R. v. Sewell Date:, 2014 BCPC 72

Citation: R. v. Sewell Date: 20140219 2014 BCPC 0072 160070-2 Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ROBERT GORDON SEWELL E. C. BLAKE Mr. T. Ian McFadgen Mr. J. Dunlap Victoria, B.C.

January 9 th and 22 nd , 2014 Date of Judgment: February 19, 2014 INTRODUCTION [ 1 ] The accused faced trial in this court on a single count of possession of heroin for the purpose of trafficking. The charge arose from the evidence found when the accused's apartment on Gorge Road East in Victoria was searched pursuant to a search warrant on May 23, 2013. [ 2 ] At the commencement of his trial, the accused admitted that he was in possession of heroin at the relevant time. He denied, however, that he possessed the drug for the purpose of trafficking. The trial thus focused on the trafficking issue alone.

THE CROWN'S CASE [ 3 ] The police found the accused in his residence when they executed the search warrant there. He was the only occupant. He was wearing a housecoat and appeared to be a bit dazed. [ 4 ] The accused was immediately searched and in the pocket of his housecoat the police found five plastic bags, each containing heroin. The five bags were inside a larger plastic bag. Unfortunately, it would seem that the individual bags were not weighed, but it is common ground that the bags did not contain anything like equal amounts of heroin.

The total weight of the heroin was 20.2 grams. [ 5 ] The search continued in the residence generally. By the end of the search, the police had located the following additional quantities of heroin: – 2 grams located in the pocket of a jacket found in the bedroom; – 18.3 grams located in a dresser drawer in the bedroom; and – 13.4 grams located in the drawer of a bedside table. [ 6 ] The total weight of all of the heroin found in the residence, including that found on the person of the accused, was 53.9 grams, or nearly two ounces.

The street value of the drug is said to be somewhere between $5,000.00 and $10,000.00 depending on various factors such as the size of the individual sale packages and the extent of dilution of the drug before sale. [ 7 ] In the residence, the police also found various items commonly associated with drug trafficking.

Such items included the following: – 2 sets of scales, one in a kitchen cupboard and another on the kitchen table; – a total of nine cell phones in various locations; – $500.00 in cash in a pillowcase on a bed, plus $41 in American currency in a bedside table and an undetermined (but presumably relatively small) amount of foreign currency found in a bedroom dresser; – a cane which came apart to reveal a long knife, found in a closet; – some pages of arithmetic calculations, said to be drug scoresheets; and – two packaged syringes. [ 8 ] In his cross-examination, defence counsel made adroit efforts to loosen the purported connection between many of the items listed above and the allegation of drug trafficking.

The investigating officers were bound to concede, for example, that they did not determine whether the set of scales in the kitchen cupboard was functional. They made the same concession with respect to all of the cellphones except one, which appeared to be working based solely on the image displayed on its screen.

The police conceded as well that during the course of their search, which lasted for over an hour, none of the phones rang nor were any incoming text messages received by means of any of the phones. [ 9 ] Cross-examination of the police witnesses also revealed that the residence contained various items of evidence that could be described as being at least equally consistent with heavy heroin usage on-site as with trafficking.

Such items included a short-cut straw of the sort often used for inhaling the drug, a pipe that could be used for smoking heroin, blackened tin foil consistent with the smoking of heroin, and unpackaged syringes consistent with the injection of the drug in the residence. All of those items were found on the kitchen table during the search.

[ 10 ] Finally, the police investigators acknowledged that various items of the sort often found in conjunction with drug trafficking were conspicuously absent during this search. The police acknowledged, for example, that they found no buffering agents of the sort commonly used to dilute heroin for sale at the street level and that the evidence of packaging items known as “flaps” or “spits” (apart from the bags found in the housecoat pocket) is unclear and ambiguous at best. [ 11 ] The Crown then introduced expert evidence from Constable Boris Sark.

Without objection, Constable Sark was qualified to give opinion evidence concerning various issues related to heroin trafficking, including the packaging of the drug for trafficking purposes, pricing of the drug, and the diverse methods by which heroin can be ingested into the human body.

Having reviewed the evidence uncovered during the course of the search in this case and having sat in court listening to the Crown case being presented, Constable Sark offered his opinion concerning the purpose for which the accused had possession of the heroin found in his residence. [ 12 ] Constable Sark testified that in his view the heroin found in the accused's residence was intended for the purpose of trafficking.

He referred to each of the various paraphernalia which I have listed above and explained in each case the connection between the individual item and typical patterns of heroin trafficking. [ 13 ] The officer then spent some time commenting upon the specific inference to be drawn from the quantity of the drug found in the accused's residence in this case. He began by pointing out that heroin is noteworthy both for its highly addictive properties and for its relatively high cost.

The combination of these two factors leads to the practical reality, in the officer's opinion, that it is rare indeed to find a heroin user in possession of more than a few grams of the drug at any given time. In the first place, the heavy user is usually so consumed with feeding his habit that he becomes a non-functioning member of the community and rarely if ever is left with the financial wherewithal to make bulk purchases.

Second, heavy heroin users, who usually achieve their status only after significant periods of prior drug use, are acutely aware of the strength of the temptation to ingest excessive quantities of the drug if it is left lying around, and excessive use can very quickly result in disastrous consequences.

The presence of unused heroin can also be dangerous in the sense that it can become subject to the predations of other addicts, often so desperate that they will use any means, including violent means, to obtain their next fix. [ 14 ] I cannot leave this aspect of the matter without expressing my appreciation to Constable Sark for the admirable manner in which he gave his evidence. I found his explanations to be clear, concise and well-supported, delivered in the non-partisan manner expected, but not always found, in expert testimony.

He is to be commended. [ 15 ] Ironically, though, one aspect of Constable Sark's candour was his frank acknowledgement that the nature of his expertise is such that he would not presume to advise the court with certainty concerning the accused's intentions with respect to the drugs in his residence. He can only fairly compare the evidence made available to him in this case with the trends and patterns which he has typically found in his experience as a long-time investigator and observer of drug crimes.

His humility in that respect is most laudable, but of course the very nature of his opinion leaves open the potential for the accused to attempt to persuade the court that his own intentions were different from those which might be expected from a mere comparison between the evidence found in this case and general patterns of drug trafficking. THE DEFENCE CASE [ 16 ] The accused testified in his own defence.

He explained that when he was 19 years of age, in the mid-1970s, he contracted testicular and lung cancer, as a result of which he developed chronic anxiety problems and became dependent on both alcohol and drugs. The significant criminal record which he accumulated between 1976 and 1989, which included some notable incidents of dishonesty, can largely be traced to substance abuse. [ 17 ] In or about 1989 the accused became ill with hepatitis and recognized that he needed to take control of his life. He sought professional and medical help and began to spend longer and longer periods of time in Mexico.

He formed a relationship with a woman from California and together they built a small Mexican resort, a project which took up a good deal of his attention until about 2004. [ 18 ] In approximately 2009, the accused sold the Mexican resort and received sale proceeds of over $100,000. At roughly the same time, however, his life took a downturn in other respects. His hepatitis returned, causing him to come back to Victoria for treatment.

He returned without his California partner. [ 19 ] Once back in Victoria, the accused sought treatment for hepatitis, but the medication caused him confusion and memory loss, as well as perhaps bringing about a return to his chronic problems with anxiety. Within a year or so he found that he was also suffering from bowel cancer, bringing about a further round of treatments and adverse side-effects. [ 20 ] The one aspect of the accused's life which retained at least some level of stability was his financial situation.

In addition to the proceeds from the Mexican property sale, in due course he received an inheritance of about $65,000 from his mother's estate. The evidence in that respect is not entirely clear, but I gather that his mother's passing occurred in about 2011 and that the estate proceeds were paid out to the accused incrementally for some period of time thereafter. [ 21 ] At some time within the last two or three years, the accused entered into a relationship with a dental hygienist whom he named only as “Jennifer”. In his testimony, the accused did not speak kindly of her nor of their relationship together.

Plainly, he views Jennifer as something of an opportunist and a manipulator. He believes that she is mainly interested in the financial benefits of their relationship. He believes that she steals from him and that she may have played some

part in arranging a home invasion, in which he was the victim, two or three years ago. He seems unable to end the relationship, although he claims to have tried. [ 22 ] Beset by these various problems, the accused has drifted back into severe drug dependency. While his evidence is not entirely clear, he testified that by May 2013 he was using anywhere from 1 to 2 grams of heroin each day. He described his general mental condition at the time as being “frazzled and confused”. While the situation may have improved somewhat since that time, his testimony showed indications of ongoing confusion and memory loss.

I did not view these features of his evidence as being feigned, since they often related

to factual issues (such as dates and times) which were of no importance to the outcome of the trial. [ 23 ] It was against this background that the accused explained his heroin possession at the time of the police search. He was using heroin as an all-too-familiar form of self-medication, finding that it helped “slow down” both his physical functions and his emotions, thereby giving him some peace from his troubles. [ 24 ] The accused denied that he was trafficking in heroin in May 2013, maintaining that his possession of the drug at the time of the search was for personal use only.

He referred to the various items of evidence which I have already mentioned in support of his contention that he was engaged in extensive daily use of the drug in his own residence. [ 25 ] Inevitably, the accused was then asked to explain the evidence against him which so strongly suggests that he was trafficking in the drug, perhaps in addition to his own usage. Clearly, it is the credibility of those explanations which is at the heart of this case. [ 26 ] The accused offered an explanation concerning the quantity of the drug found in his home.

He testified that his long experience with heroin had taught him that it was a dangerous substance indeed and that as a result he used great care to avoid products of inferior quality, or so-called “bad dope”. One way to exercise care, in his view, was to restrict his purchases to transactions involving significant quantities from a known supplier. He provided significant information—replete with a surprising amount of detail, in my view -- concerning the bulk purchases which he had made in the months leading up to the date of the police search.

Despite Crown Counsel's concerted effort to prove otherwise, I do not find that the accused's evidence concerning quantities, dates of purchase and usage is necessarily inconsistent with the uncontested evidence concerning the quantity found by the police in their search of his residence. [ 27 ] The accused mentioned a second factor of significance concerning the bulk purchase of heroin.

Having himself been the victim of a home invasion perpetrated -- in his perception at least -- by persons in the drug trade, he testified that he wished to avoid any engagement with low-level drug dealers on the street when purchasing his supply. He is apparently prepared to take the risks identified by Constable Sark which flow from maintaining unused supplies in his own residence over significant periods of time. To the extent that the risk flows from temptation to over-use, he referred to his meticulous use of a small set of scales to measure out his “fixes”.

To the extent that the risk flows from the predations of other users he really had no specific answer. It does not take any great flight of fancy, however, to imagine that the cane found in his home, with the large knife encased within, could be relevant in that regard. [ 28 ] Unlike most persons with a heroin dependency, the accused has had significant financial resources available to him over the past few years. He worked constructively for many years and ultimately he reaped some financial rewards.

In addition, like many 55-year old men he has received some financial benefit from the unfortunate passing of an aged parent. Thus, at least for the time being, he is able to maintain an apartment suite which the photographic evidence shows to be reasonably comfortable, though hardly luxurious.

Most importantly, he testified that the existence of some financial wherewithal has allowed him to make the larger-scale drug purchases which most heroin users might envy but could not realistically contemplate. [ 29 ] The evidence of trafficking in this case, of course, goes well beyond mere reference to the quantity of heroin found.

Accordingly, in his testimony the accused was required to refer to the evidence of the scales, the cellphones, the cash in the pillowcase, the scoresheets and the packaged syringes, and he did so. [ 30 ] To some extent, I have already touched upon the evidence offered by the accused concerning the scales found in his residence. He testified that he used the small scales found on the kitchen table for purpose of measuring out his own dosages. Comstable Sark's evidence was that most users did not use such care, being satisfied to merely “eyeball” the quantities being used whilst in the rush to get the next fix.

I did not take the officer to mean that it was inconceivable for a careful user to measure the amounts that he was using. If the accused actually did take precautions of that sort, it might mean only that he was more careful than most. At 55 years of age, with most of a lifetime of immersion in serious drug use behind him, it is perhaps not unreasonable to expect the accused to have reached some degree of maturation of that sort. [ 31 ] The accused maintained that the scales in the kitchen, which seem to me to be of the “garden variety” sort found in many a household kitchen, had nothing to do with drugs.

Instead, he testified that he acquired the scales quite some time ago to assist him in measuring his intake of food, as required by his ongoing treatment for bowel cancer. [ 32 ] The evidence concerning the cellphones is more than a little murky. The number of phones found lying about the residence is highly suspicious and the explanations offered by the accused do not really clear the air. The accused testified that he purchased cellphones in quantity at times because he found they were useful gifts, and indeed there was evidentiary confirmation that at least some of the phones are identical.

But the accused offered no documented proof of purchase, although he stated that he had such documentation somewhere. I would have thought that this trial would have been a sensible time to produce such documentation if it actually exists. [ 33 ] The second explanation offered for the presence of multiple cellphones was that the accused simply engaged in the hobby of repairing cellphones. If that were so, I would have thought that there would be some evidence of cellphones being found in pieces about the residence, torn apart in a state of mid-repair.

There was no such evidence, nor was any evidence concerning the presence of tools that might be used for such repair work. [ 34 ] On the other hand, there is no evidence whatever that the accused ever used multiple cellphones for the purposes of drug trafficking. I have no evidence that any of the phones except one was in working order. I have no evidence that phone calls ever came into the residence during the lengthy time that the police were conducting their search. [ 35 ] Given the paucity of specifically incriminating evidence concerning the cellphones, the Crown is thrown back upon two basic arguments.

The first derives from the expert evidence that as a general practice drug traffickers often use multiple cellphones. The second originates in the expert's further testimony that desperate drug purchasers will often hand over cellphones-- just as they will hand over anything else that is portable and marketable which they can get their hands on --- as a form of payment to their drug supplier. I have noted both arguments, but I must say that I do not find either of them to be particularly helpful or persuasive in this particular case, in the absence of any supporting evidence.

[36] The accused's evidence regarding the $500 cash in the pillowcase relates back to the testimony which he gave regarding hisgirlfriend Jennifer. According to the accused, Jennifer is a cheat and a thief, amongst other things. He says that he had withdrawn thecash from the bank to pay his bills, but had secreted it in the pillowcase in order to keep it away from her. [37] I must say that I found the accused's evidence on this point to be more than a little problematic. Initially, it seemed to me that theaccused was saying he had placed the money in the pillowcase at some undetermined time in the past.

Later in his testimony, it seemedthat he was saying that he had had put it in the pillowcase that morning when he went for his shower, shortly before the police arrived.This latter version in particular seems contrived, to say the least. [38] The evidence regarding the scoresheets was unclear. The police witnesses conceded that the paperwork is unusual. The documentscertainly refer to arithmetic calculations of some sort, but they do not contain name references and their meaning is in many respectsunclear.

The police explanation was that drug traffickers' accounting records are often deliberately made unclear to an outsider, forobvious reasons. Furthermore, the purpose of the records is such that it is only important that they be understandable to their author.Hence, it is not reasonable to expect that drug scoresheets should be completed in any specific form, nor should it come as a surprise thatthey are unintelligible to an outsider. [39] The accused offered some explanation regarding the scoresheets. He denied that they related to drugs at all.

In the one instance, hewas able to clarify that the document was a running tally with respect to the repayment of a loan which he had made to a friend, using hisinheritance funds. In another instance, he identified a record of funds which his mother had advanced to him from time to time before herdeath. Some he could not specifically identify, except to repeat his adamant denial that the numeric references had anything to do withdrugs. [40] Finally, the accused addressed the issue of the packaged syringes.

He did so in light of the testimony from Constable Sark that it isnot unknown for drug sellers to provide their customers with a clean, packaged syringe as part of the purchase price for the drug. It wasnot difficult to anticipate the response given by the accused. He testified that while it may indeed be true that drug sellers offer theircustomers a packaged syringe, it was not a practice known to him. As far as he was concerned, a packaged syringe was simply theprecursor to an unpackaged syringe, necessary for his own indulgence in heroin usage.

ANALYSIS [41] There is no doubt that the Crown has presented a strong body of evidence incriminating the accused in the offence of herointrafficking. The prosecution rests largely upon circumstantial evidence, but as the Supreme Court of Canada pointed out long ago in R. v.Cooper (1977), (SCC), 34 CCC (2d) 18 the standard of proof in circumstantial cases is no different than it is in anyother criminal case. That standard requires proof beyond reasonable doubt.

In cases involving circumstantial evidence it may beconvenient to state the test more specifically as requiring the court to be satisfied that the guilt of the accused is the only reasonableinference to be drawn from the proven facts: R. v. Vu, 2004 BCCA 381 at para. 31; R. v. Ngo, 2009 BCCA 301, at para. 53. Thedifference in wording does not, however, represent a distinction in principle. [42] If the trial in this case had ended at the close of the Crown case I would have had no difficulty convicting the accused of theoffence charged.

The narrow though difficult question which now must be addressed is whether the evidence of the accused raises areasonable doubt of his intentions regarding the heroin found in his possession or, to put it in other words, whether the evidence of theaccused casts doubt upon the conclusion that trafficking is the only reasonable inference to be drawn from the evidence. [43] In addressing the explanation which has been offered up for consideration I bear in mind two other essential principles. The firstpoint to note is that the Crown is not required to prove that trafficking was the sole intention of the accused.

The Crown may safelyconcede, as it does, that the accused could have intended using some of the heroin himself. If the evidence satisfies me that he intendedusing any of the drug for trafficking purposes, however, he would be guilty of the offence charged. [44] The second principle to which I must carefully adhere is that I must not examine each individual incriminating circumstance inisolation and simply proceed to explore the extent to which each item has been addressed by the accused. To proceed in that fashion is anerror in principle.

I am ultimately required to consider whether all of the evidence, taken in its totality, establishes the guilt of the accusedto the requisite standard: R. v. Ngo, supra, at para. 54; R. v. Williams, 2010 ONSC 184, at para. 65. Another way of articulating thatprinciple is to ask myself how likely it is that all of the incriminating evidence presented in this case would exist in the same place at thesame time in the absence of an intention on the part of the accused to engage in trafficking.

If there is no reasonable likelihood of such anabsence of intention, after considering all of the evidence given by both the Crown and the defence, then the accused must be convicted. [45] As I have already intimated in passing when reviewing the evidence generally, there are many parts of the testimony given by theaccused which I find difficult to accept.

I have already expressed my doubts, for example, regarding the explanation which the accusedoffered with respect to the numerous cellphones in his residence and with respect to the money in the pillowcase. [46] There are many other aspects of the testimony of the accused which I find troubling, too, and some of them are quite serious.

Iwould place in that category his evidence about his financial situation, as I will now explain. [47] In cross-examination, Crown Counsel explored the proposition being advanced by the accused that he was able to purchase largeamounts of heroin and was able to indulge his own habit without selling drugs because he was relatively well-off financially. Counselpointed out that the accused himself had stated that his mother had advanced him funds at various times in the last three or four yearswhen he was in difficult financial straits.

Counsel also elicited from the accused the admission that at the time of trial he only had onebank account, in which the sum of only about $800 remained. The accused conceded that in May 2013, at the time of the search, helikewise had very little cash on account. This evidence, on its face, is not easy to reconcile with the impression being advanced that theaccused was one of those rare financially self-sufficient addicts who is financially able to support his habit by buying drugs in bulk andwithout selling drugs himself.

[ 48 ] Closer analysis, however, suggests that the financial evidence given by the accused, while difficult to follow at times, may not be as incriminating as it appears at first blush. I do not think that there can be any doubt, for example, that he did reap substantial financial benefit from the sale of property in Mexico, just as he testified. He was not seriously challenged on the point, and it seems to me that the evidence was far too detailed and generally plausible to have been fabricated.

Furthermore, it seems most improbable that the accused was telling anything but the truth when he described the inheritance from his deceased mother, and the sporadic fashion in which he actually received the proceeds from her estate. [ 49 ] The truth of the financial situation is probably a good deal more complicated than the propositions advanced by either the Crown or the defence.

I suspect very strongly that between approximately 2009 and 2013 the accused had indeed burned through both the Mexican sale proceeds and the money from his mother's estate at an alarming rate, given his lack of income and his ongoing lifestyle. But he did make glancing, if confusing, reference in his testimony to having “assets”, and to having a line of credit of $90,000 in May 2013.

It is perhaps easy for me, and for counsel, to see that if he were to carry on in the fashion that we heard described at this trial his ultimate financial prospects would somewhat resemble the prospects faced by the Titanic when approaching the iceberg, but that may not be the way he saw the situation, at least not in May 2013 and in the preceding months when he testified to spending thousands of dollars on bulk purchases of heroin. [ 50 ] In this connection, I have to bear in mind very firmly the evidence, which I accept, that the accused was “frazzled and confused” about his financial affairs and about his life generally in May 2013, just as he was when he testified in this court.

Given his lack of clarity, I cannot say that I really know with certainty the state of his financial affairs at the relevant time. I am even less confident in concluding that the accused, living in the relatively modest comfort of a Gorge Road apartment but still possessed of a few valuable items like his guitars and his BMW motor vehicle, realized that his finances were wearing thin.

He may well have thought that his finances were not a matter of concern, whatever might be the objective truth of the situation. [ 51 ] Finally, but equally importantly on the financial issue, I have to bear in mind once more that the specific testimony which the accused gave concerning the purchase of heroin in the months before the police search was itself quite convincing, having regard to the detail provided and the internal consistency of the evidence given.

Accepting, as I do, the evidence which the accused gave on this point I find it exceedingly difficult to simultaneously discount what he says about the surrounding circumstances, including the reasons for the bulk purchase, his ability to pay for it, and his general intention concerning the use of the drug that he bought. [ 52 ] As with his evidence about his finances, the testimony which the accused gave regarding his knowledge of the amount of heroin in his home at the time of the search was flawed.

Again, this is no mere detail, but a matter which deserves serious consideration. [ 53 ] During the course of his cross-examination, the accused became deeply involved in answering questions about the various types or forms of heroin which he had in his home at the time of the search. As a heroin aficionado, this was a subject close to his heart. It was pointed out to him that some of the heroin the police found was in “pebble” form, a highly desirable type of heroin which no user would likely forget having in his possession.

The accused agreed that heroin “pebbles” appealed to his tastes greatly and were most valuable to him as a result. He then let slip that while he may have forgotten about the “pebbles” in his apartment generally, he had remembered them on the very morning that the police arrived, just as he was going into the shower. [ 54 ] The testimony that he had just remembered the “pebbles” in his apartment that morning is troubling for a couple of reasons. First, it has the same whiff of contrivance as his testimony about the money in the pillowcase.

More importantly, it flatly contradicts his general evidence that he was so immersed in heroin use at that stage of his life that his apartment was awash in the drug without him really having much idea where any of it was located or how much there was.

The general gist of his testimony was that he knew he had the small baggies of heroin in his housecoat, having cut it up himself into sizes he intended to use in the future, but that he had only a general, vague idea of what else was in the apartment. [ 55 ] It is difficult to know what to make of the evidence given by the accused concerning his knowledge of the “pebbles”. It involves a notable contradiction, to be sure, and that is troubling in itself. But does that contradiction seriously undermine the gist of the defence evidence? That is difficult to gauge.

It is especially difficult to gauge in view of the scattered nature of the accused's thinking from time to time. I find it hard to dispel the notion that the accused may have been, in a general sense, blissfully unaware of the full extent of heroin remaining in his home from the bulk purchases, and that he simply got caught up in the excitement of the moment when responding to Crown Counsel's apparent astonishment that he did not know about the “pebbles” on the premises. [ 56 ] I trust that it is clear from the above

summary that I am cognizant of the significant weaknesses in the evidence given by the accused. In the end, though, I have concluded that on the whole of the evidence I am still left with a doubt, and I must give him the benefit of the doubt. I appreciate that there is a considerable body of evidence to suggest, when taken in its totality, that he was intending to traffic in the heroin which was found in his home. But in answering the Crown case, the accused has testified to a rather unique set of circumstances underlying his possession of the drug.

I do not necessarily accept all of what the says, and some of it I reject outright. But at the same time I do find that the general, circumstantially-based proposition advanced by the Crown must give way to the possibility that the specific proposition advanced by the accused concerning the purpose for which he possessed the heroin could reasonably be true. His guilt on the trafficking aspect of the charge against him is not the only reasonable inference to be drawn from the evidence and accordingly he must be acquitted on that aspect of the matter.

CONCLUSION [ 57 ] I find the accused person not guilty of the offence of possession of heroin for the purpose of trafficking but guilty of the lesser and included offence of possession of heroin.

E. C. Blake Provincial Court Judge