R. v. McEwen, 2018 BCPC 339

Citation: R. v. McEwen 2018 BCPC 339 Date: 20181221 File No: 233707 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LAURA HOLLY MCEWEN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.P. HARRIS Counsel for the Crown: T. Warren Counsel for the Defendant: L. Fumano Place of Hearing: Vancouver , B.C. Dates of Hearing: September 4, 21, October 30, 31, 2018 Date of Judgment: December 21, 2018 INTRODUCTION [ 1 ] Ms. McEwen is charged with possessing; heroin, cocaine, methamphetamine, and fentanyl for the purpose of trafficking.

She is also charged with offences related to possessing a conducted energy weapon (“taser”). [ 2 ] During the trial, Ms. McEwen provided evidence explaining she possessed the drugs for the purpose of giving them to her

brother. As for the conducted taser, Ms. McEwen asserted she found it and that she did not know what it was. [ 3 ] This court must consider if the evidence proves beyond a reasonable doubt that Ms. McEwen possessed the drugs for the purpose of trafficking and whether or not Ms. McEwen knowingly possessed a taser. [ 4 ] Finally, the officers involved testified in the context of a voir dire and by agreement the admissible portions of their evidence were admitted as evidence on the trial.

With this in mind, I have summarized the admissible portions of the officer’s evidence as reported in the voir dire decision found at; R. v. McEwen, 2018 BCPC 308 , paragraphs 4 – 28 . THE EVIDENCE The Crown Constable Young – arresting officer [ 5 ] On July 30, 2016, Constable Young was working in patrol on the downtown eastside. On this date he was working with Constable Jacquet. They were in uniform and driving a marked patrol unit. [ 6 ] While investigating a radio dispatch Constable Young saw Ms. McEwen sitting on a bench located in a lane off of Cordova Street. Constable Young approached Ms.

McEwen and he told her to stand up and to show her hands. While moving toward Ms. McEwen, Constable Young took hold of her left wrist and as he did this a taser fell from the area of Ms. McEwen’s left armpit. Ms. McEwen immediately stated, “It’s not mine. I just picked it up off of the ground.” Ms. McEwen was then arrested for possessing a prohibited weapon . [ 7 ] Counsel for Ms. McEwen questioned Constable Young about the taser suggesting that the taser did not fall from Ms. McEwen’s person, rather, that it was on the bench between Ms. McEwen and the male. Constable Young disagreed with this suggestion.

Constable Jacquet – search officer [ 8 ] On July 30, 2016, Constable Jacquet was working with Constable Young when they drove into a lane off of Cordova Street at which point Constable Jacquet saw Ms. McEwen and a male sitting on a bench. The officers stopped their police car and approached the pair. [ 9 ] Constable Jacquet saw Constable Young approach Ms. McEwen and start to take her into custody. At this point, Constable Jacquet was directly in front of Ms. McEwen and approximately 3-4 feet away when she saw a taser fall. When the taser fell, Constable Jacquet heard Ms.

McEwen state, “It’s not mine I just picked it up.” [ 10 ] It was Constable Jacquet’s perspective that the taser fell from Ms. McEwen. Constable Jacquet’s perspective was based on her view that there was no other place from which it could have fallen. [ 11 ] After the taser fell, Ms. McEwen was arrested and searched. As part of the search Constable Jacquet examined Ms. McEwen’s satchel and inside she located a large quantity of drugs, a knife, a vaping device, and a lighter. In Ms. McEwen’s front pocket was $704.00. Agreed statement of facts [ 12 ] Found in Ms.

McEwen’s satchel were two large clear plastic bags and inside the following drugs were located: • 29.15 grams of methamphetamine • 4.5 grams of marihuana • 8.21 grams of rock cocaine • 8.57 grams of heroin, fentanyl and methamphetamine • 23.81 grams of powder cocaine, and • 1.25 grams of heroin and fentanyl. [ 13 ] The above drugs were in various baggies of differing weights. Some of the powder cocaine was contained 16 folded flaps.

Detective Constable Troy Griffiths – expert witness [ 14 ] Detective Constable Troy Griffiths was qualified as an expert witness capable of giving opinion evidence with respect to the price, packaging, distribution and use of cocaine, heroin, fentanyl, and methamphetamine, and any combination thereof, in Vancouver in July of 2016. [ 15 ] Detective Constable Troy Griffiths testified how crack cocaine, powder cocaine, heroin, methamphetamine and fentanyl are consumed.

He also gave evidence regarding packaging, price and typical patterns of use. [ 16 ] The Crown presented Detective Constable Troy Griffiths with a hypothetical based on the evidence by Constable Young and Constable Jacquet, including the quantities and types of drugs that were seized from Ms. McEwen. It was Detective Constable Troy Griffiths’ opinion that the drugs were possessed for the purpose of trafficking.

[ 17 ] In reaching his opinion, Detective Constable Troy Griffiths placed significant weight on the combination of the drugs involved, the various weights, and the packaging. Other factors that had a lesser impact included the money found and the absence of drug paraphernalia. [ 18 ] During cross-examination, Detective Constable Troy Griffiths confirmed that street dealers have worked in teams with a member of the team being provided with the drugs.

He also confirmed that he is aware of circumstances where there is a stash house within minutes of where a street dealer is working and that people will attend the stash house, reload with drugs and return to the street to resume selling. [ 19 ] Counsel for Ms. McEwen also questioned Detective Constable Troy Griffiths about the possibility that the drugs in issue were purchased because of a windfall. Specifically, the buyer suddenly came into a large sum of money and made a single purchase of the drugs.

Detective Constable Troy Griffiths responded that anything is possible but that such a scenario is very unlikely because the seller would lose money by selling individual pieces in a bulk transaction whereas selling single bulk amounts would not have the same impact on profits. Ms. McEwen [ 20 ] Ms. McEwen is 49 years old. Over the last 8 years she has lived at the Arco Hotel located at 83 West Pender Street. She currently uses marijuana to help her deal with pain associated to a knee injury and back problems. In addition to marijuana, Ms.

McEwen also uses approximately a ½ gram to a gram of crystal methamphetamine per week. [ 21 ] On the day of her arrest, Ms. McEwen and her brother, Grant, went to the Lotus Café Bar for the purpose of having a late lunch and meeting with their friend, Andrew. Andrew is an individual that Ms. McEwen has known since childhood. [ 22 ] Ms. McEwen and her brother arrived at the bar at approximately 4:30 and they met with Andrew. While meeting with Andrew there was general conversation and at some point Ms. McEwen overheard portions of the conversation.

In this regard, she believes she heard her brother discussing half an ounce of crystal methamphetamine, some marijuana and she does not recall what else was discussed. Ms. McEwen also does not recall if a price was discussed. She recalls seeing Grant giving Andrew money. [ 23 ] Shortly after the conversation, Andrew left the bar and Ms. McEwen played pool and used the washroom. After approximately 25 minutes Andrew returned. The group then sat down and after 5 to 10 minutes Andrew slid a plastic bag to Ms. McEwen who then placed it into her satchel. Ms.

McEwen was asked if she inspected the bag and she replied, “Not really, no.” [ 24 ] It was Ms. McEwen’s understanding that the bag was given to her so she could carry it home for her brother. It was her perspective that it was easier and safer for a woman to hide things. She testified males do not have places where they can hide things, whereas, a female can place things in their bar or purse. [ 25 ] The Crown asked Ms.

McEwen if she had any discussions with her brother prior to receiving the bag and she indicated that there had not been much of a discussion simply that, her bother told her to make sure her bag was empty. She did not find the request odd as she had previously carried items for her brother. It was her expectation that she would carry the drugs to her room at which point she would give them to her brother. [ 26 ] After receiving the drugs Ms. McEwen, Andrew and Grant were sitting outside when Ms. McEwen saw her friend Billy. Ms. McEwen got up and went to speak with Billy. Ms.

McEwen joined Billy and the two walked around the corner near the Woodwards and they sat down. Apparently Andrew started following Ms. McEwen as she believed that he was worried about the drugs. Ms. McEwen testified she had forgotten that she was holding the drugs and that her and Billy sat down to have a cigarette and shortly thereafter she was arrested. [ 27 ] Of note, is during cross-examination Ms. McEwen testified that after receiving the bag from Andrew, the group sat for 15 minutes before she saw Billy and upon seeing Billy she stood up and had a cigarette with him.

Once they finished, Billy asked her if she wanted to accompany him to the London Drugs post office and she agreed. The two then went to the post office and thereafter they sat in the courtyard and were arrested by the police. [ 28 ] As for the taser, Ms. McEwen testified that Billy had found it while they were walking in the courtyard. In this regard, after finding the taser Billy passed it to Ms. McEwen and they sat down at which point Ms. McEwen placed the taser on the bench between them and when the police approached she stood up knocking the taser from the bench. According to Ms.

McEwen, she did not know that it was a taser as the item that was found was rectangle and black. Ms. EcEwen thought that tasers were shaped like wands. [ 29 ] Ms. McEwen also mentioned during cross-examination that the police asked her if anyone had run past her location and according to her she told the police that she had seen two people run by. Ms. McEwen neglected to provide this information during her direct examination. [ 30 ] As for the money found on her when she was arrested, Ms. McEwen explained that it was money that she had left over from her social assistance cheque.

POSITION OF THE PARTIES Counsel for Ms. McEwen [ 31 ] Counsel argues that Ms. McEwen should be believed. He points out she was forthright, that she candidly admitted her drug use and she was not belligerent. He also maintains there were no glaring external inconsistences in Ms. McEwen’s evidence and that her evidence was primarily consistent with the evidence of the officers. Counsel also points out that there was an air of reality to Ms. McEwen’s evidence.

[32] Counsel also referred the court to Detective Constable Troy Griffiths’ evidence in that people can possess a combination ofdrugs and there maybe circumstances where one makes a windfall purchase. Lastly, counsel points out that there is no evidence of scoresheets, cell phones, or hand to hand transactions. Crown Counsel [33] The Crown argues Ms. McEwen’s lack of credibility warrants a rejection of her evidence. In this regard, the Crown points toinconsistencies in Ms.

McEwen’s evidence and how her evidence appeared to evolve, as well as, her evasiveness. [34] As for the evidence presented by the Crown, the Crown argues the officers were credible and reliable and their evidenceestablishes that Ms. McEwen had the taser on her person and not on the bench as testified. [35] As for the drugs, the Crown argues Detective Constable Troy Griffiths’ evidence supports a finding beyond a reasonable doubtthat Ms. McEwen possessed the drugs for the purpose of trafficking.

In this regard, the Crown highlights Detective Constable TroyGriffiths’ testimony regarding the quantities, the packaging and the variety of drugs involved. THE LAW [36] Ms. McEwen is presumed to be innocent. This presumption remains until such time that the Court concludes the evidenceproves each element of the offence beyond a reasonable doubt. The onus is on the Crown to establish Ms. McEwen’s guilt and at notime does she have to establish her innocence. Finally, proof beyond a reasonable doubt is not proof to a level of certainty, rather, it is toa high level.

Simply, it must be more than a suspicion that the Ms. McEwen is guilty or a belief that she is likely guilty: R. v Oakes, (SCC), [1986]1 S.C. R 103 and R. v Lifchus, (SCC), [1997] 3 S.C.R. 320 [37] As for reasonable doubt I observe the following: [38] A reasonable doubt is not a far-fetched or frivolous doubt. It is a doubt based on reason and common sense; one that logicallyarises from the evidence or the lack of evidence: R. v. Starr, 2000 SCC 40 , [2000] 2 S.C.R. 144. [39] Finally, given that Ms. McEwen testified, I instruct myself on the analysis found in R. v. W. (D.), [1991] 2 S.C.R. 742.

Accordingly, if I believe Ms. McEwen I must acquit her. If I do not believe Ms. McEwen’s testimony but I am left in a reasonable doubtby it I must acquit her. Even if I am not left in a doubt by Ms. McEwen’s evidence I must ask myself whether on the basis of theevidence that I accept I am convinced beyond a reasonable doubt by the evidence of Ms. McEwen’s guilt. ANALYSIS [40] I do not believe Ms. McEwen’s evidence and I reject it.

My decision is based on a combination of inconsistencies, herevasiveness and simply because there were times when her evidence did not make sense. [41] Examples of some of the inconsistencies include, during direct examination Ms. McEwen did not mention anything about goingto the post office at London Drugs. In my view, this is significant as it forms such an integral part of her narrative. A furtherinconsistency is that Ms. McEwen testified on direct examination that her brother followed her and yet she did not mention this duringcross examination. Finally, during cross-examination Ms.

McEwen stated for the first time that the police had asked her if anyone hadrun past her location. Not only was this information not offered during her direct testimony, but it is contrary to the officer’s testimony. [42] As for her evasiveness, Ms. McEwen was resistant to acknowledging that she knew how drugs were packaged to be sold. It wasonly after the Crown pointed out to her that she purchased drugs did she acknowledge knowing how drugs were packaged. [43] Ms. McEwen was also evasive about people coming to the downtown eastside to purchase drugs.

In this regard, the Crown putthis proposition to her and she responded that she guessed this happened. I find her response surprising and disingenuous. My finding isbased on; Ms. McEwen has spent eight years living in the downtown eastside, her brother is an addict who lives in the downtowneastside, and she herself is a frequent drug user. It is unbelievable that she would not see or know about persons coming to the area topurchase drugs. [44] As for Ms.

McEwen’s evidence not aligning with common sense, I observe it made no sense that after receiving the drugs thatshe would simply forget that she had them and walk off with Billy. I also found her statement that it was easier for girls to carry drugsthan men also lacking common sense. [45] For the reasons above, I do not believe Ms. McEwen’s evidence, nor does her testimony leave me in a reasonable doubt on theissues related to the drugs.

When I consider the Crown’s case in relation to the drugs, I find the quantities, the varieties, the packagingand the opinion of Detective Constable Griffiths satisfies me beyond a reasonable doubt that Ms. McEwen possessed the drugs found inher satchel for the purpose of trafficking. In fact I note, even on her evidence, which I reject, she possessed the drugs for the purposetransferring them to her brother which according to s. 2 of the Controlled Drugs and Substances Act, SC 1996, c.19, is trafficking. [46] As for the taser, Ms.

McEwen’s evidence leaves me in a doubt on the issue of whether or not she knew that the item shepossessed was a taser. In this regard, she testified she thought tasers looked like wands and that the item she found was black andrectangular. Given that the court has not had the benefit of viewing the taser, I am unable to evaluate exactly what the taser looked likeand whether or not it is easily discernible as a taser. Accordingly, Ms. McEwen’s statement that she did not know it was a taser could betrue.

Hence, I have a doubt on the issue of whether or not she knew that she had a taser in her possession. [47] Further to the above, given that I have a doubt on the issue of knowledge, it follows that I have a doubt that she possessed it fora purpose dangerous to the public peace. This is because if I have a doubt that she knew she was possessing a weapon, I cannot,therefore, be satisfied beyond a reasonable doubt that she knew she possessed a weapon, thus, I cannot find that she had the taser for apurpose dangerous to the public peace.

[ 48 ] Moreover, and in considering the issue of the taser, I acknowledge that the taser fell from her person, however, the evidence is unclear if it was because Ms. McEwen released it or because Constable Young grabbed her wrist. As such, knowledge is not the only reasonable conclusion that can be drawn from the taser falling from Ms. McEwen. CONCLUSIONS [ 49 ] For the above reasons, I find Ms. McEwen guilty of possessing the drugs found for the purpose of trafficking as set out in Counts 1, 2, 3, and 4. As for the weapons offences, I find her not guilty of counts. _____________________________ The Honourable Judge R.P. Harris Provincial Court of British Columbia