R v Sandhu, 2023 ABKB 681

Court of King’s Bench of Alberta Citation: R v Sandhu, 2023 ABKB 681 Date: 20231205 Docket: 220260061Q1 Registry: Calgary Between: His Majesty the King Crown - and - Mohit Singh Sandhu Accused _______________________________________________________ Judgment of the Honourable Justice R.J.

Hall _______________________________________________________ [ 1 ] The accused, Mohit Singh Sandhu, is charged with possession of crack cocaine for the purpose of trafficking; possession of a prohibited firearm and readily accessible ammunition capable of being discharged, without authorization or licence; and possession of a prohibited device, being a prescribed type of cartridge magazine. [ 2 ] Surveillance preceded execution of a search warrant and arrest. The surveillance evidence shows that the accused was often in the company of either or both of Harmanjit Brar (“Brar”) and Gagneet Sidhu (“Sidhu”).

The accused was seen on a number of occasions entering or leaving Building #400 Auburn Meadows Common S.E., Calgary (hereinafter, Building 400). A vehicle owned by the accused was seen parked in either stall 41, or on either side of that stall. Stall 41 is the parking stall for Unit 216 of Building 400.

[ 3 ] Brar was observed by surveillance to use a key to enter Unit 216, and Sidhu entered after him. [ 4 ] A search warrant to search Unit 216 was issued by a Judge of the Provincial Court of Alberta. [ 5 ] On December 7, 2021 at 4:26 pm the Calgary police tactical team entered Unit 216 by force. In total there were 9 tactical team officers that entered the small, one bedroom apartment style condominium unit. They conducted a primary search, looking for safety risks. They located the accused in the living room. They located Brar in the bedroom.

Once the accused and Brar had been “taken down”, the tactical team conducted a secondary search for any hidden people or animals that could pose a threat. Once this was completed the tactical team took Brar and the accused out, and turned Unit 216 over to the police investigative team to search for evidence and items of interest. The tactical team took no role in seizing evidence. [ 6 ] Constable van Hereweghe was a member of the tactical team; he says he was the third member of the team to enter Unit 216.

He made announcements, as did others, that they were police executing a warrant, and to put “hands up” or “show your hands”. [ 7 ] Constable van Hereweghe observed the accused sitting on a couch in the living room. When he first saw him, he could not see his hands. He told the accused to show his hands but there was no compliance. As the constable proceeded further he could see the accused’s hands. The accused’s left hand was on the seat cushion. His right hand was between his body and the arm of the couch. [ 8 ] The constable tried to pull the accused forward towards him, but his hand slipped and it didn’t work.

He grabbed the hood on the accused’s coat but the hood came free from the coat. Then the constable reached behind the accused’s head and pulled him forward and onto his stomach, in front of the couch. The constable then handcuffed the accused’s hands, behind his back. [ 9 ] Constable van Hereweghe gave evidence that, once he got the accused off the couch, he saw a handgun sitting on the cushion where the accused had been seated. He says he yelled out “Firearm” or words to that effect to alert the others. [ 10 ] Constable van Hereweghe stated that the cushions did not come off the couch.

He denies that he found the firearm “in the couch”, and denies telling that to anyone; he says he is certain of that. [ 11 ] Constable van Hereweghe took a photograph of the handgun on the couch. He left the handgun there for the investigating team. [ 12 ] Other members of the tactical team gave evidence for the Crown.

None of them recalled Constable van Hereweghe yelling out a firearm warning. [ 13 ] After Unit 216 had been cleared by the tactical team, it was turned over to the police investigators. [ 14 ] Detective Todd Christianson was the first investigator into the Unit and he entered with a video camera, and took an “entry video”. In that video it can be seen that one of the seat cushions of the couch has been moved from its usual position to an upright position.

This is the cushion that was beside the one the accused had been sitting on. [ 15 ] In both the photo of the gun taken by Constable van Hereweghe, and in a photo taken by Detective Christianson, it can be seen that the couch’s seat cushion on which the handgun sits has been turned backwards from its proper position so that the zipper at the back of the cushion is at the front of the couch. [ 16 ] Sergeant Justin O’Mahoney was in charge of the tactical team that entered Unit 216, and was one of the entry team members. [ 17 ] In cross examination he stated that Constable van Hereweghe had told him that one of the targets was seen stuffing something into the couch, and that the handgun was found stuffed into the couch. [ 18 ] During the search by the investigative team, a cell phone was found.

It was ringing. It was located, stuffed between the same armrest and the cushion of the couch. [ 19 ] Defence counsel argues that Constable van Hereweghe is wrong, or is not being truthful. Counsel suggests the handgun was in the couch, not on it; and as such it cannot be said that the accused had possession or control of the handgun. [ 20 ] Counsel argues the evidence of Constable van Hereweghe regarding yelling out “Firearm” is belied by the other members of the team.

He argues that evidence from other members of the team, saying that they saw the accused’s hands fumbling, is consistent with an attempt to hide the cell phone. He argues that Constable van Hereweghe’s evidence that the cushions on the couch were not disturbed is belied by the one upright cushion and by the seat cushion being backwards on the couch.

He questions the reliability and credibility of Constable van Hereweghe’s assertion that he found the handgun on the seat cushion of the couch, and that he never told anyone otherwise, given the evidence of Sergeant O’Mahoney, that Constable van Hereweghe told him the handgun was found stuffed into the couch. [ 21 ] In order to succeed on the firearms and cartridge charges, the Crown must prove beyond a reasonable doubt, that the accused possessed them. The Crown tendered no fingerprint or DNA evidence obtained from the handgun.

The Crown conceded in argument that, if the handgun was in the couch under the cushion, then the Crown could not prove the requisite control by the accused; a proposition with which I agree. [ 22 ] The Crown says the evidence is clear, however. Constable van Hereweghe found the handgun on the seat cushion where the accused was sitting.

Control and possession are thereby proven. [ 23 ] However, the inconsistencies in Constable van Hereweghe’s testimony; that the seat cushions were not moved or removed; and his denial of having previously said he found the handgun “stuffed into the couch”; together with the seat cushion on which the handgun was photographed, being in such a position that it was backwards to what is normal; and the evidence of other members of the

tactical team that they do not recall a firearms warning yell from Constable van Hereweghe; all lead me to question the reliability ofConstable van Hereweghe’s evidence as to where the handgun was found. [24] In the result, I conclude that the Crown has failed to prove possession of the handgun or the magazine by the accused, beyonda reasonable doubt. [25] With respect to Count #1 – possession of crack cocaine for the purpose of trafficking – the evidence is that two plastic bags ofcrack cocaine were found and seized from within Unit 216. They were located in plain view on the glass coffee table in the kitchen.

Onebag contained 15.2 grams of crack cocaine. The other contained 26.2 grams of cocaine. [26] In addition there was a scale with powder residue, a pyrex mixing bowl with powder residue, and a box of baking soda in thekitchen. There was a home-made bong and some marijuana located in the living room, but no personal use items related to the ingestionif crack cocaine. Plastic baggies were also seized from Unit 216.

There was a bag of powder cocaine located in a kitchen drawer with thescale. [27] Expert evidence was provided by Detective Tyler Shuttleworth, respecting sale of narcotics, manufacture of narcoticsincluding crack cocaine, packaging and pricing. Detective Shuttleworth gave his opinion that the amount of crack cocaine seized wasgreater than what would be expected for personal use.

The mixing bowl, and the baking soda, and powder cocaine was consistent withthe manufacture of crack cocaine, accomplished by mixing powder cocaine with baking soda and water and heating it, such that itsolidifies into crack cocaine upon cooling. The scale was of a type used to measure out portions of crack cocaine for the purpose ofselling it. The baggies were typically used for the purpose of bagging individual sale amounts. [28] I am satisfied by the evidence that the crack cocaine referenced in respect of Count #1 was possessed for the purpose oftrafficking.

The question that arises, however, is whether the Crown has proven, beyond a reasonable doubt, that the crack cocaine waspossessed by the accused. [29] Drug possession is defined in s 4(3) of the Criminal Code, RSC 1985, c C-46 and imported into the Controlled Drugs andSubstances 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 incommon areas of the residence, the presence of a scale in a bedroom occupied by the accused, or the evidence of trafficking occurringfrom a location under one’s control: R v Sparling, [1988] OJ No 107 (Ont HC) at 6, aff’d [1988] OJ No 1877. [32] However, where the link between a person and residence are less tangible, control and knowledge are less easily inferred:Cantrill at para 60.

A visitor or guest usually has insufficient control to establish possession. In R v Chambers (1985), (ON CA), Martin JA contrasted the degree of control exerted by guests visiting the narcotic using tenant of a rented room discussed in Rv Colvin, (BC CA) and an accused who had a more significant capacity to influence activities in a particular residenceas: The respondents in R. v. Colvin ... being mere visitors, had no power to withhold their consent to Harmann Singh, the tenant, having themorphine in his possession.

The mere consorting with Singh knowing that he had possession of morphine did not constitute "consent"within s. 5(2) of the Code. In contrast, the respondent in the present case had the power to either consent or withhold her consent to herroom being used to store cocaine. [33] In R v Nguyen, 2009 ABQB 234, after reviewing the law of constructive possession of drugs for the purpose of traffickingand the role 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. [35] Here the evidence is clear that Brar and Sidhu were the tenants, by lease, of Unit 216. The accused was not. [36] The evidence shows that the accused was a frequent visitor to Building 400 in the days before the warrant was executed. I amsatisfied that he was a frequent visitor to Unit 216.

I am satisfied that he knew the crack cocaine was in the unit, and he knew it was therefor the purpose of trafficking; that establishes the mens rea for possession. [37] However, the Crown must also show some measure of control of the crack cocaine by the accused. Here the accused was nota tenant in Unit 216; here there was evidence that Brar, or Sidhu, or both, had, in their bedroom evidence related to possession offentanyl, in locations not readily accessible to guests.

Here, therefore, there is a plausible alternate explanation that the crack cocaine waspossessed by the tenants of Unit 216, and not by the accused. [38] Accordingly, the Crown has not proven, beyond a reasonable doubt, that the crack cocaine was constructively possessed bythe accused. In the result the accused is acquitted of all three charges against him. Heard on the 30th and 31st days of October, 2023 and the 3rd, 6th, 7th and 8th days of November, 2023. Dated at the City of Calgary, Alberta this 5th day of December, 2023. R.J. Hall J.C.K.B.A.

Appearances: Brian Holtby, KC for the Crown Kristofer Advent for the Accused