R. v. Baxter, 2018 BCPC 119

Citation: R. v. Baxter 2018 BCPC 119 Date: 20180209 File No: 219252-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. ALEXANDER ALLEN BAXTER REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE V. CHETTIAR Counsel for the Crown: Ms. Emily A. Jones Counsel for the Defendant: Ms. Colleen Elden Place of Hearing: Surrey , B.C. Dates of Hearing: July 31, August 1 and October 20, 2017 Date of Judgment: February 9, 2018

INTRODUCTION [ 1 ] By way of Information No. 219252-1, the accused, Alexander Allen Baxter, is charged with the following three counts: Count 1 – that he did unlawfully traffic in a controlled substance, namely, cocaine, contrary to Section 5(1) of the Controlled Drugs and Substances Act (the “ CDSA ”); Count 2 – that he did unlawfully possess a controlled substance, namely, cocaine, contrary to Section 4(1) of the CDSA ; and Count 3 – that he did possess a controlled substance, namely, psilocybin, contrary to Section 4(1) of the CDSA . [ 2 ] These offences are alleged to have occurred on July 2, 2016 at the Faded in the Park Music Festival (the “Festival”) in Holland Park, in the City of Surrey, British Columbia.

The Festival was a two-day, all-ages music event featuring hip-hop and electronic dance music. July 2 nd was the first day of the event. [ 3 ] There is no dispute about the date or the location of the alleged offences. [ 4 ] The Crown alleges that Mr. Baxter sold 0.98 gm (including packaging) of cocaine to an undercover officer for $40, and possessed 0.84 gm of cocaine (including packaging) and four capsules containing psilocybin on his person. [ 5 ] Cocaine and psilocybin are controlled substances included in Schedules I and III, respectively, of the CDSA .

The Crown is proceeding by indictment on all of these charges. [ 6 ] With respect to Count 1, the defence submits that the Crown has not proven beyond a reasonable doubt that Mr. Baxter was the person who trafficked cocaine to the undercover officer, Cpl. Roy, and states that the main issue is identification. With respect to Count 3, the defence submits that the Crown has not proven beyond a reasonable doubt that Mr. Baxter knew the nature of the substance in the capsules that were found on his person in a bag labelled “Scooby Snacks” was psilocybin, and states that the issue is knowledge.

With respect to Count 2, the defence makes no submission and invites the court to convict Mr. Baxter on this Count. [ 7 ] Pursuant to

Section 655 of the Criminal Code of Canada , Mr. Baxter admits that this court has jurisdiction to hear this matter, and that the continuity of all exhibits and the nature of the substances the Royal Canadian Mounted Police (the “RCMP”) seized in the investigation relating to this matter are not in issue. THE LEGAL FRAMEWORK Relevant Statutory Provisions [ 8 ] Sections 4(1), (3) and (6) of the CDSA provide, in part, as follows: 4

(1) Except as authorized under the regulations, no person shall possess a substance included in

Schedule I, II or III. . . .

(3) Every person who contravenes subsection (1) where the subject-matter of the offence is a substance included in

Schedule I (

a) is guilty of an indictable offence . . . . . .

(6) Every person who contravenes subsection (1) where the subject-matter of the offence is a substance included in

Schedule III (

a) is guilty of an indictable offence . . .; . . . [ 9 ] Sections 5(1), (2) and (3) of the CDSA provide, in part, as follows: 5

(1) No person shall traffic in a substance included in

Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance.

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

Schedule I, II, III or IV.

(3) Every person who contravenes subsections (1) or (2) (

a) subject to paragraph (a.1), if the subject matter of the offence is a substance included in

Schedule I or II, is guilty of an indictable offence . . . [ 10 ]

Section 2 of the CDSA defines the terms “possession”, “sell” and “traffic” as follows: “ possession ” means possession within the meaning of subsection 4(3) of the Criminal Code ; “ sell ” includes offer for sale, expose for sale, have in possession for sale and distribute, whether or not the distribution is made for consideration;

“traffic” means, in respect of a substance included in any of Schedules I to IV, (

a) to sell, administer, give, transfer, transport, send or deliver the substance, (

b) to sell an authorization to obtain the substance, or (

c) to offer to do anything mentioned in paragraph (

a) or (b), otherwise than under the authority of the regulations. [11] Regarding the term “possession” section 4(3) of the Criminal Code provides as follows: 4

(3) For the purposes of this Act, (

a) a person has anything in possession when he has it in his personal possession or knowingly (

i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person;and (

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall bedeemed to be in the custody and possession of each and all of them. Essential Elements of the Offences Offence of possession [12] In this case, the form of possession contemplated by the indictment is personal possession. To show personal possession, theCrown must establish that Mr. Baxter: (1) came into physical contact with the drugs through manual handling; (2) had a measure ofcontrol over the drugs; and (3) had knowledge of what the substances were.

Offence of possession for the purpose of trafficking [13] To show possession for the purpose of trafficking, the Crown must, in addition to the elements of personal possessionmentioned in the preceding paragraph, establish that Mr. Baxter intended to traffic in the drug (i.e. cocaine) he possessed. Relevant Principles [14] Canadian courts have repeatedly concluded that one of the leading causes of wrongful conviction is eyewitnessmisidentification. The key principles relating to eyewitness identification are summarized in R. v.

Pelletier, 2012 ONCA 566 atparas. 90 to 95: [90] First, countless authorities acknowledge the inherent frailties of eyewitness identification evidence, especially in cases that involvefleeting glimpses of unfamiliar persons in stressful circumstances: R. v. Miaponoose (1996), (ON CA), 110 C.C.C.(3d) 445 (Ont. C.A.), at pp. 450-451. [91] Second, the weight to be assigned to evidence of eyewitnesses is a variable, not a constant.

The weight of such evidence is for thetrier of fact to determine and will vary according to the circumstances of individual cases: Miaponoose, at p. 452. [92] Third, the reliability of eyewitness testimony is not determined by or coextensive with the actual or apparent honesty of, or theconfidence in correctness expressed by, the identification witness: R. v. Izzard (1990), (ON CA), 54 C.C.C. (3d) 252(Ont.

C.A.), at p. 255. [93] Fourth, as a general rule, in-dock identifications are entitled to little weight in the assessment of the adequacy of the prosecution’sproof on the issue of identity: Izzard, at p. 256; R. v. Williams (1982), (ON CA), 66 C.C.C. (2d) 234 (Ont. C.A.), at p.235; R. v. A.(F.) (2004), (ON CA), 183 C.C.C. (3d) 518 (Ont. C.A.), at para. 47; and R. v.

Nguyen (2000), (ON CA), 132 O.A.C. 354, at para. 41. [94] Fifth, the recommendations of the Sophonow Inquiry about the manner in which photo line-ups should be conducted are persuasivetools to avoid wrongful convictions arising from faulty eyewitness identification, but they are neither conditions precedent to theadmissibility of eyewitness testimony nor binding legal dictates for the assignment of weight: R. v. Goulart-Nelson, [2004] O.J. 4010(C.A.), at para. 11; R. v. Grant, 2005 ABCA 222, (2005), 198 C.C.C. (3d) 376, at para. 6; and R. v.

Doyle, 2007 BCCA 548, at paras. 12-13. [95] Finally, each case that includes eyewitness testimony as part of the prosecution’s case requires the trier of fact, mindful of itsfrailties both inherent and patent, to consider it in its entirety, along with and in the context of the balance of the evidence, in decidingwhether an accused’s guilt has been proven beyond a reasonable doubt: Goulart-Nelson, at para. 11; Grant, at para. 6; Doyle, at para. 13. [15] Like any fact in issue, identification may be proved by either direct or circumstantial evidence, or a combination of the two.

Ifthe Crown’s proof of identification includes circumstantial evidence, to convict, the trier of fact must be satisfied beyond a reasonabledoubt that the accused’s guilt is the only rational inference that can be drawn from the evidence (R. v. Griffin, 2009 SCC 28 ). [16] Documents found in the possession of an accused are admissible to show the accused’s knowledge of their contents, or toestablish the accused’s connection to or state of mind with respect to the transaction or matters to which the documents relate. In R. v.

Black, 2014 BCCA 192 , the British Columbia Court of Appeal at para. 38 said “[t]he documents in possession rule providesthat the contents of a document found in possession of the accused may be used as circumstantial evidence of the accused’s involvementin the transactions to which the documents relate.” If it can be shown that the accused recognized, adopted or acted on the document,they are admissible for the truth of their contents under the admissions exception to the hearsay rule. [17] I have considered the two cases, R. v. Hurdal, 2007 BCPC 237, and R. v.

King, 2011 ONSC 6998, that defence counsel broughtto my attention. I will address them below in my discussion. EVIDENCE [18] The evidence in this case consists of the testimony of numerous police officers who were involved in the investigation of thesubject transaction (which was part of an undercover operation, commonly referred to as a “buy and bust” operation), and a number ofdocumentary exhibits, including photographs relating to the seized substances, the “buy” and “prop” money (all in Canadian currency),and Mr. Baxter’s identification.

The defence did not call any evidence. [19] The police officers who testified and their roles in the subject investigation are as follows: (

a) Cst. K. Bababla, undercover operator; (

b) Cpl. S. Roy, undercover operator; (

c) Cst. M. Pulchny, cover person; (

d) Cst. B. Pierschke, primary investigator and member of surveillance team who wrote the report to Crown Counsel; (

e) Sgt. R. Forbes, member of surveillance team; (

f) Cst. I. Vasilyev, arresting officer; (

g) Sgt. R. Element, assisting arresting officer; (

h) Cst. F. Van Der Loos, member of uniformed arresting team who conducted search incidental to arrest; and (

i) Cst. N. Dosange, initial briefing and post-arrest processing officer, in charge of Command Centre and logistics for the day. [20] I will now summarize the evidence with respect to the various steps in the investigation leading to the arrest and release of Mr.Baxter on July 2, 2016. Other than a few minor inconsistencies, which are not material, the evidence of all of the police officers iscoherent and consistent. I have no concerns with their credibility or the reliability of their evidence. However, I will address, in mydiscussion below, the concerns the defence raised about Sgt.

Forbes’ credibility and the reliability of his evidence. Briefings [21] At about 10:20 a.m., Cst. Dosange led a briefing for all the officers attending the Festival that day. The purpose of the meetingwas to provide the officers with their objectives for the day and the logistics of all aspects of the undercover operation. [22] At about 11:30 a.m., Cst. Pulchny met with Cst.

Dosange, who gave him two separate envelopes: one containing four $20 billsand two $10 bills (which are referred to as the “buy money”) and another envelope containing five $20 bills (which are referred to as the“prop money” for use by the undercover operators for buying food and drinks during their operation at the venue). Cst. Dosange made aphotocopy of the buy money and wrote on it “TEAM #1 [referring to Cst. Pulchny and the two undercover operators, Cpl. Roy and Cst.Babala], July 2, 2016, 16-85213, Drug Buy Money” and also gave that copy to Cst. Pulchny. [23] While Cst.

Pulchny did not compare the serial numbers of the buy money bills to those on the photocopy of the bills he wasprovided, he did count the bills before putting them into a pocket on his person. He confirmed that he had no other money in thatpocket. Even though he could not recall which pocket he put the buy money and the prop money, he said, based on his training andpractice, he is certain that he kept them separate from each other. [24] At about 11:43 a.m., Cst. Babala and Cpl. Roy attended a second briefing with Cst. Pulchny, at which Cst.

Pulchny informedthem that their objective was to purchase drugs from persons of opportunity at the venue. Cst. Pulchny gave Cpl. Roy the buy money,but he could not recall if he gave the prop money to Cst. Babala or Cpl. Roy. However, Cpl. Roy said that he was in charge of the buymoney and Cst. Babala was in charge of the prop money, and they kept those monies separate. [25] At about 1:38 p.m., Cst. Babala and Cpl. Roy entered the Festival venue. [26] At about 5:30 p.m., Cst. Pulchny got a further $100 from Cst. Dosange as prop money and gave it to Cst. Babala. [27] At about 5:40 p.m., Cst. Pulchny met with Cst.

Babala and Cpl. Roy and directed them to go to the beer garden, which is afenced-off area, within the Festival venue, and directed them to purchase drugs from people inside the beer garden. The buy [28] At about 6:12 p.m., Cst. Babala and Cpl. Roy approached a group of three people who were dancing around a picnic table bythe bathroom in the main beer garden, roughly southeast of the main stage. Cst. Babala and Cpl. Roy danced up to these people andstarted a general conversation with one of the males, who later identified himself has Alex. Cst. Babala specifically recalls Alex holdinga beer in his hand.

The conversation included where they were from, the level of security at the Festival, the reason why Cpl. Roy didnot bring any Molly with him, the event and the line-up of artists.

[ 29 ] Then Cpl. Roy asked Alex if he had any M (referring to Molly which is MDMA), to which, according to Cpl. Roy’s recollection and notes, Alex replied to the effect, “Sorry, I only have coke” (which Cpl. Roy explained he knew it to be cocaine). Cpl. Roy specifically remembers this aspect of the conversation because as Alex said “Sorry, I only have coke,” uniformed RCMP officers walked directly behind the group and they all laughed about how Alex had said that so loud and the cops were right there. [ 30 ] Then Cpl.

Roy asked Alex if he could “hook [him] up with some coke.” Alex replied that “he could probably do a half” which Cpl. Roy explained he knew to be a half a gram of cocaine. Cpl. Roy asked Alex “how much” and Alex replied “it would be $40.” While Cpl. Roy was reaching for the money, Alex took a wallet out from somewhere on his person and pulled out a folded piece of keno paper containing the substance. Cpl. Roy gave the $40 to Alex and grabbed the flap from Alex. [ 31 ] At about 6:16 p.m., Cpl. Roy updated the cover team, through Cst. Pulchny, that an evidentiary drug purchase had been completed. Cst.

Babala testified that she also indicated to the cover team at 6:16 p.m. that a successful drug purchase had happened. [ 32 ] Cpl.

Roy then asked Alex “if this was super strong and if it was good shit” referring “it” to the cocaine because he “would be sharing it with [his] girl.” Alex assured him that “it was all good ‘cause he buys it at the ounce level.” [ 33 ] Alex then proceeded to dig into his wallet and pull out another flap, while asking the group to huddle around him to form a block, and he poured some of the powder from the second flap onto his thumb and sniffed it through his nose, doing a “bump” right in front of the group. Cpl. Roy then commented to Alex that he had some coke on his nose, to which Alex said, “Oh, VCR?” Cpl.

Roy explained that he and Cst. Babala had not heard this term before so they asked Alex what it meant and he explained that it was “visual cocaine residue”. After that exchange, Cst. Babala placed a lei around Alex’s neck, they exchanged names and parted ways at about 6:17 p.m. – the buy lasted about five minutes, from 6:12 p.m. to 6:17 p.m. Cst. Babala testified that she did not put a lei around anyone else’s neck. [ 34 ] Cpl. Roy testified that both he and Cst.

Babala were equally engaged in the conversation with Alex, and they could hear each other clearly as they were standing in a circle, shoulder-to-shoulder of each other. He explained that it was daytime, the lighting was good, and there was nothing obstructing his view of Alex when he was interacting with him. Cst. Babala’s evidence was consistent in these respects as well. She also said there was nothing obstructing her view of Alex. [ 35 ] Cpl. Roy described Alex as approximately 5 feet, 9 inches, 175 pounds, with short brown hair and blue eyes.

He said Alex’s pupils were like pinholes, indicative of drug use, and that stood out to him at that time. He also noticed that Alex had a piercing on his left eyebrow and a colour tattoo on his right shoulder that appeared to be a dragon, and he was wearing a light, multi-coloured tank top with white shorts, and he had black sandals on. Cst. Babala’s description included further details such as: Alex was Caucasian, approximately 30 to 35 years old, with an average build. She also noticed the multi-coloured dragon tattoo on his upper right arm area and a bar-bell style earing in his left eyebrow.

Both of the undercover operators made notes of their interaction with Alex, including Alex’s description, within about 15 minutes of the end of their interaction with him. [ 36 ] Cpl. Roy and Cst. Babala then met with their cover person, Cst. Pulchny to debrief, at which time Cpl. Roy handed over the drug he received from Alex to Cst. Pulchny. [ 37 ] Cpl. Roy identified the accused in court as Alex, who sold the drug to him. He explained that after July 2, 2016, he had seen an image of Alex by way of a photograph that Cst.

Dosange took on July 2, 2016 which was made available in electronic form in the officers’ investigative folders. He said he printed a copy of that photograph on July 11, 2016 and added it to his notes that day, and at that time he confirmed that the person in that photograph matched the person he knew to be Alex who sold the drugs to him on July 2, 2016. He also viewed this photograph just before coming to court to testify. [ 38 ] Cst.

Babala also accessed this photograph from the police’s electronic system on July 16, 2016 and added it to her notes on that day, and at that time she recognized that person as Alex who sold the drug to her and Cpl. Roy. She also viewed it just before coming to court to testify. She explained that all of the photographs in the police electronic system were of persons from whom drugs had been purchased at the Festival; with respect to this investigation, there was only one photograph taken after the arrest. The photographs were labelled by file number, and that is how the officers were able to access them.

She also identified the accused in court as Alex, who sold the drug to her and Cpl. Roy. The surveillance [ 39 ] At about 6:16 p.m., about 36 minutes after having been deployed into the beer garden, Cst. Pulchny observed Cpl. Roy and Cst. Babala advice that an evidentiary drug purchase had taken place. He observed this from about 30 to 40 feet away, with his view of the two operators momentarily obstructed by people coming back and forth, socializing within the beer garden. It was still daylight at that point. [ 40 ] When Cst.

Pulchny was advised by the undercover operator (although he could not recall whether it was Cst. Babala or Cpl. Roy) that an evidentiary drug purchase had taken place, he observed the undercover operators interacting with a male, whom he assumed would be the target male. Cst. Pulchny observed the target male for about five to ten seconds, and he described the male as follows: white, wearing a black and white tank top with white shorts, had a tattoo on his right shoulder and a goatee on his face. The distinguishing feature Cst.

Pulchny observed about this male was that his ears stuck out and they were noticeable. [ 41 ] Cst. Pulchny then immediately conveyed the male’s description to Staff Sgt. Hurst, who was standing beside him. Staff Sgt. Hurst was a plainclothes member of the surveillance team tasked with maintaining continuity of possible targets from the time of the drug purchase to the time of the arrest. Since the safety of the undercover operators is Cst. Pulchny’s primary role, he then left the scene with the undercover operators. [ 42 ] As a member of the surveillance team (consisting of about 10 officers), Sgt.

Forbes also observed Cst. Babala interacting with a male, on whose neck she later put a lei at about 6:16 p.m. Sgt. Forbes was standing about 20 to 30 feet from where Cst. Babala and Cpl. Roy were interacting with the male.

[ 43 ] Sgt. Forbes testified that he maintained continuity of the male from the time of the drug purchase at about 6:16 p.m. to the time of the arrest at about 6:23 p.m. During this time, he saw the suspect stay within about 10 feet of where the drug transaction had taken place. At about 6:18 p.m., Sgt. Forbes took a photograph of this male, which is entered into evidence. [ 44 ] While maintaining continuity of the male, Sgt. Forbes was communicating with the rest of the entire police team through real time group chat on his BlackBerry device.

At 6:16 p.m., he says: “light jean shorts, coloured muscle shirt with black edging, short brown hair and stubble with glasses on head, lei around the neck from Kimmy” [referring to Cst. Babala] and at 6:17 p.m., he says: “black and white Jordan sandals” and then at 6:23 p.m., he says: “one in custody.” [ 45 ] Sgt. Forbes testified that he did not see anyone else dressed similarly to the male he was maintaining surveillance of, and in particular that no one else in the vicinity was wearing a lei. He confirmed that it was a well-lit July evening, and he had no visual obstructions.

He said he observed the signal from Cst. Babala and it was also communicated through the group chat through her cover officer that the signal had been given. He said virtually every member of the surveillance team would have seen the signal as they were all in close proximity to where the drug purchase was happening. [ 46 ] He testified that in addition to confirming through group chat that the male he had described in the chat was the male who had sold the drugs to the undercover operator, he advised Sgt. Element and Cst. Vasilyev of that as well, and he observed them effect the arrest of the male.

The arrest, search and processing [ 47 ] At 6:16 p.m., Sgt. Element, who was in uniform and was part of the arrest team, received a message via BlackBerry Messenger that a signal had been given that a successful purchase had taken place and a description of the male suspect followed. That was the message from Sgt. Forbes. [ 48 ] At 6:22 p.m., Sgt. Element assisted Cst. Vasilyev in placing the male suspect under arrest. They then walked the male over to the Command Centre which was at the edge of the venue. While walking the male over, Sgt. Element looked at Sgt. Forbes and saw Sgt.

Forbes’ signaling that the male they had was the right person who had sold drugs to the undercover operators. [ 49 ] Sgt. Element described the deployment in an undercover drug purchase, which was consistent with Sgt. Forbes’ description. Sgt. Element said the uniformed officers hang back, but generally in view of the surveillance team, whose responsibility is to maintain continuity of the suspect until arrest. In this case, Sgt.

Element followed the description provided in the BlackBerry message and he said he and other members of the surveillance team knew that the undercover operator was going to place a lei around the suspect’s neck. [ 50 ] Cst. Vasilyev also described the deployment in an undercover drug purchase similar to that described by Sgt. Element and Sgt. Forbes. [ 51 ] At 6:22 p.m., Cst. Vasilyev received word from Cpl.

Smith that an evidentiary drug purchase had been made, and the male involved in the trafficking was wearing a multi-coloured shirt, white cargo shorts, and a lei around his neck and this male was in the beer garden. As Cst. Vasilyev and Sgt. Element were walking towards the beer garden, Cpl. Murray who was part of the surveillance team approached Cst. Vasilyev and told him that the male they were looking for was wearing a lei and had a beer in his hand. [ 52 ] On cross-examination, Cst.

Vasilyev confirmed that it was not only the lei as a distinguishing factor, but that he was looking for the person with all of the descriptors provided to him. He was very clear that the male he and Sgt. Element arrested was the only person who matched the totality of the description he was given. Immediately after receiving the description at 6:22 p.m., he and Sgt. Element approached the male, and Cst. Vasilyev told the male that he was under arrest for drug trafficking, and placed him in handcuffs. [ 53 ] At about 6:24 p.m., while at the Command Centre, Cst.

Vasilyev read the male his charter rights, checked the male’s drivers’ licence which showed the name “Alexander Baxter”, compared the likeness of the male on the driver’s licence and the male standing before him, and verified the name, date of birth, address and phone number by asking the male those questions. [ 54 ] At this juncture, at about 6:31 p.m., Cst. Van Der Loos (who was also in uniform and who witnessed the arrest) conducted a search incidental to the arrest of Mr. Baxter, and located a number of items in Mr.

Baxter’s shorts: $945 Canadian currency and his driver’s licence in his wallet in the rear pocket, four capsules in the left pocket (which later tested to include psilocybin), a keno flap in the right lower pocket (the substance in it later tested to be cocaine), and a cell phone in the right upper pocket, which were all entered as exhibits in this matter. [ 55 ] Both constables then verified Mr. Baxter’s identity through a computer query and determined that he had no outstanding warrants or conditions. At about 6:55 p.m., Cst. Vasilyev released Mr.

Baxter on a Promise to Appear, together with an Undertaking to Appear. Both of these documents are also in evidence. [ 56 ] Cst. Vasilyev identified the accused in court as Alexander Baxter, the person he arrested and processed on July 2, 2016. [ 57 ] Cst. Pierschke was a member of the surveillance team, and he was also the primary investigator in this matter. He also

witnessed the undercover operators interacting with the target male from about 50 feet away. He testified that Cpl. Roy advised him that a drug purchase had occurred. At about 6:30 p.m., he met with Cpl. Roy and Cst. Babala to seize the purchased drug for processing. [ 58 ] Cst. Pierschke confirmed that when he returned to the Command Centre after seizing the drug exhibit from Cpl. Roy, he saw the same male he had seen interacting with Cpl. Roy and Cst. Babala being photographed and processed at the Command Centre. [ 59 ] Cst. Dosange was processing this same male.

Her general role that day was to command the Command Centre and assist with processing individuals who were arrested, including photographing them and checking their identities. In this case, she testified that Mr. Baxter produced his passport which indicated his name as “Alexander Baxter” and it had his height, weight, and eye colour. She verified his identification by comparing the photograph in the passport to the person standing in front of her, and also by asking him to confirm his name, address and telephone number.

She said the general checks on the police data system also confirmed his name and address with respect to his driver’s licence information. She then identified the accused in court as the person she dealt with at the Command Centre by the name of Alexander Baxter. She also took a photograph of Mr. Baxter, which was then posted to the police electronic file. Her dealings with Mr. Baxter started at about 6:23 p.m. and lasted for about 20 to 30 minutes. [ 60 ] Cst. Pierschke testified that he dealt with the drug exhibit he seized from Cpl. Roy and those items Cst. Van Der Loos seized at the Command Centre from Mr.

Baxter. He also took a photograph of Mr. Baxter’s driver’s licence and passport and returned the originals to him right away. He included the photographs of these documents with the other exhibits, and then took them out again on July 13, 2016 for further processing. [ 61 ] When processing the exhibits on July 13, 2016, Cst. Pierschke recounted the $945 cash seized from Mr. Baxter. There were nine $100 bills, two $20 bills and one $5 bill. He got the serial numbers of the buy money from Cst. Pulchny and compared them against the bills seized from Mr. Baxter.

It turned out that the serial numbers of the two $20 bills seized from Mr. Baxter matched two of the $20 bills in the buy money. DISCUSSION Trafficking in cocaine [ 62 ] The main issue in this case with respect to the trafficking offence is identification. The question is: was it the accused, Mr.

Baxter, who sold cocaine to the undercover operators on July 2, 2016? [ 63 ] The defence submits that the identification evidence of the undercover operators is unreliable for two reasons: (1) due to the circumstances under which the operators observed the suspect, and (2) because they viewed a single photograph of the accused before giving their evidence in court. [ 64 ] Regarding the circumstances, the defence says as follows: (

a) the suspect was a stranger to the officers, and they have never seen him before or after July 2, 2016 until the trial date; (

b) the officers had a brief, fleeting interaction with the suspect, for a maximum of four to five minutes, off and on; (

c) during the interaction with the suspect, Cst. Babala was wearing sunglasses, which would have impeded her ability to see the suspect somewhat; (

d) the physical description provided by both officers is fairly basic and generic, and neither officer gave evidence about specific facial descriptors or particular facial characteristics or anything particularly unique or identifiable about the suspect; (

e) the officers did not make notes of the suspect’s physical appearance at least until 15 minutes after their interaction with him, and their notes were made from memory; and (

f) both officers have acted as undercover officers a number of times in other cases, and have dealt with many people in circumstances similar to this case. [ 65 ] The defence’s description of the circumstances, with the exception of those in paragraphs (a), (

e) and (f), do not appear to be entirely accurate and are not supported by the evidence as described. Therefore, I will not address them individually, but I will address the essence of the defence’s submission in my discussion below. [ 66 ] The defence further submits that the insurmountable hurdle with respect to the Crown’s case is that both undercover officers viewed a single photograph of the accused before they testified.

And that, the defence says, irretrievably and irreversibly taints their identification evidence, and makes the defence’s case indistinguishable from Hurdal . [ 67 ] I will first address the circumstances argument the defence makes. The defence submits that the circumstances the court pointed out in King , at para. 20, are present in the case before me. In King , at para. 20, the court said: [20] The frailties of eyewitness identification evidence are well recognized by Canadian courts. They have been the basis of many wrongful convictions in this country.

The court’s concern about the frailties of such evidence is heightened in circumstances where the length of time the witness saw the person was brief, where the person identified and the witness are strangers, where identification processes employed are flawed, and where there is no other evidence connecting the person identified to the offence. These circumstances are present in this case. [ 68 ] In King , the identification of Mr. King as the person who sold $40 worth of crack cocaine to Officer Miranda, an undercover police officer, was at issue.

The Toronto Police Service drug squad were conducting an undercover drug project in an area with high gang and drug activity. On October 5, 2009, the day of the operation, Officer Miranda and other surveillance police officers attended a

briefing at 8:50 p.m. At this briefing, Officer Miranda reviewed a briefing package which consisted of 17 photographs of “persons of interest” and he also viewed another photograph that was not added to the briefing package. The briefing ended at 8:55 p.m. At 9:01 p.m., he entered the target area and was approached by a black male who asked him what he needed. By 9:03 p.m., Officer Miranda completed a purchase of $40.00 worth of crack cocaine from the black male and returned to his car. He testified that he recognized the male who sold him the drugs from the briefing package.

As soon as he returned to the car, he viewed the briefing package once again in the presence of Officer Birrell, and identified the photograph of Mr. King as the person who sold him the cocaine. Later that evening, he prepared his notes and described the person who sold him the drugs as male, black, 200 pounds, 5’ 11” to 6’, wearing a bright coloured hoodie, black jacket and black jeans. Officer Birrell, who was monitoring the police radio but did not witness the drug transaction, testified in court.

A third officer, Officer Beausoleil, who was a member of the surveillance team who witnessed the drug transaction also testified in court. Both Officer Miranda and Officer Beausoleil had viewed the photographs in the briefing package and they both identified Mr. King sitting in the prisoner’s dock as the person who sold the drugs to Officer Miranda. [ 69 ] In finding Mr. King not guilty of trafficking in cocaine, the court at para. 21 said: [21] Officer Miranda and the person who sold the drugs were strangers.

Their interaction lasted two minutes, which included the time it took the male to go and retrieve the drugs. Most importantly, in my view, the identification process employed in this operation was gravely flawed. The briefing book was essentially an “all suspect” line up. Officer Miranda and other officers knew that the people in that book were all suspected by police of selling drugs in the Pelham Park Gardens area. Having Officer Miranda view the photographs prior to the transaction taints his later identification of Mr. King after the transaction. Is Officer Miranda identifying Mr.

King from the observations he made during a two-minute interaction with him, or from his previous viewing of Mr. King’s photograph? There is no way to test the reliability of Officer Miranda’s identification because anyone he picked out from the briefing book was already a suspect. There are no “filters”, which if identified by the officer, would show that his identification was unreliable.

I appreciate that this was not the purpose of the briefing book but its use taints the identification process and provides no assurance as to the reliability of Officer Miranda’s identification. [ 70 ] Let me begin by stating that I am cognizant of the dangers of eyewitness misidentification and the principles our courts, including those in Hurdal and King , have espoused with respect to this issue. [ 71 ] With respect, I disagree with the defence that all of the circumstances the court in King refers to at para. 20 are present in the case before me.

With the exception of the fact that the accused in both cases was a stranger to the witnesses, the other circumstances are different. In King , there were only three witnesses, and only two of them saw the two-minute drug transaction. Here we have nine witnesses, seven of whom had some level of personal interaction with the suspect in question and could speak to their interaction from direct observation of that person. Their interaction ranged up to 30 minutes.

In addition to these officers, there were other officers involved in the investigation, such as those members of the surveillance team, who were observing the drug purchase from the distance, and two of whom, Cst. Pulchny and Sgt. Forbes, also testified. [ 72 ] What is critically different in this case from the circumstances in King is that none of the seven witnesses who had personally interacted with the suspect saw a photograph of him before their first personal encounter with him. No photographs of this person existed at that time. [ 73 ] Cpl. Roy and Cst.

Babala who had the closest interaction with the suspect provided a fulsome description of him, hardly 15 minutes after their interaction with him. Their notes would have had to been from their memory, as it would have been impossible for them to make notes while they were engaged in the undercover drug transaction. [ 74 ] They not only observed and recorded general descriptors about the suspect’s race, height, weight, build, clothing, and facial features, but they also noted distinguishing features such as his pinhole pupils, multi-coloured dragon tattoo on his right arm and his left eyebrow piercing. Cst.

Pulchny, who witnessed the transaction, noted that the suspect’s ears stuck out and he also had a goatee on his face. Another highly identifying feature that the witnesses referred to was the lei that Cst. Babala put around the suspect’s neck. [ 75 ] While some of the clothing that the suspect was wearing, such as the multi-coloured tank top, white shorts, and black sandals, may not be distinctive and such clothing may have been a common attire for attendees at a summer music festival, there were many other distinguishing features that set the suspect apart.

The evidence establishes that while attendees at these types of music festivals tend to wear large necklaces (including glowing sticks and soothers), leis are not as common as the defence suggests. [ 76 ] The photograph that Sgt. Forbes took while maintaining continuity of the suspect until the arresting team arrived clearly shows that no one else, except the suspect, is wearing a lei. As I stated earlier, the arresting officers were looking for the person who matched the totality of the description provided to them, and their evidence is that the suspect was the only person who matched all of the descriptors.

Therefore, I am unable to infer from the evidence and accede to the defence’s submission that Cst. Vasilyev did not really see if there was anyone else who matched that description in the vicinity. [ 77 ] I now turn to the defence’s second argument that because both undercover officers viewed a single photograph of the accused before they testified irretrievably and irreversibly taints their identification evidence, and makes the defence’s case indistinguishable from Hurdal . Again, with respect, I disagree. [ 78 ] As in King , I note that the facts in Hurdal are also distinguishable from the case before me.

In Hurdal , police arrested the accused after observing aggressive driving and signs of impairment. The accused never produced photograph identification. The police officer identified the accused at trial, but admitted that she looked at a single photograph of an individual, to which the accused’s name was attached, to refresh her memory.

She also admitted that she did not take the photograph. [ 79 ] In Hurdal , the court at para. 23 said: [23] To complicate her identification, [the witness] acknowledges viewing a photograph before court, purporting to be but never proven to be the accused, which she says assisted in refreshing her memory. There is no evidence linking that photo to the accused or to the investigation itself. The situation would be different if the evidence established that the witness took the photo of the driver on the night

of the incident, or if the evidence established that another officer took the photo of the driver on the night in question, then the photo would be linked by evidence to the individual found driving. That is not the case here. [my emphasis] [ 80 ] In the case before me, there is ample evidence linking the photograph in question to the accused, Mr. Baxter, and the investigation itself. [ 81 ] In Mr. Baxter’s case, the two photographs, one of the suspect and the other of the accused, in evidence were taken on the date of the incident on July 2, 2016. The first one of the suspect that Sgt.

Forbes took was literally two minutes after the drug purchase had concluded, and the second one was the one that Cst. Dosange took some time between 6:23 p.m. and 6:53 p.m. – at most within 40 minutes after the drug purchase had concluded. [ 82 ] The only photograph of the accused that Cst. Babala and Cpl. Roy viewed was the one that Cst. Dosange took on July 2, 2016 after the accused’s arrest. Cpl. Roy viewed an electronic copy of this photograph on July 11, 2016 and Cst. Babala viewed the same on July 16, 2016.

At that time, they both independently confirmed that the person in that photograph was the same person who had sold drugs to them and they attached that photograph to their respective notes. As I have already said, they did not view any photograph of the accused before they made the drug purchase.

They did not view any line-up of suspects, as was the case in King , which the court in that case found to be a flawed identification process. [ 83 ] In Hurdal , the court at para. 24 said: [24] I have considered whether to some degree it is relevant that this officer had continuity of contact with the driver from the point of arrest to release and therefore there is, in some way, a thread that joins the driver to the charges laid, and from there to the accused before this court. There is a thread, but in my view in this case it does not provide that required degree of proof.

Firstly, the driver did not produce photo identification from which a Shriver -type process could be followed to link this accused to those acts, and no evidence has been given about any such procedure occurring. The photograph referred to in the evidence is not so linked because there is no evidence as to its origin or date of its taking. In her evidence the officer states that he gave his “name and details verbally,” but those particulars are not before the court. [ 84 ] In the case before me, Cst. Pierschke who observed the undercover drug transaction amongst Cst. Roy, Cst.

Babala and the suspect also saw the same suspect being processed at the Command Centre, and he handled this suspect’s passport and driver’s licence by photographing them and then returning them to that person. Those documents confirm the identity of that person as the accused, Alexander Baxter. During the post-arrest processing, Mr. Baxter readily admitted to the information contained in those documents and his name, and current address and phone number.

After his release on a Promise to Appear, coupled with an Undertaking to Appear, he complied with those documents that were issued in his name. [ 85 ] The image of the suspect in the photograph that Sgt. Forbes took while maintaining continuity of the suspect also resembles the image of the accused in the photograph that Cst. Dosange took after his arrest. The detailed descriptions Cpl. Roy and Cst. Babala provided of the person who sold the drug to them are also evident in these two photographs.

Therefore, there is ample evidence to link the accused to the investigation and the offences he is charged with. [ 86 ] In the result, it does not follow that the only basis on which the undercover officers were able to make a positive in-court identification of the accused was because they refreshed their memories by viewing the accused’s photograph immediately prior to the trial. [ 87 ] In any event, it does not matter, as I am not placing any weight on their in-court identification of Mr. Baxter. There is ample other evidence connecting Mr. Baxter to the offences he is charged with.

That was not the case in Hurdal or King . [ 88 ] The courts in Hurdal and King and the principles I have set out above from Pelletier indicate that the trier of fact, while mindful of the frailties of eyewitness testimony, must consider that testimony in its entirety, along with and in the context of the balance of the evidence in deciding whether the accused’s guilt has been proven beyond a reasonable doubt. [ 89 ] I have discussed at length the eyewitness testimony in this case. I have already referred to some of the other evidence connecting Mr.

Baxter to the trafficking charge he is facing. [ 90 ] Another important factor connecting Mr. Baxter to the trafficking charge is the finding of the buy money on his person during the search incidental to his arrest. As I stated earlier, the serial numbers of the two $20 bills seized from Mr. Baxter matched the serial numbers of two of the $20 bills in the buy money. [ 91 ] The defence submits that “it is equally likely that the money located on Mr. Baxter was the prop money that the [undercover operators] used throughout the day to buy food and drink.

In other words, it is equally plausible that the [undercover operators] gave that money to one of the vendors (to buy food and drink) and that Mr. Baxter received it from one of the vendors.” [ 92 ] I find no merit in defence’s submission on this point. There is not a shred of evidence that the undercover operators and Mr. Baxter purchased food or drinks from the same vendors for the prop money to have rotated from the hands of the undercover operators to the vendors, and then to Mr. Baxter. At a Festival, frequented by thousands of people, this is, if not an absolute, a highly implausible scenario.

Besides, the evidence clearly establishes that Cst. Dosange gave the prop money and the buy money in two separate envelopes to Cst. Pulchny together with a photocopy of the buy money which included their serial numbers. Cpl. Roy testified that he kept the buy money and Cst. Babala kept the prop money, and Cpl. Roy then used $40 of the buy money to buy the drug from Mr. Baxter. In the end, Cst. Pierschke matched the serial numbers of the two $20 bills seized from Mr.

Baxter to the serial numbers on the photocopy of the buy money. [ 93 ] Also worthy of note is the fact that during the drug purchase the suspect and the two undercover operators introduced themselves to each other by their first names. Cpl. Roy said his name was “Sean” and Cst. Babala said her name was “Kim” which happen to be their real first names. The suspect they were interacting with introduced himself as Alex, which is consistent with the

accused’s real first name. This, together with all of the descriptors provided by the various officers, and the documentary evidence, all point to the accused as the person who sold the cocaine to the undercover operators. As the Crown put it, there is clearly a “constellation of evidence” connecting the accused to the investigation and the offences he is charged with. [ 94 ] I will now address some of the other arguments the defence made. Defence’s other arguments [ 95 ] The defence asserted that Sgt.

Forbes was not a credible witness in that he did not testify in a straightforward, objective manner, and his evidence is not reliable as he had an agenda and he tailored his evidence in court, which was different from his notes and report, and he did that in an attempt to strengthen the Crown’s case on identification knowing that identification was a critical issue in this matter. [ 96 ] Defence made much of the fact that Sgt. Forbes had sparse notes of the details of his observations and that they were not recorded in a timely manner, and as a result they are not reliable.

In particular, the defence argued that Sgt. Forbes has no details in his notes about maintaining continuity of the suspect, and from the BlackBerry group chat there appears to have been some confusion at the time as to where the suspect was as Cpl. Smith was questioning where the suspect was. [ 97 ] Sgt. Forbes made his notes about a week or two after July 2, 2016, whereas the other officers made their notes within a matter of a few minutes after their respective involvement in this investigation. [ 98 ] Sgt.

Forbes’ response to the defence’s assertion was that there were seven undercover operations on July 2, 2016 and a similar number on the second day of the Festival, and it was too busy for him to make his notes right away. Furthermore, he said because his observations were captured in the BlackBerry group chat messaging at the time of the incident, which messaging is also included in his report, and the fact that he had taken a photograph of the suspect at that moment, he felt his observations were sufficiently captured and recorded. [ 99 ] On being cross-examined as to why he did not respond to Cpl.

Smith’s question as to where the suspect was, Sgt. Forbes explained that his primary role was to keep continuity of the suspect until the arrest was effected; that the undercover operators would be the point of contact; the surveillance team would be a primary perimeter around the undercover operators; and then the arrest team would be a secondary perimeter around the surveillance team; and that for the most part, they would have visual continuity of each other.

In this case, he said, the arrest team was already in close proximity, and the surveillance team was able to facilitate the arrest team without having to inform Cpl. Smith, who was off-site, for him to relay the message to the arrest team. [ 100 ] The printout of the group chat showing the messaging amongst the officers being out of order confirms Sgt.

Forbes’ testimony that electronic communication in the park at that time was very slow because of the many users of electronic devices in the park. [ 101 ] Keeping in mind that the entire drug purchase from the time the undercover operators approach the suspect to the time of arrest was only about 10 minutes and the circumstances under which the officers were operating, Sgt. Forbes’ explanation for not communicating with Cpl. Smith is entirely plausible and I accept it. It does not mean that Sgt.

Forbes lost continuity of the suspect or there was confusion amongst the officers who were on site, in the vicinity, as to the location of the suspect. The evidence indicates that the arresting officers received the signal, they knew exactly who they were looking for, they located that individual and effected the arrest. There does not appear to have been any confusion. [ 102 ] While all of the officers agreed that thousands of people attended the Festival, the evidence establishes that the beer garden where the subject transaction is alleged to have taken place was not packed, and there was room to move around.

For example, Cst. Van Der Loos, when cross-examined as to whether the beer garden was packed, shoulder to shoulder, he replied: “No, from my recollection, it was much more ease of movement that you could usually go where you would want in there.” He said the crowd was closer to a “hundred” as opposed to “hundreds”. So, identifying and locating the person the officers were looking for does not appear to have been an issue. Besides, the evidence also establishes that it was a well-lit July evening. Although the defence raised some concern about whether Cst. Babala and Sgt.

Forbes had their glasses on at that time, there is no evidence that any of the other surveillance team members or the arresting officers had glasses on. They had no difficulty in identifying the person matching all the descriptors they were given, not just the lei around his neck. [ 103 ] The defence also argued that Sgt. Forbes’ observations are not reliable because he testified that the drug transaction in question occurred between the suspect and Cst. Babala, rather than between the suspect and Cpl. Roy. Again, I find no merit in this argument as the evidence indicates that Cst. Babala and Cpl.

Roy operated as a team and both were equally engaged in the conversations with the suspect. Even though it was Cpl. Roy who gave the $40 to the suspect and received the drugs, Cst. Babala testified that she put the lei around the suspect’s neck to thank him for selling the drugs. Once the purchase had concluded, both Cst. Babala and Cpl. Roy communicated through their cover officer that the purchase had taken place. Sgt. Forbes also testified that he observed Cst. Babala’s signal. Therefore, I disagree with the defence that Sgt. Forbes’ observations are unreliable. [ 104 ] Finally, I also disagree that Sgt.

Forbes had an agenda or that he was tailoring his evidence to strengthen the Crown’s case on identification. In hindsight, it certainly would have been more diligent of Sgt. Forbes to have recorded more elaborate notes of his observations; however, I accept his actions and response to the defence’s assertions as reasonable in the circumstances, as the essence of his observations were captured contemporaneously. The evidence of the other officers, such as Cst. Vasilyev and Sgt. Element, also confirm that Sgt.

Forbes was in close proximity to the suspect at that time. [ 105 ] In assessing the totality of the evidence before me, I am satisfied that the Crown has proven beyond a reasonable doubt that:

(1) Mr. Baxter knew that he had cocaine on his person as he said to Cpl. Roy that he had cocaine;

(2) Mr. Baxter had control over the cocaine as he had it in a keno flap on his person;

(3) Mr. Baxter manually handled the cocaine by pulling it out of his person and also snorting it in front of the undercover operators, and

(4) Mr. Baxter clearly intended to traffic in cocaine as he offered it to Cpl. Roy for a price and handed it to Cpl. Roy in exchange for $40.

Possession of psilocybin [ 106 ] Cst. Pierschke, who processed the substances seized from Mr. Baxter, admitted that the plastic bag containing the four capsules had a label marked “Scooby Snacks” and underneath it ginseng and bee pollen were listed as ingredients. Upon Health Canada’s analysis, these capsules were found to contain psilocin and psilocybin, both controlled substances under

Schedule III of the CDSA . [ 107 ] While there is evidence that Mr. Baxter knew that he had cocaine on his person, had control of it and manually handled it by offering it to Cpl. Roy and snorting it, there is no evidence with respect to his knowledge about the psilocybin. Because the label listed ginseng and bee pollen as ingredients, it is possible that Mr. Baxter did not know that these capsules contained controlled substances. The Crown made no submissions with respect to Mr. Baxter’s knowledge in this respect. [ 108 ] Therefore, I have a reasonable doubt that Mr.

Baxter was aware of the nature of the substances contained in these capsules. CONCLUSION [ 109 ] In conclusion, I am satisfied that on the totality of the evidence before me, viewed as a whole, the Crown has proven beyond a reasonable doubt that the accused, Mr. Baxter, did unlawfully traffic in cocaine and did unlawfully possess cocaine. However, I am not satisfied that the Crown has proven beyond a reasonable doubt that Mr. Baxter did unlawfully possess psilocybin. [ 110 ] Therefore, I find Mr. Baxter guilty as charged on each of Counts 1 and 2, and I acquit him on Count 3. By the court The Honourable Judge V.

Chettiar Provincial Court of British Columbia