that scenario, the drugs would be in the direct personal possession of both the driver and the passenger.

Judge Dhillon found this was an unlikely scenario because there seemed to be a lot of coordination needed during a point in time when actions had to be taken quickly. [ 58 ] Having dismissed those three scenarios, Judge Dhillon inferred from the totality of facts before her that Sitchon, the owner of the vehicle who was sitting in the passenger seat, had possession of the cocaine and on seeing the police, rolled down the passenger-side window and threw out the baggie of cocaine.

I appreciate that the constellation of facts in the Sitchon and Cruz case, which are different from the facts before me, were a significant factor in Judge Dhillon's analysis and conclusion. However, I find her consideration of the various scenarios apposite in the case at bar. [ 59 ] Like Judge Dhillon, I conclude that if the accused, Mr.

Tsang, had personal possession of the Oxycodone, the easiest means for him to dispose of it was to use the driver-side window. [ 60 ] Second, like Judge Dhillon, I find it seems rather complicated for the accused to ensure that the passenger's window was rolled down and that he then accurately aimed from a vehicle that was accelerating and threw the Oxycodone bottle out while he was driving with the police behind him. [ 61 ] Third, it is possible that the accused gave the pill container to the passenger to have her dispose of it by throwing it out the window.

However, while this third scenario is possible, I conclude this, too, was unlikely because there seems to be a lot of coordination needed in a short period of time. [ 62 ] Fourth, if the accused was the person intent on getting rid of the Oxycodone, it does not make sense that he would throw out only the Oxycodone and not the two spitballs. [ 63 ] In my view, the circumstantial evidence relied on by the Crown to prove it was the accused and not his passenger, Ms. Lin, who threw out the Oxycodone does not satisfy me beyond a reasonable doubt that this was the case.

The only evidence adduced at trial in this regard is that the pill bottle came out of the passenger-side window and that Constable Peck formed the opinion it had been thrown from the driver's side. Neither she nor Constable Robinson testified about seeing any movement within the car. No hand was seen. No fingerprints were taken from the pill bottle. There was nothing on the pill bottle that specifically tied it to the accused.

Other than speed, there was no indication of the kind of poor driving that might be connected to the driver doing something other than driving. [ 64 ] These considerations create a reasonable doubt in my mind about whether it was the accused who threw the Oxycodone out the window. Accordingly, on the circumstantial evidence before me, I am not satisfied that the only reasonable inference to be drawn from the proven facts is that the accused threw the Oxycodone out the window. [ 65 ] The Crown argues that the accused was in either constructive or joint possession of the Oxycodone.

In order to accede to this argument and find constructive or joint possession, I need to find that: the accused had knowledge of the pill bottle and its contents, he knew it was Oxycodone, it was in the custody of the passenger or perhaps somewhere else in the car, and it was for his use or benefit or for the benefit of another person. [ 66 ] The evidence in this case is not sufficient to support a finding that the accused had constructive possession. The container came out of the passenger-side window. There is no evidence as to where it came from.

Moreover, the size of the pill bottle, which was entered as an exhibit, is such that it could easily have been secreted on a person, in the car or in a purse or bag. The fact other illicit drugs as well as cellphones were found in the car does not assist in establishing who had possession of the Oxycodone in this case. The same analysis applies to the issue of joint possession. [ 67 ] On the circumstantial evidence available, I am not prepared to find the Crown has established the accused had knowledge and a measure of control over the pill bottle containing the Oxycodone.

Accordingly, with respect to the pill bottle containing 15 Oxycodone pills, I find the Crown has not established the accused had personal, constructive, or joint possession. [ 68 ] It is trite law that possession is one of the necessary elements of the offence of possession for the purpose of trafficking. Accordingly, without proof of possession of the Oxycodone, the charge against the accused on Count 1 must be dismissed. [ 69 ] Next, I will consider whether the Crown has proved that the accused was in possession of the spitball of rock cocaine and the spitball of codeine-morphine found on the driver's seat.

The defence argues that the passenger, who was with the accused and in the car that evening, was left alone in the car for at least one or two minutes while Constable Peck dealt with the accused. [ 70 ] The defence also argues that Constable Peck made no observations inside the car when the accused was first asked to step out. At this time, the passenger was still in the vehicle. The defence therefore suggests a rational inference can be drawn that the two spitballs found on the driver's seat of the vehicle were placed there by the passenger while Constable Peck was dealing with the accused.

[ 71 ] As I have previously noted, in circumstantial cases inferences may be drawn, but they must be reasonably and logically drawn from a fact or group of facts established by the evidence. During the inference-drawing process, I must distinguish between a rational conclusion based on evidence and a conclusion based on conjecture that is unsupported by the evidence. [ 72 ] Other than the fact that the passenger may have been in the car alone, possibly for a minute or two, while Constable Peck dealt with the accused, there are no other facts proved in evidence that support the theory advanced by the defence.

Nothing was observed by either Constable Peck or Constable Robinson to suggest the passenger in any way leaned over or moved towards the driver's seat after the accused was asked to step out. The accused was in the driver's seat and driving the car before the vehicle was stopped by the officers.

There is no evidence that the passenger did anything before the vehicle stopped in the way of placing something under the accused's buttocks while he was driving. [ 73 ] On the evidence before me, given the spitballs found on the driver's seat and the empty M&M container in the footwell on the driver's side, I find the only rational inference is that the two spitballs were deposited in the driver's seat by the accused before he got out of the vehicle at Constable Peck's request.

Accordingly, I find the Crown has established the accused had possession of the cocaine and the morphine that were in the spitballs on the driver's seat. [ 74 ] The only question that remains is whether he had possession of those substances for the purpose of trafficking. Detective Constable Griffiths said the two spitballs considered in isolation did not support a conclusion they were for the purpose of trafficking.

The Crown, of course, argues I ought not to consider the spitballs in isolation, but that I ought to also consider the rest of the evidence including the driving pattern and the money, that is, $1,600, found in the possession of the accused. [ 75 ] Having considered Detective Constable Griffiths' opinion evidence as a whole, as well as other evidence adduced at trial, I am not satisfied beyond a reasonable doubt that the possession of the two spitballs was for the purpose of trafficking.

First, the driving pattern in and of itself is not sufficient because, as I have previously noted, the driving did not necessarily indicate a desire to get away from the police. [ 76 ] Second, the amount of cash found on the accused is suspicious, but I note there were 7-$100 bills which Detective Constable Griffiths said were not consistent with a dial-a-dope operation.

He also said there was a quantity of $20 bills which could be consistent with a dial-a-dope operation, but there were no text messages on the cellphones. [ 77 ] In general, I found Detective Constable Griffiths to be a good witness and he attempted to stay within the areas of expertise on which his qualifications were admitted. However, there was at least one occasion and possibly two when Constable Griffiths' evidence was or bordered on the anecdotal. For example, he said he had never dealt with a situation where the dope trafficker driving a vehicle had an innocent passenger.

The other example is the evidence he gave about a purchaser carrying a large amount of cash. He said in his experience it did not happen because there was a possibility that the purchaser could be ripped off. [ 78 ] In a recent decision, R. v. Sekhon , 2014 SCC 15 , the Supreme Court of Canada cautioned trial judges to be vigilant in their assessment of opinion evidence.

Even in cases where expert evidence is broadly necessary, it should be assessed with special scrutiny as it approaches the ultimate issue. [ 79 ] On balance, I am not satisfied the evidence in this case is strong enough to support a conclusion that the accused had possession of the two spitballs for the purpose of trafficking. I acknowledge that the circumstances raise suspicions, in particular the cash found on Mr. Tsang and the cellphones. However, those suspicions are not enough to establish guilt beyond a reasonable doubt.

Accordingly, I only find that the accused had possession of the cocaine and the morphine, simple possession, but not possession for the purpose of trafficking. [REASONS FOR JUDGMENT CONCLUDED]