R. v. Johnson Date:, 2015 BCPC 251

Citation: R. v. Johnson Date: 20150727 2015 BCPC 0251 File No: 217714-3-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. WARREN ANTHONY JOHNSON also known as WARREN SHANNON LEE WOLFLEG EXCERPTS FROM PROCEEDINGS ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. ST. PIERRE Counsel for the Crown: M. Wiancko Counsel for the Defendant: J. Waddington Place of Hearing: Vancouver , B.C.

Date of Hearing: July 27, 2015 Date of Judgment: July 27, 2015 [ 1 ] THE COURT: This matter is set for decision on the merits of the case. Mr. Johnson is before the court, also known as Warren Wolfleg. The allegations arise out of July 17th, 2013, a traffic stop by Constable Chernoff. The allegations are contained in Count 1 through 9 of 217714, the C-3 Information. [ 2 ] There are various counts involving possession of different narcotics for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act . That is Counts 1 to 4 on the Information. [ 3 ] Count 5 is possessing a firearm knowing that the serial number had been altered. That is pursuant to s. 108(1) (

b) of the Criminal Code . [ 4 ] Count 6 is possessing that firearm while not being the holder of a licence, and I am describing these offences in the colloquial sense. [ 5 ] Count 7 is possessing that same firearm with readily accessible ammunition that is capable of being discharged in the firearm without being the holder of an authorization or a licence. That is under s. 95(1) of the Criminal Code .

The Crown says if there is a conviction on that count, then the Crown is not seeking a conviction on Count 6. [ 6 ] Count 8 is possession of that same firearm, an Israel Jericho 941 handgun, knowing that he was not the holder of a licence by which he may possess the firearm contrary to s. 92(1) of the Code . [ 7 ] Count 9 is that he carried -- did have in his possession this firearm for a purpose dangerous to the public peace. That is contrary to s. 88(1) of the Criminal Code . [ 8 ] All of those allegations arise out of the incident on July 17th, 2013.

This case proceeded -- well, there was a significant delay in getting this case to today's date. It proceeded in fits and starts for a number of different reasons. Then on March 23rd, 2015, I think that was the date, I ruled, after a voir dire in this matter, that the evidence that was obtained pursuant to the traffic stop, subsequent arrest, and subsequent search incidental to the arrest, in plural, of Mr.

Johnson, that the evidence was admissible into the trial proper, the evidence that was obtained during that stop. [ 9 ] The facts I am going to state briefly, which I have already stated once on the voir dire ruling, but for the purposes of today's proceedings, Constable Chernoff pulled over the vehicle being driven by Mr. Johnson on that date. The vehicle was not registered to Mr. Johnson.

It was registered to a female and, again, for reasons that I have already given on a previous date, I found that that stop, the arrests and the search incident to those arrests, were constitutionally compliant and that the evidence that was discovered as a result was admissible in the trial. [ 10 ] Constable Chernoff discovered the following items when the search was conducted incident to the arrest. There was a clear plastic bag with a gram of heroin on the floor at Mr. Johnson's feet in the vehicle.

There was a black satchel bag that was shoved under the driver's seat with narcotics, drugs, ranging from both rock and powder cocaine, crystal methamphetamine, OxyCodone, and heroin. In plain view, there was a baggie of powdered cocaine between the driver's seat and the gearbox of the vehicle. There was unused baggies and a scale that were located in a storage area on the dashboard. [ 11 ] There was a leather satchel that was found on the passenger's seat. That bag contained a single .40 calibre round of ammunition suitable for use in the gun that was found in the backseat.

There was a wallet inside that, what was described variously as a satchel of a man-purse. There was a wallet inside that purse. It contained a Visa in the name of Shannon Wolfleg, an alias of Mr. Johnson. [ 12 ] There was a backpack on the back seat of that vehicle that was being driven by Mr. Johnson and inside that backpack was a zippered bag containing a black Israel Jericho 941 handgun. One magazine for that gun was seated in the gun, loaded, and one magazine was accompanying the gun in the same bag. The allegation is that Mr.

Johnson's fingerprint was found on the extra magazine in the bag with the gun, and I will have more to say about that in a minute. There was $2,620 found in Mr. Johnson's wallet. [ 13 ] There was a two-gram size of rock of cocaine found on Mr. Johnson's person when he was searched at the detachment.

In the bag, also, on the passenger seat was -- again, this man-purse, was a cap for an insulin needle, as well. [ 14 ] The expert that was qualified in -- Detective Constable Hill was the expert who was qualified in the use, distribution, price, and packaging of cocaine, heroin, Oxycodone, and methamphetamine in British Columbia and specifically Vancouver including the years of 2013. He gave evidence.

He gave evidence that he was given a hypothetical that was generally consistent with the evidence that was given in this trial and, given the circumstances of the stop, the number and variety of narcotics, he gave the opinion that in his -- it was his opinion that the narcotics were being held for the purpose of trafficking. [ 15 ] Constable Stewart was the fingerprint expert. After a voir dire, I qualified Constable Stewart as an expert in the detection, development, preservation, and identification of fingerprints. He was with the Forensic Identification Unit since 2008.

He took a six to eight-week course that was in-house, and April 2009, he took an eight-week forensic identification course at the Canadian Police College. In July of 2010, he took exams. He successfully completed those exams. In December of 2012, he took an advanced friction ridge analysis course at Canadian Police College. [ 16 ] He gave evidence, essentially, that fingerprints are persistent throughout life; that they have a random development in the fetus and even identical twins do not have the same fingerprints.

[ 17 ] He says there are three conclusions that can be made after an analysis and comparison of fingerprints. One is that a positive identification has been made; secondly, he could find that there is not sufficient material to identify somebody or to make a positive identification; and thirdly, it could be the conclusion that the print is not the same as the known print that was found. So that is eliminating the person as being the source of the found print. [ 18 ] He testifies that you need to find sufficient uniqueness between the known and the unknown print.

He was cross-examined about scarring that was apparently evident on the print that he examined and this is a print that was located on the extra magazine for the handgun that was found in a back on the backseat. So the gun was found in a bag and along with it was an extra magazine and it is alleged that Mr. Johnson's fingerprints -- or one of his fingerprints was located on that magazine. [ 19 ] Constable Stewart gave evidence that he has made about 350 identifications so far with fingerprints. He says all are being verified by another qualified member.

If there is an incorrect identification made, the member is removed from the identification

section permanently. That evidence, of course, does not make -- it does not necessarily strengthen the analysis that he did in this particular case. He is just giving some contextual information about the

section itself and what happens to members when they make an error. [ 20 ] He examined the firearm that was discovered in a bag on the rear passenger seat of the vehicle Mr. Johnson was driving. He processed that one print that was on the extra magazine.

He used what is commonly known as Crazy Glue, that is the common name for it, which they heat and it creates a white polymer texture that gets attracted to the oils of the fingerprint and they use a dye to enhance the print. [ 21 ] In this particular case, he agreed there is another fingerprint that is either on top or below that of the print that he identified as belonging to Mr. Johnson. [ 22 ] He says he looks at loops, arches, and whorls and those he described as first-level detail and that you cannot use those alone to make an identification.

You can only use that kind of level of detail to eliminate a print. Third-level detail like scars -- which includes things like scars were taught in his course, as well, and third-level details are very important, he says, to the analysis. [ 23 ] He testified that this particular fingerprint was very unique, that there is no way to determine the age of a print or when it was deposited on a surface. In this trial, Exhibit 25 are the photos of the known and unknown that were -- for fingerprints that were presented to the court as a visual aid.

They were not used by Constable Stewart in the making of his identification. They were used in examining Constable Stewart. [ 24 ] The conclusion of Constable Stewart was that the fingerprint on the magazine, clearly, was deposited by the right middle finger from Mr.

Johnson and that he was using the booking sheet, Exhibit 23, as a comparison and as an example of the known print. [ 25 ] Now, with respect to that print, there were submissions made on that issue and that defence argues, is that the court cannot be sufficiently satisfied with the quality and the cogency of Constable Stewart's evidence to conclude that this officer's opinion is a correct one.

They point to cross-examination about -- by the officer with respect to the scarring, and the fact that -- suggesting to the officer that he was not an expert on scars that may be contained on people's fingertips and that the presence of a scar in this particular case should lead to a doubt about the correctness of his opinion. [ 26 ] The defence submits on the whole that the reasonable doubt standard has not been met with respect to all of these charges and specifically submits that the totality of the evidence does not establish beyond a reasonable doubt that he had -- that Mr.

Johnson, that is, had the knowledge or control necessary to prove possession of these drugs that were found in the vehicle or the handgun that was found in the back seat of the car. [ 27 ] The defence concedes that the argument becomes -- or the presence of reasonable doubt is a little more difficult to achieve if the fingerprint -- at least certainly with respect to the gun, if the fingerprint on the magazine is positively proven to be that of Mr.

Johnson. [ 28 ] The Crown says that all the elements of the offences have been proved beyond a reasonable doubt, that the only inference to be drawn from the evidence that has been given in this case is one that is only consistent with guilt, that there are no inferences on the evidence that could be consistent with any other rational conclusion. [ 29 ] There is -- and everybody is of the opinion of, and agreed that, there is a fundamental difference between direct and circumstantial evidence. Direct evidence, obviously, requires only one determination and that is whether the evidence is to be believed or not.

Circumstantial evidence adds a second question. Even if believed, what conclusions or inferences can be drawn from that evidence, and before the court here is a circumstantial case. [ 30 ] With respect to whether the Crown has proven the charge beyond a reasonable doubt by use of circumstantial evidence, a number of considerations apply. There cannot be an inference of guilt unless there are objective facts from which to infer the facts which are sought to be established. That is clear.

If there are no positive proven facts from which the inference of guilt can be made, then the method of inference usually fails and what is left is just speculation or conjecture, and again, that leads to the question. How many inferences must be drawn by the judge or the court in order to connect those facts to the essential elements which have to be proved beyond a reasonable doubt? [ 31 ] There was a time when courts, in my mind, have relied too inflexibly on an

interpretation of this old Hodge's Case where it was concluded that when assessing circumstantial evidence, conclusions alternative to the guilt of the accused, according to some courts, had to be grounded in "proven facts" as found by the judge, but I find the Ontario Court of Appeal recently in a case called Bui , [2014] O.J.

No. 4003 , stated the law correctly, in my view, at paragraph 25 where they say that it has been clear, since the rule in Hodge's Case , that that: ... is not "an inexorable rule of law in Canada". [But] Further, the rule's reference to requiring "proven facts" to ground alternative explanations is problematic because there is no obligation on an accused to prove any facts. Rather, an accused is entitled to an acquittal if there is "a reasonable doubt on all of the evidence, a conclusion sustainable at a threshold significantly lower than a "reasonable

inference" from "proven facts" ... [ 32 ] They quote a few cases. Now, obviously, that makes sense. A multiplicity of available inferences is fatal to a finding of guilt. It remains a rule of law there where proof of a constituent element of an offence turns on circumstantial evidence, that evidence must not only be consistent with guilt, but also inconsistent with other reasonable

interpretations. That is the law that I have instructed myself in in analyzing this. [ 33 ] Now, there is also the question of how to treat an accused's failure to testify in this case. The availability of alternate reasonable

interpretations of the evidence often raises a question of what can be used -- or what use can be made of the accused's failure to testify when the Crown submits that the circumstances, essentially, cry out for some kind of an explanation. [ 34 ] In this case because the Crown was relying on expert and circumstantial evidence with respect to the element of possession, the Crown has to satisfy the trial judge that the only reasonable or rational inference that could be drawn from the proven facts was that the accused had knowledge and control over the drugs and the firearm that are found in the vehicle. [ 35 ] Here, Mr.

Johnson did not testify. That cannot be used as additional evidence against him. It cannot be used to infer guilt. However, as a practical matter, the law supports the proposition that a failure to testify can equate to an absence of evidence, evidence which in the appropriate circumstances might have or could have been used to help support the accused's argument that the Crown has not met its burden. [ 36 ] It is not the law that the failure to testify justifies an inference of guilt.

It is the law that a failure to testify may not provide any basis to conclude otherwise. [ 37 ] Now, because these items were not largely found on Mr. Johnson's person, as the Crown alleges that because of that, the Crown alleges constructive possession on the facts before the court.

While possession under the definition prescribed by the Criminal Code is a matter to be determined on the facts of each case, when the goods in question are not in the physical possession of an accused, in order to constitute constructive possession, it must extend beyond quiescent knowledge and disclose some measure of control or right of control over those -- whatever goods are in question. [ 38 ] I have considered the evidence of Constable Stewart and I found Constable Stewart to be a good witness. He was a careful witness.

His evidence, when I examined it again after submissions, I came to the conclusion that he did deal with the issues surrounding first-level, third-level detail, the issues of whether a reasonable doubt could be established on the facts of this case, and I have to agree with him and the submissions of the Crown in this case, unfortunately for Mr. Johnson, because I find that the evidence was compelling and that the fingerprint that he examined and that Constable Stewart testified that, in his expert opinion, his inexorable conclusion was that the fingerprint that was on the magazine belonged to a finger of Mr.

Johnson -- was deposited there by a finger of Mr. Johnson. I accept that evidence. [ 39 ] That leads to the question of what other inferences could be drawn. Is there is a rational explanation -- now, I am speaking about the gun right now, in any event. Is there a rational explanation consistent with innocence or is there a rational explanation that could raise a reasonable doubt?

Is there any evidence in this matter that could raise a reasonable doubt about what is otherwise an inexorable inference given his fingerprint is on the magazine? [ 40 ] The only rational inference given that his fingerprint is on the magazine is that Mr. Johnson knew about, had knowledge of, that weapon that was on the back seat - the magazine was stored with the gun; it was in the same bag - of the vehicle that he was driving. There is no other explanation other than one consistent with guilt. [ 41 ] With respect to the narcotics, some of the narcotics were in plain view, some were not. Mr.

Johnson was the sole occupant of this vehicle. There was some narcotics, a small amount of narcotics was found on his person at the station.

There are some -- some of the narcotics were found under a seat and in various places in the vehicle. [ 42 ] However, if you look at all of the evidence together, the presence of the firearm, the expert evidence of -- the drug expert evidence that I accept that the quantity and the variety of this amount of narcotics -- the large amount of cash that was discovered, the cocaine that was visible between the centre console and the driver's seat, the scale and the baggies that were in the dashboard, the bag on the passenger seat with identification in the name of Wolfleg, the .40 calibre round bullet that was contained in the same man-purse that was suitable for use in the firearm that was located on the back seat and within immediate reach, there is only one conclusion to draw on the basis on all of this evidence.

And I have considered the cases that were provided by the defence, but the difficulty for Mr. Johnson is that many of those cases simply involved situations where a person is pulled over and stopped and there are narcotics that are located somewhere in the car, oftentimes within arm's reach of the accused person, but without some kind of further evidence, there is no justification for a conviction in many of those cases. [ 43 ] In most of those cases, the evidence is -- the drugs are concealed.

You cannot simply on the facts in most of those cases conclude beyond a reasonable doubt that the accused had knowledge of or control over the drugs in question. This is different. This is a different case altogether. [ 44 ] You take all of the evidence together and there can be only one conclusion, is that Mr. Johnson knew about the presence of the narcotics and had control over those narcotics. That is the inexorable conclusion to be drawn on the evidence that is before the court. There are no other explanations. There is no rational explanation.

Any reason that could possibly be available by some kind of creative thinking that would just really fall into impermissible speculation and conjecture. Given the evidence that is before the court, I cannot conclude otherwise that -- other than Mr. Johnson is guilty of the offences as charged against him in this Information, 217714-C-3. [ 45 ] With respect to the argument about the firearm not being proved beyond a reasonable doubt that it is being held for a purpose dangerous to the public peace, honestly, I can -- again, there is only one conclusion to draw from the presence of the loaded firearm in

the circumstances in which this -- this firearm was discovered and that is one that is consistent with the essential elements of the offence of Count 9. [ 46 ] I have to find Mr. Johnson guilty of all the counts, except for Count 6 as the Crown is not seeking a conviction on that one. [DISCUSSION RE SCHEDULING] [ 47 ] THE ACCUSED: In the synopsis, for the record -- for the record, it says in the report that the firearm that was in question -- there was no ammunition in the firearm. So how can it be loaded? [ 48 ] THE COURT: Well the -- I have got -- [ 49 ] MR.

WADDINGTON: [Indiscernible] loaded. [ 50 ] THE COURT: I have got the -- as exhibits -- [ 51 ] MR. WADDINGTON: I don't think the firearm was loaded, Your Honour. [ 52 ] THE COURT: Right. [ 53 ] MR. WADDINGTON: But there is an allegation that the firearm was -- [ 54 ] THE COURT: There is no allegation that it was loaded, no. [ 55 ] MR. WADDINGTON: No. [ 56 ] THE COURT: Can I have the -- yes, fair enough. [DISCUSSION RE SCHEDULING] [ 57 ] THE COURT: So the definition does not depend on whether it was loaded or not, the definition of a firearm.

But you are not being -- you are not convicted of any offences involving allegations of a loaded firearm. [ 58 ] THE ACCUSED: You said that, Your Honour. You said -- [ 59 ] THE COURT: Well if I -- well if I used that word -- if I used that word, loaded, then I was in error, because you are not being -- you do not face any charges involving a loaded firearm. [ 60 ] THE ACCUSED: You quoted a number -- [ 61 ] THE CLERK: It is okay to set it for that -- [ 62 ] THE COURT: I gave the

section numbers directly from the -- [ 63 ] THE ACCUSED: No, you -- you went on the list. [ 64 ] THE COURT: Yes, that is directly from the information. [ 65 ] THE CLERK: It is okay to set it that day, but she has no way of knowing what the list will be that day. [ 66 ] THE COURT: Yes. [ 67 ] THE CLERK: But it is okay to set it for that day for that time. [ 68 ] THE COURT: Okay. [ 69 ] THE CLERK: Except she asked that you guys go to the JCM just to confirm that. [ 70 ] THE COURT: Yes, fair enough. Okay, thanks. [ 71 ] See, then the penalties, Mr.

Johnson, for offences involving loaded firearms are greater than the ones that you are facing. [ 72 ] MS. WIANCKO: If I could clarify, Your Honour. [ 73 ] THE COURT: Yes. [ 74 ] MS. WIANCKO: Just if I may, the readily accessible, is the same

section as the loaded. [ 75 ] THE COURT: Yes, the Count 7 you mean? [ 76 ] MS. WIANCKO: Yes, and I think that might be what Mr. Johnson was inquiring about. It is the same

section and they -- they both, generally speaking, they both -- [ 77 ] THE COURT: Is that what you -- [ 78 ] MS. WIANCKO: -- they both used to be subject to the mandatory minimum of three years, but that is no longer the mandatory

minimum. [ 79 ] THE COURT: Yes. Is that the

section you were asking about, Mr. Johnson. [ 80 ] THE ACCUSED: Your Honour, I was just wanting -- I wanted to clarify, just get a clarification. Basically the guideline -- I am unaware of -- of what the guideline of loaded firearm is. [ 81 ] THE COURT: Yes. [ 82 ] THE ACCUSED: And -- and -- [ 83 ] THE COURT: Again, there is no allegation that the firearm was loaded. [ 84 ] THE ACCUSED: Because in your summation, you had said that you find me guilty of -- loaded firearm. [ 85 ] THE COURT: Yes, if I -- if I used that word, it was an error.

You are only found guilty of the -- you can only be found guilty of the offences that are before the court on the information. Okay. [ 86 ] MR. WADDINGTON: Thank you, Your Honour. [REASONS FOR JUDGMENT CONCLUDED]