R. v. Dukart and Hodgkinson Date:, 2016 BCPC 470

Citation: R. v. Dukart and Hodgkinson Date: 20160610 2016 BCPC 470 File No: 23590-C-2 Registry: Nelson IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. FRANCIS JOHN DUKART MINERVA JEAN HODGKINSON ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE HEWSON Counsel for the Crown: R. Brown Counsel for the Defendant: (for Dukart) B.F. Suffredine, Q.C. Counsel for the Defendant : (for Hodgkinson) K.M. Wyllie Place of Hearing: Castlegar , B.C.

Date of Hearing: June 10, 2016 Date of Judgment: June 10, 2016 [ 1 ] THE COURT: These are reasons for judgment on Court File Number 23590-C-2. Francis John Dukart and Minerva Jean Hodgkinson are charged with a number of offences arising in March 2013 in Nelson. Mr. Dukart and Ms. Hodgkinson lived on Carbonate Street in Nelson along with Ms. Hodgkinson's four children and some adults. The house was obviously well lived in.

It was very cluttered with knickknacks on almost every flat surface and clothing on the beds and on the floors in front of dressers and closets. [ 2 ] Police conducted a short period of surveillance in March 2013 and saw numerous people coming and going, including Mr. Dukart and Ms. Hodgkinson. On March 28th, 2013, members of the Nelson police department and the RCMP entered the residence under a search warrant. The police found Mr. Dukart sitting on a couch. They found 14 one-half gram flaps of cocaine between the back cushions of the couch next to Mr.

Dukart as well as several hundred dollars in cash under the seat cushions. They found another 40 grams of cocaine in two plastic baggies in the drawer of a dresser in the bedroom on the top floor of the house, some marihuana in a tin can, and some ammunition. [ 3 ] Mr. Dukart and Ms. Hodgkinson are charged with possession of the cocaine for the purpose of trafficking and with possession of marihuana in an amount not greater than 30 grams. In addition, Mr. Dukart is charged with possessing ammunition while he was prohibited from doing so.

They pled not guilty and these are my reasons at the conclusion of the trial. [ 4 ] Some procedural history is necessary to understand the evidence on which I must base my decision. The trial began in 2014. It had originally been set for one day. There was an application brought under the Charter of Rights to exclude evidence as a remedy for an alleged violation of Mr. Dukart and Ms. Hodgkinson's right to be free from unreasonable search and seizure.

I found that the warrant to search had been issued upon evidence that fell short of establishing a credibly based probability that there was evidence of a crime at the residence, but admitted the evidence after a 24(2) analysis. [ 5 ] Next, the Crown applied to have a 29-page statement made by Ms. Hodgkinson proved voluntary. Counsel for Ms. Hodgkinson opposed that application on the basis the Crown had not called every person in authority with whom Ms. Hodgkinson had had contact before the statement was made.

The statement was ruled voluntary. [ 6 ] After that there was a second application under the Charter of Rights upon which I excluded the last 26 pages of a 29-page statement that Ms. Hodgkinson had given to the police as a remedy for a violation of her right to retain and instruct counsel. [ 7 ] Finally, counsel for Mr. Dukart applied to have another voir dire declared within which to allege that Mr. Dukart was arrested without reasonable grounds and that the scene of the seizure of the 14 one-half gram flaps of cocaine were staged by the police.

That application was dismissed and I declined to enter into a voir dire for that purpose. [ 8 ] The issues remaining to be decided are: one, has the Crown proven beyond a reasonable doubt who was in possession of the ammunition or the marihuana in the tin can; two, has the Crown proven beyond a reasonable doubt who was in possession of the 14 one- half gram flaps of cocaine in the couch that Mr.

Dukart was sitting on; and three, has the Crown proven beyond a reasonable doubt who was in possession of the 40 grams of cocaine in the dresser. [ 9 ] The case for the Crown is a case of circumstantial evidence of possession. The Crown may prove the essential elements of an offence through direct or circumstantial evidence or through a combination of both.

Where the case rests on circumstantial evidence like this one the trial judge must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts. [ 10 ] In deciding whether the circumstantial evidence supports an inference of guilt beyond a reasonable doubt the trial judge must not examine each piece of evidence in isolation from the others.

Rather, the proper approach is to consider whether all the evidence taken together establishes the guilt of the accused and is inconsistent with any other rational conclusion. [ 11 ] In applying that test the trial judge must remember that he or she is not expected to treat real life cases as academic exercises where no conclusion can be reached if there is the slightest competing possibility.

The criminal law requires a very high degree of proof, particularly for inferences consistent with guilt, but it does not demand certainty. [ 12 ] The definition of possession in the Criminal Code is incorporated into the Controlled Drugs and Substances Act by virtue of s. 2(1) of the Act . That definition provides that a person has anything in possession when he or she has it in their personal possession or knowingly has it in any place, whether or not that place belongs to or is occupied by them, for the use or benefit of themselves or another person. [ 13 ] Possession may be personal, constructive or joint.

Personal possession of an object might be proven if the Crown's case establishes that someone had handled that object. On the other hand, neither constructive possession nor joint possession requires proof of actual handling. [ 14 ] To establish constructive possession the Crown must prove beyond a reasonable doubt that the accused knew of the presence of the item and that he or she had some measure of control over its location.

To establish joint possession the Crown must prove beyond a reasonable doubt that someone other than the accused had possession of the cocaine with his or her knowledge and consent and that the accused had some measure of control over it. [ 15 ] So the first question is who was in possession of the ammunition or of the marihuana in the tin can. When the police searched the residence they found ammunition in the closet and one of the dressers in the bedroom. The ammunition was of various calibres. They found a small quantity of marihuana on the second shelf of the bookshelf by the couch in the living room.

[ 16 ] With respect to the ammunition, John Gladney testified that his son stayed at the residence on Carbonate Street and that his son owned guns and ammunition. There were no fingerprints or other marks connecting any particular person to the ammunition. Mr. Dukart testified and denied any knowledge or control over the ammunition. I have a reasonable doubt about whether Mr. Dukart had possession of the ammunition and I find him not guilty on Count 3. [ 17 ] Mr. Dukart and Ms. Hodgkinson are charged jointly with possession of the marihuana. Ms.

Hodgkinson did not testify, but she did give a statement to the police. The police officer taking her statement asked her what she thought happened at her residence and she replied, "You went in my house and you found narcotics." There were no fingerprints on the tin can containing the marihuana, nor were there any markings suggesting who might have possessed it. [ 18 ] Other than Mr. Dukart's evidence that Ms. Hodgkinson sometimes smoked marihuana out on the deck, there was no other evidence connecting either Mr. Dukart or Ms. Hodgkinson to the marihuana found.

I have a reasonable doubt about whether either of them had possession of the marihuana and I find them both not guilty with respect to Count 2. [ 19 ] The second question is who was in possession of the 14 half gram flaps of cocaine in Mr. Dukart's couch. The evidence established that Mr. Dukart was convalescing from a medical procedure. According to his own evidence and the evidence of surveillance, he left the residence only for brief periods. Mr. Dukart testified that he spent 21 out of every 24 hours sitting or sleeping on the blue couch in the living room of the residence. Ms.

Hodgkinson or one of her daughters would make the couch up with bedsheets for him to sleep on at night. [ 20 ] Cheyenne Phillips, Ms. Hodgkinson's daughter, was 19 when she testified and 17 at the time of the search. She explained how she was saving money for a class trip. In the months prior to the execution of the search warrant Cheyenne became concerned that the other residents of the house were stealing her money. In order to keep her money safe she asked Mr. Dukart to hold onto it for her. He agreed to do that for her and chose to hide the money under the cushions in his couch. She gave him $460 in cash.

He chose to hide the money in the couch even though there was a locker with a lock on it available to him in the residence. I infer that Mr. Dukart had control of anything hidden in the couch and that the couch was the safest place to hide things from people who might want to steal them. [ 21 ] When the police entered the residence on March 28th, 2013, they found Mr. Dukart sitting on his couch in a T-shirt and boxer shorts. There was a bowl of soup on the coffee table in front of him. Underneath the coffee table near Mr.

Dukart's feet there was a garbage can that contained strips of paper cut or torn from the edges of Keno paper. The police seized a stack of uncut Keno paper from the hall closet along with some scissors and a small scale. [ 22 ] The police also found a change purse containing 14 flaps of cocaine between the seat cushions on the back of the couch, inches from Mr. Dukart's right shoulder. Each flap of cocaine was wrapped in Keno paper from which the edges had been cut or torn off.

Sergeant Wicentowich, who was qualified to give an expert opinion with respect to trafficking cocaine, testified that the flaps would be sold as half gram flaps in Nelson and a half gram of cocaine sold for between $40 and $100. He testified that Keno paper was used to flap up cocaine by taking off the strips to make the paper square. [ 23 ] Amongst the medical problems that Mr. Dukart suffered from, one was asthma. Cheyenne Phillips testified that he needed to clear his chest frequently and to do so he would spit in the garbage can on the floor in front of his couch. [ 24 ] Mr.

Dukart denied any knowledge of the presence of the cocaine in his couch. He denied any connection to the garbage can containing the Keno strips. He denied spitting in the can, although he admitted coughing because he had had asthma for four or five years. In cross-examination, Mr. Dukart testified that cocaine could be wrapped in little plastic bags or in Keno paper, although immediately after that he testified that he had never seen cocaine in flaps before. He denied ever seeing the Keno paper in the garbage can that was found at his feet.

At different points in his testimony he either suggested that the police had planted the evidence or that one of the other people residing in the house had hidden the cocaine in his couch. [ 25 ] Mr. Dukart admitted four prior convictions for trafficking in cocaine or possession of cocaine for the purpose of trafficking. Those prior convictions are not evidence of a propensity to traffic cocaine, but they are facts which permit an inference that he had a working knowledge of the cocaine business, including the ways in which cocaine could be presented for sale. [ 26 ] Mr.

Dukart's credibility is important with respect to his knowledge or lack of knowledge of the presence of cocaine. The principle of reasonable doubt applies to the issue of credibility. If I believe Mr. Dukart, obviously I must acquit him with respect to the cocaine in the couch. Likewise, if, after carefully considering the evidence, I am unable to decide whether to believe him or not, I must acquit. Even if I do not believe Mr. Dukart, but I am left in reasonable doubt by his evidence, I must acquit. [ 27 ] If Mr.

Dukart's evidence does not raise a reasonable doubt or if I reject it, I must look to the whole of the evidence which I do accept to determine whether on the remaining evidence the Crown has proven the elements of possession beyond a reasonable doubt. After considering all of the admissible evidence I find I cannot believe Mr. Dukart's claim that he did not know about the presence of the cocaine in his couch. I come to that conclusion for four reasons. [ 28 ] One, there is no evidence to reasonably suggest that the police planted the cocaine in the couch to incriminate Mr. Dukart.

Neither confusion nor inaccuracy in note-taking or the condition of the bedding on Mr. Dukart's couch are sufficient to raise any concern. [ 29 ] Two, no other person had a similar opportunity to hide something in the couch. Every witness with knowledge of the routine inside that house testified that Mr. Dukart spent almost all of his time there. [ 30 ] Three, Mr. Dukart chose to use the couch to safeguard valuables. It follows that he would know what was in it. [ 31 ] Four, Mr.

Dukart's denial of ever seeing cocaine wrapped in Keno paper is not believable, given his own testimony and the number of times he had been convicted of trafficking in cocaine. Mr. Dukart's denial of seeing the Keno paper cuttings in the garbage can found at his feet is not believable and given the evidence of Cheyenne Phillips with respect to how he spat in that garbage can and the simple physical proximity of the garbage can to the couch on which he spent almost all of his time. His dishonesty with respect to

those two points leads to an inference that he has tried to distance himself from the cocaine wrapped in Keno paper found inches from his shoulder. [ 32 ] I reject Mr. Dukart's evidence with respect to the cocaine in the couch and I find it is not possible to have a reasonable doubt that he had knowledge and control of the 14 flaps of cocaine. [ 33 ] The third question is who was in possession of the 40 grams of cocaine in the dresser. The Crown's expert witness testified that possession of the 14 half gram flaps of cocaine would be for the purpose of trafficking.

However, the Crown's case includes the discovery of two plastic bags containing a further 40 grams of cocaine in baggies in the drawer of a dresser in a bedroom off the living room in which Mr. Dukart spent his time. The charge of possession of cocaine for the purpose of trafficking against Mr. Dukart and Ms. Hodgkinson includes the cocaine found in the dresser. [ 34 ] In another drawer of the same dresser that the cocaine was in police found a small black leather purse which contained various pieces of identification, credit cards, and business cards.

There was a British Columbia driver's licence in the name of Minerva Hodgkinson issued on June 1st, 1988. That driver's licence expired in 1993. The wallet also included receipts for purchases made in the fall of 2011. The credit cards and business cards were badly worn. Nothing connected the cocaine found in one drawer of the dresser with Ms.

Hodgkinson or anyone else whose named appeared on an old document in the small black leather purse found in a different drawer. [ 35 ] Clothing on the floor had to be moved out of the way in order for police to access all but the top drawer of the dresser in which the cocaine was found. Property belonging to Mr. Dukart was found in a second dresser in the same bedroom. There were no fingerprints on the plastic bags containing the cocaine or anything else on the bags to indicate who was in possession of it. [ 36 ] Mr.

Dukart denied any knowledge or control over the cocaine in the dresser just as he denied knowledge or control of the cocaine in the couch. He testified that he had never seen Ms. Hodgkinson in possession of cocaine. However, the Crown's expert witness testified that traffickers usually have a main stash of cocaine. Traffickers only flap up a small amount of cocaine at a time to have available for sale to users. The main stash protects the trafficker against having his inventory of cocaine stolen in a drug rip-off.

The expert testified that the total quantity of cocaine found in the couch and the dresser, considered along with the scales and stack of Keno paper found in a closet, were consistent with possession for the purpose of trafficking. [ 37 ] As I said earlier, the proper approach to the consideration of circumstantial evidence is not to consider each piece of evidence individually, but instead to consider whether all of the evidence taken together establishes the guilt of the accused beyond a reasonable doubt and is inconsistent with any other rational explanation. [ 38 ] With respect to Ms.

Hodgkinson, I find that I have a reasonable doubt about whether or not she had knowledge or control of the cocaine in the dresser. The evidence fails to prove to the required standard that she had personal, joint or constructive possession of the cocaine either as a principal or as a party to the offence. I find her not guilty. [ 39 ] With respect to Mr. Dukart, however, the analysis is more complicated. He denied knowledge or control of the cocaine in the dresser.

Having already rejected his denial of knowledge of the cocaine in his couch, I find I am unable to accept his denial of the cocaine in the dresser for the same reasons. [ 40 ] I must consider the evidence remaining to determine whether the Crown has proven beyond a reasonable doubt that Mr. Dukart had knowledge and control of the cocaine in the dresser. I find that the Crown has met that high standard. The drugs were being prepared for sale in flaps of Keno paper, and cuttings or strips of Keno paper were found in a garbage can on the floor in front of the couch, the same garbage can that Mr.

Dukart was spitting in. A stack of fresh Keno paper was found in the hall closet along with a scale. [ 41 ] I conclude that the cocaine was being flapped up for sale at the table in front of the couch. The evidence of the expert witness was that it was common practice for traffickers to flap up a small portion of their supply of cocaine and to hide the remaining supply and the main stash to keep it safe against a drug rip-off. [ 42 ] I conclude that the cocaine found in the dresser was the main stash from which the flapped up cocaine in the couch had been taken.

All of the evidence is part of the same picture and the picture is of an active cocaine trafficking business. Mr. Dukart had knowledge and control of the cocaine in the couch and in the dresser, and I find him guilty on Count 1. (REASONS CONCLUDED)