R. v. Jeff, 2022 BCPC 156

Citation: R. v. Jeff 2022 BCPC 156 Date: 20220526 File No: 35052-1 Registry: Fort St. John IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MITCHELL NICHOLAS JEFF ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. T. REEVES Counsel for the Crown: D. Hartney, by videoconference Counsel for the Defendant: S. Catona Place of Hearing: Fort St. John , B.C. Date of Hearing: May 24, 25, & 26, 2022 Date of Judgment: May 26, 2022 [ 1 ] Mr.

Jeff is charged with possession for the purpose of trafficking arising from the discovery of drugs that first fell from a pant leg and then were discovered subsequent to a strip search on the person of an individual arrested on the 23rd of April 2021. All of this occurred in Fort St. John RCMP Detachment following the arrest of that person, initially for breach of court ordered conditions.

[2] At issue for this court is whether the Crown established the identification of the person arrested on that evening as the individualbefore this court.

If found, has the Crown then proven that the drugs possessed, some 80 grams of crack cocaine, were possessed for thepurposes of trafficking? [3] With regard to identification, the only evidence of identification available to this court is the in-dock identification of thedefendant by a single witness, Constable Schwarz, a booking photo taken that night of the individual involved and entered as Exhibit 1,and, although not argued by the Crown, continuity of the person from whom the drugs were seized, again, by Constable Schwarz. [4] Constable Schwarz testified that the person who dropped the drugs in the RCMP Detachment was the same person seen in thebooking photo and the same person before the court.

Continuity of the person involved, and of the drugs, was testified to byConstable Schwarz, who spent over an hour with the person alleged to be the accused on the date in question and was the one to take thebooking photo itself. [5] When Constable Schwarz made the in-dock identification, only the accused and an older Indigenous female were present in thecourtroom.

However, Constable Schwarz was very confident in ID-ing not only the accused but the other Indigenous female as thefemale driver on the 23rd of April 2021. [6] Constable Schwarz was asked to describe the person’s appearance from April 23rd and testified that the person had scruff orfacial hair, did not have glazed eyes, and was quite coherent.

Questions put to him by the Crown saw him expand on the lack of visibleindicia of drug use or long-term drug use. [7] In cross-examination, he was challenged only with regards to whether he directed the person he photographed to push his hairoff of his face, which he strongly disagrees to having done. [8] Dock ID is generally regarded as having little weight. I refer here to Justice Rowles in dissent in R. v. Reitsma, (BC CA), decision, affirmed before the Supreme Court. Persons similar in appearance were not present in this courtroom.

A policeofficer would certainly be aware that an accused person is required to be present in the court, and it is made worse when the accused isreadily identifiable in the courtroom as the person charged of the crime.

I thus accord some, but not a significant amount, of weight toConstable Schwarz’s in-court identification. [9] The photograph taken and entered into evidence as Exhibit 1 was a very clear, colour photograph of a young Indigenous malewith dark hair, light to moderate facial hair, brown, almond-shaped eyes and full lips, parting his hair from the right and swept to the left.The accused, present in court, wears glasses and is clean-shaven but in every other aspect is reflected in the picture entered as Exhibit 1,including the way that he parted his hair. [10] R. v.

Nikolovski, (SCC), is the leading authority on the permissible use by the trier of fact to make his or herown identification by comparing still photos or a video to the accused as he or she appears in court. I would refer counsel to paragraph 23of that decision. [11] Lastly, in reviewing the law with regards to continuity of the person, I refer to the case of R. v. Nicholson, 1984 ABCA 88, leaveto appeal to the Supreme Court denied. In that case, a police officer had noticed a strange driving pattern, stopped the vehicle andultimately arrested the driver.

He remained with the driver while the breath sample was tested and served the driver with a notice ofintent to use a breath test certificate, gave him an appearance notice and permitted him to leave the station. In testimony, the policeofficer testified that he had compared that driver’s Alberta licence to the driver and was satisfied that it was the accused, Mr. Nicholson.At trial, counsel had his client sit in the body of a busy court and a witness was unable to identify him from the stand. At paragraphs 29and 30 of that decision, the court stated: [29] Constable Beach was a unique witness.

He was not only the arresting officer, he was also an eye witness to the crime. He sawthe crime committed and then promptly arrested the offender. Had he kept the offender in custody until trial, there would have been noproblem of identification. But, although he released him, he gave him an Appearance Notice. The uncontradicted testimony is to theeffect that the Information which pursuant to s. 455.1 C.C.C. confirmed the Appearance Notice given by Beach is the very Informationwhich forms the basis of this charge. The person, therefore, to whom he gave the Appearance Notice is the person whom we call theaccused.

And, on Beach’s eye-witness testimony, the person to whom he gave the Appearance Notice was the offender! The circle ofidentification is complete: the accused is the offender. With respect, this is the only inference available in these circumstances.

This is so.I might add, whether the accused is or was ever called John Robert Nicholson. [30] It follows that no dock identification of an individual in the courtroom as being the accused need be made in such a case.Identification of the accused as the offender is established if it is established that the offender was given the Appearance Noticeconfirmed by the Information founding the case. [12] The case of Nicholson was adopted by the B.C. Supreme Court in the case of R. v.

Coric, 2014 BCSC 1459. [13] I find, taken together, the resemblance of the accused to the photo of the person who dropped drugs while in the RCMPDetachment, at Exhibit 1, Constable Schwarz’s in-dock identification, although given very little weight, and the undisputed evidence thatthe person who was seen to drop the drugs was then arrested on the charges before the court today that compel Mr. Jeff to appear, hasestablished beyond a reasonable doubt the identity of Mr. Jeff as the individual alleged. [14] Turning now to possession. Culpable possession may be personal or actual, joint or constructive.

And here I refer to R. v. Pham, (ON CA), and R. v. Morelli, 2010 SCC 8, paragraphs 14 and 15 respectively. [15] Here, given the evidence heard, specifically that Constable Schwarz cleaned his vehicle at the beginning of his shift and testifiedthere was nothing in the back seat where the accused was placed once in custody. The previously pliant and cooperative accused becameagitated and struggled against the police, and demanded to be able to use the washroom as he had Covid and/or diarrhea.

Whilestruggling, a bag of what was determined to be crack cocaine was seen to fall from his pant leg and during a subsequent strip search, two

additional almost identical bags were discovered in his shorts and his underwear. [16] I therefore find that the possession alleged is personal and I will proceed on that basis alone. [17] I must next examine knowledge of the nature of the drugs possessed. At Exhibits 2, 3, and 4, certificates of analysis wereaccepted and establishing that three packages of cocaine cut with Phenacetin were seized. Evidence established that the total weight ofthe three packages were 27, 26, and 27 grams respectively, or 80 grams in total.

Expert evidence was heard, that I accept, that the form ofcocaine seized is crack cocaine, an extremely addictive form of cocaine. I also note that each amount is approximately 28 grams. [18] In trafficking, importing, and possession cases, the Crown is not required to demonstrate that the accused knew that he or shepossessed or was importing or trafficking in the very prescribed drug identified in the indictment. Provided the Crown can establish theaccused knew the drug was a narcotic, i.e., the actual drug is cocaine, whereas perhaps the accused believed it was hashish, the Crown’sburden is met.

Here I would refer to R. v. Burgess, (ON CA), R. v. Blondin, (BC CA),R. v.

Kundeus, (SCC). [19] Justice Brooke, speaking in the case of Burgess, at paragraph 2, stated: My brothers and I are all of the opinion that in these circumstances where the evidence is clear and consistent only with the conclusionthat the accused knew the substance that he had in his possession was indeed a drug the possession of which was contrary to the statute,the fact that he mistakenly believed the drug to be hashish rather than opium is of no moment. [20] I therefore find that the Crown has established that the accused possessed cocaine. [21] Turning now to possession for the purpose.

Corporal Charron was qualified as an expert witness in the use, price, packaging anddistribution of cocaine in Fort St. John and area generally, and with specific reference to the year 2021, and his C.V. was entered intoevidence as Exhibit 6. Corporal Charron has attended several courses on surveillance training, source handling and human sourcemanagement and participated since 2010 in many investigations involving hundreds of persons charged with possession and traffickingof drugs within Prince George, Kelowna, and Fort St.

John, B.C. [22] In cross-examination, the Corporal admitted he had never been asked to give expert evidence on behalf of a defendant.Corporal Charron was provided the basic facts established in the evidence in this matter, that a person had hidden on his body threeidentical or almost identical clear plastic bags, each containing 27, 26, and 27 grams of crack cocaine, each in large blocks.

The bagswere hidden in the pants or shorts, bag one; in the shorts, bag two; and, in the flap of the accused’s underwear, bag three. [23] No scales, weapons, smaller baggies, cell phones, score sheets or other paraphernalia were located or associated to the person,and the person appeared healthy and well-kept. [24] Corporal Charron opined that street level trafficking of crack cocaine would see rocks of point 2 to point 4 grams sold for $20and $40 respectively.

However, there existed mid-level traffickers who purchased from traffickers holding amounts in the kilo range andwould purchase amounts measured in ounces, again, approximately 28 grams per ounce. The cost of the drugs, if they were packaged inthe manner before the court, was valued at between $1,800 and $2,100 per bag, for a total value of $5,400 to $6,300, while their streetvalue, if cut into the point 2 and point 4 gram rocks, would be approximately $8,000 within the Fort St.

John drug market. [25] The Corporal further opined that typical buyers purchased smaller amounts, as crack cocaine addicts were suffering a seriousaddiction, unlike people using straight cocaine, which is not as addictive. He testified that due to the way crack cocaine is normallyconsumed, it has a faster effect on the person and is quickly and highly addictive.

He advised a medium to heavy user could use up toone gram per day, and even while on a heavy binge, he has never seen an addict use more than three and a half grams per day, and thenonly for a few days. [26] Furthermore, consumption of crack at these high rates is not sustainable, as the person would be smoking it all day, to theexclusion of eating and even sleeping, and quickly would become unhealthy and poorly kept.

Also, the cost to support such a habit isprohibitive, as regular heavy use of up to a gram per day would have to cost a hundred dollars per day. [27] When asked, he testified that 80 grams, or an 80-day supply of heavy use, would be highly unusual as it would make a personalso a target for other users or traffickers.

Likewise, given the way that crack rapidly forces addicts to simply exist to find the next fix, itwould be highly unlikely for a heavy user to have the financial ability to purchase such a large amount at once. [28] Corporal Charron was challenged with regards to the lack of additional evidence, such as trafficking paraphernalia, weapons,cash, et cetera, and advised that had they been present, they would support his opinion, but the fact that they were not present did notchange his base opinion. [29] He further opined that regular users of crack, due to their unhealthy lifestyle, including foregoing eating and sleeping to consumethe drugs, quickly took on a physical appearance that was readily apparent. [30] Counsel for the defendant submitted that, as in the case of R. v.

King, 2014 BCSC 98, Corporal Charron was not offering expertevidence as much but rather providing “custom of the trade” evidence, which itself is not peer reviewed, and thus should be accordedless weight. Likewise, the court found in the case of King that the police expert sought to answer the ultimate issue before the courtusing the expert’s belief, and thus the expert was accorded even less weight in that matter. [31] Likewise, as directed in R. v.

Sekhon, [2014] 1 RCS, another decision provided by defence, I was advised I should guard againstexpert evidence that strays beyond the boundaries set out in the acceptable scope of evidence as spoken to by the expert. [32] Having reviewed these decisions and the evidence provided by Corporal Charron, I did not find he sought to answer the ultimateissue before the court, and where he may have strayed beyond the bounds of opinion evidence, this court did not take note of that

evidence. [33] The Crown submitted the cases of R. v. Kofi Mintah, PCPC 2012 and R. v. Eddy, 2013 BCPC 294, two B.C. Provincial Courtdecisions. These cases specifically propose that quantity alone is sufficient evidence to find possession for the purpose of trafficking andthat other provincial court judges in B.C. have accepted evidence of a person’s appearance in relation to regular drug use to rebut anargument that the possession was for personal use rather than trafficking. [34] Although counsel for the defence did not cite the case, I reviewed the case of R. v.

McCallum, 2006 SKQB 287, in regards to anaccused found possessing two ounces of cocaine on his person. At paragraph 28 of that decision, the court stated: I am not aware of any presumption in law that quantity alone is indicia of trafficking or possession for the purpose of trafficking. . . [35] The paragraph goes on to say: . . .There will be cases where due either to the quantity of drugs or the circumstances surrounding the possession that reasonable doubtthat possession was for the purpose of trafficking will disappear. . . [36] Subsequent to that decision, Justice Konkin, in the case of R. v.

Morin, 2012 SKQB 61, heard evidence similar to McCallum,with the exception that the quantity seized there was 95.8 grams of crack cocaine. I would note this is a little over three ounces ofcocaine. [37] In Morin, no other paraphernalia or indicia of trafficking was provided in evidence.

The justice there accepted the expertevidence that a heavy user might use as much as three and a half grams per day while heavy bingeing, and this would be normal topurchase for use in a day, and that a user would normally purchase in this amount, given both the volume of drugs and the valueassociated. [38] Justice Konkin cited the case of McCallum, and in particular the statement that I have quoted from at paragraph 28, and found inMcCallum that the quantity was itself sufficient to dispel reasonable doubt, and he entered a conviction against the accused. [39] In canvassing case law across Canada, I note a similar finding was made in a case of R. v.

Tran, 2017 ONSC 651, and I refercounsel to paragraph 40 of that decision. [40] I note that Mr. Jeff, as he appears in my court and as he appeared at the time of the search and discovery of the drugs, fromConstable Schwarz’ evidence and as I see in Exhibit 1, the photograph, appears healthy and fit. Lay persons can make observationsregarding a person’s appearance, both with their apparent health and their personal hygiene. I have no evidence before me to suggest thatMr.

Jeff is anything but a healthy, young person who takes good care of himself. [41] Counsel reminded me of the words of Chief Justice McEachern, speaking in R. v. To, (BC CA), when hestated: It must be remembered that we are not expected to treat real life cases as a completely intellectual exercise where no conclusion can bereached if there is the slightest competing possibility. The criminal law requires a very high degree of proof, especially for inferencesconsistent with guilt, but it does not demand certainty. [42] I would refer as well to paragraph 6 of the case of R. v.

Radic, (BC CA), which held that a realistic possibilitywhich is not based on the evidence, or an absence of essential evidence, cannot give rise to a reasonable doubt. A reasonable doubt mustbe based on the evidence or an absence of evidence and not upon speculation or fancy. A realistic possibility that is itself speculative willnot rise to reasonable doubt. [43] The accused here attempted to hide from police when his vehicle stop was executed.

Upon discovery, he was pliant andcooperative with Constable Schwarz, permitted himself to be handcuffed and searched via the quick pat down search of his person. [44] Upon arrival at the detachment, the accused began fidgeting and asked to use the washroom, alleging Covid and diarrhea. Whenpolice then take him to the washroom, they had to act to control his movements, which he resisted. At this point, the single bag of crackwas seen to fall from his pant leg.

Police conducted a strip search of the accused, finding two additional bags of crack.Constable Schwarz testified that immediately prior to the shift, he examined the back of his cruiser to confirm there was nothing there. [45] I have heard, and accept the expert witness evidence, that 80 grams of seized crack is well in excess of the amount a user wouldhold, which is measured in day or days supply, not weeks and months. Moreover, a user would not possess crack with a trafficking valuebetween $5,400 and $6,300, as this would make him a target from other users and those who prey upon them. [46] Lastly, Mr.

Jeff was, and remains, a healthy and fit person who attends to things like his personal hygiene. [47] In all these circumstances, I do find the Crown has discharged its burden. [48] So, Mr. Jeff, would you please stand. [49] Sir, I find you guilty on the sole count on the information. [50] Okay, you may be seated. [51] Thank you.