R. v. Mearow, 2022 BCPC 339

Citation: R. v. Mearow 2022 BCPC 339 Date: 20220601 File No: 35091-1 Registry: Fort St. John IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MARCUS RICHARD MEAROW ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE O. FLECK Counsel for the Crown: K. Kuefler (via. telecommunication) Counsel for the Defendant: S. Catona Place of Hearing: Fort St. John , B.C. Date of Hearing: May 17, 19, 2022 Date of Judgment: June 1, 2022 INTRODUCTION

[1] THE COURT: These are my reasons for decision in the matter of R. v. Mearow, Fort St. John File 35091-1. [2] Marcus Richard Mearow is charged with one count of possessing cocaine for the purpose of trafficking under s. 5(2) of theControlled Drugs and Substances Act. The allegation arose on July 5, 2021, in the City of Fort St. John. [3] The Crown's case consisted of certain written admissions made by Mr. Mearow that were tendered into evidence, as well as theexpert evidence of Corporal Phil Charron of the RCMP. [4] With respect to the admissions, the key parts for the purposes of my decision are that Mr.

Mearow had in his possession on theday in question in Fort St.

John the following items: • Three bags containing cocaine, which were divided up as follows: o Bag 1 was a small baggie containing powder cocaine mixed with phenacetin and caffeine and weighing approximately .036 grams; o Bag 2 was a sandwich bag that in turn contained nine smaller baggies consisting of a total of 4.95 grams of powder cocaine, rangingfrom 0.34 grams to 0.72 grams; o Bag 3 was also a sandwich bag and it contained 13 smaller baggies consisting of a total of 5.47 grams of crack cocaine and thosesmaller baggies ranged in size from 0.23 grams to 0.65 grams. • As well, Mr.

Mearow had in his possession $165 in cash, which consisted of eight 20-dollar bills and a 5-dollar bill. [5] The money was discovered in Mr. Mearow's possession on July 3, 2021 and seized shortly after he was arrested in the earlymorning hours of that day for an alleged breach of probation conditions. However, Bags 1, 2, and 3, as I detailed them, were not found inMr. Mearow's possession until July 5, 2021, when police discovered the substances while Mr. Mearow was still in RCMP cells inFort St. John. [6] Bag 1 was discovered in Mr. Mearow's pocket. However, Bag 2 was discovered sticking out of Mr.

Mearow's pant leg downnear his heel, and Bag 3 was discovered after it fell from Mr. Mearow's clothing after Bag 2 had been discovered. At the time that thecocaine was discovered in his possession, Mr. Mearow was still wearing his own clothing that he was arrested in, and at that point, hehad been in continuous RCMP custody since being arrested. [7] All of the weights that I have mentioned are the weights of the substances exclusive of any packaging. [8] Mr.

Mearow has acknowledged that if I find him not guilty on the charge of possession for the purpose of trafficking, theadmissions he has made are sufficient to find him guilty on the lesser included offence of simple possession. Therefore, the main issue attrial is whether Mr. Mearow possessed the cocaine for the purpose of trafficking or whether he possessed it for his personal use. [9] In addition to the Crown evidence, Mr. Mearow gave evidence in his own defence. If the evidence of Mr. Mearow is acceptedby the court, it would constitute a defence to the charge of possession for the purpose of trafficking.

Therefore, the credibility andreliability of Mr. Mearow are at issue and, as a result, the Supreme Court of Canada case of R. v. W.(D.), (SCC), [1991]1 S.C.R. 742, is applicable to this case. THE ACCUSED’S EVIDENCE AND THE R. v.

W.(D.) TEST [10] The case of W.(D.) outlines a test that must be followed when the credibility or reliability of an accused is at question and the testis as follows: -first, if I believe the evidence of the accused, I must obviously acquit the accused; -second, if I do not believe the testimony of the accused but I am nonetheless left in a reasonable doubt by it, then I must acquit theaccused; -third, even if I am not left in doubt by the evidence of the accused, I must still ask myself whether, on the basis of the evidence which Ido accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [11] Case law subsequent to W.(D.) has made it clear that the test in W.(D.) does not need to be followed in any particular formulaicfashion.

However, in this particular case, I find that it does make the most sense to first assess the evidence of the accused and therebyassess the first two prongs of the W.(D.) test. [12] Thus, I will turn to the evidence of the accused. [13] The essence of the accused's evidence is that he possessed the drugs for his own personal use. His evidence is that he wasreleased from jail in Surrey after being sentenced approximately two weeks prior to his arrest in Fort St. John. Upon his release, he wasto report to a treatment facility in Surrey as a condition of his probation.

However, he absconded from the treatment facility within a fewdays and made his way to Fort St. John. [14] During this time, the accused had access to approximately $5,000 cash that he had obtained through various forms ofgovernmental assistance. The accused explained to the court that he used some of the money to pay off credit card debt, as well as a bankoverdraft, but that the remainder of this cash was then available for him to purchase drugs. He purchased a certain quantity of drugs priorto arriving in Fort St. John and then purchased more drugs once he was in Fort St.

John. [15] Through this evidence of the accused, he explains that this is how he had the resources to purchase the drugs that were ultimatelyfound in his possession. The accused also explained why the drugs were packaged in the fashion in which they were discovered in his

possession. [ 16 ] First, the accused explained that he personally uses both crack and powder cocaine. He alternates between the two and, in particular, he uses crack whenever his nose is stuffed, not making it possible for him to use powder cocaine.

Second, he explains that the substances that he had in his possession were provided to him upon purchase packaged in the fashion in which they were discovered in his possession. [ 17 ] He says that the crack and the powder cocaine were purchased as part of a bulk transaction for personal use but that his dealers had already premeasured the quantities into smaller amounts, and that is why the substances were still packaged into these smaller amounts when they were found in his possession. [ 18 ] The accused also detailed that in the early morning hours of July 3, 2021, he was in the back seat of a friend's vehicle when they were stopped by the police, and that is when he was arrested for breaching his condition that he was to remain at the treatment facility in Surrey.

He said that that night he and a couple of his friends had borrowed the car from another acquaintance and that it was one of his friends who was driving when they were stopped by the police. [ 19 ] Mr. Mearow's intention that night was to go party and that is why he had the cocaine with him. He says that some of the drugs in his possession had been purchased as recently as just prior to the police stop; so, in other words, earlier that early morning of July 3rd. [ 20 ] That is a

summary of the accused's evidence. However, as I will detail, I did encounter several difficulties with the evidence of the accused. [ 21 ] In particular, the evidence was presented with several internal inconsistencies.

For instance, although the accused was able to recount with a fair amount of detail what amounts of drugs he had purchased, and the amounts that he had paid for those drugs and how those drugs had been packaged, he was unable to tell the court from whom he had purchased those drugs or the locations where he had made the purchases. [ 22 ] This led me to find that I am unable to rely on the accused's assertions with respect to how he acquired the drugs, including his assertions with respect to the various occasions on which he purchased the drugs, the quantities in which he purchased the drugs on each occasion, the amount of money he paid for the drugs, and the manner in which the drugs were packaged when he says he purchased them.

This is because I do not accept that the accused's memory is sufficient to recount certain details, especially details which would tend to work in his favour, while at the same time being unable to recount key details that would tend not to fall in his favour, even though those details derive from the same sequence of events. [ 23 ] His evidence also lacked forthrightness at times, especially on cross-examination where the accused was clearly, in my view, evading some questions on cross-examination, especially when it was likely becoming apparent to him that certain questions were being put to him because they were intended to highlight inconsistencies in his evidence. [ 24 ] His submission is that he was tired, stressed, and anxious during the cross-examination portion of his evidence.

I accept that it is likely that he was stressed, tired, and anxious. However, I do not accept that this is an adequate explanation for being evasive in his evidence, let alone for the inconsistencies.

As a result of these credibility issues, I do not place any weight on the accused's evidence with respect to whether he purchased the drugs, whether he purchased them already packaged in the fashion in which they were found in his possession or whether he purchased them in the specific divided quantities in which they were found in his possession. [ 25 ] In further assessing the accused's evidence, I also do not accept the accused's evidence about his intended activities during the early hours of July 3, 2021, or on the days immediately thereafter, as I also find that the selective ability of the accused to only recall certain details of that night is something that undermines both his credibility and reliability with respect to the events of that night and his intention with respect to the drugs he had in his possession that night. [ 26 ] Nonetheless, there are certain aspects of his evidence which I do find plausible and which I do, therefore, accept. [ 27 ] In particular, I accept that the accused is a regular user of cocaine and that he uses both crack and powder cocaine on differing occasions.

However, since I do not accept the accused's evidence with respect to his activities the evening of July 3, 2021, specifically, I do not necessarily accept his assertion that all of the drugs in his possession were intended only for his personal use that day and possibly in the subsequent days, although I do accept that he may have been intending to personally use at least some of the drugs that were in his possession. [ 28 ] Also, I make no negative inferences stemming from Mr.

Mearow's inability to clearly recall with precision how much money he had in his possession in the days leading up to his arrest and how he spent all that money.

It was almost a year ago and I accept his explanation that it is difficult to remember monetary transaction details with precision so many months later. [ 29 ] I also accept that he does have some cognitive difficulties, as he explained during his evidence, that make it difficult for him to recall some details and, in particular, made it difficult for him to keep up with the calculations about how much he had spent acquiring the cocaine that were put to him on cross-examination.

Therefore, I do not make any negative inferences against him as a result of the sometimes contorted math that he was testifying to on cross-examination. [ 30 ] However, as I have already detailed, there are other inconsistencies from which I do draw a negative inference about Mr. Mearow's credibility and reliability. As a result of these credibility and reliability issues, I find that the evidence of the accused is not believable on the key aspects of his evidence about his intent in possessing the drugs. Therefore, with respect to the first prong of the W. (D.) test, I am unable to say that I believe Mr.

Mearow. [ 31 ] For the same reasons, his evidence alone also does not raise a reasonable doubt in my mind with respect to the second prong of the W.(D.) test, such that that must lead to his acquittal on the charge of possession for the purpose of trafficking.

[ 32 ] While the evidence of the accused does not satisfy either of the first two prongs of the W.(D.) test, the burden of proof still rests with the Crown and the Crown must still establish, on the totality of the evidence, that the accused is guilty beyond a reasonable doubt. Therefore, I will next move to examining the remainder of the evidence, which is the Crown's expert evidence and the admissions that were tendered.

OVERVIEW OF THE CROWN’S EVIDENCE [ 33 ] Aside from the admissions, the Crown relies primarily on the expert evidence of Corporal Charron of the RCMP to assist the court with understanding how street-level drug trafficking is generally conducted. To this end, Corporal Charron was qualified at trial as an expert in the pricing, packaging, distribution, and use of cocaine.

Corporal Charron has extensive experience as a drug investigator with the RCMP at the street level, as well as an officer who handles informants and as a cover officer for undercover operators, and also as an exhibit officer during drug investigations. I also note that most of his investigative drug experience has taken place in the community of Fort St. John. [ 34 ] Through these activities, Corporal Charron has developed professional expertise with respect to how drugs on the illicit market are cut, transported, packaged, priced, distributed, and sold.

He also has experience in the jargon that is used in the illicit drug trade, as well as typical patterns of individual usage of drugs. [ 35 ] As a result of this expertise, I find assistance in certain aspects of the expert testimony of Corporal Charron, especially with respect to the above-mentioned aspects of the illicit drug trade, in understanding how street-level drug trafficking typically functions. [ 36 ] However, the ultimate decision of whether the accused possessed the drugs for the purpose of trafficking is one for the trier of fact and not for the expert witness.

Therefore, I do not place any weight on Corporal Charron's opinion to the extent that it tends to address, albeit in an indirect hypothetical fashion, the ultimate question of whether the accused possessed the drugs for the purpose of trafficking. [ 37 ] That being said, I do place weight on the following aspects of his expert opinion: 1. the typical manner in which drugs are packaged for illicit sale, including both the packing material used and the quantities of each individual package of drugs as it is packaged for sale at the street level; 2. the street price for cocaine in Fort St.

John and its general availability in Fort St. John; 3. the quantities that a typical user would possess versus the quantities one would typically possess for trafficking; and 4. the types of paraphernalia that would typically accompany a user versus the types of tools one would expect to find in the possession of a street dealer. [ 38 ] Having accepted Corporal Charron's expert opinions on these matters, I will now move to analyzing the other aspects of the Crown's evidence to ultimately determine whether that evidence is reasonably consistent with Mr.

Mearow possessing the drugs for his own personal use or whether the evidence as a whole can be shown to prove beyond a reasonable doubt that Mr. Mearow was possessing cocaine for the purpose of trafficking. [ 39 ] The Crown asks the court to consider the admissions made by Mr. Mearow in conjunction with the assistance it finds in Corporal Charron’s expert opinions about how street-level drug-trafficking in Fort St. John is typically conducted to reach the inference that Mr. Mearow possessed the drugs for the purpose of trafficking. In doing so, even though Mr.

Mearow’s evidence by itself was insufficient to be believed or to raise a reasonable doubt on the first two prongs of the W.(D.) test, I will once again consider Mr. Mearow’s evidence as part of the third prong of W.(D.) to determine whether it raises any reasonable inferences as to his intent that would provide a reasonable alternative to the inference of intent for the purpose of trafficking that the Crown asks the court to draw from the evidence. ANALYSIS OF THE CROWN’S EVIDENCE AND THE INFERENCES IT SUPPORTS Packaging [ 40 ] I begin my analysis with the packaging.

As per his admissions, the accused was in possession of three separate bags of cocaine and two of those bags were larger sandwich bags which, in turn, contained several smaller baggies of cocaine. One of the larger bags, namely Bag 2, had powder cocaine in various quantities, and another bag, Bag 3, had crack in various quantities. The accused explained in his evidence that this is the way the drugs were packaged when he purchased them for his own personal use. [ 41 ] This explanation is not implausible if the accused's evidence is accepted.

However, as I have already detailed earlier, I do not accept this aspect of the accused's evidence. [ 42 ] The expert opinion of Corporal Charron is that drugs for street sale are generally packaged in small baggies, with the drugs pre- measured into quantities that are commonly used for street sale. The drugs that Mr. Mearow admits to possessing and the manner that he admits they were packaged in closely resembles the manner in which drugs for street sale are typically packaged. Therefore, I find that the manner of the packaging of the cocaine that was found in Mr.

Mearow's possession tends to support an inference that the cocaine was possessed for the purpose of trafficking. Quantities of Cocaine [ 43 ] The next factor I analyze is the quantity of the drugs in Mr. Mearow's possession. [ 44 ] The powder cocaine that was found in Bag 2 and the crack that was found in Bag 3 was divided into various quantities, and these quantities roughly correspond to amounts that are commonly sold at street level, as informed by Corporal Charron's expert evidence.

[ 45 ] In the case of the powder cocaine, four of the baggies roughly corresponded to a half gram and five baggies corresponded to roughly one gram. According to Corporal Charron, half-gram quantities and one-gram quantities are the typical quantities offered for sale at street level for powder cocaine, although the amounts as sold on the street are not typically exactly half a gram or one gram on the nose. [ 46 ] Similarly, for the crack, the quantities in Mr.

Mearow's possession roughly corresponded to one group of baggies just below 40 grams, and another just below 80 grams. 40 grams and 80 grams are the typical quantities for street sale according to Cpl. Charron’s expert opinion. [ 47 ] The accused's explanation is that this is the way the drugs were packaged when he purchased them from his dealer and, taken by itself, that is not an implausible explanation, assuming I accept the explanation of the accused about how he acquired the drugs.

However, as I have detailed, I do not accept the accused's explanation of how he came to be in possession of the drugs. [ 48 ] As a consequence, I find that the evidence supports a finding that the quantities of the cocaine in Mr. Mearow's possession are consistent with quantities in which cocaine is typically divided for the purpose of trafficking and I do make such a finding. This finding tends to support an inference that the drugs were possessed for the purpose of trafficking. Total Amount of Cocaine [ 49 ] The next significant aspect of the evidence that I will analyze is the overall amount of cocaine in Mr.

Mearow's possession. [ 50 ] In total there were 10.78 grams of cocaine in Mr. Mearow's possession, divided up between powder cocaine and crack. [ 51 ] Accepting Corporal Charron's expert evidence on the typical use patterns of individual users of cocaine, and also finding that individual users may significantly depart from what is typical, I find that the amount of cocaine in Mr. Mearow’s possession is at the high end for what could reasonably be inferred to be for personal use, but that it is not completely inconsistent with what could possibly be for personal use. [ 52 ] If I was in a position to accept Mr.

Mearow's evidence about his intentions for the cocaine that was in his possession, it would be possible for me to accept that the amount was for his personal use, even if the total amount is at the high end for personal use. To this end, I find it likely that the small amount that was found in Bag 1, that was found in Mr. Mearow's pocket, was likely for personal use, given its relatively small quantity, its separation from the two bigger sandwich bags, and its separate location in Mr. Mearow's pocket, instead of secreted up his pant legs like Bags 2 and 3.

These particular facts, in my view, would tend to corroborate Mr. Mearow's claim of personal use for this one small quantity of cocaine. [ 53 ] However, given the overall difficulties I have with Mr. Mearow's evidence, I do not accept his explanation about his intentions with respect to the remainder of the cocaine that was in the larger bags, and I also find that there is insufficient extrinsic evidence that would tend to support a finding that the larger packaged amounts in Bags 2 and 3 were intended for Mr.

Mearow's personal use only. [ 54 ] For this part of my analysis, I am also applying Corporal Charron's expert evidence about whether one would typically stockpile drugs for personal use. His evidence is that cocaine, in either form, is readily available in Fort St. John, so there is generally no need to stockpile a large quantity for personal use in Fort St. John. This is especially so when one considers the dangers of accidental loss of the drugs, theft of the drugs, or possibly of arrest, especially for a person like Mr.

Mearow, who knows he has likely breached a condition of his probation and therefore is likely subject to arrest. [ 55 ] Mr. Mearow explains the large quantity as being for his personal use because he wanted to party on July 3rd and possibly for several days thereafter. Again, this is a plausible explanation, if I was accepting of the evidence of the accused, but I do not accept the evidence of the accused on this point, as I have already explained. [ 56 ] As a result, I also find that the overall amount of cocaine tends to support an inference that the cocaine was possessed for the purpose of trafficking.

Presence of Both Crack and Powder Cocaine [ 57 ] Another issue to examine is the issue of the presence of both crack and powder cocaine in the cocaine that was possessed by Mr. Mearow. Mr. Mearow has offered an explanation that he uses both crack and powder cocaine. Corporal Charron's expert evidence is that this would be an atypical usage pattern, but that does not necessarily mean that it could not happen. Therefore, I do accept that Mr.

Mearow will, on different occasions, use either crack or powder cocaine. [ 58 ] However, I do not accept that he was intending to use both the crack and the powder in his possession on July 3rd for the purpose of partying, either that night or in the days immediately following July 3rd. As I have already said, I find his version of his intentions for why he was possessing the cocaine on July 3rd to be wanting. [ 59 ] In addition, the evidence is that Mr. Mearow did not have in his possession the paraphernalia that one would typically use for using crack.

His evidence is that he prefers to use a tin can and cigarette ash, rather than the typical crack paraphernalia such as a pipe but, that being said, he did not have a tin can in his possession either, so that is an absence of extrinsic evidence to support his contention. [ 60 ] There was a crack pipe in the car in which Mr. Mearow was riding but, by his own admission, a crack pipe is not typically what Mr.

Mearow would use to smoke crack, so therefore this also cannot be taken as extrinsic evidence supporting his contention that both the crack and the powder cocaine were in his possession only for his personal use. [ 61 ] In short, the extrinsic evidence does not corroborate him on this point. [ 62 ] Given the overall lack of weight I put on Mr. Mearow's evidence with respect to his intentions for possessing the cocaine on July

3rd, combined with no extrinsic evidence that would tend to corroborate his explanation that he intended to use the crack or the powdercocaine in Bags 2 and 3 for his personal use, I find that I do not believe the accused when he says he was intending to use both the crackand the powder either on July 3rd or in the subsequent days and, therefore, I do find that in looking at this aspect of the evidence,especially in combination with Corporal Charron's expert evidence about the atypical combination of crack and powder in a person'spossession if it is being possessed for personal use, this factor also tends to support an inference of possession for the purpose oftrafficking.

Contrary Evidence [63] However, not all of the evidence that is before the Court tends to support an inference that the cocaine was possessed for thepurpose of trafficking. There was no cellphone found in the possession of Mr. Mearow, even though the expert evidence from CorporalCharron is that cellphones tend to be heavily used by street-level traffickers to facilitate the setting up of transactions. [64] There was also no paper score sheet found on Mr. Mearow.

Corporal Charron testified that, in his expert opinion, the trend hasbeen towards street-level dealers using digital score sheets instead of paper score sheets. However, this would tend to emphasize theimportance of a cellphone for a street-level dealer and, as I have already noted, no cellphone was found on Mr. Mearow. [65] A scale was also not located on Mr. Mearow and neither was a weapon.

There were two baseball bats in the car but I do notaccept that these were possessed by the accused, let alone that they were possessed by him as weapons, and, in fact, I am unable to findthat he knew that they were in the car, given his status as a passenger in what was a borrowed vehicle. [66] The amount of money in Mr. Mearow's possession was also discussed at trial but I find that this, at best, is a neutral factor, as theamount of cash in Mr. Mearow's possession is insufficient for me to infer that it was inextricably related to illicit trafficking of cocaine.

ANALYSIS – CIRCUMSTANTIAL EVIDENCE [67] Overall, this trial is about the intent that Mr. Mearow had when he possessed the cocaine in question on the day in question. Thatis the main issue for me to decide. As such, my task is to determine Mr. Mearow's state of mind at the time in question. SinceMr. Mearow has made no admissions about his intent being to possess the cocaine for the purpose of trafficking and, in fact, hisassertion is that his intention was to possess the cocaine only for personal use, there is no direct evidence about Mr.

Mearow's intent thatsupports the inferences the Crown asks the Court to draw. Therefore, whatever evidence there is to support a finding that Mr. Mearowpossessed the cocaine for the purpose of trafficking is circumstantial. [68] As instructed by the Supreme Court of Canada in the case of R. v.

Villaroman, 2016 SCC 33 , [2016] 1 S.C.R. 1000,circumstantial evidence must be examined as a whole to determine whether the only reasonable inference that the circumstantialevidence supports is a finding that the accused is guilty beyond a reasonable doubt. [69] In this particular case, there are certain facts that I have outlined that tend to support an inference that the accused possessed thecocaine for the purpose of trafficking.

Chief amongst those facts are the following: -the overall amount of cocaine possessed; -the quantities into which the cocaine was packaged; -the type of packaging used; and -the presence of both crack and powder cocaine. None of this evidence is direct evidence of Mr. Mearow’s intent. Instead, it is circumstantial evidence. [70] However, absent an alternate explanation or extrinsic evidence that would negate such an inference, I find that these factors arecapable of supporting a reasonable inference that the cocaine was possessed by Mr. Mearow for the purpose of trafficking.

An alternateexplanation was offered by Mr. Mearow but has not been accepted, as I do not accept the evidence of Mr. Mearow on the key points thathe offered that would tend to explain the possession as being only for personal use. I also find that the extrinsic evidence does notsupport Mr.

Mearow's contention that the possession was only for personal use. [71] Some of the indicia of trafficking that Corporal Charron identified as typically being present in situations of trafficking are notpresent in this particular case; namely, the lack of a score sheet, the lack of a cellphone, the lack of a scale, and the lack of a weapon.

Theabsence of these items must be considered by me in determining whether the circumstantial evidence as a whole supports an inferencethat the drugs were possessed for the purpose of trafficking and that, as a result, the Crown has proven its case beyond a reasonabledoubt. [72] However, the typical indicia of trafficking that Corporal Charron spoke of only include factors that, on average, are typicallypresent. In other words, there is no checklist of items, every one of which must be present in every case.

In this particular case, I find thatthe indicia that do tend to support an inference of possession for the purpose of trafficking are sufficient to inextricably lead me to aconclusion that, indeed, the only reasonable inference is that the possession was for the purpose of trafficking, even though there is anabsence of some of the other indicia that one would often see in conjunction with trafficking. [73] As a result, I find that the circumstantial evidence does not lead to any reasonable inference contrary to an inference thatMr. Mearow possessed the cocaine for the purpose of trafficking.

CONCLUSION [74] Therefore, Mr. Mearow, on the basis of the foregoing reasons, I find you guilty on the charge of possessing cocaine for the

purpose of trafficking. (JUDGMENT CONCLUDED)