2019 QCCQ 5863, 2019 QCCQ 5863

R. c. Creller 2019 QCCQ 5863 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF BEDFORD LOCALITY OF COWANSVILLE "Criminal and Penal Division" No.: 455-01-016305-181 455-01-016306-189 DATE: September 24, 2019 ______________________________________________________________________ PRESIDING: THE HONOURABLE SERGE CHAMPOUX, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v.

DAVID CRELLER Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] David Creller is facing the following charges in two separate files: 455-01-016305-181 1. On or about March 22, 2018, in Bedford, district of Bedford, did produce cannabis (marihuana), committing thereby the indictable offence provided by section 7(1)(2)

b) of the Controlled Drugs and Substances Act. 2. On or about March 22, 2018, in Bedford, district of Bedford, did have in his possession for the purposes of trafficking Methamphetamines, committing thereby the indictable offence provided by section 5(2)(3)

a) of the Controlled Drugs and Substances Act. 3. On or about March 22, 2018, in Bedford, district of Bedford, did store firearms contrary to the regulation made under paragraph 117h) of the Firearms Act, committing thereby the indictable offence provided by section 86(2)

(3) a) of the Criminal Code . 455-01-016306-189 1. On or about March 22, 2018, in Bedford, district of Bedford, did have in his possession Cannabis for the purposes of trafficking, substance included in Schedules II and VII, committing thereby the indictable offence provided by section 5(2)(3)a.1) of the Controlled Drugs and Substances Act. [ 2 ] His trial was held on only one relatively narrow issue.

He acknowledges having produced cannabis the day of the offence; he acknowledges having been in possession of methamphetamines and cannabis, and he also acknowledges having failed to properly store a firearm on the same day. [ 3 ] The only issue, which concerns the two types of narcotics found in his home, is whether he was in possession of these drugs with the intent to traffic. [ 4 ] BACKGROUND FACTS [ 5 ] David Creller lives at [...] in Bedford.

In 2017 and on two occasions in 2018, Sûreté du Québec police officers received information identifying the accused, providing his address and indicating that he was trafficking cannabis and methamphetamines. The information was considered reliable. [ 6 ] The investigation was assigned to Detective Sergeant Gagnier, who already knew the accused. Detective Sergeant Gagnier, alone or with other police officers, conducted surveillance on the accused’s apartment on three occasions. [ 7 ] The first day, the surveillance lasted approximately 50 minutes.

During that time, two men unknown to the police officer arrived and entered the apartment at two separate times. They each stayed there for one minute. [ 8 ] The second time, the surveillance lasted 2 hours and 15 minutes. Four men were observed at the apartment separately. The first left 17 minutes after the police arrived; the others remained there for approximately 5 minutes each.

[ 9 ] The last surveillance took place over two periods, the first lasting approximately 2 hours, and the second, 1 hour and 15 minutes. During this time, several men first arrived at the apartment of the accused, who appeared to be absent, and then left. Next, three people arrived at his apartment, knocked, and since there was no answer, left one after the other. During the second part of the surveillance, a man was seen leaving the apartment, and then a second man arrived, went up the stairs and left without knocking. Each time, and during each surveillance period, it was a different man.

The accused was not one of them. [ 10 ] A search warrant was subsequently obtained to search David Creller’s apartment.

The search revealed the alleged firearm as well as 5.25 grams of cannabis, 8 methamphetamine pills, 11 cannabis plants in a first greenhouse, 72 recently planted cuttings and 6 other cannabis plants. [ 11 ] Also found in the same living room table as the dried cannabis and the methamphetamine pills was the accused’s wallet containing $500 divided into two bundles of $200 and one bundle of $100, a document (an accounting list), an electronic scale and a container that seems to have been used to consume inhalable drugs. [ 12 ] That is the essence of the Crown’s case. [ 13 ] The accused testified in his defence. [ 14 ] In view of the need to first review his testimony before analyzing it, I will simply say at this time that the accused claims to have been producing cannabis for his personal consumption only, in view, he submits, of the imminent legalization of that substance.

He claims that he now has authorization to produce and possess it. [ 15 ] He acknowledges receiving social assistance. As for the money that was found, he says he won it playing video lottery games available in one or more local bars. He says the accounting list is an old document that he wrote one day when he was intoxicated, approximately three years ago. He claims to have found the firearm in the garbage and kept it, because he likes to recycle. [ 16 ] Regarding the people who appeared at his apartment, he explained that he has many friends. Sometimes his friends show up while he is still sleeping.

In that case, he either greets them and tells them to come back later or simply does not open the door. [ 17 ] He admits that some of his friends come to his apartment to smoke cannabis, and in such case, he smokes his friends’ cannabis or they smoke his. [ 18 ] As for the methamphetamine pills, he had a few because he had won playing the video lottery and therefore had the means to buy them. [ 19 ] Accordingly, he says that he is not a trafficker and that the drugs found in his apartment were in no way intended for trafficking. [ 20 ] ANALYSIS AND DECISION [ 21 ] Because the evidence adduced by the defence contradicts the Crown’s evidence, or at least its theory, it is necessary to analyze it in light of the principles set out by the Supreme Court of Canada in R. v.

W.(D.) . [1] In that judgment, the Court established a three-step test for analyzing the evidence. The three steps are as follows: 1. If the evidence presented by the accused is believed and exculpatory, the accused must be acquitted immediately. 2. Even if that evidence is not entirely accepted, but it raises a reasonable doubt, the accused must again benefit therefrom and be acquitted. 3. Only where the first two steps do not allow the analysis to be completed is it appropriate to analyze whether the evidence as a whole establishes the accused’s guilt beyond a reasonable doubt.

Only then can the accused be convicted. [ 22 ] Therefore, the first question is whether I believe the accused. [ 23 ] In a word, I do not. [ 24 ] He had a particularly difficult time testifying. He seemed to avoid questions and get bogged down each time in complex and contradictory answers. He also seemed to have great difficulty presenting an account that was both logical and chronological. [ 25 ] His explanations regarding what clearly resembles a list of debts are quite weak.

First, he said that it was an old list, created at a time when he was highly intoxicated and decided to draw up an inventory of all the people who owed him money, by name and amount. [ 26 ] Seeing the extreme difficulty he had, sober, during his testimony, explaining who the people on the list were and what their debt concerned, it is surprising that he would have been able to create a list of 17 people, with amounts for each of them, while he was intoxicated. [ 27 ] Moreover, at one point he said that he had started repairing computers after his last prison term, which he identified clearly. [ 28 ] He also specified the date on which this list of debts was prepared.

Because he said that all the largest debts came from the sale or repair of computers or tablets, we find ourselves in the strange situation where the date on which these debts were incurred is clearly after the date on which he claims to have prepared the list. [ 29 ] He was also completely unable to explain why some names and amounts are crossed out and other amounts appear in replacement.

He awkwardly managed to say that perhaps the person, a friend, made a partial payment, and then finally he stated that in any event, these debts were not important, that he did not intend to claim them because the repairs he performed did not cost him anything… Why then keep a list and make notes on it?

[ 30 ] He explained that these computer repairs did not cost him anything because, for example, he says a friend brought him a box full of tablets of the same make and model that no longer worked. This does not seem very credible to me and rather surprising. He said that he exchanges the parts from one and puts them into the others and thus repairs several devices. In general, I do not find this to be very credible.

Moreover, there is no evidence or information before me indicating that the accused has the skills to perform the computer work he described, and there is nothing in the photos taken in his apartment suggesting that there was an electronics repair workshop in the apartment. [ 31 ] I find the divided sums found in the same table as the drugs, the scale and the list of debts just as difficult to believe.

The accused at first seemed to be saying that he won these amounts, $200 on one occasion and $300 on another, the next day, at bars near his apartment. [ 32 ] Initially, he said that in general, he does not go out much. It is surprising that he won that much on his few, recent, rare outings. In addition, while he first suggested that he won $200 one time and $300 another time, or vice-versa, he subsequently suggested that he also won enough money to pay for his drinks that night as well and to buy the methamphetamine pills found in his apartment. He therefore had to have won more. How much?

We do not know. [ 33 ] I also have questions regarding the firearm. The accused more than implicitly admitted that it was a working firearm. However, he claims to have found it in the garbage of a store near his apartment.

This seems surprising to me and very difficult to believe. [ 34 ] I will stop here, because I am of the view that these elements, without limitation, irreversibly taint the accused’s credibility. [ 35 ] I do not accept the accused’s testimony, which raises no doubt in my mind. [ 36 ] As for the evidence as a whole, I note that the elements that combine to show that the accused is a trafficker include the following: the accounting list, the scale, the presence of a significant amount of cash, the many comings and goings at his apartment and the presence of a firearm therein. [ 37 ] What was observed and found in the accused’s apartment corresponds almost exactly to the paraphernalia we would expect to find in the home of a typical trafficker.

The sole conflicting factor is that only a relatively small quantity of narcotics intended for sale was found on site. [ 38 ] I do not think that is an insurmountable difficulty. On the contrary, a considerable amount of money (in view of his means) was found in the accused’s apartment. Assuming that this money came from the sale of the drugs he had, it is reasonable to think that there would be more money and not many drugs. [ 39 ] Nobody is claiming that the accused is a high-level trafficker.

He must keep relatively small amounts of drugs and replenish his supply when it is low. [ 40 ] One of the most incriminating elements is the comings and goings observed at his apartment. Nobody saw what these people did. None of them were questioned to find out what they were doing there. That evidence is therefore circumstantial.

What significance should it be given? [ 41 ] In Villaroman , [2] the Supreme Court of Canada examined the potential use and weight to be given to this type of evidence and also considered whether any particular type of caution should be issued in the face of such evidence. [ 42 ] The Court recalled that the standard remains unchanged. The Court can only convict a person when there is evidence against him or her beyond a reasonable doubt. [ 43 ] Where the evidence can justify more than one reasonable alternative, one of which excludes guilt, there is necessarily reasonable doubt.

This alternative need not necessarily result from evidence adduced at trial. [ 44 ] What sensible explanation can there be for these incessant comings and goings at the accused’s apartment? It was always different people, and most of the visits were very short. People even appeared at the accused’s apartment when he was not answering.

None of these people were seen leaving with large objects, bags or boxes, or bringing any with them. [ 45 ] I mention this because none of these observations entail any indication, for example, that any such person was bringing or picking up a computer or other device that the accused claims to repair and sell. [ 46 ] Moreover, nobody was seen delivering an object or a meal to the accused’s apartment. Nor does he claim that this is the case. It might perhaps be suspected that the accused was selling something other than narcotics.

We know, for example, that a small quantity of contraband cigarettes was found in his apartment. [ 47 ] I must exclude this possibility, however, because the accused himself does not claim to have been selling any. [ 48 ] Without going into further detail, this element, the constant comings and goings at the accused’s apartment, added to the accounting list, the scale and the money, in particular, convince me beyond a reasonable doubt of the accused’s intent to traffic in these substances and, in my view, do not open the door to any other reasonable alternative. [ 49 ] FOR THESE REASONS , the accused is CONVICTED on all counts as charged. __________________________________ Serge Champoux, J.C.Q.

Mtre Émilie Dion Crown prosecutor Mtre Élise Henderson Counsel for the accused Date of hearing: July 24, 2019