R. v. Miller, 2011 NSPC 44

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Miller, 2011 NSPC 44 Date: July 29, 2011 Docket: 2219978 Registry: Halifax Her Majesty the Queen v. Paul Frederick Miller DECISION Judge: The Honourable Judge Anne S. Derrick Heard: June 9, 16, 28 and 30, 2011 Decision: July 29, 2011 Charges: section 5(2) of the Controlled Drugs and Substances Act Counsel: Rachel Furey - Crown Counsel Peter Dostal – Defence Counsel By the Court :

Introduction [1] Mr. Miller is charged with possession of cannabis marijuana for the purpose of trafficking, contrary to section 5(2) of theControlled Drugs and Substances Act. He is presumed innocent until the Crown establishes his guilt beyond a reasonable doubt. As I willdetail later in these reasons, this is a case where I must apply the principles articulated in R. v. W(D), (SCC), [1991]S.C.J. No. 26. [2] The marijuana was discovered during a traffic stop on the night of July 29, 2010. It was contained in three separate packages in thecar Mr. Miller was driving.

The largest amount weighed 244.88 grams in vacuum-sealed plastic packaging, and two smaller amounts, intied-off plastic bags, weighed 51.42 grams and 51.54 grams respectively. Cst. Jeffrey Peddle who weighed the packages of marijuana inits plastic packaging - the vacuum packaging and the plastic bags - and noted a total weight of 347.84 grams, agreed that without thepackaging the weight of all the marijuana could have been 325 grams. I accept this as the weight of the actual cannabis marijuana itself. [3] A search of Mr.

Miller incidental to his arrest also produced money: $100 in Canadian currency was found in the left inside pocketof Mr. Miller’s jacket and $320 in Canadian currency was found in the right front pocket of Mr. Miller’s jeans. Both amounts of moneywere found folded: the sixteen $20 bills had been folded in half and the five $20 bills were folded in half and then folded again. [4] A cell phone was also seized from the car Mr. Miller was driving. It was found on the driver’s seat after Mr. Miller had got out.Cst.

Peddle checked the cell phone only to the extent of noticing that there were no text messages on it. [5] Mr. Miller was stopped by police after he had made a very short visit to Mulgrave Park. The police evidence was that Mr. Millervisited an apartment building at 109 Connor Lane. Mr. Miller denies this and says he dropped by to visit a friend who lives next door tothe apartment building. I will discuss Mr. Miller’s evidence shortly, after I indicate what the police officers testified to having observed. The Events Leading to Mr.

Miller’s Arrest [6] On July 29, 2010, plainclothes officers in the Quick Response Unit of the Halifax Regional Police were in the Mulgrave Park areabecause of local residents’ concerns following a recent homicide. As Cst. David Smith explained the assignment, the officers were doing“targeted monitoring” of the Connor Lane area. [7] At 9:20 p.m. the officers observed a silver Malibu being driven at a high rate of speed into the parking lot of 109 Connor Lane.Given the high density of the housing project and the potential for children being in the parking lot, Cst.

Smith’s practice is to drivethrough the area at about 5 – 10 kilometers an hour. He estimated the Malibu’s speed to be about 20 kilometers an hour. This was Cst.Carter’s estimate as well. It was this rate of speed that drew the officers’ attention. [8] The officers noticed the Malibu bounce as it hit the two speed bumps on its way to the front of 109 Connor Lane. It made an abruptstop and the driver walked quickly into the building. [9] The police officers estimate that the Malibu driver arrived and left within about five minutes.

They did not see where he had gonebut he returned through the same front door of the apartment building he had entered. The Malibu drove away at what the officers feltwas a higher than safe rate of speed. They followed the car, which was speeding, and made a traffic stop on Barrington Street. Theirobjective was to warn the driver about his driving. In Cst. Smith’s opinion it would have been negligent for the officers not to havepulled the Malibu over. He thought the driver was either impaired or just careless. [10] After a brief conversation with Mr. Miller on the driver’s side of the Malibu, Cst.

Carter detected a smell of fresh marijuana. Cst.Smith could smell the marijuana as well. Mr. Miller was arrested.

[ 11 ] The three packages of cannabis marijuana I mentioned earlier were located in a Sobeys bag on the front passenger side of the Malibu, on the floor. [ 12 ] It has been conceded that on July 29 when pulled over by police, Mr. Miller was unlawfully in possession of marijuana. Although he now has a medical authorization to possess marijuana for medical purposes, an issue I will discuss in due course, on July 29, 2010, his medical authorization had not yet been issued. The Expert Evidence of Cst. David Lane [ 13 ] To establish the proof that Mr.

Miller was in possession of the marijuana for the purpose of trafficking, the Crown called the evidence of an expert, Cst. David Lane. Cst. Lane was qualified, with no objection by the Defence, to give opinion evidence on “marijuana usage, the unlawful possession of cannabis marijuana and the unlawful possession of cannabis marijuana for the purpose of trafficking, methods to avoid police detection, pricing, dial-a-dope operations, cash currency obtained through drug sales, packaging, jargon, drug distribution chains and stash houses.” [ 14 ] Cst.

Lane acknowledged that he does not have any expertise in relation to the medical use of marijuana. In his opinion a heavy user could manage to smoke 3 – 5 grams of marijuana a day. He agreed that more marijuana can be consumed if it is ingested in baked goods. [ 15 ] Cst. Lane’s evidence casts the facts of Mr. Miller’s arrest – the quantity and packaging of the marijuana, the amount and location of the money on him, and the abrupt visit to the apartment building, as facts of a dial-a-dope operation; Mr.

Miller making quick sales of bulk marijuana and receiving payment in the usual currency of $20 bills. [ 16 ] Cst. Lane examined the marijuana exhibits – the three packages – and offered his opinion that they were consistent, not with personal use, but with what a street level trafficker would possess. Cst. Lane testified that a street level trafficker will purchase marijuana in half-pound (227 grams) or 100 gram or 50 gram amounts and then break it down for direct sale to users. [ 17 ] Assessing the marijuana seized from Mr. Miller in a chain of distribution analysis, Cst.

Lane noted the quantity and the packaging. The vacuum packaging is used to “kill” the smell. The plastic is quite heavy and Cst. Lane estimated the marijuana itself without the packaging to probably weigh around 227 grams. He testified that “everybody would call this [the vacuum-sealed package of marijuana] a one-half pound.” His first thought on examining the package was “it’s nowhere near personal use.” It was Cst. Lane’s opinion, based on discussions with marijuana users and his training, that the amount and the nature of the packaging pointed to street-level dealing not personal use. [ 18 ] In Cst.

Lane’s opinion, the fifty gram bags of marijuana were also not consistent with personal use. He testified that at the street level fifty grams of marijuana would be purchased for perhaps $6 - $8 per gram and then sold for $10 a gram, making a profit. According to Cst. Lane, the three packages of marijuana seized from Mr. Miller are consistent with retail purposes not personal use. In Cst. Lane’s opinion this is a case of mid-level trafficking. [ 19 ] Cst. Lane also gave evidence about dial-a-dope operations.

He described them as replacing the traditional drug-selling arrangement of the dealer stationing himself at home to sell to individual purchasers. Dial-a-dope operations require the seller to take only limited amounts of drugs with him without the need for score sheets or scales, the drug paraphernalia that suggests drug trafficking. A dealer does not want to be arrested in possession of indicators of trafficking. As Cst. Lane said in cross-examination, a trafficker wants to make himself look like a non-trafficker.

A dial-a-dope dealer can be highly mobile in a car, reducing the chances of being robbed or busted, the risks associated with dealing out of a stash house. With the dealer travelling to the clients, there is no steady trail of buyers to a stash house drawing the attention of neighbours. [ 20 ] Cst. Lane pointed out that dial-a-dope operators cannot avoid having drugs and money in their possession at some point. At the start of a night’s work, he would expect to see more drugs and less money, with the reverse being true by the end of the night after a series of sales. Cst.

Lane testified that drug dealers separate their money: they keep their re-supply money, which they need to purchase more product, separate from their profit. They will often be in possession of $20 bills which are used by purchasers to buy the drugs. Folded money, such as found in this case, is consistent with how a trafficker would keep track of which is re-supply money and which is profit. It is not so significant that it is folded: what is notable is that it was carried in separate locations on Mr. Miller.

[ 21 ] Cst. Lane was asked about Mr. Miller’s short visit to 109 Connor Lane and the $420 found on him. It was Cst. Lane’s opinion that the brief stop is consistent with a dial-a-dope delivery with the money representing a 50 gram bag being sold at $8 a gram and an additional $20 for delivery costs or interest or to cover a late payment. [ 22 ] Cst. Lane also discussed marijuana useage, his knowledge being based on smoking rates for marijuana. He agreed that the amount of the seized drugs could be a 90 day supply if consumed through methods other than smoking.

He gave this response after being asked to assume the total amount of marijuana seized was 325 grams which, at 3 grams a day could be consumed over 108 days. 325 grams would be used up more quickly if the consumption was by ingestion not smoking. [ 23 ] When asked his opinion about the scenario of Mr. Miller using the marijuana to self-medicate for chronic pain, Cst. Lane questioned the packaging which he testified was “for the drug trade” and consistent with re-sale to street users. He also commented that marijuana use for medical reasons is frequently used to screen illegal drug dealing and use.

He views the whole picture as more consistent with the drug trade, not personal use for medical reasons. Mr. Miller’s Evidence of Chronic Pain and Marijuana Use [ 24 ] Mr. Miller was emphatic in his testimony that he uses marijuana only to treat chronic pain. His medical history, as described by Mr. Miller in his evidence, has included a back injury, a serious fall, a heart attack and a chronic, debilitating and potentially fatal condition. Mr. Miller suffered a back injury in 2000 that laid him up for five years. He was back working in 2005 for 6 – 8 months when he fell 30 feet.

The fall put him off work for 2 months. He went back to work but the plant closed soon afterwards in 2006. A few months into another job and Mr. Miller became ill, left work and was laid off. He had a heart attack in June 2007 and has not worked since. [ 25 ] Mr. Miller described experiencing severe pain in his joints and spine and has been diagnosed as having fibromyalgia. He is disabled by pain which, if not medicated, makes it hard for him to move, walk, sit or lift anything. Mr. Miller also has an immunodeficiency disorder that was causing him to waste away.

This health history was tested in cross-examination but there is nothing before me to contradict Mr. Miller’s claims. [ 26 ] Mr. Miller’s injuries and pain were originally treated conventionally, with prescription medications such as Dilaudid and Oxycontin. Mr. Miller became addicted. He also found the side-effects of these strong painkillers very difficult to manage. He testified that he was very impaired by the drugs so he turned to using marijuana. He obtained the drug illegally. Marijuana also restored his appetite which he had lost due to his immunodeficiency disorder.

He does not use marijuana from Health Canada because the THC content is inadequate. Mr. Miller says for all the good it does, he “might as well take an aspirin.” [ 27 ] Mr. Miller’s family doctor in Halifax has accepted that he should have access to medical marijuana to manage his pain. With his doctor’s support, Mr. Miller applied in June 2010 for a medical authorization to possess and use marijuana for medical purposes. A medical authorization was issued on December 15, 2010. A copy of it was tendered as Exhibit 11. Mr. Miller indicated this is his first authorization and will have to be renewed.

It expires on December 15, 2011. [ 28 ] Mr. Miller’s medical authorization permits him to possess a “maximum quantity of dried marijuana…at any time…” of 90 grams. Mr. Miller says he has interpreted this to mean he can keep a total of 300 grams at home and 90 grams on his person. This suggested to me that Mr. Miller has interpreted his authorization as entitling him to have a stash of more than 90 grams of marijuana at any one time as long as he only kept up to 90 grams on his actual person. I do not read Mr. Miller’s authorization as permitting this.

In any event, the significance for this trial is that by July 29, 2010 Mr. Miller had not yet received his medical marijuana authorization and so, at the point when he was pulled over by police, he could not lawfully possess any marijuana at all. [ 29 ] Mr. Miller testified that he almost exclusively consumes his marijuana either baked into muffins or banana bread or chewed right out of the bag. Occasionally he will smoke part of a joint when he first gets up in the morning but he dislikes the “head high” it gives him.

It was his evidence that he does not want to be impaired by the drug; he wants it to soothe the pain symptoms he experiences while keeping his mind clear. Ingesting the marijuana achieves this. Mr. Miller testified he is “not functional” if he smokes it. [ 30 ] Mr. Miller’s evidence on these points was confirmed by Mr. Miller’s wife, Claire Miller. She confirmed that Mr. Miller has indeed suffered a number of injuries and health setbacks. He became addicted to conventional pain medication. The medication had a stupefying effect on him. After he went to a pain clinic he started to use marijuana. Ms.

Miller testified that the marijuana helped him; he “wasn’t strung out from the pills and seemed somewhat more able to cope with the pain…” She has observed Mr. Miller take a puff

from a marijuana joint in the mornings when he wakes up stiff and sore but primarily he chews it or eats in baked goods. “Quite often he’s got it in the side of his mouth” is how she described it. She does not have anything much to do with Mr. Miller’s marijuana, just helping him bake it into muffins and banana bread. [ 31 ] It was Mr. Miller’s evidence that he consumes 5 – 6 grams a day. Pain relief lasts 2 – 3 or 3 – 4 hours although sometimes after an hour and a half Mr. Miller has to take more to maintain the benefit that relieves his pain symptoms.

As he nears the end of his supply he tries to moderate his consumption to make it through to when he can re-stock. [ 32 ] Mr. Miller has a marijuana supplier in Truro. He testified that his supplier is legally authorized to grow marijuana for medically authorized persons. It was Mr. Miller’s evidence that his supplier has a sticker on his door indicating he is a legal grower. [ 33 ] Mr. Miller resupplies himself with marijuana every three months. He testified that he does not share his marijuana with his family members. He firmly denied selling it.

He keeps most of his marijuana supply in his freezer with a small amount, 25 – 30 grams, stored in the crisper of his fridge. He testified that storage of the marijuana in the freezer in its vacuum packaging keeps it moist. Cst. Lane had testified that marijuana can be frozen and has a shelf-life of about six months. [ 34 ] Claire Miller testified that she never accompanies her husband to Truro to get his supply. She does not know who his supplier is and doesn’t think he ever pays for it “as he doesn’t have any money for it.” Ms.

Miller testified that her husband does not give her any marijuana and she wants nothing to do with it. “Marijuana is not something for me” is how she put it. [ 35 ] Ms. Miller was asked about her husband’s marijuana supply. She was shown Exhibit 1 and said she had not seen a bag of marijuana as big as that in the house. On the other hand she indicated she was not interested in her husband’s marijuana use and did not look at what he had stored in the freezer. What she has seen in the house is a bag that is close to the size of Exhibit 2, one of the 50 gram bags. Mr.

Miller’s Visit to the Bank on July 29, 2010 [ 36 ] Due to his disabilities Mr. Miller receives a social assistance cheque at the end of each month. His household consists of his wife and their adult daughter, Natasha, who also has some health issues and is on social assistance. Although Claire Miller has been married to Mr. Miller for 36 years, she is presently spending only one night a week in their home and otherwise stays with their son Trevor and his girlfriend looking after their child, her two year old grandson. [ 37 ] Mr.

Miller gave July 28, 2010 as the date of his visits to the bank and then to Truro to get a new supply of marijuana. This is an error as Mr. Miller’s arrest occurred on July 29 which is the day he described in his testimony. There was no evidence to contradict Mr. Miller that all these events occurred on the same day, and it was his wife’s testimony that he went to the bank and Truro the day of his arrest so I find that Mr. Miller was mistaken when he referred to July 28. [ 38 ] In accordance with his routine on days when his social assistance cheque arrives, on July 29 Mr.

Miller went to the bank after picking up the cheque from the mail in the early afternoon. The amount of the cheque was a little difficult to sort out from the evidence: Mr. Miller spoke of it being around $500 whereas Ms. Miller said their social assistance cheque was around $1032. However what Mr. Miller described was a set of circumstances that Ms. Miller was not asked about: he said that in July 2010 there was money in their joint bank account that had come from his wife’s wages. She had had a job when they lived in Truro. As best I could understand from Mr.

Miller’s evidence, in July 2010, the social assistance cheque was reduced by the amount his wife earned or some portion of those earnings. “That’s why I only had $500…” is what Mr. Miller said. This would explain why, in July 2010, just after Ms. Miller had moved to Halifax from Truro, the social assistance cheque would have been $500 and in June 2011, when Ms. Miller testified, it would be a little more than $1000. No one asked Ms. Miller about her wages and their effect on the social assistance cheque in July 2010. (I will note that Ms.

Miller also referred to the social assistance cheque now being in the amount of $942. She was not asked to explain the difference in the amounts she referred to at the start of her evidence and this amount which came up in cross-examination when she was talking about their monthly budget.) [ 39 ] Mr. Miller’s evidence is that he took the $500 social assistance cheque to be cashed at the bank and augmented it with $500 from the joint bank account that contained his wife’s earnings. He testified that he walked out of the bank with “$1030 something…” I do not find there is anything anomalous in Mr.

Miller’s description of his banking transaction on July 29, 2010. I am satisfied that there is no evidence that the Millers had any savings at that time, which the Crown suggested in final submissions may have been the case. As I

have said, the money in the Miller’s bank account at that time was from Ms. Miller’s job in Truro. The effect of her producing income was a reduction in the amount of social assistance the Millers could receive. Ms. Miller stopped working when she moved to Halifax. I find that Ms. Miller’s testimony about the social assistance cheque reflects what the Millers receive now that they no longer have any other income coming in. [ 40 ] Mr. Miller testified that he left the bank with about $1030 in 100’s, 50’s and 20’s.

He later mentioned in his evidence an additional amount of money that was part of what he took out of the bank on July 29. The additional money was from his daughter’s social assistance. Both Mr. and Ms. Miller testified that her contribution is $245. Mr. Miller testified he got this money out of his daughter’s bank account using her bank card. The details drawn out at trial about this transaction were thin: I don’t know if Mr. Miller went to an ATM and took out the money in which event it would not have been possible for him to get $245 as ATM’s deliver payment in $20 bills only.

Perhaps he did the transaction through the teller, in which event presumably he still would have had to use his daughter’s bank card. These details were not explored so I don’t have the evidence about exactly how Mr. Miller got this money. [ 41 ] An amount of $240 was also mentioned as Natasha Miller’s contribution. It is all somewhat unclear. What I can sort out however is this: if Mr. Miller cashed a $500 social assistance cheque, withdrew $500 of his wife’s wages from the joint account and obtained his daughter’s $240 or $245 contribution then he left the bank with $1270 - $1275 on July 29, 2010.

After the Bank – Paying the Rent and the Money Seized From Mr. Miller [ 42 ] The figures I have just reviewed constitute the evidence Mr. Miller gave about the money he obtained at the bank on July 29 but they do not help to explain Mr. Miller’s testimony that he left the bank with around $1030, nor do they explain the origins of the money on Mr. Miller when he was arrested. According to Ms. Miller, her husband did not give her any money on July 29 as she did not see him after he went to the bank. If Mr. Miller left the bank with $1275 then he would have had $625 left after paying the rent.

If he left the bank with $1030 then he would have had about $380 on him. When he was arrested he had neither amount. He was found by police to have $420 on him. It is a mysterious figure in terms of Mr. Miller’s financial transactions on July 29. It is a figure that Cst. Lane testified to as the amount one would expect to see if a 50 gram bag of marijuana was sold at $8 a gram plus a delivery or overdue account fee of $20. [ 43 ] The Miller’s rent is $650. Mr. Miller testified that he had about $400 left over from paying the rent. He does not keep money in his wallet and so had it in two bundles in his pockets.

He says these are Exhibits 6 and 7. Mr. Miller testified that one bundle in the amount of $320 (Exhibit 7) was for groceries and to pay the phone and cable bills (which his wife always paid in cash) and the other bundle in the amount of $100 (Exhibit 6) was to be stashed away for emergencies. Mr. Miller also referred to this money as being for “extras” like milk, bread and cigarettes should the family need anything before the next cheques arrive. Mr. Miller explained that he does not use online banking services or cheques and does not have a Visa card.

This was confirmed by his wife’s evidence. [ 44 ] According to Mr. Miller’s evidence the $100 “emergency” or “extras” fund had to cover the cost of his pay-as-you-go cell phone which he spent about $20 on at a time, gas at about $30 - $40, and cigarettes which he splits the cost of with his daughter. Tobacco for cigarettes is usually purchased in cans for about $80 per month. Occasionally Mr. Miller treats himself to a store-bought pack. He agreed on cross-examination that he and his family do not have very much money left over at the end of each month.

He also agreed that he was lucky to get his marijuana free of charge from his supplier. This arrangement is because he has been helping with the harvesting of the plants, pruning and trimming them which saves his supplier time as harvesting is a lot of work. [ 45 ] Ms. Miller confirmed that money is tight. The social assistance cheque in the amount of $942 comes in both their names and Mr. Miller goes to the bank to cash it. He also draws $245 out of their daughter’s account, using her bank card. He is responsible to pay the monthly rent of $650 and then holds the balance of the money for Ms.

Miller to pay the phone bill of $40 and cable, including internet, of $120. Ms. Miller testified that they go grocery shopping together and Mr. Miller pays for the groceries out of money left over once the rent has been paid. Ms. Miller says there are no savings. [ 46 ] It was Ms. Miller’s evidence that she and Mr. Miller have always been able to pay their bills. Mr. Miller’s Trip to Truro on July 29, 2010 [ 47 ] Mr. Miller explained in his evidence that after the bank and paying the rent, he left for Truro either in the late afternoon or early evening hours.

He testified he had last consumed marijuana about an hour and a half before he left for Truro. It was the tail end of his

supply, just 2 grams. [ 48 ] Mr. Miller’s Truro supplier did not charge him for the marijuana as he had earlier helped with the harvest. He received 225 grams vacuum packed and identified Exhibit 1 as the package. It was Mr. Miller’s evidence that he usually gets 225 grams of marijuana from his supplier. When asked about this he said it was “quite a few times” that he had gotten this amount “over the years.” Subsequently in his evidence Mr. Miller indicated that he still goes to Truro, starting to say “every three months…” and that he usually gets “anywhere between 300 – 325 grams.” I assume Mr.

Miller must have been referring to how much he gets now that he is living in Halifax. He testified that on July 29 he asked his supplier for an extra 100 grams because he wouldn’t be able to make the trip to Truro as readily now that he is living in Halifax. He said he had never asked his supplier for additional marijuana before and that he got “55 grams” more than he usually took. This confused the picture more as that would mean Mr. Miller typically got 270 grams in Truro. Consequently I am left with no clear picture as to whether in July 2010 the usual amount Mr.

Miller got from his supplier was 225 grams or 270 grams. It is not so much the question of the amount Mr. Miller typically got prior to July 29 as it is that Mr. Miller’s evidence was not always consistent. [ 49 ] According to Mr. Miller, his request on July 29 for additional marijuana was to tide him over. He did not have to pay for his regular supply or the extra 100 grams because of the services he had rendered to help with the harvest. I am satisfied Mr. Miller did not render these services on July 29: he talked about how the pruning and trimming was followed by a drying and then packaging process.

He testified that he had helped his supplier “before that” referring to before July 29 and it is obvious that what he obtained on July 29, packaged, was an already dried product. [ 50 ] Mr. Miller testified that the additional 100 grams of marijuana he requested was given to him in two 50 gram bags, the supplier having run out of vacuum packaging. The supplier weighed out the two 50 gram bags in front of Mr. Miller. [ 51 ] Mr. Miller testified that he was expecting the 325 grams to last him about 3 months at which time there would be a new crop ready for harvest. Mr. Miller’s Visit to Mulgrave Park [ 52 ] Mr.

Miller did not head straight home from Truro. He came into town off the Bicentennial Highway and drove along Connaught Avenue and through the north end to Mulgrave Park. He says he did this to visit an old friend he knew from their days together working at the Dockyards. He had dropped in to see this friend once previously since his move to Halifax. Mr. Miller testified that he did not see this friend very often but did sometimes “pop down to see how he’s doing.” [ 53 ] It was Mr. Miller’s evidence that there were two people out on the front step smoking when he arrived. He spoke to his friend’s wife.

She said her husband was sleeping so Mr. Miller left. The police stopped him on Barrington Street. [ 54 ] Mr. Miller testified that he never went into the apartment building at 109 Connor Lane as the police have claimed. He says he went by there and into his friend’s bungalow. He could see his parked car from the bungalow’s front steps. He had not locked his car even though the marijuana was in it. Had his friend been up they would have sat outside and he would have had his car in view. [ 55 ] Mr. Miller denies driving fast in and out of the parking lot at Mulgrave Park.

He testified that he was driving 15 – 20 kilometers an hour when he left. As I noted at the start of these reasons, both Csts. Smith and Carter estimated 20 kilometers an hour as Mr. Miller’s speed. For the area, they regarded this as fast. They also noted that Mr. Miller was driving fast on Barrington Street when they went after him. [ 56 ] The Crown submits I should find that Mr. Miller’s visit to Mulgrave Park was a drug sale from the cache of marijuana he had brought back from Truro and that he was on his way to make another sale before going home.

The evidence for this, in the Crown’s submission, is the Mulgrave Park activity which indicates a sale, the route Mr. Miller chose to take when he left Mulgrave Park, the amount of marijuana located in his car when he was pulled over, and the amount of money found in searching him and the way it was organized on his person. [ 57 ] What the police observed of Mr. Miller on the evening of July 29 at Mulgrave Park caught their attention. In my view the facts described by Csts. Smith and Carter, whose evidence I accept, are highly suspicious and I do not believe Mr. Miller’s explanation about

what he was doing. Mr. Miller was seen going into the apartment building at 109 Connor. He was there for about five minutes, came out the same front door and left in as much of a hurry as he had arrived. I do not accept that he had gone next door and not into the apartment building, and was dropping by to see a friend. The police are trained to observe, and the attention of these particular officers was focused on what might occur in the area. Mr. Miller came into this frame. His claim that he was making an impromptu visit on his way back from Truro to call on a friend he rarely saw lacks credibility.

I simply do not believe him. The circumstances support the reasonable inference that Mr. Miller was not making a social call, he was making a pre-arranged drug drop-off. He had just been to see a marijuana supplier and he had a supply of marijuana with him. A quick sale would have been easy to execute. [ 58 ] It is reasonable to think Mr. Miller would have been in a hurry to get home after his Truro trip. He said that on July 29, 2010 he had chewed up his last 2 grams of marijuana about an hour and half before he left for Truro. It is not clear when this would have been exactly as Mr.

Miller testified to different departure times for Truro: on direct examination he recalled leaving around 5:30 – 6 p.m.; on cross-examination it was 7 – 7:30 p.m. As Mr. Miller was stopped by the police on Barrington Street at about 9:30 p.m., he could not have left for Truro from Halifax as late as 7:30 p.m. I would say the latest he could have left for Truro would be about 7 p.m. making his last marijuana consumption around 5:30 p.m. By 9:30 p.m. even the best pain relief from the marijuana, which Mr. Miller said was 3 - 4 hours, would have been wearing off or, as it was only 2 grams, would have worn off.

This is another fact that undermines Mr. Miller’s claim of having made a detour to see a friend. [ 59 ] I do not believe Mr. Miller’s evidence that he went to Mulgrave Park to make a social call. I find that he was delivering drugs. He entered and left the apartment building at 109 Connor Lane in five minutes. He had packaged marijuana with him in the car. He drove quickly in and out of the parking lot and along Barrington Street. When stopped by police he had packaged marijuana within easy reach and an amount of money consistent with having just sold 50 grams. Assessing Mr.

Miller’s Testimony [ 60 ] Before I go any further in discussing the evidence that the Crown argues is proof of possession of marijuana for the purpose of trafficking, I need to deal with the evidence that Mr. Miller is a medical marijuana user. I accept that he is. Indeed the Crown does not dispute this. Mr. Miller has a medical authorization issued December 15, 2010.

He and his wife gave uncontradicted evidence that he suffers from chronic pain and regularly chews and eats marijuana to alleviate it. [ 61 ] The question I have to answer is this: has the Crown proven beyond a reasonable doubt that on July 29 when stopped by the police, Mr. Miller was in possession of marijuana for the purpose of trafficking?

It is important to note that evidence that points to him having made a drug sale, moments before, does not prove by itself that the marijuana he was still in possession of was in his possession for the purpose of trafficking. [ 62 ] This case requires me to apply the test in W(

D) to Mr. Miller’s evidence. If I believe his testimony I must acquit him. If I do not believe his testimony but am left in a doubt about it, I must acquit. Even if I do not believe Mr. Miller’s testimony and am not left in a doubt about it, I must still consider all of the evidence to determine if on the whole of it I am left with a reasonable doubt. I will note that in assessing Mr. Miller’s testimony, I can believe all, some or none of it. [ 63 ] I have already indicated that I do not believe a critical piece of Mr. Miller’s evidence, that he was at Mulgrave Park to visit a friend.

Inconsistencies in his testimony have also given me substantial difficulty sorting through Mr. Miller’s evidence on two issues: how much money he obtained from the bank on July 29 and how much marijuana he usually picked up from his supplier. Mr. Miller’s evidence on these aspects of the facts was not consistent. [ 64 ] Taken altogether, that is, my disbelieving Mr. Miller about the visit to Mulgrave Park and the inconsistencies in his evidence, my confidence in Mr. Miller’s credibility is sufficiently undermined that I am unable to accept his evidence - for the purposes of the first two parts of the W(

D) analysis - that his possession of marijuana was not for the purpose of trafficking. [ 65 ] There is also the issue of the $420 found on Mr. Miller. He provided an explanation for that money and the way he had it organized. It is hard to square the amount with what Mr. Miller said he took from the bank. Furthermore, it is difficult to understand how the Millers, on such a limited income, were unaffected by the seizure from Mr. Miller on July 29, 2010 of $420 which he testified he had set aside for groceries, bills and extras.

Claire Miller testified that they had no difficulty paying their bills. [ 66 ] I acknowledge there is no evidence to indicate that the Millers enjoy a lifestyle that is supported by significant drug sales. Ms.

Miller testified to this issue, questioning the suggestion that her husband was selling marijuana by asking, “why wouldn’t we have more money?” However the evidence of the Miller’s expenses and their limited income does leave room for there being some modest reliance on drug trafficking to make ends meet. [ 67 ] I do not believe Mr. Miller’s evidence about his visit to 109 Connor Lane. What I find is that the visit was a drug drop off, and that the money seized from Mr. Miller is consistent with him having sold 50 grams of marijuana at $8 per gram.

Although I am unable to conclude that the money was organized for the purposes Cst. Lane described, as re-supply and profit, I am satisfied that Mr. Miller was selling some of the marijuana he had in his possession. [ 68 ] I find on the evidence that Mr. Miller made a sale of 50 grams at 109 Connor and that he had a couple of additional 50 gram batches he intended to sell. I do not accept his evidence that his supplier was out of vacuum packaging and that he casually handed over an additional 100 grams to Mr. Miller without payment when that represented so much more than Mr. Miller would normally be picking up.

According to Mr. Miller’s testimony, (and leaving aside the confusing aspects of this evidence that I have already discussed), in July 2010, he was collecting 225 grams of marijuana from his supplier in exchange for helping with the harvest. There is nothing to indicate why the supplier would have thrown in another 100 grams on request – marijuana that according to Cst. Lane would have a purchase price of $6 - $8 per gram wholesale, in other words, marijuana with a total value of $600 - $800 which could then be sold at $8 or $10 a gram for a small profit. [ 69 ] I have concluded that Mr.

Miller had marijuana in his possession on July 29 for different purposes. Some of the marijuana in his possession was for his own personal use. As best I can determine that was probably the 225 grams in the vacuum packaging. I accept Mr. Miller’s evidence where he said that 225 grams was the usual amount he got from his supplier. I do not accept his evidence about the other 100 grams. Although Mr.

Miller had an explanation for why he would have 325 grams of marijuana in his possession – that he needed that much to see him through a three month period and had requested the additional 100 grams as a supplement – given my difficulties with his credibility, I am unable to accept his evidence about his consumption rates, evidence that if accepted could help explain Mr. Miller’s possession of 325 grams. [ 70 ] This is a circumstantial case and I find that the only reasonable inference to be drawn from the totality of the evidence is that Mr.

Miller was intending to sell the two 50 gram bags of marijuana found in his possession when he was stopped by the police. Considering all of the evidence I am satisfied the Crown has proven this beyond a reasonable doubt. I do not accept that the extra marijuana Mr. Miller picked up in plastic bags from his supplier was for his personal use. However I am not satisfied that there is proof beyond a reasonable doubt that Mr. Miller was in possession for re-sale of all the marijuana seized from his car.

And while this may have been a dial-a-dope operation as the Crown and police appear to believe it was, I do not find the evidence to have proven this beyond a reasonable doubt. I do not have any evidence to explain the precise nature of Mr. Miller’s intended trafficking and I am unable to say that it constituted what Cst. Lane described about dial-a-dope operations. I am suspicious of the extent to which Mr. Miller may have been both using and selling marijuana but I can only go where the evidence takes me. What the evidence indicates to me is that on July 29, 2010 Mr.

Miller, who was on a very limited income, used marijuana to treat chronic pain and had some in his possession for the purpose of trafficking to provide a limited amount of additional cash. I am not satisfied there is proof beyond a reasonable doubt of more than this. However, as I have indicated I find there has been proof beyond a reasonable doubt that Mr. Miller was in possession of 100 grams of cannabis marijuana for the purpose of trafficking and I enter a conviction accordingly.