R. v. Randhawa, 2020 BCPC 205

Citation: R. v. Randhawa 2020 BCPC 205 Date: 20201028 File No: 247270-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. SATNAM SINGH RANDHAWA REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G. RIDEOUT Counsel for the Crown: A. Russell and I. Sattarzadeh Counsel for the Defendant: D. Hopkins Place of Hearing: Vancouver , B.C. Dates of Hearing: October 9, 11, 22, 28, 29, 30, 31, November 26, 2019; February 25, July 17, 2020 Date of Judgment: October 28, 2020 I. INTRODUCTION

[ 1 ] Following an investigation by members of the Vancouver Police Department (the “VPD”), Satnam Singh Randhawa (the “accused”) was arrested on August 28, 2017, for possession for the purpose of trafficking in a controlled substance. [ 2 ] On August 13, 2018, the accused was charged in a three count Information with possession for the purpose of trafficking in fentanyl, possession for the purpose of trafficking in cocaine and possession for the purpose of trafficking in heroin, contrary to s. 5(2) of the Controlled Drugs and Substances Act (the “ CDSA ”). II.

ISSUE [ 3 ] Has the Crown established beyond a reasonable doubt the requisite elements of possession? III. BACKGROUND A. Admissions [ 4 ] Pursuant to s. 655 of the Criminal Code of Canada (the “ Code ”), the accused made extensive admissions [Exhibit 1] in relation to the facts of the police investigation [Project Deja Vu] into the activities of the accused that lead to his arrest on August 28, 2017. [ 5 ] As the admissions are extensive, a chronological

summary is sufficient to establish the admitted facts: • That members of the VPD commenced an investigation into activities at 1618 Columbia Street, Vancouver, British Columbia (the “residence”), after receiving information that illegal drugs were being distributed from the residence; • That the residence is a one bedroom townhouse located on the ground floor of a residential complex (the “building”); • That the building is accessed with a fob from either the east entrance door or the west entrance door. The front door of the residence is accessed with a key.

There is a patio door connected to the residence that cannot be unlocked from the exterior; • That the accused was not listed as a registered tenant of the residence; • That the accused is surveilled by members of the VPD on five separate days between August 1, 2017, and August 25, 2017.

On each of these five days, he was observed entering and exiting both the building and the patio of the residence numerous times; • That on August 4, 2017, the accused, was observed exiting the residence from the patio door and a short time later returning to the residence entering from the patio door; • That a short time later, a male, later identified as E.F., was observed entering the residence through the patio door. He was carrying a black shoulder bag. He was observed four minutes later exiting the residence through one of the front doors of the building with the shoulder bag. He was arrested and searched.

Located in the shoulder bag was 116 g of cocaine worth approximately $6,000 if sold at the ounce level; • That following the arrest of the accused a search was conducted incidental to his arrest. The police located various items, including a fob with two keys attached on a key ring. One of the keys opened the front door lock of the residence; • That the fob was tested and found to activate both the east and west entrances to the building.

Data downloaded from the fob revealed that the fob was used 154 times between August 1, 2017, and August 20, 2017; • That on August 28, 2017, and August 29, 2017, the residence was searched pursuant to a search warrant; • That a large number of items were located within the residence including, in particular: three large Ziploc baggies containing a total of 4.7 kg of pebble heroin/fentanyl located in two dresser drawers inside the bedroom; 33.81 kg of cutting agents packaged in numerous Ziploc and vacuum sealed bags found in various locations; two 25 kg sealed barrels of caffeine located in plain view in the living room; 19.77 kg of caffeine located in a cardboard box in plain view in the living room; • That a large hydraulic pill press with casted dye located in plain view in the bedroom closet; a vacuum sealer located in plain view on the kitchen counter; clean food dehydrator trays located inside the dishwasher; numerous score sheets written on Post-its located in various locations; and two prescription bottles in the name of the accused located in the bedroom; • That there were numerous photographs taken of the residence.

In particular, the photographs show that the two 25 kg sealed barrels of caffeine are in plain view in the living room and the pill press is also in plain view in the bedroom closet; • That the total illicit drugs seized from various locations within the residence total 3.73 kg variously of fentanyl, caffeine, heroin, cocaine, methamphetamine and MDEA; • That a fingerprint of the accused was identified on a large Ziploc bag containing fentanyl/heroin located in the dresser in the bedroom and a further fingerprint was identified on a kitchen cupboard inside the residence; and, • That an Ion Scanner revealed that there were numerous surfaces in the residence, including in the kitchen, bedroom and bathroom that tested positive for cocaine and fentanyl.

B. Police Evidence [ 6 ] Constable Justin Kurtz is a member of the VPD and was the lead investigator for project Déjà Vu. He also arrested the accused on August 28, 2017.

[ 7 ] He testified in direct examination that, as a result of information received from a source handler, police suspected that drug trafficking activity was taking place at the residence on Columbia Street. [ 8 ] He testified that, as a result of the source handler information, members of the VPD commenced an investigation into activities taking place at the residence including conducting surveillance of the residence. [ 9 ] He testified that he conducted surveillance on August 27, 2017.

Shortly after 3 PM, he observed the accused exit the residence and eventually make his way to Thornton Park where he sat on a park bench. [ 10 ] After a short period of time another male sat down on the park bench. Constable Kurtz observed the accused bending over and tying and re-tying his shoestrings while looking around as he was bent over. It appeared to Constable Kurtz that the accused’s mouth was moving but he was too far away to hear what, if anything, was being said. [ 11 ] He testified that the second male then got up from the bench and walked away. [ 12 ] Constable Sonu Parhar is a member of the VPD.

He was tasked with the duty of being the surveillance coordinator for project Déjà Vu. [ 13 ] He conducted surveillance of the residence on six occasions in August 2017, including on August 27, 2017. [ 14 ] He testified that shortly after 3 PM, he surveilled the accused going to Thornton Park. As the accused was walking through Thornton Park, Constable Parhar observed the accused take out his cell phone and begin typing on his cell phone. [ 15 ] He testified that shortly after 3:30 PM, he observed the accused sitting on a park bench in Thornton Park. An unknown male then approached the park bench.

The accused stood up and they shook hands. The two appeared to have a brief conversation and they then separated. [ 16 ] He testified that, throughout his surveillance, the accused presented as a “normal -- a normal person that fit in Olympic Village.

He didn’t stand out.” [ 17 ] Constable Amy Harris is a member of the VPD and is assigned to the VPD Forensic Identification Unit. [ 18 ] Constable Harris was tasked with the role of photographer of the residence following the execution of a search warrant. [ 19 ] In direct examination, she gave evidence on the photographs taken of the interior of the residence and what is depicted in each of the photographs that formed part of the admissions. C.

Expert Evidence [ 20 ] Detective Constable Tara Munro’s curriculum vitae was admitted by the accused. [ 21 ] She is currently assigned to the Organized Crime Section, Drug Unit of the VPD. [ 22 ] As part of her current duties, she is responsible for investigating various levels of drug trafficking from street level to mid-level as well as high-level drug investigations, including investigations involving fentanyl, cocaine and heroin. [ 23 ] She has been involved in the investigation of drug houses (“stash houses”) at the mid to high level of drug trafficking operations including, for the purposes of this case, premises that involved the cooking of drugs, packaging of drugs, and score sheets as an accounting system for drug dealers. [ 24 ] She was qualified to give opinion evidence in relation to the use, price, packaging, and distribution of fentanyl, cocaine and heroin. [ 25 ] An extensive written hypothetical scenario [Exh. 3] was put to Detective Constable Munro.

The hypothetical scenario contained, in part, references to various contacts the accused had with other individuals during the police surveillance of his activities in the vicinity of the residence. [ 26 ] The Crown also took Detective Constable Munro through many of the interior photographs containing items located in the residence that formed part of the admissions. [ 27 ] Her opinion evidence in direct examination is summarized as follows: • That the activity observed during police surveillance of the accused is consistent with brief meetings between a drug dealer and a user usually involving quick hand to hand exchanges, consistent with street-level drug trafficking; • That the residence is a stash house and would not be a place that addicts would be invited to attend to purchase drugs, as that could result in the potential of a “drug rip”, and as such only trusted people would physically be at a stash house; • That the police observations of the activities of E.F. on August 4, 2017, when he was found to be in possession of 116 g of cocaine shortly after leaving the residence demonstrates that E.F. is a trusted individual who has knowledge that the residence is a stash house; • That E.F. is a mid-level drug trafficker, as the 116 g of cocaine found in his shoulder bag is not an amount that you would typically find being sold at the street level;

• That the police surveillance of the accused on August 27, 2017, when he was observed bent over on a park bench tying and retying his shoe laces while looking around and then sliding something across the bench to another individual was the accused’s feigning normal behaviour in order to conduct a drug transaction undetected; • That fentanyl would be cut using caffeine and then blended together with water or vinegar in the Magic Bullett blenders located in the kitchen of the residence. The gummy substance would then be cooked or baked until the liquid evaporates and it becomes a hard substance.

Food dehydrators can be used as they are more efficient than baking the substance in the oven; • That the two residue-laden baking sheets found in the oven represent another method of drying out the fentanyl after it has been cut and blended together with water or vinegar; • That the vacuum sealer located on the kitchen counter of the residence is something that is quite common in drug stash houses and is used to seal larger quantities of drugs for transportation.

Additionally, the sealed bags prevent an odour from emanating from the bag; • That the handwritten Post-It notes found in various locations in the residence, often containing slang words such as “half zip hard, quarter zip soft, half zip hard and half zip HH soft”, are typical of score sheets; • That the hydraulic press found in the bedroom closet of the residence is a rudimentary press and was likely being used as a pill press; • That the barrels of caffeine with the labels torn off found in various locations in the residence is something that she occasionally sees in drug investigations.

The labels are torn off as the labels contain information that could be traced back to the purchaser or the place that the caffeine was purchased from; • That the overall volume of the cutting agents found within the residence indicates that the operation “is a pretty prosperous business”; • That the personal protective equipment located in the residence, including masks, respirators, gloves and a Naloxone kit protects individuals who are involved in cooking fentanyl from inhaling or absorbing onto their skin any fentanyl-laced ingredient that could result in an overdose; • That the boxes of Ziploc bags found in the kitchen drawer represent packaging material for street-level sales of drugs; • That while no money of any consequence was located in the residence, that does not change her opinion that the residence is a stash house and the money associated with the stash house is likely at a different location; • That the retail value of the drugs located in the residence is approximately $500,000; and, • That based on the hypothetical scenario posed by the Crown and the items contained in the admissions, activities in the residence were consistent with a mid to high-level drug trafficking operation. [ 28 ] In cross-examination, Detective Constable Munro agreed that it could take a significant period of time for an individual to become educated in the drug trade industry. [ 29 ] She agreed that the level of knowledge required by an individual to become involved in the drug trade business is expanding and evolving and not dissimilar to traits required by a businessman to become successful. [ 30 ] She agreed that a cell phone is one of the tools of the trade in the drug industry but not exclusive to the drug trade industry as “everybody has a cell phone these days”. [ 31 ] She agreed that the minimal personal belongings located in the residence fortified her opinion that the residence was being used as a stash house and not a lived-in residence. [ 32 ] She agreed that the writing on a Post-It note located on the coffee table in the living room of the residence would be consistent with a food list rather than something drug related.

IV. THE ACCUSED [ 33 ] In direct examination, the accused testified that he is 43 years old. He was born in India and came to Canada when he was 2 years old. [ 34 ] He was principally raised by his father, as his mother had to go into care due to a schizophrenia condition. [ 35 ] He completed his grade 12. After completing high school, he took on a variety of jobs, including working for UPS at the airport when he was 19 years old.

While employed with UPS, he suffered from acute psychosis and was hospitalized for several months. [ 36 ] After being discharged from the hospital, he got a job as a security guard with Concord Pacific. He lost that job as he was medicating his psychosis with cocaine. [ 37 ] He began to receive disability benefits when he was 21 years old and currently remains in receipt of disability benefits. [ 38 ] He reviewed and confirmed that he has a lengthy property-related criminal record commencing in January 2005 through to August 2019. There are no entries relating to convictions for drug offences.

[ 39 ] He testified that he supported his cocaine habit by “stealing things to make money.” [ 40 ] He testified that, in or around the spring and summer of 2017, he was homeless and living on the streets of Vancouver. While on his way to see his probation officer, he happened to run into an old friend of his by the name of Ron Singh (“Ron”). [ 41 ] They exchanged telephone numbers.

Ron told him to give him a call as he would pay him some money to cut the grass and maintain his house. [ 42 ] He testified that he followed up with the offer and went to Ron’s house located in Kitsilano where they smoked marijuana together and he helped Ron cut the grass and maintain his house. This arrangement continued on a weekly basis. [ 43 ] At one point in the summer of 2017, approximately a month before he was arrested, he went to visit Ron at the residence.

Ron told the accused that a friend of his owned the residence and that his friend was away on vacation. [ 44 ] The accused estimated that he visited Ron at the residence on four or five occasions. They spent their time watching television on these occasions. [ 45 ] In the following exchange, the accused explained how he came to be in possession of the fob to the residence and why he was allowed to stay at the residence: Q Okay. When did you get that? Do you recall when you were given that fob that opened the door to the apartment of Ron's friend? A Two days prior to getting arrested. Q Okay.

How did you get the fob to the apartment? A Ron gave it to me, my friend. Q Okay. What led up to Ron -- just tell us -- tell the judge what happened. How did it come that you got that fob from Ron? A He said, "My friend isn't going to be staying at the place. You can -- you can stay there for a little while if you want," because he knew I was sleeping in parks and sleeping in shelters. Q Okay. Did Ron tell you anything else about -- about the apartment? A No. Q Did he want you to do anything while you were there?

A Just keep it clean. (Transcript, October 28, 2019, p. 11, ll. 16-34) [ 46 ] The accused corrected himself and testified that he stayed at the residence for three to four nights. The only item he took to the residence was a bag with a pair of pants, some other clothing, and his medication. [ 47 ] He testified that, over the three to four days that he stayed overnight at the residence, he was spending most of his time during the day visiting his mother in a care home. [ 48 ] From the photographs contained in the admissions, he identified the bedroom that he was using at the residence.

He did not store anything in the chest of drawers in the bedroom. On one occasion, he opened the drawers as he was looking for a lighter, when he saw three bags containing what he believed was “maybe” dog food for Ron’s dog.

He testified he had “never recognized fentanyl before.” [ 49 ] The accused later testified in direct examination that he could not specifically recall a particular incident when he was looking through the drawers in the bedroom, but he may have done so when he was looking for some “change or something … ‘cause I didn’t have much money.” He denied finding any money. [ 50 ] He testified that when he first went to the residence with Ron, the two barrels located by the police investigators in the living room were not there.

Later, when Ron gave him the fob and allowed him to stay at the residence, there was a barrel of something in the bedroom. [ 51 ] He testified that two days before he was arrested, Ron telephoned him around 9:00 AM or 10:00 AM requesting that he leave the patio door unlocked as he was going to be “bringing some stuff in.” [ 52 ] He testified that he unlocked the patio door and went back to bed and fell asleep. When the accused got up around noon of that day, he saw the two barrels by the patio entrance. He moved them behind the couch so they were out of the way. He had “no idea” what the barrels were for.

Ron never spoke to him about the barrels. [ 53 ] He testified that other than a note that he made to himself, he did not recognize the handwriting on various Post-it notes and other pieces of paper located in the residence. [ 54 ] In relation to fingerprints identified to the accused and located in the kitchen, he explained that he used the refrigerator after getting groceries. He denied using the cupboards in the kitchen though he may have opened the cupboards at some point when he was looking for a lighter.

[ 55 ] He testified that he thought he recalled seeing a food dehydrator in the residence but denied that he purchased that food dehydrator. [ 56 ] He testified that the money the police found on him at the time of his arrest was part of his monthly disability benefit and also part of a loan arranged through Money Mart. [ 57 ] He testified that he could not remember testimony given by one of the police officers in which he is described as sitting on a bench at Thornton Park, where he was observed tying and untying his shoes while looking around.

He went on to explain that he went to Thornton Park on occasion to have a cigarette and that, “Somebody might have sat down next to me but that’s why – that’s all I can remember”: Ibid at p. 23, ll. 40-44. [ 58 ] He testified that when he was arrested, the police located a cell phone on him. He used the cell phone to contact his mother and friends. He denied using the cell phone for any drug trafficking activity.

He denied at the time of his arrest that he was involved in any drug trafficking. [ 59 ] In cross-examination, the accused testified that he started experimenting with cocaine in high school and that he briefly stopped using cocaine in or around 2015, but relapsed in 2016. He agreed that he had been using cocaine on and off for a period of 20 years. [ 60 ] He testified that when he was using cocaine he purchased the cocaine every day or every other day at a cost of $10 - $20 per purchase from drug dealers in the Downtown Eastside.

Typically he purchased the cocaine from drug dealers working at street corners in the Downtown Eastside. [ 61 ] He agreed with the suggestion of the Crown that after using cocaine for the better part of two decades that he had become “fairly familiar” with how cocaine was purchased. [ 62 ] He testified that in the summer of 2017, he would purchase cocaine “once every three weeks or so” from street dealers after he received his disability benefit. Typically he would purchase one or two grams and then smoke all of it over the course of the night.

If he had more money, he would have purchased more cocaine to avoid withdrawals. [ 63 ] The Crown began cross examining the accused concerning the surveillance evidence contained in the admissions in the following exchange: Q So I'm going to start with the observations on August 1st of 2017 that start on page 3 in the book in front of you. So you've agreed through your admissions that on the evening of August 1st, 2017, police saw you leave 1618 Columbia Street and meet up with a male and female in a vehicle outside the residence. Do you remember that? A No, I don't. Q Do you agree that it occurred?

A I don't remember meeting a male and a female. Q Mr. Randhawa, you understand that you've admitted that that happened. A I haven't admitted it. (Transcript, October 29, 2019, p. 10, ll. 24-36) [ 64 ] Following this exchange, the court asked that the accused be provided with the book of admissions. He was directed to review the pages dealing with the surveillance evidence to refresh his memory. [ 65 ] After the accused had the opportunity to review the admissions surveillance evidence, the court asked him if he had read the admissions in the following exchange: QUESTIONS BY THE COURT: Q So, Mr.

Randhawa, over the break you have now read the admissions that were signed on -- just to refresh your memory, the 9th of October of 2019 is when Mr. Hopkins signed off on those admissions with the Crown. You have now read those admissions. A Yes, I've read them, but I'm not -- I'm not saying I remember exactly what I was doing in those -- meeting those people. Q So you're not denying the admissions. You're saying it's one of your recollection? A Yeah. That I might've met somebody in the summertime, but I might've -- I don't recollect meeting -- saying hi to somebody.

I don't recollect what I was doing at the time. (Transcript, October 29, 2019, p. 12, ll. 25-39) [ 66 ] In the following exchange, the Crown questioned the accused with respect to surveillance evidence observed on August 1, 2017, as contained in the admissions: Q And going back to August 1st of 2017, you can see in the admissions that police saw you firstly entering into 1916 Columbia Street with Ron at -- at 5:49 p.m. And about 13 minutes later they saw you exit from 1618 Columbia Street and meet up with a male and female just outside in the 1600 Block of Columbia Street there.

The male and female got into a vehicle that they had parked in the block, and then you reached into the passenger side of the vehicle for about five to ten seconds and then walked away and immediately went back inside 1618 Columbia Street. So that's the evidence from the police officers. Do you recall that incident happening on the evening of August 1st, 2017? A I can't recall it. Q Did you -- do you have any memory of ever meeting with people outside of 1618 Columbia Street?

A Yeah, once or twice. (Transcript, October 29, 2019, p. 16, ll. 4-19) [ 67 ] The Crown took the accused through the remaining surveillance evidence contained in the admissions that related to the accused. More often than not, the accused responded with, “I don’t recall.

I do not remember” Ibid , p. 19, ll. 10-25 and p.20, ll. 6-34. [ 68 ] The accused denied the suggestion of the Crown that he was engaged in any drug trafficking with any of the individuals that he was observed encountering from the surveillance evidence contained in the admissions. [ 69 ] At one point, unprompted, the accused testified that the notes made by the police officers “are lies too”: Ibid p. 22, ll. 9 – 18. [ 70 ] After testifying that he could not remember meeting a male on a park bench along the seawall as observed in the surveillance evidence contained in the admissions, the accused went on to testify that he did have a recollection of meeting this person and purchasing some marijuana in the following exchange: Q Now, you testified a few moments ago that you didn't have any memory of this encounter.

Is that correct? A Yeah. But I -- you -- you keep -- I was trying to make sure that this was the time that I picked up the marihuana. You keep insisting questions on me and answers. … THE COURT: Do you have a clear recollection of that, or it's on your part an assumption that you think that's what happened? A An assumption. THE COURT: Assumption? A Yeah. (Transcript, October 29, 2019, p. 23, ll. 16-39) [ 71 ] The accused denied any knowledge of the name of the person surveilled entering and exiting the residence on August 4, 2017, as noted in the admissions.

The accused was asked to refresh his memory by reading those paragraphs contained in the admissions relating to this incident. [ 72 ] In the following exchange, the accused was asked if reading the referenced paragraphs if that refreshed his memory: Q After reading those paragraphs, Mr. Randhawa, do you have any memory of this incident? A Well, Ron had friends that would come over when he was there, that's all. Q I thought you said there was only one other person that came over and it was the person who gave Ron some marihuana resin?

A Yes, well, I can't recall this E.F., I -- I don't know who he is. (Transcript, October 30, 2019, p. 13, ll. 46-47; p. 14, ll. 1-7) [ 73 ] The accused testified that on August 27, 2017, that “maybe” he was on a park bench in Thornton Park and that he could have been smoking a cigarette or marijuana with that person. He could not remember whether or not he knew this man.

Nor could he remember that he was observed sliding something along the bench to this person, though he speculated it could have been a pack of cigarettes or some marijuana. [ 74 ] The Crown asked the accused if he had any recollection of meeting with individuals in Thornton Park to exchange items. He responded, “Not really.” [ 75 ] The Crown again asked the accused if he had a recollection of sliding a package of cigarettes to this person on the park bench on August 27, 2017. He gave the following answer: A I don't totally have a recollection. That was a year ago. It's a year and a half.

I can remember more my -- clarity of my sobriety, some things which are more traumatic to me. I can remember those things more vividly, and my mental illness and stuff like that in the past, right? (Transcript, October 29, 2019, p. 26, ll. 27-32) [ 76 ] The Crown asked the accused how he came to meet Ron from his high school days. The accused answered that he met Ron

through a friend. They became quite good friends and would meet each other once or twice a week. After approximately one year the accused “moved on.” [ 77 ] He testified that it was not until the summer of 2017, when he was going to his probation office, that he saw Ron driving his car. Though up to eight years had gone by since he last saw Ron, he testified that they had no difficulty in recognizing each other. It was at this time that they exchanged telephone numbers. [ 78 ] He testified that he found out where Ron lived because Ron picked him up and drove him to his house located in Kitsilano.

After that, he recalled taking the bus and going to Ron’s house once or twice per week through the summer of 2017. [ 79 ] He testified that when he went to Ron’s house he would perform various chores, including cutting the grass every two to three weeks, vacuuming, and sometimes walking Ron’s two dogs. Depending on the number of chores he performed, he would be paid $20 - $40. [ 80 ] Though he was homeless at the time, the accused never asked Ron if he could stay at his house.

He assumed that Ron did not want him to stay at his house. [ 81 ] He testified that when he went to the residence for the first time, Ron told him that his friend was away on vacation and he wanted to go to visit his friend’s residence. [ 82 ] He testified that he did not ask Ron why they were going to the residence while his friend was away on vacation, as he did not want to ask “too many questions.” [ 83 ] He testified that Ron invited him to go to the residence with him for the purpose of watching television, smoking marijuana, and Ron “sometimes” liked to drink beer at the residence. [ 84 ] He testified that he never asked Ron why he was “just hanging out” at the residence, nor did he think it odd that they went to the residence when his friend was not there. [ 85 ] In the following exchange, he explained why he never asked Ron any questions about his connection to the residence: Q And so my next question was why didn't you -- why were you concerned about asking questions?

A I’m not -- I'm not a police officer. I'm not going to try to arrest my friend when he takes me to his friend's place. I'm not going to try to interrogate him or try to make him feel like I'm going to try to arrest him for something that he hasn’t even done. Q So why did you think that Ron would think you wanted to arrest him or interrogate him?

A Because you're saying why didn't I -- I didn't want to ask him too many questions . [Emphasis Added] (Transcript, October 29, 2019, p. 51, ll. 20-30) [ 86 ] He initially testified that he only slept at the residence for two or three nights prior to being arrested on August 28, 2017. Later in his cross-examination, he testified that he stayed overnight at the residence for four or five nights commencing on August 23 rd or 24 th . [ 87 ] He testified that Ron gave him permission to stay at the residence because his friend was not coming back from vacation for a couple of weeks.

It was put to the accused that Ron’s friend had been on vacation for the whole time that they were hanging out at the residence.

In response, the accused testified that the landlord had shown up around August 24 th or 25 th , because there was a leak in the sink which had gone through to the underground parking lot. [ 88 ] He agreed with the suggestion of the Crown that it was the landlord who actually called the accused on the accused’s cell phone to arrange a meeting time at the residence. [ 89 ] He also agreed that he may have been wrong in his recall of the date that the landlord came to the residence and that it may have been a week before he was arrested. [ 90 ] He testified that he did not find it odd that Ron invited him to stay overnight at the residence.

It never occurred to him that Ron would allow him to stay at the residence when it was not Ron’s place. [ 91 ] In the following exchange, he was asked how long he expected to stay at the residence: Q And how long were you meant to stay there? A I don't know. A couple of weeks. Q A couple of weeks? A Yeah. Q Did Ron tell you how long you could stay at the house -- or rather, the condo? A No. Q He didn't tell you?

A No. Q Did you ask? A No, I -- I was sleeping in coffee -- coffee shops. I was homeless. I don't want to ask too many questions. [Emphasis Added] Q Why didn't you want to ask?

A Because he would probably tell me when it's time to move out. (Transcript, October 29, 2019, p. 59, ll. 6-19) [ 92 ] The accused agreed with the suggestion that he assumed how long Ron was going to permit him to stay at the residence; it was his understanding he could stay at the residence as long as he wanted, until Ron told him he had to leave. [ 93 ] The accused testified that it was either Ron’s friend or the landlord who came by the residence to fix the water leak. [ 94 ] In the following exchange, the accused was asked if he knew when Ron’s friend was coming back from vacation: Q Did you know when he was coming back from vacation?

A I never asked. Q You didn't ask? Weren't you afraid someone would come back to the house one day and find you living there? A No, Ron called and he stopped by once in a while. I don't know why he brought those barrels of -- what was it? Caffeine. Dropped it off in the front. Q You knew the barrels were caffeine? A I'm not sure. I didn't read -- read what it was when he dropped it off. THE COURT: Ignore the police report. At the time the barrels showed up did you know what was in those barrels? A No, I didn't. MS. RUSSELL: Q Did you pay any money to stay at this residence? A No. Q Why not?

A I couldn't afford rent in the place. Q So you didn't pay any money to stay there. Did that seem odd to you that you were allowed to stay in this condo without staying any money? A I only -- I knew it would be for one or two weeks. Q I thought you just said a moment ago you didn't know how long it would be. A Well, I -- I know it wouldn’t be longer than two weeks or three weeks. It wouldn’t be. Q How did you know that? A Because they would eventually come back, whoever's the owner of the place. Q But how did you know that?

A I know nobody's going to leave a place like that uninhabited. (Transcript, October 29, 2019, p. 60, ll. 19-47; p. 61, ll. 1-7) [ 95 ] He testified that he never asked, nor was he curious about the name of Ron’s friend, who apparently owned the residence.

However, he did agree that it seemed “kind of odd” that he was being allowed to stay in a residence that was essentially a new condominium for free. [ 96 ] In the following exchange, the Crown pressed the accused on whether or not he found it odd that he did not have to pay anything to stay at the residence: Q So did you find it odd in his case that you were not being asked to pay any rent? A No. Because my friend is offering me a place to stay where his -- his friend, the landlord or whoever's renting the place is away on summer vacation. I've explained that to you three times already, four times.

You're just trying to get outrage out of me. I'm not -- I'm

not that type of person. I've explained to you five times already the same question you've asked me over and over again. His friend's on vacation. He offered me a place to stay. I didn't want to ask too many questions about that. [Emphasis Added] (Transcript, October 29, 2019, p. 63, ll. 33-45) [ 97 ] The accused testified that Ron gave him the key to the residence four or five days prior to his arrest. He did not believe that Ron had a key to the residence. [ 98 ] He testified that over the four to five days that he was staying at the residence, it was only Ron and the landlord who came to the residence.

He recalled that about three to four days before he was arrested, Ron called him and told him to leave the front patio door unlocked, as he would be “dropping some stuff off.” [ 99 ] He testified that he saw Ron dropping off some barrels in the area of the living room and kitchen. He did not have any conversation with Ron at that time or any later date with respect to the barrels as it was “none of [his] business”. [ 100 ] He testified initially that when he saw the barrels, he thought that they may have something to do with the flood into the parking lot.

When he was asked why he thought the barrels might have some connection to the flood, he testified that he had “no idea what they were going to be used for … I didn’t want to ask any questions about it … I’m not nosy and I’m not a snoopy person. ” [Emphasis Added] [ 101 ] After looking at some of the photographs admitted into evidence, he agreed that his deodorant was on top of a barrel located beside the bed in the bedroom.

He did not find it unusual that this barrel was located next to the bed as he described himself as not being a “nosy person” who does not try “finding out things.” [ 102 ] He testified that he had only been into the bedroom closet once. When he went into the closet he saw the pill press apparatus and, while he found it unusual, he never asked Ron about the apparatus because it was none of his business. [ 103 ] He testified that it did not strike him as unusual that there were no clothes or other personal effects located in the bedroom closet.

He agreed that typically if someone goes on vacation they would not take all of their clothing and personal effects with them. [ 104 ] He testified that he could not recall seeing a large bag of white powder located in the top drawer of the bedside table located in the bedroom when he went through those drawers looking for money. He suggested, “Somebody must’ve put it there after.

The police probably planted it”: Ibid at p. 76, ll. 41 – 45. [ 105 ] He testified that he did not find it unusual that there was a food dehydrator next to the bed in the bedroom, because he did not know that it was a food dehydrator. [ 106 ] He testified that he cooked hotdogs in the oven at the residence. He denied seeing the baking trays reproduced in the photographs that were located inside the oven at the residence.

He recalled laying the hotdogs on the oven racks. [ 107 ] He testified that while he may have seen some Ziploc baggies in one of the kitchen cupboards, that he otherwise either could not recall or did not see most of the contents brought to his attention by the Crown that were located in the kitchen cupboards, kitchen drawers and drawers of the dresser in the bedroom closet. [ 108 ] He testified that he recalled seeing a Ziploc baggie containing what he thought was dog food located in one of the drawers in the dresser in the bedroom closet in the following exchange: Q Okay.

In the bottom photograph on page 52, we see the -- a Ziploc bag you told my friend yesterday you thought was dog food? A Yes. Q So you saw this item? A Yes. Q You knew there was no dog living in the condo at the time? A My friend Ron had a dog. Q Ron didn't live in the condo, did he? A But he -- he -- he -- he offered me to stay there. Q Yes, I know that, Mr. Randhawa, but you knew there was no dog living in the condo? A I never had seen this stuff before. I don't know what it is. THE COURT: Well, that's not the question. MS. RUSSELL: Q You knew there was no dog living in the condo, Mr. Randhawa? A Yes.

Q No dog food dish in the condo?

A No. Q No dog leash? A Yes, when my friend would come by, he had his dog, that's all I knew. Q Have you ever seen dog food kept in Ziploc bags like this? A No. (Transcript, October 30, 2019, p. 7, ll. 8-35) [ 109 ] He testified that had he found any cocaine in the residence, he would have used it as he was an addict in August 2017. Subject to having money, he would use cocaine as frequently as possible during that time. [ 110 ] He denied ever looking in or using the dishwasher.

He would use the sink to wash any used dishes or glasses as he did not want to “wreck the washing machine.” [ 111 ] When it was put to the accused that the only food-related item found by the police in the residence was instant coffee, he responded that he did not use instant coffee but got his coffee from Tim Horton’s. [ 112 ] He testified that after he was arrested he continued to be friends with Ron, even though he blamed Ron for getting him into trouble.

When he asked Ron about the drugs, Ron told him, “… it probably was dog food.” [ 113 ] When the Crown put to the accused that he knew the case was not about dog food, but rather, was about illicit drugs the accused responded, “I – I still didn’t know the truth behind what it was”: Ibid at p. 15, ll.15 – 19. [ 114 ] The court asked the accused if he knew that Ron was a drug dealer in the summer of 2017. The accused responded, “Yes.” [ 115 ] The court asked the accused if he recalled seeing labels on the barrels that Ron had dropped off at the residence.

He responded that any labels had been torn off. [ 116 ] The court asked the accused if he said anything to Ron when he saw him moving the barrels into the residence. He responded, “ No, I – when I -- I should have. When I woke up, I should have. I just didn’t bother ” [Emphasis Added]: Ibid at p. 21, ll. 35 – 47. V. POSITION OF THE PARTIES A.

The Accused [ 117 ] The accused submitted that the Crown has failed to establish beyond a reasonable doubt that the accused had either the knowledge or the control of the controlled substances found in the residence by the police. [ 118 ] The accused’s other submissions related primarily to how the court should evaluate his testimony, summarized as follows: • That as a result of his mental disorder, he has sustained significant cognitive deficits, which are exacerbated by his drug addiction to crack cocaine and use of marijuana; • That his lengthy criminal record related principally to minor property offences; • That as a result of his cognitive deficits he was essentially unemployable; • That he was homeless and relying upon disability when he ran across his old friend Ron, who offered him an opportunity to make extra money doing chores for him at his residence in Kitsilano; • That when Ron told him that he could stay at the residence and gave him a key and a fob for the residence, that he only took a small bag with some personal effects to the residence; • That when Ron told him to leave the front patio door unlocked because he was going to deliver some things, it should not be surprising that the accused made no inquiries when Ron delivered the barrels, as the accused had been sleeping in bed and had recently taken some medication; • That the accused denied knowledge of any of the controlled substances in the residence; • That he explained that when he was rummaging through various drawers and cupboards looking for a lighter or some loose change, it made sense that his fingerprints would be found on some of the surfaces, including the baggie of fentanyl which he believed was dog food; • That he explained that when he was arrested, he had just received his disability benefit which he had cashed out at Money Mart; • That the cell phone that the police seized had no personal passcode and the accused testified it was only used to contact friends, including Ron, his mother and his pharmacy; • That there is no evidence of any text messages or other phone calls that would have to do with any drug related activity;

• That he believed the barrels delivered by Ron had something to do with the water leak into the parkade; • That he believed Ron’s friend was on a summer vacation and Ron’s invitation to allow him to stay at the residence was a good opportunity as he was homeless at the time; • That while the accused faced significant challenges and some of his testimony simply did not make sense, it must be kept in mind that he was an unsophisticated individual; • That as a result of his lack of sophistication and his cognitive deficits, his reliability in accurately relaying events was impacted; • That his viva voce evidence was not necessarily in conflict with the formal admissions.

Rather, he was testifying that he did not dispute the evidence.

That would not establish that he had a personal memory of those events, which would explain some of the difficulties he had in answering questions in cross-examination; • That though the lack of personal effects, clothing and groceries in the residence would raise suspicions, the accused’s personal circumstances ought to be kept in mind; • That the testimony of the police who conducted surveillance of the accused and as admitted in the admissions would be suggestive of drug-related activity, the accused had no specific recollection of those individual incidents and has denied being involved in drug trafficking; • That these incidents surveilled by the police could be equally consistent with the accused purchasing drugs rather than selling drugs; • That while the court may find that the accused has not been completely truthful, that would not establish that he was selling drugs that were of the type located in the residence; • That the evidence led by the Crown would establish that this was a sophisticated and significant stash house operation, and so the principals of that operation would not want to engage the accused with all of his challenges in this operation; • That the only individuals associated to the residence were Ron, E.F., the landlord and the accused; • That his presence at the residence was more akin to being a houseguest rather than being a member of some drug cartel preparing drugs for sale using food dehydrators, gloves, masks and cutting agents; • That even if the court was to find that he had knowledge of the drugs, the evidence would fall short of establishing that he exercised some measure of control, as he had been invited to live in the residence and has denied any involvement in illegal drug activity within the residence; • That if the court was to find that the accused was a houseguest, then other than his ability to enter and exit the residence, there was no other evidence that he exercised control over what was in the residence or what was brought into the residence; and, • That allowing the landlord to enter the residence or unlocking the front patio door so Ron could deliver something to the residence does not establish that the accused was “exerting control of the residence.” [ 119 ] The accused then reviewed some of the case authorities relied upon by the Crown, submitting that the facts in those cases were distinguishable from the facts of this case.

B.

The Crown [ 120 ] The Crown submitted that the evidence is overwhelming in establishing beyond a reasonable doubt that the accused had both the knowledge and control of the drugs found at the residence. [ 121 ] The Crown’s other submissions are summarized as follows: • That manual handling of the prohibited item or substance is not required to prove constructive or joint possession; • That the Crown need only establish beyond a reasonable doubt that the accused had knowledge of the nature of the prohibited item or substance and some measure of control over it; • That there is a significant body of evidence in plain view located in the residence, coupled with the fingerprint evidence, that would establish that the accused had knowledge of the illegal activity taking place in the residence; • That the accused could not be characterized as a person simply staying as a guest in the residence.

Rather, he was the sole resident living in the residence, exercising the ability to regulate access to the residence; • That even if the accused was not a party to illegal drug activity in relation to the residence, he was willfully blind to what was taking place in the residence; • That the court ought to be cautious in accepting suggestions that the accused did not have the cognitive ability to comprehend the activities taking place at the residence; • That the accused’s diagnosis of schizoaffective disorder is self-reported and there is no formal medical evidence to confirm such a diagnosis;

• That the accused was neither credible nor reliable when he testified that he recalled going to the residence for the first time approximately one week before he was arrested, which is contrary to the police surveillance contained in the admissions, where he was seen at the residence on numerous occasions 26 days before his arrest; • That it was never clear, nor was it explained by the accused, why Ron and the accused suddenly began to spend time at the residence that apparently was owned by a friend of Ron, to simply watch television and hang out.

That is essentially what he was doing when he was visiting Ron at his residence in Kitsilano; • That Ron gave the accused the fob which exclusively permitted the accused to enter and exit the residence; • That it was the accused who left the patio door unlocked approximately two days before his arrest, so that Ron could deliver the barrels containing caffeine to the residence.

The accused never questioned Ron about the barrels as he testified it was none of his business; • That overall the accused’s narrative of activities taking place at the residence was either implausible or did not make sense; • That it was implausible that the accused believed the three Ziploc bags of cooked fentanyl found in the unlocked dresser in the closet next to the bedroom, one of which had his fingerprint, was dog food when there was never a dog associated to the residence; • That it did not make sense that his suspicions were not aroused by the presence of the hydraulic pill press located in the closet next to which there was a sieve, a spoon and a Tupperware container, all covered in white residue; • That the accused testified that he had been a heavy drug user for nearly two decades and made many purchases of drugs in the Downtown Eastside.

With the opiate crisis well underway in the summer of 2017, he would be aware what fentanyl was and what it looked like; • That it did not make sense that the accused characterized himself as not being a “nosy person” who would ask questions, and yet he has a clear recollection of rifling through drawers in a residence that is not his, looking for a lighter or for some coins; • That the accused’s lack of recollection of his admissions made in relation to the police surveillance evidence does not alter the fact that the admissions remain binding upon him; • That the accused did not recall his admission that he was observed by the police on August 1, 2017, engaging briefly with three individuals in the area of the residence at 6:02 PM, 7:29 PM and 8:08 PM.

After each encounter, he returned to the residence. Detective Constable Munro opined this activity was consistent with drug trafficking; • That the accused did not recall his admission that at Thornton Park on August 27, 2017, he was observed by the police, to be engaged with another male person where it appeared that there was a hand to hand transaction.

Detective Constable Munro opined that this behaviour was consistent with a drug transaction; • That the accused did not recall his admission that on August 4, 2017, he was observed by the police to be in the residence with Ron when E.F. arrived at 9:37 PM carrying a shoulder bag, and that approximately five minutes later E.F. left the residence with the shoulder bag and was arrested.

Located in the shoulder bag was 116 g of cocaine with a value of approximately $6000; • That the accused’s evidence that he “perhaps” met his marijuana drug dealer on two occasions in August 2017 is contrary to the police surveillance admissions he has made; • That the accused’s explanation that he thought the barrels Ron had dropped off in the living room of the residence might have had something to do with the water leak that had previously occurred at the residence was undermined in cross-examination; • That virtually all areas of the residence had equipment and/or materials consistent with a sophisticated drug trafficking operation in plain view, yet the accused never questioned Ron about this equipment and/or materials; • That the accused never questioned Ron when, approximately three weeks after they rekindled their friendship, he was told he could stay at the residence.

He did not want to “rock the boat”; • That the accused received a significant benefit in being permitted to stay at the residence, which would explain his failure to ask Ron any questions about activities taking place at the residence; • That it did not make sense that Ron would, out of the goodness of his heart, permit the accused to stay at the residence, thus, potentially jeopardizing a sophisticated drug trafficking operation.

The logical explanation is that the accused was entrusted to be an “eye” when he was staying at the residence; • That the accused knew that Ron was a drug trafficker in the summer of 2017; • That his fingerprints were located in the residence, including a fingerprint located on one of the bags of fentanyl found in the chest of drawers; • That at the time the accused was staying at the residence he regulated access to the residence; and, • That in weighing the totality of the evidence, it is implausible that the accused had “no idea” that drug trafficking activity was taking place out of the residence. [ 122 ] The Crown filed a written memorandum with a book of authorities on the elements of possession.

Some of the case references have been incorporated into the Legal Framework

section of this judgment.

VI. LEGAL FRAMEWORK A. Possession [123]

Section 2 of the CDSA adopts the definition of “possession” found in ss. 4(3) of the Code: (

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;and (

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall bedeemed to be in the custody and possession of each and all of them. [124] There are three forms of possession, namely, personal possession, constructive possession and joint possession. Knowledge andcontrol are the key elements of the three forms of possession. B.

Circumstantial Evidence [125] To establish constructive or joint possession, the Crown is required to establish beyond a reasonable doubt that the accused hadknowledge of the nature of the prohibited item or substance and exercised some measure of control over it: R. v. Ahmadzai, 2012 BCCA215 at para. 26 [Ahmadzai]. [126] The requisite elements of possession can be established by direct evidence, inferred from circumstantial evidence, or acombination of both.

As the Crown has relied upon the circumstantial evidence in this case, the essential question becomes whether thecircumstantial evidence, “viewed logically and in light of human experience, is reasonably capable of supporting an inference other thanthat the accused is guilty”: R. v.

Villaroman, 2016 SCC 33 at para. 38 [Villaroman]. [127] When assessing circumstantial evidence, inferences of fact consistent with innocence no longer have to be drawn from provenfacts but may be drawn from “reasonable possibilities” arising from the evidence: Ibid at paras. 36-37. [128] Whether or not there is a reasonable doubt concerning guilt is to be assessed on the totality of the evidence. Other competingplausible theories must be based on logic and experience in assessing the evidence and not on speculation: Ibid at paras. 35-36. C.

Knowledge [129] In the context of constructive or joint possession, the Crown is not required to establish beyond a reasonable doubt that theaccused had knowledge of the precise nature of the substance, so long as the knowledge of the substance or its illicit character isestablished: R. v. To, 1992 BCCA 16. [130] The amount, as well as the value, of the prohibited substance can support an inference of knowledge on behalf of an accused. D.

Control [131] With respect to control in the context of constructive or joint possession, the Crown is required to establish that the accused hadthe ability to exercise some power or measure of control over the item in issue: R. v. Wu, 2010 BCCA 589 at para. 20. [132] Control can also be established where the accused had the ability to grant or withhold access to the residence, whether or not thataccess was in fact granted: R. v. Fisher, 2005 BCCA 444 at para. 41. E.

Wilful Blindness [133] The element of knowledge can also be established if the accused is “wilfully blind” to the nature of the substance but fails tomake any further inquiry to determine the legality of the substance. [134] Wilful blindness was defined by the Supreme Court of Canada (the “SCC”) in R. v. Briscoe, 2010 SCC 13 at para. 21: [21] Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledgewhenever knowledge is a component of the mens rea.

The doctrine of wilful blindness imputes knowledge to an accused whose suspicionis aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. SeeSansregret v. The Queen, (SCC), [1985] 1 S.C.R. 570, and R. v.

Jorgensen, (SCC), [1995] 4 S.C.R. 55.As Sopinka J. succinctly put it in Jorgensen (at para. 103), “[a] finding of wilful blindness involves an affirmative answer to the question:Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?” [Emphasis inoriginal] [135] The legal test for the application of the doctrine of wilful blindness has most recently been considered by the British ColumbiaCourt of Appeal (“BCCA”) in R. v. Edwards, 2020 BCCA 253 at para. 67 [Edwards]: [67] The test is stated nicely in R. v.

Farmer, 2014 ONCA 823 by Sharpe J.A. (at para. 26): the accused must have “shut his eyes becausehe knew or strongly suspected that looking would fix him with knowledge” or because he became “aware of the need for some inquiry[yet] decline[d] to make the inquiry because he [did] not wish to know the truth”. F. Admissions

[136]

Section 655 of the Code reads as follows: Admissions at trial 655 Where an accused is on trial for an indictable offence, he or his counsel may admit any fact alleged against him for the purpose ofdispensing with proof thereof. [137] The

preamble contained in the admissions reads as follows: Pursuant to

Section 655 of the Criminal Code of Canada, the accused Satnam Singh Randhawa admits the following facts for thepurpose of dispensing with proof thereof at the trial on the charges set out on Information 247270-1, or any amended or substitutedversion thereof. [138] In this case the admissions are a formal statutory admission of facts signed off by both counsel for the accused and counsel forthe Crown.

The admissions would not be described as an informal evidentiary agreed statement of facts where, if a conflict were to arisebetween the viva voce evidence of a witness and the agreed statement of facts, it would require the Crown to call evidence on the pointsin issue: R. v. Coburn (1982), (ON CA), 66 C.C.C. (2d) 463 at para. 13, considered in R. v. Prince, 2017 BCSC 2642at paras. 20 & 21 [Prince]. [139] Once an admission is tendered and accepted by the court it becomes an integral part of the record.

Unless altered by mutualconsent, an admission voluntarily made, by or with the advice of counsel, is not easily disturbed: Prince at para. 26. G. Credibility and Reliability [140] Credibility and reliability are different evidentiary concepts. Credibility concerns the veracity of a witness while reliabilityinvolves the accuracy of the witness. Accuracy engages the ability of the witness to “observe, recall and recount”: R. v. Khan, 2015BCCA 320 at para. 44 [Khan]. [141] Justice David M. Paciocco notes that in assessing credibility, a court should not embark upon a credibility contest.

Nor should acourt decide guilt on which version of events is preferred. Rather, the decisive question is whether, considering all of the evidence, theCrown has proved the guilt of the accused on the specific charge(

s) alleged beyond a reasonable doubt: “Doubt about Doubt: Copingwith R. W.(

D) and Credibility Assessment”, (2017) 22 Cdn. Criminal LR 31 at p. 6. [142] The accused elected to testify. In R. v. Khaira, 2020 BCPC 6 at paras. 16 and 17 [Khaira], the court discussed the approach in theassessment of credibility as follows: 16 The accused elected to testify. Accordingly, the credibility framework developed by the Supreme Court of Canada (the "SCC") in R.v. W. (D.), (SCC), [1991] 1 S.C.R. 742 at p. 757 is applicable.

It was designed to explain what reasonable doubt meansin the context of conflicting testimonial accounts: Ideally, appropriate instructions on the issue of credibility should be given not only during the main charge, but on any recharge. A trialJudge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. 17 David M. Paciocco, supra, at p. 2, provides a useful approach in applying the W.(D.) framework: What, then are the underlying principles that drive W. (D.) reasoning? Framed as they apply in criminal trials where there is evidenceinconsistent with guilt, they are:

(1) Criminal trials cannot properly be resolved by deciding which conflicting version of events is preferred;

(2) A criminal fact-finder that believes evidence that is inconsistent with the guilt of the accused cannot convict the accused;

(3) Even if a criminal fact-finder does not entirely believe evidence inconsistent with guilt, if the fact-finder is left unsure whether thatevidence is true there is a reasonable doubt and an acquittal must follow;

(4) Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does not proveguilt; and

(5) Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the accused should not be convicted unless theevidence that is given credit proves the accused guilty beyond a reasonable doubt. [143] Finally, the onus rests upon the Crown to establish all of the requisite elements of possession beyond a reasonable doubt. Theconcept of proof beyond a reasonable doubt is “much closer to absolute certainty than to proof on a balance of probabilities”: R. v. Starr,2000 SCC 40 at para. 242. VII. Analysis and Findings A. Purpose of Trafficking

[ 144 ] Detective Constable Munro was qualified to give opinion evidence in relation to the use, price, packaging and distribution of fentanyl, cocaine and heroin. [ 145 ] She had the opportunity in direct examination to review the photographs contained in the admissions showing the interior of the residence at the time a search was conducted on August 29, 2017. [ 146 ] In addition, the Crown asked her to give opinion evidence via an extensive written hypothetical scenario regarding activities taking place at the residence after the VPD received information that illegal drugs were being distributed from the residence. [ 147 ] It was her opinion that the residence was an active “stash house” and that, based on the hypothetical scenario and the admissions she reviewed, the activities taking place in the residence were consistent with a mid-to-high-level drug trafficking operation. [ 148 ] I find that Detective Constable Munro was a credible and reliable witness.

I accept her opinion evidence. [ 149 ] I find that the Crown has established proof beyond a reasonable doubt that the fentanyl, cocaine and heroin located in the residence on August 29, 2017, was possessed for the purpose of trafficking. B.

Control [ 150 ] The accused has admitted that he was observed by the police entering and exiting the residence from either the east entrance door or the west entrance door to the building, or from the patio door connected to the residence, on numerous occasions on August 1, 2017, August 4, 2017, August 17, 2017, August 18, 2017, and lastly, August 25, 2017. [ 151 ] The accused has admitted that when he was arrested on August 28, 2017, the police searched him incidental to his arrest. The police located, among other things, a fob and two keys.

The fob was tested and found to activate both the east and west entrances to the building. One of the two keys opened the front door lock of the residence. [ 152 ] The accused has admitted that from August 1, 2017, through August 28, 2017, fob records indicate that the fob was used 154 times, including on the days of the police surveillance of the accused. [ 153 ] The accused has testified that he had attended at the residence with Ron to “hang-out” on numerous occasions through the summer of 2017. [ 154 ] He testified that Ron invited him to live at the residence either two or four days before his arrest.

Ron gave him both the fob to access the building and the key to access the front door of the residence. [ 155 ] The accused testified that he was the individual who permitted the landlord to enter the residence when a water leak was reported. [ 156 ] I find it significant that the accused testified that, a few days before his arrest, Ron requested that he leave the patio door unlocked as he had to make a delivery. That delivery was the two barrels of caffeine. [ 157 ] I find that the Crown has established proof beyond a reasonable doubt that the building can only be accessed with the use of a fob.

The fob found on the accused permitted him to access the building. [ 158 ] I find that the Crown has established proof beyond a reasonable doubt that the residence can only be accessed through the locked front door with the use of a key. The key found on the accused permitted him to access the residence. [ 159 ] I find that the Crown has established proof beyond a reasonable doubt that the residence can only be accessed from the patio if the patio door is unlocked.

It is this door that the accused unlocked which allowed Ron to deliver the barrels of caffeine. [ 160 ] As discussed in the legal framework of this judgment, to establish constructive possession there must be evidence that discloses some measure of control over the prohibited items: Fisher at paras. 22 and 41 . [ 161 ] I find that the Crown has established proof beyond a reasonable doubt that the accused regulated access to both the building and to the residence during the Project Déjà Vu VPD investigation into the activities taking place at the residence. [ 162 ] I find that the Crown has established proof beyond a reasonable doubt that the accused exercised a sufficient measure of control through his ability to regulate access to the building and to the residence to establish constructive possession of the fentanyl, cocaine and heroin found at the residence on August 29, 2017.

C. Knowledge [ 163 ] The accused was extensively cross-examined. [ 164 ] There were occasions in his cross-examination that he was confronted with his admissions relating to police surveillance of his activities observed through the month of August. In particular, he was questioned about police surveillance of his meetings with various individuals at various times. [ 165 ] Initially the accused denied ever making an admission that he met a male and a female outside of the residence on August 1, 2017.

Following the denial, the court requested that the case be stood down so that the accused could refresh his memory by reviewing the admissions relating to the police surveillance. [ 166 ] When court reconvened, the accused confirmed that he had reviewed the admissions and when asked by the court if he was denying the admissions, he responded, “Yeah. That I might’ve met somebody in the summertime, but I might’ve -- I don’t recollect meeting -- saying hi to somebody. I don’t recollect what I was doing at the time”: Transcript, October 29, 2019, p. 12, ll.37-39.

[ 167 ] As noted at para. 67 of this judgment, the Crown took the accused through the remaining surveillance evidence contained in the admissions that related to the accused.

More often than not, the accused responded with, “I don’t recall” and/or “I don’t remember.” [ 168 ] As noted at para. 69 of this judgment, while he was being cross-examined on the surveillance evidence contained in the admissions, the accused, unprompted, testified that the notes made by the police officers “are lies too.” [ 169 ] As discussed in the legal framework of this judgment, admissions become an integral part of the trial record and will not easily be disturbed. [ 170 ] The admissions made in this case are extensive.

I accept the admissions as credible and reliable in establishing the facts contained therein. [ 171 ] The accused’s testimony that he does not recall or does not recollect encounters with other individuals as admitted in the police surveillance does not reduce the evidentiary reliability of those admissions. His lack of recall and his allegation that the police notes with respect to the surveillance are “lies” reduced his credibility and reliability as a witness. [ 172 ] He testified that his ability to remember events varied.

For example, he testified that his lack of recall respecting the police surveillance of his encounters with other individuals related to events that happened a year to a year and a half in the past. However, his memory was much more vivid with respect to traumatic events. [ 173 ] The accused’s initial encounter with Ron in the summer of 2017 was entirely coincidental. Though up to eight years had gone by since he last saw Ron, the accused testified that he had no difficulty in recognizing Ron and Ron had no difficulty in recognizing him. [ 174 ] I find the accused’s evidence implausible on this point.

He had just testified that he could not recall his encounters with other individuals noted in the admissions because they related to events that happened a year to a year and a half in the past, but he had no difficulty identifying Ron, who just happened to be driving past him in his car. [ 175 ] The accused testified that his chance encounter with Ron rekindled their friendship.

In quick order, he was over at Ron’s house in Kitsilano performing various chores and otherwise hanging out with Ron. [ 176 ] He testified that Ron took him over to the residence to watch some television, smoke marijuana and otherwise hang out because the occupant of the residence was a friend of Ron’s who was away on vacation. [ 177 ] He never questioned Ron on why they were going to the residence when his friend was away on vacation as he did not want to ask “too many questions.” [ 178 ] The accused’s reticence in asking Ron any questions about the residence became a theme in his testimony. [ 179 ] He never asked Ron how long he could stay at the residence because he would “probably” tell him when it was time to move out.

It was shortly after that exchange with the Crown that the accused testified that he knew he could only stay at the residence for one or two weeks. [ 180 ] The Crown asked the accused if he ever asked Ron when his friend was returning from vacation. He answered “no” because Ron called and occasionally stopped by.

Then, completely unconnected to the question, the accused testified that he did not know why Ron brought the barrels to the residence. [ 181 ] While initially claiming that he was asleep when Ron dropped off the barrels at the residence, he changed his evidence and admitted that he may have been awake and saw Ron dropping off the barrels.

He did not have any conversation with Ron at that time or any later date with respect to the barrels as it was “none of [his] business”. [ 182 ] He testified that when he initially saw the barrels, he thought they may have had something to do with the flood into the parking lot below the residence.

When he was asked why he thought the barrels might be related to the flood into the parking lot, he testified that he had “no idea what they were going to be used for … I didn’t want to ask any questions about it … not nosy and I’m not a snoopy person.” [ 183 ] At the conclusion of cross-examination and re-examination, the court asked the accused if he said anything to Ron when he saw him moving the barrels into the residence. He responded, “No, I – when I – I should have. When I woke up. I should have.

I just didn’t bother.” [ 184 ] Similarly, he did not find the barrel located in the bedroom to be unusual and again, described himself as not being a “nosy person” who does not try “finding out things.” [ 185 ] I find that it is crystal-clear that the accused never asked Ron about activities taking place at the residence because he did not want to know what was going on. He certainly had the opportunity to ask questions but elected not to do so. [ 186 ] I find there were also occasions in which the accused’s testimony was absurd.

For example, it was absurd that he would suggest that the police lied in their reports respecting their surveillance of his activities, which was contrary to his admissions. [ 187 ] It was also absurd that he would suggest that the large bag of cocaine located in the bedside table next to his bed was “probably planted” by the police: Transcript, October 29, 2019, p. 76, ll. 38-45. [ 188 ] It was absurd that he believed that the Ziploc baggie of fentanyl located in the chest of drawers in the closet was dog food.

He knew there was no dog living in the residence, there was no dog food dish or leash, and in his experience he had never seen dog food kept in Ziploc baggies.

[ 189 ] I find the accused then attempted to enhance his credibility when he volunteered that he asked Ron about the Ziploc baggie of fentanyl and Ron told him, “it probably was dog food”. I do not find the accused was being truthful. [ 190 ] In the admissions, the accused admitted there were two residue laden cooking trays in the oven. However, in his evidence, he denied ever seeing those cooking trays when he was cooking hotdogs on top of the racks in the oven. The cooking trays are large and virtually fill the two racks of the oven.

I do not believe that the accused never saw the two cooking trays. [ 191 ] While the accused has little, if any, recollection of encountering E.F. on August 4, 2017, his admissions respecting that encounter are significant. The admissions put the accused and Ron in the residence at the time of the encounter with E.F. When E.F. was later arrested and searched, 116 g of cocaine with a value of approximately $6,000 was located in his shoulder bag.

Detective Constable Munro gave opinion evidence that this cocaine is not an amount that would typically be sold at the street level. [ 192 ] I find that it is significant that the accused was using cocaine on a regular basis through the summer of 2017. [ 193 ] I find that it is significant that the accused knew that Ron was a drug dealer in the summer of 2017. [ 194 ] I find that it is significant that in the admissions, nine different surfaces within the residence were swabbed using an Ion Scanner.

They all tested positive for either fentanyl or cocaine, or both. [ 195 ] I find that it is significant that, in the admissions, a fingerprint identified to the accused was found on the kitchen cupboard and also on a large bag of fentanyl/heroin. [ 196 ] I find that it is more likely than not that the accused was involved as a drug dealer in his encounters with various individuals contained in the admissions. [ 197 ] However, I agree with the submission of the accused that there needs to be something more than the surveillance evidence contained in the admissions to establish proof beyond a reasonable doubt that he was trafficking in fentanyl, cocaine and/or heroin on August 29, 2017. [ 198 ] As noted in this judgment, the accused repeatedly testified that he never asked Ron about activities taking place in the residence because he did not want to know what was taking place.

He elected to remain silent. [ 199 ] The accused did not present as a person who was particularly sophisticated. It is also likely that he has some mental health challenges. I have taken those potential deficits into account in applying the W.(D.) framework. Those potential deficits certainly did not appear to have any impact on his decision to not ask Ron about activities taking place in the residence. [ 200 ] I am not left in a doubt by the evidence of the accused. I do not believe his evidence, nor does his evidence raise a reasonable doubt about his knowledge of the activities taking place in the residence.

I find that the legal test for the application of the doctrine of wilful blindness as stated in Edwards at para. 67 is applicable in this case. [ 201 ] I find that the Crown has established proof beyond a reasonable doubt that the accused had knowledge that the residence was a stash house and that he possessed for the purpose of trafficking the illicit drugs located in the residence on August 29, 2017. VII. DISPOSITION [ 202 ] I find the accused guilty of possessing fentanyl, cocaine and heroin for the purpose of trafficking on August 29, 2017. _____________________________ The Honourable Judge G.

Rideout Provincial Court of British Columbia