R v Larin, 2024 ABKB 47

Court of King’s Bench of Alberta Citation: R v Larin, 2024 ABKB 47 Date: 20240125 Docket: 220108286Q1 Registry: St. Paul Between: His Majesty the King Crown - and - Lance Larin, Karley Rylaarsdam, Kelly Sanderson and Matthew Fairweather Accused _______________________________________________________ Reasons for Judgment of the Honourable Justice R.J. Hall _______________________________________________________ [ 1 ] At the conclusion of argument respecting this trial, I acquitted Matthew Fairweather and Kelly Sanderson of all charges against them. These are my written Reasons for Judgment. [ 2 ] Mr.

Fairweather and Ms. Sanderson faced four charges: 1. Possession of fentanyl for the purpose of trafficking; 2. Possession of cocaine for the purpose of trafficking; 3. Possession of methamphetamine for the purpose of trafficking; 4. Possession of property with a value over $5,000.00 (a travel trailer) knowing that it was obtained by crime.

[ 3 ] The Crown agreed that it had called no evidence against Mr. Fairweather or Ms. Sanderson on Count #1, and I acquitted Mr. Fairweather and Ms. Sanderson on that charge. The Crown proceeded to prosecute Counts 2, 3 and 4. [ 4 ] Evidence was given by police as to a traffic stop by an RCMP officer who noted the licence plate did not match the trailer. During the traffic stop the constable noted part of the Vehicle Identification Number (V.I.N.) for the trailer had been defaced.

The officer conducted checks from the computer in his vehicle and determined that the trailer was likely one that had been reported to have been stolen. When he returned to the white Dodge Ram truck (the “Dodge Ram”) to arrest the two occupants they had fled. The constable called in the canine unit to find those occupants. [ 5 ] A second officer arrived at the scene. Together the two officers removed the safety bar which kept the trailer door closed from the outside, and opened the trailer. Mr. Fairweather and Ms. Sanderson were inside.

They were arrested for possession of stolen property, searched and taken to an RCMP detachment. [ 6 ] The two occupants of the Dodge Ram were located by a police dog and were arrested. They were Lance Larin and, reportedly, Karley Rylaarsdam. [ 7 ] Mr. Larin was charged with these offences and others. He entered a guilty plea before another justice, in respect of drugs located in the Dodge Ram. Mr. Larin gave evidence in this trial. [ 8 ] Ms. Rylaarsdam did not show up for the trial and I issued a warrant for her arrest. The trial proceeded against Mr. Fairweather and Ms. Sanderson. [ 9 ] Mr.

Larin stated that he knew Mr. Fairweather by his nickname “Beans”. He knew Ms. Rylaarsdam. He only met Ms. Sanderson that day. He said the plan was to drive to Saskatchewan to pick up a travel trailer from a friend of Mr. Fairweather; and to haul it back to Edmonton behind the Dodge Ram. The Dodge Ram had been borrowed from a friend in Edmonton. Whose friend that was is unclear on the evidence; but nothing really turns on it. [ 10 ] Mr. Larin says they drove to the small town in Saskatchewan (apparently Waskesiu). He used GPS to go there since he didn’t otherwise know where he was going. Mr.

Fairweather talked to his friend or friends there. He introduced one such friend to Mr. Larin. Mr. Larin took care of hooking up the trailer lights, and the foursome commenced their trip back to Edmonton, with Mr. Fairweather driving. West of Vermilion, Alberta Mr. Fairweather said that he was tired, and the decision was made that Mr. Larin would take over driving. Mr. Fairweather and Ms. Sanderson entered the trailer to sleep. Mr. Larin secured the door with the safety bar on the outside. Mr. Larin began to drive. Shortly after, he was pulled over by the RCMP constable. Mr. Larin acknowledged that he and Ms.

Rylaarsdam fled on foot into the trees, and were eventually found by the police dog and arrested. [ 11 ] Ms. Sanderson took the stand. She stated that she had known Mr. Fairweather for a few months. On this occasion she had been in an argument with her boyfriend and wanted to get away. She messaged Mr. Fairweather and agreed to meet at a convenience store nearby. When they met, Mr. Fairweather asked if she would like to go for a ride, to pick up a trailer and then return. She agreed. She already knew Ms. Rylaarsdam but she just met Mr. Larin that day.

The four of them smoked some methamphetamine, then embarked on the journey in the Dodge Ram. She was unclear on the time that they left, or arrived at the Saskatchewan destination. She stated that the four of them again smoked methamphetamine at the destination. She confirmed that Mr. Fairweather went into a house at the destination to meet with a friend or friends. She notes that she was not introduced to anyone at the destination. She confirmed that Mr. Larin hooked up the trailer travelling lights. She confirmed that Mr. Fairweather drove from Saskatchewan, past Lloydminster, with Mr.

Larin sleeping in the back seat of the Dodge Ram. Mr. Fairweather pulled over and Mr. Larin agreed to take over the driving. Ms. Sanderson and Mr. Fairweather got into the trailer to sleep. She confirmed they were stopped by police shortly afterwards, as she could hear the discussions that took place. She and Mr. Fairweather stayed in the trailer for close to an hour, until the police opened the door and arrested them. The evidence showed that the trailer door could only be opened from the outside. [ 12 ] The Crown acknowledged that, on the evidence adduced, it could not prove any of the charges against Ms.

Sanderson, who had simply gone for the ride. I agreed, and I acquitted Ms. Sanderson of all charges. [ 13 ] Mr. Fairweather chose not to give evidence. [ 14 ] The Crown’s case against Mr. Fairweather on Count #3 is essentially that he was the one who set up the trip to pick up the trailer; the trailer had part of its V.I.N. defaced; there were marks around the door lock of the trailer that suggested the lock had, on some occasion, been jimmied. The Crown argued that the only reasonable inference was that Mr. Fairweather knew that the trailer was stolen. [ 15 ] I disagree.

It is quite possible he was doing a friend a favour by taking the trailer to Edmonton. I cannot conclude that the Crown has proven that he knew it was stolen beyond a reasonable doubt. [ 16 ] The Crown argues that indicia of the trailer having been stolen; the defaced V.I.N. and the previously jimmied lock; were wilfully ignored by Mr. Fairweather.

Again I consider the evidence is insufficient for such a finding beyond a reasonable doubt. [ 17 ] A search of the trailer disclosed methamphetamine; in eight bags, located in a red bag in a storage area under the mattress of the bed in the trailer; and two bags of cocaine, under the mattress in the red bag. There was, as well, another bag of methamphetamine found in the trailer, but the constable was unable to recall exactly where it was found. An imitation handgun was also found in the trailer. [ 18 ] Mr.

Fairweather did not contest that the drugs were methamphetamine and cocaine, and the quantities were such as to be more than for personal use. However, the issue for the Crown is whether it could prove possession of the drugs by Mr. Fairweather. [ 19 ] As I recently noted, in R v Sandhu , 2023 ABKB 681 : [29] Drug possession is defined in s 4(3) of the Criminal Code , RSC 1985, c C-46 and imported into the Controlled Drugs and Substances Act , SC 1996, c 19 , s 2(1). Section 4(3) (

a) defines constructive possession as:

(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; [30] Knowledge of the illegal material forms the mens rea for possession, while control of the illegal material is the actus reus: R vCantrill, 2011 ABQB 273 at para 56.

Constructive possession requires “knowledge which extends beyond mere quiescent knowledgeand discloses some measure of control over the items to be possessed”: R v Pham, (2005) (ON CA) at para 15, aff'd2006 SCC 26. [31] Knowledge can be established by circumstantial evidence, such as a combination of finding of narcotics in plain view or in commonareas of the residence, the presence of a scale in a bedroom occupied by the accused, or the evidence of trafficking occurring from alocation under one’s control: R v Sparling, [1988] OJ No 107 (Ont HC) at 6, aff’d [1988] OJ No 1877. ... [33] In R v Nguyen, 2009 ABQB 234, after reviewing the law of constructive possession of drugs for the purpose of trafficking and therole of circumstantial evidence in establishing possession, Graesser J stated at para 65: These cases establish a number of basic principles applicable to constructive possession: 1.

This is a very fact specific area. 2. Constructive possession under s. 4(3) of the Criminal Code can be and often is established by circumstantial evidence. 3. The inferences to be drawn from the circumstantial evidence must be reasonable. 4. An inference drawn which establishes an essential element of an offence must be the only reasonable inference that can be drawn. 5. The trier of fact must look at the totality of the evidence. 6. Constructive possession requires knowledge and control. 7. Control in the context of constructive possession means consent with the power to affect the location of the item. 8.

Occupancy can be evidence of possession. [34] Most recently the Alberta Court of Appeal reviewed the law of possession in R v Miller, 2023 ABCA 266, at para 23: The trial judge correctly set out the law of possession. Possession, in this case, was constructive possession, which required proof that theappellant (1) had knowledge of the object, (2) knowingly put or kept the object in a particular place, whether or not that place belongedto her, and (3) intended to have the object in that place for her use or benefit or that of another person: R v Morelli, 2010 SCC 8 at para17.

The Crown must establish “knowledge which extends beyond mere quiescent knowledge and discloses some measure of control overthe item to be possessed”: R v Pham, (2005), (ON CA), 77 OR (3d) 401 (CA) at para 15, 203 CCC (3d) 326, aff’d2006 SCC 26. [20] In this matter I cannot conclude Mr. Fairweather had knowledge and control of the subject drugs, as being the only reasonableinference that can be drawn. Fingerprinting of the bags of drugs was performed by the police and no fingerprints were obtained. NoDNA testing was performed. The drugs were not “in plain sight”.

Nor was the BB gun. [21] It is not enough for me to say Mr. Fairweather probably had knowledge and control. It must be proven beyond a reasonabledoubt. [22] Accordingly, I acquitted Mr. Fairweather of all charges. [23] The action against Karley Rylaarsdam remains extant. Heard on the 10th, 11th and 12th days of January, 2024. Dated at the Town of St. Paul, Alberta this 25th day of January, 2024.

R.J. Hall J.C.K.B.A. Appearances: V.G. Findlater for the Crown M.N. Rauf for the Accused, Matthew Fairweather E. Salley for the Accused, Kelly Sanderson