R. v. Piechotta Date:, 2016 BCPC 465

Citation: R. v. Piechotta Date: 20160927 2016 BCPC 465 File No: 36208-3-C Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MATTHEW CHRISTIAN LADRET and JENNIFER ANN PIECHOTTA REASONS FOR JUDGMENT RE COMMITTAL TO STAND TRIAL (Re Accused Jennifer Ann Piechotta) OF THE HONOURABLE JUDGE J. P. MacCARTHY Counsel for the Crown: T. I. McFadgen Counsel for the Defendant: D. Marion and S. Runyon Place of Hearing: Courtenay and Nanaimo , B.C. Dates of Hearing: September 23, 2015, April 19, April 20, 2016

May 17, May 27, June 9 and September 2, 2016 Date of Judgment: September 27, 2016 INTRODUCTION [ 1 ] THE COURT: Jennifer Ann Piechotta (the "Accused") and Matthew Christian Ladret (the “Co-Accused”) are charged on a two-count indictment which, prior to amendment, indicates that on or about November 27, 2014, at or near Campbell River, British Columbia, that they did unlawfully possess a controlled substance, namely, heroin, for the purpose of trafficking and, further, that they did unlawfully possess a controlled substance, namely, cocaine, for the purposes of trafficking. [ 2 ] Both charges are laid as offences contrary to s. 5(2) of the Controlled Drugs and Substances Act (" CDSA "). [ 3 ] At the commencement of the preliminary inquiry on September 23, 2015, Crown applied, successfully, to amend the drug described at Count 1 of the indictment and to replace the controlled substance “heroin” with the controlled substance “fentanyl.” [ 4 ] The Accused elected trial by a Supreme Court Justice sitting alone and requested a preliminary inquiry.

The preliminary inquiry was conducted before me on September 23, 2015, April 19, April 20, May 17, May 27, June 9 and September 2, 2016.

The preliminary inquiry related only to the Accused and not to the Co-Accused, Matthew Christian Ladret. [ 5 ] According to the defence's Statement of Issues and Witnesses filed pursuant to s. 536.3 of the Criminal Code , that pursuant to s. 536.3 (a), the issues on which the defence wanted evidence to be given at the preliminary inquiry related to: "identity,” “possession” and “for the purposes." Pursuant to s. 536.3 (b), the defence provided the names of eight RCMP witnesses that they were requesting to hear from at the preliminary inquiry. [ 6 ] Defence made it clear during the course of the preliminary inquiry that they were challenging the qualifications of, and the admission of any opinion evidence from Crown's drug expert, Sgt.

F. Scott Rintoul of the RCMP (“Sgt. Rintoul”). [ 7 ] Crown sought to tender Sgt. Rintoul as an expert witness at the preliminary inquiry to give evidence with respect to the following areas: the methods of packaging and concealment, trafficking, prices, usage, drug jargon and slang of certain drugs, and, in particular, cocaine, heroin and fentanyl (the "Areas of Expertise"). [ 8 ] On May 17, 2016, in the course of the preliminary inquiry, I ruled that Sgt. Rintoul was an expert in the Areas of Expertise; he could provide expert opinion evidence within those Areas of Expertise, and that my reasons would follow.

Those written reasons were delivered to the parties earlier today ( see R. v. Piechotta , 2016 BCPC 463 ). To the extent necessary, they are incorporated by reference into these reasons. [ 9 ] I note that at the outset of the preliminary inquiry, Crown had indicated to defence that it was their intention to call RCMP Constable Aaron A. Stevenson ("Cst. Stevenson") as an expert in the Areas of Expertise. Cst. Stevenson had prepared a written report with respect to the two charges, entitled "Opinion Evidence, Constable Aaron A.

Stevenson" (the "Stevenson Opinion Report") which had been properly delivered to defence counsel in advance of the commencement of the preliminary inquiry. Cst. Stevenson was not able to attend at the preliminary and, accordingly, Sgt. Rintoul was substituted as the proposed Crown expert. The Evidence in the Preliminary Inquiry The Crown’s Evidentiary Case [ 10 ] Crown called a total of six police witnesses in the preliminary inquiry and not all were as originally requested by defence. I understand that there is no issue in that regard. Those police witnesses were as follows: a.

Constable Jeanette Beauregard (“Cst. Beauregard”); b. Constable Kyle Ushock (“Cst. Ushock”); c. Constable Stewart Hert (“Cst. Hert”); d. Constable Ryan Pullin (“Cst. Pullin”); e. Constable Nathen Lingley (“Cst. Lingley”); and f. Sgt. F. Scott Rintoul (“Sgt. Rintoul”). [ 11 ] Crown entered certain documents consisting of Exhibit 1, being a Crown Book of 66 photographs, and Exhibit 2, containing the following: 1. Major exhibit flowchart - typed; 2. Printout of text message conversations - cellphone 1410457B - 1, which, based upon viva voce evidence, was a Motorola cellphone seized from the Accused; 3.

Printout of text message conversations - cellphone 1410457-19, which, based upon viva voce evidence, was an Alcatel cellphone seized inside the Quinsam Road Residence (as herein described);

4. Printout of text message conversations - cellphone 141-0457A-3, which, based upon viva-voce evidence, was a blue Alcatel cellphone seized from the centre console of the Nissan Murano vehicle; 5. Printout of text message conversations - cellphone 141 0457-31, which, based upon viva voce evidence, was an LG cellphone seized from inside of the Quinsam Road Residence; 6. Copies of various exhibits consisting of 11 separate pages; and 7.

Copies of Certificates of Analyst comprising 19 separate certificates. [ 12 ] Crown served notice upon defense and applied to have the documents contained within Exhibit 2 admitted in the preliminary inquiry under s. 540(7) of the Criminal Code . All exhibits contained within Exhibit 2 were entered into evidence subject to the right reserved by defence to argue the admissibility of certain parts of the documents contained within Exhibit 2. [ 13 ] Based upon the evidence of Cst.

Hert, Exhibit 2, Tab 1, consisted of two portions, namely, a 4-page "Major Incident Exhibit Flowchart," which was created at the Quinsam Road residence at the time of the search followed by a 35-page document entitled, "Major Exhibit Flowchart" which was generated from a computer program that was activated at the Campbell River Detachment.

Section A of that document included a description of items seized at the time of the arrest and through the search of the Nissan Murano vehicle occupied by the Accused and the Co-Accused at the time of their arrest.

Section B listed items seized in police cells from the Accused and the Co-Accused, and

Section C described samples of controlled substances that were seized in the search of the Quinsam Road Residence and sent to Health Canada in separate "H" envelopes for analysis. [ 14 ] The charges that are the subject of this preliminary inquiry arose out of a drug investigation relating to the Accused and the Co- Accused and the execution of a search warrant at a residence located at [omitted for publication] Quinsam Road, in Campbell River, British Columbia (herein the "Quinsam Road Residence").

It was a residence known to be occupied by the Co-Accused and at which a silver Nissan Murano vehicle, found to be registered in the name of the Accused and bearing license number [omitted for publication], was regularly parked in the driveway. [ 15 ] Exhibit 6 introduced by Cst.

Hert was an Insurance Corporation of British Columbia certificate showing a Jennifer Ann Piechotta as the registered owner of the Nissan Murano vehicle, and her residential address was listed as the same Quinsam Road Residence. [ 16 ] The Accused had been observed and photographed standing at the front door of the Quinsam Road Residence around 10:08 a.m. on November 27th, 2014, being the alleged offence date. Crown's theory is that the Quinsam Road Residence was, at the offence date, a place over which the Accused had control. [ 17 ] According to the evidence of Cst.

Hert, who was part of the team executing the search warrant at the Quinsam Road Residence on November 27, 2014, he was not of the belief that the Accused was living at the Quinsam Road Residence at the time of the execution of the search warrant. From his observations, it did not strike him that it was inhabited by a female. A single piece of women's lingerie was observable in a closet.

Similarly there was nothing to indicate that the secondary or spare bedroom, which appeared to have previously been a child's bedroom, was being occupied at that time. [ 18 ] As a result of the execution of the search warrant, police seized a large quantity of cocaine and fentanyl, originally thought by the police searchers to be heroin, along with a large quantity of cash and other items alleged to have been used in connection with a drug trafficking operation.

The drugs were found in a number of packages containing various amounts. [ 19 ] A large portion of cash that had been hidden in a void area in the fireplace was discovered by the police searchers. [ 20 ] Based on the whole of the viva voce evidence in the voir dire and relying upon the information in the major exhibit flowchart and in the Exhibit 2 photographs, the following items were located and seized in the Quinsam Road Residence as a result of the execution of the search warrant on November 27, 2014: 1. 231 grams of powdered cocaine; 2. 191 grams of crack cocaine; 3. 287 grams of fentanyl; 4. 156 grams of phenacetin, later described in the expert opinion testimony of Sgt.

Rintoul to be a cutting agent used in conjunction with baking soda to increase the yield of illicit drugs for sale to customers; 5. 27 grams of marihuana; 6. Two sets of working digital scales; 7. Drug packaging materials including sandwich baggies, torn baggies, vacuum packaging bags, and elastics; 8. A money-counter machine; 9. Documents appearing to be drug sales ledgers, commonly referred to as "score sheets," and subsequently so identified in the expert opinion evidence of Sgt. Rintoul; 10. Nine boxes of baking soda, later described in the expert opinion evidence of Sgt.

Rintoul to be used for making crack cocaine; 11. Five cellular phones, three of which were found to be functioning;

12. A large knife, which appeared to have been used for cutting cocaine, based upon powder residue on the blade which was later confirmed by analysis; 13. A total amount of $7,225 cash, in part bundled in denominations of eighty $50 notes, ninety-five $20 notes, a separate bundle containing six $100 notes, two $50 notes, three $20 notes, and one $10 note and together with some loose Canadian notes and some foreign currency; 14. A 12-gauge Star signal flare gun with a flare in the firing chamber and the hammer drawn back in the firing position, along with four loose 12-gauge flares next to the flare gun.

The location of its discovery was described as being next to the Co-Accused's bed. [ 21 ] While there is an issue taken by defence with respect to the inference to be drawn from certain items located in the Quinsam Road Residence, I do not understand defence to be seriously disputing the expert opinion that these seized items are consistent with a drug trafficking operation and, in particular, that the amount of drugs and the type of drugs found are consistent with drug trafficking and were not for personal use, other than the marihuana. [ 22 ] Certain other items were also located in the Quinsam Road Residence, which give rise to various possible inferences, which are contested by defence.

These were documents bearing an identical name, or similar name, or a version of a name, to that of the Accused and include: 1. a BC Hydro form letter addressed to Jennifer A.

Piechotta at the Quinsam Road Residence address, dated November 12, 2014, referencing an account number and confirming registration of a BC Hydro Account online with MyHydro , found on a bookshelf where the drugs were located; 2. a British Columbia provincial birth certificate in the name of Jennifer Ann Piechotta, with a birthdate of November 8, 1978, found on a shelf in the kitchen, near a vacuum sealing machine and other packaging materials; 3. a B.C. provincial birth certificate in the name of E.J.M., [omitted for publication] with a date of birth of [omitted for publication], and a parent shown as Jennifer Ann Piechotta; 4. an invoice dated October 27, 2014, from Kilgour's Plumbing Services, detailing services and parts, addressed to a Jennifer Piechotta, at the Quinsam Road Residence address and indicating "ship to" the same named individual at the same address; 5. an application to BC Hydro for residential service "in your name" completed in handwriting showing the name of Jennifer Piechotta, and showing a date of birth of November 8, 1978, and a previous address being the same as the Quinsam Road Residence and a "new service address" of [omitted for publication] Dogwood Street, Campbell River, British Columbia, which document was located on the kitchen island counter; 6. a three-page invoice from London Drugs Limited, dated October 25, 2014, addressed to Matt Ladret, signed on each page with a signature appearing to read "J.

Piechotta," and a one-page invoice from London Drugs Limited, dated October 25, 2014, addressed to Matt Ladret, with a signature appearing to read "J. Piechotta," and a one-page "Return" invoice from London Drugs, dated October 25, 2014, addressed to Matt Ladret, with a signature appearing to read "J. Piechotta". [ 23 ] As a result of finding the BC Hydro application for service at [omitted for publication] Dogwood Street, Campbell River, Cst.

Lingley followed up and obtained a copy of a residential tenancy agreement, dated November 6, 2014, in the tenant's name of "Piechotta, Jennifer Ann" for that particular unit, which was entered into evidence in the preliminary inquiry as an exhibit. The tenant's signature appears to read "Jennifer Piechotta." In paragraph 2, reference is made to "E.J.M., [omitted for publication] years," as a minor person under 19 who would be occupying the unit.

A start date for the tenancy is shown as December 1, 2014, in paragraph 4, but in paragraph 44, the "move-in day" is shown to be November 7, 2014, with a provision for pro-rating of the rent. [ 24 ] Neither the Accused nor the Co-Accused was present at the Quinsam Road Residence at the time of the execution of the search warrant. However, they were arrested together shortly afterwards in the Nissan Murano vehicle registered in the Accused's name after they had been observed by the police driving past the Quinsam Road Residence around 3:00 p.m. [ 25 ] The traffic stop and arrest was made by Cst.

Beauregard, who had been conducting surveillance in an unmarked police car while the execution of the search warrant was taking place. At the time of the arrest, the Accused was driving the vehicle and the Co- Accused was in the passenger seat. Cst. Beauregard had backup from Cst. Ushock, police services dog handler Cst. England, and Cst. Dormuth.

They all attended at the scene of the vehicle stop and were involved in the search of the Accused, the Co-Accused and the vehicle. [ 26 ] As a result of the search incidental to her arrest, the Accused was found to be in possession of cash found in the right-hand pocket of her jacket in the amount of $1,281.45, mostly in denominations of $50 and $20 notes. An amount of $1,119 was found in a woman's wallet located behind the driver's seat, mostly in denominations of $20 notes. A cellphone was also seized from the Accused. [ 27 ] In a search incidental to arrest conducted by Cst.

Ushock, the Co-Accused was found to be in possession of $1,830 in cash in various denominations of $100, $50, $20, $10 and $5 notes, but mostly in $20 notes contained in a wallet, located in a pocket of a man’s jacket not being worn at the time of the arrest. A cellular phone was also seized from the Co-Accused. [ 28 ] As a result of a search of the Nissan Murano motor vehicle, also incidental to the arrest, an amount of $1,100 cash in $100 denomination bills was found in a Ziploc plastic bag by Cst.

England under a tray located inside the center console armrest, situated in an area between the front passenger seats where the Accused and the co-Accused had been seated, along with an Alcatel cellphone and a Samsung Galaxy tablet and a large number of smaller plastic sandwich bags. Cst. Ushock testified that from his police experience he had seen that size of plastic bags used for packaging drugs. [ 29 ] All items seized were turned over to Cst. Hert, who was the Campbell River RCMP detachment exhibit custodian.

[ 30 ] No drugs were located in the Nissan Murano motor vehicle or upon the person of either the Accused or the co-Accused. There were no weapons and no "score sheets" recording any drug transactions found in the vehicle. [ 31 ] Following the seizure of various items, different forms of examination and analysis were completed. Pursuant to a separate search warrant, Cst. Pullin was responsible for conducting a Cellebrite search of the seven cellphones seized and the Samsung computer tablet. As was explained in the evidence of Cst.

Pullin, this procedure allowed the extraction of the cellphone logs, contacts, text messages, and photographs into an electronic format and the resulting reports were then put onto an external drive which was turned over to Cst. Lingley. [ 32 ] I understand from the evidence, of Cst. Lingley that the resulting reports were in a “read-only” Excel format and could, therefore, not be modified by the viewer. I further understand that not all information from all of the various seized cellphones was able to be recovered and downloaded. [ 33 ] Cst.

Pullin had previously been responsible on July 25, 2014, for conducting surveillance of a vehicle bearing license number [omitted for publication] which he described as a "Jeep-type vehicle" being driven by a female whom he identified in court as being the Accused. He described observing that vehicle travelling to a residence known to be that of an individual involved in drug use, where a brief stop was made.

Then the vehicle travelled to another residence known to be that of a drug user where the female driver, later identified as the Accused, alighted from the vehicle, approached the residence, and returned to the vehicle with a known male drug user, where an exchange from the male of a package to the female occurred, with the male leaning inside the vehicle. [ 34 ] Cst. Pullin continued to follow the vehicle and then observed it stopped at another residence where the female driver alighted from the vehicle with the package in hand, went to the residence briefly and returned without the package in hand. [ 35 ] Cst.

Lingley conducted a review of the material that was obtained from the four cellphones contained within Exhibit 2. For the purposes of completing the transcripts contained in Exhibit 2, he testified that he removed other electronic text exchanges and conversations from the transcripts. He did not alter the data or the times shown in the data. Also, with respect to the LG cellphone, photographs were taken of the text conversations and the Cellebrite report was not utilized. [ 36 ] Sgt.

Rintoul testified, and was cross-examined in a voir dire , over a course of two days on April 20, 2016, and May 17, 2016, with respect to the contested issue of his qualifications as an expert in the areas of expertise and the admission of his expert opinion in this preliminary inquiry. My ruling in that regard is noted above. [ 37 ] Following that ruling, Sgt. Rintoul testified on May 27, 2016, and on the morning of June 9, 2016. I do not intend to extensively detail all the evidence provided by Sgt. Rintoul, but I will provide a necessary

summary of the matters touched upon, the basis for his expert opinion evidence, and the resulting expert opinion that he provided to the court. Some of his evidence occurred during the voir dire , relating to his qualifications as an expert, which was incorporated into the evidence in the preliminary inquiry proper, and the rest was provided following the May 17, 2016 ruling. [ 38 ] The Stevenson Opinion Report was marked for identification only. Its admission into evidence was objected to by defence on the basis that there was no qualification of Cst. Stevenson as an expert. Accordingly, Sgt.

Rintoul, who had previously expressed concurrence with the opinions reached in the Stevenson Opinion Report, was shown it and questioned by Crown on the number of matters touched on by that report. He was asked to provide his own opinion as it related to the matters covered by the Stevenson Opinion Report. [ 39 ] In addition to reviewing the Stevenson Opinion Report, Sgt.

Rintoul testified about the numerous other documents he reviewed such as the RCMP case synopsis, the details of items seized from the Quinsam Road Residence, including the amount and type of drugs and the exhibits that he had the opportunity to review, and specifically, the text messages on the cellphones. All of this permitted him to formulate and finalize his opinion within the Areas of Expertise. [ 40 ] In his evidence, Sgt.

Rintoul amplified on information that was contained in the Stevenson Opinion Report, providing his comments about where he differed concerning pricing of drugs at both the retail and wholesale level as it related to the urban Lower Mainland of British Columbia pricing trends, and his understanding of pricing trends in more rural areas of British Columbia.

He identified some notable similar and identical usages and some differences in drug language and jargon set out in the Stevenson Opinion Report as it related to the Campbell River area and to the Lower Mainland. [ 41 ] He described the common measures and packaging used by drug dealers and users for different kinds of drugs, and, in particular, cocaine and heroin, and fentanyl disguised as heroin, much of this being substantially the same as contained in the Stevenson Opinion Report.

He described the common use of small, clipped corners of plastic bags for packaging product for street sale, and the advantages to and use of vacuum packaging of drugs in bulk form. [ 42 ] He expressed the opinion that the volume amount of the cocaine and fentanyl located and seized from the Quinsam Road Residence, and its potential wholesale and street value, was too much for personal use, but was consistent with his conclusion that it was possessed for the purposes of trafficking. [ 43 ] He described the common use in the drug trafficking trade for phenacetin as a cutting agent for drugs to thereby increase the yield and profit of the drug trafficker from his drug supply.

He also described the use of baking soda as an essential ingredient in the production of crack cocaine. He noted the significant amount of phenacetin and baking soda located in the Quinsam Road Residence, which would be consistent with a drug-trafficking operation. [ 44 ] He described the financial aspects of the drug trafficking trade, characterizing it as being a "cash business," resulting in the possession of significant amounts of cash, often in the denominations of $20, derived from street dealing.

He described the impediments for attempting to deposit cash amounts received into financial institutions as well as the necessity to attempt to hide or secure surplus funds to avoid being robbed. He testified about the use of a money-counter machine by drug traffickers, like the one found at the Quinsam Road Residence, in order to manage the large volume of cash received from drug transactions. He further described how

dealers handle and bundle various denominations of cash in order to track and use it. [ 45 ] According to Sgt.

Rintoul, the drug dealer's fear of robbery of either their cash or drugs results in the presence and use of weapons by drug traffickers, like the flare gun seized at the Quinsam Road Residence. [ 46 ] He testified that the electronic scales found in the Quinsam Road Residence were common to drug traffickers, noting that drug users did not need to use scales, but drug sellers do use scales. [ 47 ] He provided further information and opinions regarding the methods utilized to sell drugs and to maintain records of transactions on "score sheets" for transactions where a drug trafficker extends credit to a trusted client and, further, to track the supply of drugs on hand, and the existing debt and paid ratios of that on-hand supply.

He expressed the opinion that documents of that nature were found in the Quinsam Road Residence, such opinion being based on the jargon and other language utilized within them. [ 48 ] Sgt.

Rintoul provided evidence about the different levels of drug-trafficking operations, describing the so called "gram level or street level" dealer who sells small amounts of drugs, the "multilevel/gram dealer” who traffics to both users and to small-time traffickers, the “ounce-level” traffickers who usually do not sell to drug users, but may do so, and then the "multi-ounce trafficker," who does not sell to users. [ 49 ] He described common types of distribution techniques utilized by drug traffickers.

He spoke in terms of the required communication via telephone or cellphone and by text messaging to arrange meetings, then by necessity, for the purposes of avoiding suspicion or detection resulting in short meetings of under 30 seconds with user clients to complete drug transactions. [ 50 ] He provided further evidence about other common features of "dial-a-dope” operations, noting transactions often take place at meetings in the open air or at the buyers' residence or, even more riskier for the dealer, at his own residence or place of business operations.

On cross-examination, he noted that stops at a place known to be associated with a person in the drug trade, other than for the completion of a sale to a drug user, could also be either to "up," that is to resupply a sub-dealer, or to "re-book," that is to restock the trafficker's supplier from a larger distributor. [ 51 ] Sgt. Rintoul gave evidence about the significant importance of cellphones and their importance and use in the drug trafficking trade. He noted the specific use of text messaging as a common means of obtaining orders and arranging for drug transactions.

The use of cryptic messages, drug jargon, and abbreviations as to the kinds of drugs and the volume of drugs sought, are extremely important. He testified that Alcatel cellphones are significant to him because they are cheap cellphones that are referred to as "burner phones," which are "pay-as-you-go" phones, for which there is not an available record for deleted text messages and are, thus, safer in the event that the trafficker is stopped by the police and is subjected to a search. [ 52 ] Sgt.

Rintoul was asked to review a number of the transcripts of the text messaging obtained from the seized cellphones and which form part of Exhibit 2, Tabs 2, 3, 4 and 5, and then to provide both

interpretation of the messages and to provide his opinions relating to the nature of the exchange between the senders and the receivers of the messages on each of the cellphones. [ 53 ] He testified about messages found on the Alcatel cellphone (1410457-19) found at the Quinsam Road Residence, such messages being under Tab 3; about messages found on the blue Alcatel cellphone (1410457A-3) seized from the Nissan Murano vehicle's central console, such messages being under Tab 4; and the LG cellphone (1410457-31) also seized from the Quinsam Road Residence, such messages being under Tab 5. [ 54 ] He pointed to several examples of messaging for drug orders being placed and arrangements being made for delivery, as well as messages between the seized cellphones, which he said were consistent with exchanges between business partners in the drug trafficking business for the purposes of refreshing supplies of drugs and for arranging further sales to drug users. [ 55 ] He looked at a particular message found on Motorola cellphone 1410457B-1, seized from the Accused, and with the transcript contained under Tab 2, and opined that the phrase "dragons for about two days” was a reference to a pickup of only a two-day supply of heroin from the warehouse for selling purposes, being an amount that the trafficker felt comfortable possessing.

He testified that the term "dragon" historically referred to opium in drug parlance, but now means heroin. He disagreed with defence that it was more likely a reference to some ornamental dragons which were depicted in some photographs and stated that such an

interpretation in the whole of the cryptic message did not make sense. [ 56 ] He noted names in the text messages that made reference to a name or version of the name of the Accused and the Co-Accused. He reviewed the interconnection of outgoing and received messages between cellphones found on the Accused or in the Nissan Murano vehicle, and those located in the Quinsam Road Residence.

He also gave evidence about what he said was a link between a drug transaction that was apparently arranged on the morning of the offence date for an amount of money consistent with the funds found on the Accused at the time of her arrest. [ 57 ] He provided evidence about the means by which each of powder cocaine, crack cocaine and fentanyl (sold as heroin to unsuspecting buyers) are commonly consumed by the drug user, specifying and distinguishing whether it is commonly by smoking, snorting, ingesting or through intravenous injection.

He further described the various tools and implements required for each available means of consumption. [ 58 ] Sgt. Rintoul concluded his examination in chief by providing his expert opinion evidence based upon: 1. the amount of cash found on the Accused and the Co-Accused at the time of their arrest; 2. his examination of the transcripts of the text messages which were located on the seized cellphones found in the possession of the Accused or the Co-Accused (on their person, in the Nissan Murano vehicle or at the Quinsam Road Residence), as well as the exchange of messages between the seized cellphones and his

interpretation of all of those messages;

3. what was seized at the Quinsam Road Residence on the offence date including the amount of drugs (and as I understand it, theranges of the significant potential values of those drugs at both the wholesale and retail values and street level values, whether usingLower Mainland pricing or rural pricing that would be applicable to Campbell River), the packaging material, the scales, and the cuttingagents found there; and 4. the connection between the drugs seized on November 27, 2014, and the text messages for the date of the police seizure found on thecellphones and the types of drugs being referenced in those text messages. [59] His opinion was that the money found in the Nissan Murano vehicle, or some of it, was the proceeds of drug trafficking. [60] He further was of the opinion that the drugs, namely cocaine and fentanyl (being sold as heroin), that were seized werepossessed for the purposes of trafficking based upon the following: 1. the text messages on the cellphones; 2. the observations of the police of the short stops made by the Accused at the different locations; 3. the bulk amount of drugs seized from the Quinsam Road Residence; 4. the packaging of the drugs and the packaging material found at that location; 5. the money found at the Quinsam Road Residence and how that money had been secreted away; 6. the scales; and 7. the totality of the evidence that was seized. [61] Having reviewed the photographs and other exhibits, Sgt.

Rintoul testified that his opinions have not changed. [62] He also expressed the opinion that based on the text messaging that he had reviewed, he had formed the opinion that theAccused and the Co-Accused may have separated in a personal and a living arrangement sense, but that the business arrangementbetween them with respect to drug trafficking continued to exist at the time of the search and seizure and their arrests. The Defence's Evidentiary Case [63] Defence called no evidence at the preliminary inquiry, which is certainly the right of defence to do so. No adverse inference isdrawn from that decision.

The Applicable Law Applicable Provisions of the Criminal Code and Case Authorities [64] A number of arguments have been raised by the parties that touch upon the nature and purpose of preliminary inquiries andother important matters relating to the powers and jurisdiction of the justice conducting a preliminary inquiry (in this case me), theadmissibility of evidence, and the applicable tests for committal and discharge. [65] Accordingly, I have referred to and relied extensively to an authority known as E.G.

Ewaschuk, "Criminal Pleadings andPractice in Canada," Second Edition, Canada Law Books Toronto ("Ewaschuk"). Specific reliance is placed upon

Part V,

Chapter 13 -The Preliminary Inquiry. I have reviewed both the relevant provisions contained in Ewaschuk and the relevant case authorities citedtherein and relied upon to satisfy myself that the learned author's statements of the law are correct. General [66] Ewaschuk states that the powers of a preliminary inquiry justice are entirely statutory, and, therefore, the power to grant aremedy sought must derive "expressly or impliedly" from its enabling legislation, namely

Part XVIII of the Criminal Code. However, ajustice hearing a preliminary inquiry is a "court of record." [67] A preliminary inquiry is an inquiry as to the "sufficiency of evidence" led in respect of offences charged in an Information tojustify the Accused being committed for trial "by indictment" before a superior court judge sitting with or without a jury. Therefore, bydefinition, an indictment may contain only indictable offences. Thus, a provincial court judge hearing a "preliminary inquiry" mayneither inquire into the sufficiency of evidence in respect of a

summary conviction offence, nor commit an accused person for trial onindictment in respect of a

summary conviction offence [see: Criminal Code, s. 548(1)(a): "…sufficient evidence to put the accused ontrial for the offence charged or any other indictable offence in respect of the same transaction"]. [68] Given that the primary purpose of a preliminary inquiry is to satisfy the justice that there is sufficient evidence to put theAccused on trial, the result is that the Crown has a discretion to present only enough evidence to establish a prima facie case [see: R. v.Sazant, 2004 SCC 76 , [2004] 3 S.C.R. 635, 65 W.C.B. (2d) 132, 196 C.C.C. (3d) 1, 252 D.L.R. (4th) 289, at para. 14]. [69] Furthermore, according to Ewaschuk, it seems that a secondary purpose of a preliminary inquiry is to afford an accused personan opportunity to discover the case to be made against him or her at trial [see: R. v.

Skogman, (SCC), [1984] 2 S.C.R.93, at p. 105, 13 C.C.C. (3d) 161 at p. 171]. [70] Over time, the preliminary inquiry has assumed an "ancillary role" as a "discovery mechanism," providing the accused personwith an early opportunity to discover the Crown's case against him or her. Nonetheless, this discovery element remains incidental to thecentral mandate of the preliminary inquiry; that is, the determination of whether "there is sufficient evidence to put the Accused on trial"

[see: R. v. Hynes, 2001 SCC 82 , [2001] 3 S.C.R. 623, at para. 31; R. v. B.(E.), (2002) (ON CA), 162C.C.C. (3d) 451, 2 C.R. (6th) 178, 57 O.R. (3d) 741 (Ont.

C.A.), at para. 41]. [71] Where a request for a preliminary inquiry is made, the "prosecutor," or if the request was made by the accused person, "counselfor the accused," must provide the court and the other party with a statement that "identifies the issues" on which the "requesting party"wants evidence to be given at the inquiry, and the witnesses that the requesting party wants to hear at the inquiry [see: Criminal Code, s.536.3]. [72] The rules governing the admissibility of evidence at trial apply generally to a preliminary inquiry [see: Ewaschuk at para.13:0050 and the cases referred to therein]. [73] However, the justice hearing a preliminary inquiry has statutory power to "receive as evidence" any information that would nototherwise be admissible but that the justice considers "credible or trustworthy" in the circumstances, including a "statement by a witness"in writing or otherwise recorded.

The party intending to tender such information must give the other parties "reasonable notice" of his orher intention to tender the information, together with a "copy of the statement” [see: Criminal Code, s. 540(7)]. [74] Section 540(7) does not establish "categories of evidence." The preliminary inquiry judge has discretion to receive as evidence"any information that would not otherwise be admissible," provided it is credible and trustworthy.

No distinction is made in thelegislation to any particular category or type of information. [75] In any event, s. 540(7) focuses on the need for a "prima facie air of reality" to the credibility or trustworthiness of the statement. Ultimate reliability is for the triers of fact at the trial. [76] A justice presiding at a preliminary inquiry has jurisdiction to make "all evidentiary rulings," including relevance and privilege,though the justice has no jurisdiction to make evidentiary rulings based on Charter violations. [77] R. v.

Hynes (at paras. 28 and 32) is referred to as authority for the proposition that a justice at a preliminary inquiry has "nojurisdiction" to exclude evidence, in particular, confessions, on the grounds that they were obtained in breach of the Charter and thattheir admission would bring the administration of justice into disrepute. [78] In support of the important proposition noted above that the primary purpose of a preliminary inquiry is to satisfy the justicethat there is sufficient evidence to put the accused person on trial, with the result that the Crown has a discretion to present only enoughevidence to establish a prima facie case, Ewaschuk further relies upon the statutory provisions of the Criminal Code, s. 548(1) and uponthe following common law authorities: R. v.

Patterson, (SCC), [1970] S.C.R. 409, 2 C.C.C. (2d) 227; R. v. Caccamo, (SCC), [1976] 1 S.C.R. 786, 21 C.C.C. (2d) 257; R. v. Barbeau, (SCC), [1992] 2 S.C.R. 845, 75 C.C.C.(3d) 129, 15 C.R. (4th) 169; all in addition to R. v. Sazant, supra. [79] Very importantly, Ewaschuk observes that the preliminary inquiry serves a "screening purpose," and it is not meant to provide aforum for litigating the merits of the case against the accused person. Its "primary purpose" is to ascertain whether there is "sufficientevidence" to warrant committing the accused person to stand trial [see: R. v.

Russell, 2001 SCC 53 , [2001] 2 S.C.R. 804, 157C.C.C. (3d) 1, 44 C.R. (5th) 231, 203 D.L.R. (4th) 1, 150 O.A.C. 99, 274 N.R. 247, at para. 20]. [80] Further, Ewaschuk states that in R. v. Hynes (at para. 30) the court notes that "the preliminary inquiry is not a trial but is rather a'pre-trial screening mechanism' aimed at 'filtering out weak cases' that do not merit trial." [81] As previously mentioned, it seems that a secondary purpose of a preliminary inquiry is to afford an accused person anopportunity to discover the case to be made against him at trial [see: R. v.

Skogman at page 171]. [82] Also as previously alluded to and mentioned, over time the preliminary inquiry has assumed an "ancillary role" as a "discoverymechanism," providing the accused person with an early opportunity to discover the Crown's case against him or her. Nonetheless, thisdiscovery element remains incidental to the central mandate of the preliminary inquiry; that is, the determination of whether "there issufficient evidence to put the Accused on trial” [see: R. v. Hynes at para. 31 and R. v.

B.(E.) at para. 41]. [83] The incidental function of the preliminary inquiry as a "discovery mechanism" has lost much of its relevance as a result of theCrown's constitutional duty to make "full disclosure." In particular, the Crown is not under a duty to produce a witness for discovery[see: LSJPA-0745 (Re), (2009) 2009 SCC 14 , 242 C.C.C. (3d) 297 sub nom. R. v.

L.(S.J.), 82 W.C.B. (2d) 737, 2009 SCC 14,305 D.L.R. (4th) 1, 242 C.C.C. (3d) 297 (S.C.C.), at para. 23]. [84] It must be kept in mind that the evidence adduced at a preliminary inquiry does not reflect the whole of the evidence which willbe presented at the trial nor does it reflect the strength of the Crown's case at trial [see: R. v. Power, (SCC), [1994] 1S.C.R. 601]. [85] "Disclosure" of the Crown's case is now primarily regulated by the trial judge as part of that court's jurisdiction over Chartermatters.

The purpose of the preliminary inquiry is to serve as a "charge screening function" prior to trial [see: R. v. Girimonte, (1997) (ON CA), 121 C.C.C. (3d) 33 (Ont. C.A.)]. [86] It seems that the 2004 Criminal Code amendments relating to the "preliminary inquiry" were designed to place limits on thescope of the inquiry so that a preliminary inquiry directed exclusively to "discovering evidence that might be useful on a Charterapplication" for exclusion of evidence at trial is not appropriate [see: R. v. Gill, 2006 BCSC 927, 69 W.C.B. (2d) 692].

Committal or Discharge of the Accused [87] In particular, I have looked at the provisions of s. 13.2000 in Ewaschuk, under the heading of Committal for Trial or Orders toStand Trial. Some of the principles have been previously noted in some fashion above. The learned author, under the heading,

Committal or Discharge of the Accused, indicates and states as follows: Section 548(1) of the Criminal Code requires that "when all the evidence has been taken" the justice shall commit the accused to standtrial "if in his opinion, there is sufficient evidence" and shall discharge the accused if in his opinion, on the whole of the evidence, "nosufficient case is made out". [88] Reference is then made to the Supreme Court of Canada decision in R. v. Sazant, supra, specifically at paragraph 16.

That casestands for the proposition that the preliminary inquiry judge must commit the accused person for trial if there is direct evidence on all ofthe elements of the offence, even if the defence proffers exculpatory evidence.

However, it is a jurisdictional error for the preliminaryinquiry judge to commit an accused person for trial when there is "no evidence" on an essential element of the charge. [89] The learned author goes on to say: The question to be asked is "whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdictof guilty." The preliminary inquiry justice must commit the accused to stand trial "if there is admissible evidence which could, ifbelieved, result in a conviction." The test is the same whether the evidence is direct or circumstantial.

Where there is "direct evidence"as to every element of the offence the Accused must be committed for trial. Where there is no direct evidence as to every element of theoffence the preliminary inquiry justice must "weigh the evidence" in the same sense of assessing whether it is "reasonably capable" ofsupporting the inference that the accused committed the offence. It involves a "limited weighing of the evidence." The justice asks onlywhether the evidence "if believed" could reasonably support an inference of guilt.

The justice does not ask whether he could concludethat the accused is guilty nor does the justice draw "factual inferences or assess credibility." In particular, the justice does not determinewhether the guilt is the only reasonable inference. [90] The case citation in support of that proposition is found in the Supreme Court of Canada decision of R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at paragraphs 21 to 23. [91] Furthermore, the learned author goes on to say that: In performing the "task of limited weighing" the preliminary inquiry justice does not draw inferences from facts.

Nor does he assesscredibility. Rather, the justice's task is to determine whether "if the Crown's evidence is believed" it would be reasonable for a properly-instructed jury to infer guilt.

The task never requires consideration of the "inherent reliability" of the evidence itself, instead it involvesan assessment of the "reasonableness of the inferences to be drawn from the circumstantial evidence." Whatever the evidence of theCrown and the defence, the justice must engage in the "limited weighing of the whole of the evidence, i.e. including the defenceevidence, to assess whether a reasonable jury properly instructed could return a finding of guilt." In other words, the justice mustdetermine whether the evidence could reasonably support a finding of guilt.

The question is the same whether the evidence is direct orcircumstantial. [92] Again the reference is to R. v.

Arcuri at paragraphs 30 to 34. [93] Ewaschuk then goes on to note that the justice hearing the preliminary inquiry may discharge the accused person, if, in heropinion, on the whole of the evidence, "no sufficient case" is made out to put the accused on trial for the offence charged or for any otherindictable offence in respect of the "same transaction" [see: Criminal Code, s. 548(1)(b)]. [94] The justice must be satisfied that there is not "sufficient evidence" to put the accused person on trial for the offence charged orfor any other indictable offence in respect of the "same transaction" [see: Criminal Code, s. 548(1)(a)]. [95] The whole of the evidence heard during the preliminary inquiry is particularly important since a preliminary inquiry judgecommits jurisdictional error when he or she fails to consider "the whole of the evidence" as statutorily prescribed by s. 548(1)(

b) of theCriminal Code. In order to discharge an accused person at a preliminary inquiry, the preliminary inquiry judge must "render reasons"demonstrating that he or she has met the statutory and mandatory duty to consider the whole of the evidence [see: R. v. Deschamplain,[2004] 3.S.C.R. 601 at paras. 1 and 34 and R. v. Sazant, supra, at para. 22]. [96] In other words, the justice must be satisfied that there is "no evidence" upon which a reasonable jury, properly instructed, couldreturn a verdict of guilty [see: United States of America v.

Shephard, (SCC), [1977] 2 S.C.R. 1067, at p. 1080, 30 C.C.C.(2d) 424, 34 C.R.N.S. 207, 70 D.L.R. (3d) 136, 9 N.R. 215]. This is referred to as the “Shephard test.” [97] Where the justice errs on a "fundamental matter", for example, where she applies the test of reasonable doubt or weighscredibility at a preliminary inquiry, the justice commits jurisdictional error and not mere legal error in discharging the accused person. In so acting, the justice has "usurped the jurisdiction" of the trial court [see: R. v.

Dubois, (SCC), [1986] 1 S.C.R. 366,25 C.C.C. (3d) 221, 51 C.R. (3d) 193, 26 D.L.R. (4th) 481, [1986] 3 W.W.R. 577, 41 Man. R. (2d) 1, 66 N.R. 289 and see also BritishColumbia (Attorney General) v. Cronin, PCJ (1997), 144 W.A.C. 280, 34 W.C.B. (2d) 204 (B.C.C.A.), leave to appeal to S.C.C. refused170 W.A.C. 240]. [98] The justice must not assess the value of the evidence of a particular witness, (i.e. the complainant) [see: R. v.

Leatherdale(1999), (ON CA), 123 O.A.C. 315, 43 W.C.B. (2d) 263 (C.A.), leave to appeal to S.C.C. refused 134 O.A.C. 394, atpara. 7]. [99] Thus, where there is "some evidence" upon which a reasonable jury properly instructed could return a verdict of guilty, a justicemay commit jurisdictional error in discharging the accused person. In such circumstances, the justice has "no jurisdiction" to dischargethe accused person [see: R. v. Campbell (1999), (ON CA), 140 C.C.C. (3d) 164, 155 O.A.C. 143 (Ont.

C.A.)]. [100] It seems that it is "jurisdictional error" for the justice "to weigh competing inferences" to select from among them. The justice isnot to draw an "inference alternative" to that capable of supporting an inference of guilt even though both are reasonably available on theevidence [see: R. v. Montour (2002), 52 W.C.B. (2d) 371 (Ont. C.A.); R. v. Gianchinin-Belen (2006), (ON CA), 209

O.A.C. 17, 69 W.C.B. (2d) 381 (C.A.) (at para. 4 - in discharging the accused, the preliminary court judge "impermissibly weighedcompeting inferences")].

Test for Committal for Trial [101] Ewaschuk summarizes the Shephard test for committal as follows: The test to determine whether there is sufficient evidence to put the accused on trial (committal) is the same test which governs a trialjudge in deciding whether the evidence is sufficient to justify him in withdrawing the case from the jury: "whether there is any evidenceupon which a reasonable jury properly instructed could return a verdict of guilt"; See: United States of America v. Shephard (supra). See: R. v. McIlwain (1988), (ON SC), 67 C.R. 393 (Ont.

H.C.J.) (improper to discharge accused on basis oflikelihood that trial will result in an acquittal). [102] Ewaschuk further notes that it seems that where there is a "scintilla of evidence" on each essential element of the offence, thejustice must commit the accused person for trial on that offence [see: R. v. Sazant, (2003), (ON CA), 179 C.C.C.(3d) 1, 17 C.R. (6th) 194, 67 O.R. (3d) 481, 178 O.A.C. 1, 112 C.R.R. (2d) 46 (Ont. C.A.), leave to appeal to S.C.C. granted 180 C.C.C.(3d) vi (S.C.C.), reversed without reference to this point, 2004 SCC 77, at para. 28].

Circumstantial Evidence and Rule in Hodge's Case [103] In this preliminary inquiry the Crown's case relies on a significant amount of circumstantial evidence. [104] Ewaschuk states that the rule in Hodge’s Case (1838), 1838 CanLII 1 (FOREP), 2 Lewin 227, 168 E.R. 1136, namely, thatcircumstantial evidence must be consistent with guilt and inconsistent with any other rational conclusion does not apply at a preliminaryinquiry when a provincial court judge is determining whether or not to commit the accused person for trial pursuant to s. 548 of theCriminal Code.

Reliance is placed upon the following authorities in support of this proposition: R. v. Herman (1984), (SK CA), 11 C.C.C. (3d) 102, 38 C.R. (3d) 284 (Sask. C.A.); Garton v. Whelan (1984), (ON SC), 14 C.C.C.(3d) 449, 47 O.R. (2d) 672 (H.C.J.) Cf. R. v. Lavoie Girard, Linteau and Laferriére, (SCC), [1977] 1 S.C.R. 193, 39C.C.C. (2d) 480 (rule in Hodge's Case does not apply to motion for directed verdict at trial).

Assessing all the Evidence [105] The justice, in determining whether to order the accused person to stand trial or to discharge the accused person, may do so onlyafter taking "all the evidence" [see: Criminal Code, s. 548(1); R. v. Deschamplain, at paras. 1 and 34] which does not mean all theevidence it might be possible to adduce, but merely all the evidence intended to be adduced at the preliminary inquiry [see: R. v. CancorSoftware Corp. (1990), (ON CA), 58 C.C.C. (3d) 53 (Ont.

C.A.), leave to appeal to S.C.C. refused 61 C.C.C. (3d) vi]. [106] However, the justice may not consider the validity of a defence, which is for the "trial judge" to decide [see: R. v. Hynes atparas. 51-52; R. v. Scullion (2002), (QC CA), 166 C.C.C. (3d) 526 (Ont. C.A), at para. 31, leave to S.C.C. refusedDecember 12, 2002]. Assessment of Reliability of the Evidence [107] It is not permissible for a justice conducting a preliminary inquiry to "assess the quality, credibility and reliability of theevidence" or to "weigh the evidence for competing inferences" [see: R. v.

Deschamplain]. [108] Likewise, where "more than one inference" may be drawn from the evidence, only the inferences that "favour the Crown" are tobe considered. In other words, the preliminary inquiry is not the forum for "weighing competing inferences" or for selecting fromamong them [see: R. v. Sazant, supra. and also R. v. Manasseri, 2010 O.J. 6211; 2010 ONCA 396 (where it is stated that a preliminaryinquiry judge who had discharged the accused on a charge of second degree murder had committed "jurisdictional error" by discountingor weighing "conflicting evidence")].

Case Authorities Case Authorities Cited and Relied Upon By Crown [109] Crown has referred this preliminary inquiry court to the following cases: 1. R. v. Rao, 2012 BCCA 275 2. R. v. Cowan, 2015 BCSC 224 3. United States of America v. Shephard, [1997] 2. SCR 1067 (SCC) 4. R. v. Webster, 2008 BCCA 458 5. R. v. To, (BC CA), [1992] B.C.J. No. 1700 6. R. v. Emes, 2010 ONSC 790 , [2010] O.J. No 469 (Ont. C.A.) 7. R. v. Sazant, 2004 SCC 77 , [2004] 3 SCR 635 (SCC) 8. R. v. Young, 2006 ABPC 36 9. R. v. Black, 2014 BCCA 192

10. R. v. Howell, 2014 BCSC 2196 Case Authorities Cited and Relied Upon by Defence [110] Defence has referred this preliminary inquiry court to the following cases: 1. R. v. Sekhon, 2014 SCC 15 , [2014] S.C.J. No 15 2. R. v. Pabla, [2013] B.C.J. No 2916 3. United States of America v. Shephard, [1997] 2. SCR 1067 (SCC) 4. R. v. Abdel-Malek, [1997] B.C.J. No 999 5. R. v. Arcuri, 2001 SCC 54 , [2001] 2 S.C.R. 828 6. R. v. Charemski, (SCC), [1998] 1 S.C.R. 679 7. United States of America v. Huynh, (ON CA), [2005] O.J. No 4074 8. R. v. Morrissey, (ON CA), [1995] O.J. No 639 9. R. v.

Skogman, (SCC), [1984] 2 S.C.R. 93 10. R. v. Seruhungo, [2016] S.C.J. No. 2 11. R. v. M.C., 2014 ONCA 611 , [2014] O.J. No. 3959 12. R. v. Callihoo, [2015] ABQB No. 191 [111] I have read and considered carefully each of these cases, and considered carefully the relevant provisions of each in reaching mydecision, notwithstanding that I may not make a direct reference to certain of them.

Crown's Position [112] Crown says that the Shephard test, as noted above, has been met by Crown on the basis of the direct and circumstantial evidencethat has been presented to the preliminary inquiry court. [113] The three issues raised by defence, namely, identification, possession, and possession for the purposes, have been dealt with bythe evidence and that each has been satisfactory established by the evidence that was called. [114] The issue of identity of the Accused was confirmed by the evidence of three police officers, namely, Cst. Beauregard, Cst.Pullin, and Cst.

Hert. [115] Crown notes that the issues contested by defence are the allegations:

a) that the Accused possessed the drugs set out in the indictment, and

b) if so, was that possession for the purposes of trafficking? [116] Crown says that based upon the circumstantial evidence presented by Crown that is before the preliminary inquiry court, andupon which Crown is relying, and also based upon favourable inferences upon which Crown is also relying, that there is sufficientevidence to meet the Shephard test and to commit the Accused to stand trial on the basis that the Accused and the Co-Accused were injoint and constructive possession of the controlled substances set out in both counts of the Information and which were located at theQuinsam Road Residence as at November 27, 2014. [117] Crown relies upon the Supreme Court of Canada decision in R. v.

Sazant, at paragraphs 15 to 18, which stands for theproposition that a preliminary inquiry judge is not permitted to assess credibility or reliability and where one or more inference can bedrawn from the evidence, only the inferences that favour the Crown are to be considered. [118] Crown cites the decision in R. v. To on the issue of inferring knowledge beyond a reasonable doubt based not only upon physicalcontrol of drugs, but because of highly suspicious circumstances and the immense quantity and value of the drugs.

Crown notes thewords of Chief Justice McEachern to the effect that the criminal law requires a very high degree of proof, especially for inferencesconsistent with guilt, but does not demand certainty. [119] With respect to the issue of possession, s. 5(2) of the CDSA provides:

(2) No person shall, for the purpose of trafficking, possess a substance included in

Schedule I, II, III or IV. [120] "Possession" is defined in s. 4(3) of the Criminal Code, which provides as follows:

(3) For the purposes of this Act, (

a) a person has anything in possession when he has it in his personal possession or knowingly (

i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person;and (

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall bedeemed to be in the custody and possession of each and all of them. [121] The decision in R. v. Young is cited regarding the elements of constructive possession that are set out in section 4(3)(a)(

i) of theCriminal Code. Those elements are explained as follows: 1) knowingly,(i.e. knowledge of its existence and what it is); 2) control or ameasure of control; (3) in a place (which need not belong to or be occupied by a person in control); and (4) for the benefit of himself oranother. [122] As noted above, these same elements apply to possession under the CDSA. [123] Crown further cites and relies upon the decision in R. v. Webster, at paragraphs 40 to 47, on the issue of deemed or constructivepossession under the CDSA which, relying on R. v. Pham, (2005) (ON CA), 203 CCC (3d) 326 (Ont.

C.A.), affirmed2006 SCC 26 , [2006] 1 S.C.R. 940, requires knowledge, consent and a measure of control on the part of the person deemed tobe in possession. Furthermore, knowledge can be determined on an objectively reasonable basis of awareness. [124] With respect to "consents and control" there must be some ability to exercise some control. The court relied upon and cited withapproval the decisions of R. v. Savory (1996) (ON CA), 94 OAC 318 (leave refused), [1997] SCCA No 189, and R. v.Abdel-Malek. The Court of Appeal further notes that in R. v.

Savory, control means that a person could exercise a directing or restrainingpower over the article. In order to exercise the restraining power an individual must have knowledge of the item's existence. [125] In R. v. Webster, the court notes that control for the purposes of constructive possession does not require that an accused persondid, in fact, exercise control over the object in question.

Control is established where there is a right to grant or withhold consent to thestorage (in that case of drugs) in a particular location, noting that control is established if there is the right to grant or withhold consent. It is not necessary, in fact, that consent be granted or withheld.

Furthermore, it was not necessary to find that an accused person, in fact,did exercise a directing, guiding or restraining power over drugs in order to conclude that there was constructive possession. [126] On the issue of whether the Accused had possession of the Quinsam Road Residence, Crown relies upon the decision in R. v.Emes.

In that case, the court concluded that the circumstantial evidence of personal papers of the accused person having been found in adwelling where he did not reside gave rise to a reasonable inference that the personal documents were in a location where the personidentified in the documents had access and a significant measure of control. [127] Crown submits that the two birth certificates linked to the Accused and the BC Hydro documents in names linked to theAccused, the London Drugs receipts bearing a signature to a name linked to the Accused, the plumbing invoice, and the recent dates ofsome of those documents, are sufficient for an inference that the Accused had access and was exercising a measure of control over theQuinsam Road Residence. [128] While not going so far as to say the Accused's knowledge of the prohibited activity taking place in the Quinsam Road Residenceover which she had a measure of control can be presumed, it at least gives rise to strong inference of such knowledge. [129] Crown also places reliance on R. v.

Black and, specifically, the description of the document in the possession rule set out inparagraphs 33 and 34. [130] Crown says that this applies to the various text messages found in the cellphones which were found either on the person of theAccused or in the Nissan Murano vehicle registered in her name and which she was driving at the time of her arrest. Crown says that thecontents of those cellphones amounts to an electronic document which may be used as circumstantial evidence of the Accused'sinvolvement in the transactions to which the documents relate [see R. v.

Black, para. 38]. [131] The decision in R. v. Black also stands for the proposition that the hearsay analysis in R. v. Baldree, [2013] 2. S.C.R. 520, doesnot apply to documents in the possession of the Accused which are tendered for circumstantial evidence as opposed to the truth of theircontents. [132] I note parenthetically that in R. v. Baldree, the Supreme Court of Canada concluded that a single phone call representing a drugpurchase request received on a cellphone is hearsay and therefore not admissible to prove the truth of the fact that the recipient is a drugdealer.

At paragraphs 70 to 72 of Baldree, the Supreme Court goes on to say that there is a possibility that a principled analysis ofreliability and necessity might, on different facts, cause them to decide otherwise. Thus, the Supreme Court made it clear that they werenot making a categorical ruling denying admissibility of drug purchase calls. In paragraph 71, the suggestion is that several drugpurchase calls might create circumstances to establish the reliability. [133] Crown cites R. v.

Howell, in which the court permitted text messaging from a cellphone in the possession of the accused personto be admitted not for the truth of their contents but rather under the first arm of the purpose for admitting documents in the possession ofthe accused person, which is established in R. v. Black. [134] In that case, the court admitted the evidence of the contents of the text messages for the limited purpose set out in R. v. Black ascircumstantial evidence of the accused person’s involvement in the transactions to which the text messages related. [135] Crown argues that in this case: (

a) cellphones were found in the possession of the Accused; (

b) the text messaging in thosecellphones are circumstances of her involvement in drug trafficking; and (

c) she had knowledge of the cocaine and fentanyl found in theQuinsam Road Residence. [136] Therefore, Crown says that this is some of the evidence which this court can consider to determine whether or not the Shephardtest has been satisfied.

[137] Thus, says Crown, there are inferences which can be drawn and which are favorable to the Crown and upon which Crown mayrely for a committal. Defence's Position [138] Defence submits that there is no direct evidence and that Crown has not demonstrated sufficient admissible circumstantialevidence in order to commit the Accused to stand trial under the Shephard test. [139] Defence says that in order for the Accused here to be committed to stand trial, Crown must demonstrate the following: 1. Possession or constructive possession of the controlled substances specifically named in the indictment; 2.

That the Accused knew that it was the named substances; 3. That the possession of the named substances on the day in question was for the purposes of trafficking. [140] Defence cites R. v. Pabla with respect to the nature of possession. Relying on R. v. Fisher, (2005), 200 CCC (3d) (BCCA), thecourt in R. v. Pabla notes, at paragraph 69, that “[p]ossession can be personal, constructive, or joint in nature.” However, no matter howdescribed, proof of knowledge and control are essential elements of proof of possession. [141] R. v.

Pabla is further cited for the statements of law set out in paragraphs 70 and 71: 70 In R. v. Morelli, 2010 SCC 8, the Supreme Court of Canada recently explained the necessary elements of possession. At paragraphs16 and 17, the court stated as follows in this regard: [16] On an allegation of personal possession, the requirement of knowledge comprises two elements: the accused must be aware that heor she has physical custody of the thing in question, and must be aware as well of what that thing is. Both elements must co-exist with anact of control (outside of public duty): Beaver v.

The Queen, (SCC), [1957] S.C.R. 531, at pp. 541-42. [17] Constructive possession is established where the accused did not have physical custody of the object in question, but did have it "inthe actual possession or custody of another person" or "in any place, whether or not that place belongs to or is occupied by him, for theuse or benefit of himself or of another person" (Criminal Code, s. 4(3)(a)).

Constructive possession is thus complete where the accused:(1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that placebelongs to him, and (3) intends to have the object in the particular place for his "use or benefit" or that of another person. 71 In R. v. Madore & Madeira, 2012 BCCA 160, the British Columbia Court of Appeal recently expanded on the element of control thatmust be established in order to prove possession.

At paragraphs 72 and 73, the court stated: [72] Knowledge and consent are, however, not enough to establish either joint or constructive possession under s. 4(3) of the CriminalCode: each requires the additional element of control. In R. v. Pham, (ON CA), [2005] O.J.

No. 5127, the OntarioCourt of Appeal made a concise statement about the required elements of both offences: [15] In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledgewhich extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. [...] [16] In order to constitute joint possession pursuant to section 4(3)(

b) of the Code there must be knowledge, consent, and a measure ofcontrol on the part of the person deemed to be in possession. [Emphasis added in original] [142] Defence submits that, here, Crown has failed to call any evidence regarding the authentication of the text messages located onthe cell phones and to establish the integrity of the downloads of that information. I am being urged to not consider the text messages asbeing reliable on this basis and for the same reasons as set out in the dissenting opinion found in R. v.

Seruhungo and, specifically, as itrelates to the hearsay rule (paras. 69 to 77). [143] Reliance is also placed upon the decision in R. v. Callihoo and the arguments canvassed in that decision. As I understanddefence's submission, there is insufficient evidence as to the accuracy of such things as the time shown in the text message downloads. There is no evidence about password protection and nothing to establish the Accused's possession of the contents of the cellphones.

Defence also notes that not all of the text messages are before the court in this preliminary inquiry and, hence, the context of themessages cannot be properly assessed, especially by Sgt. Rintoul. All of this amounts to further grounds to exclude the text messages. Ifthe text messages are not before the court, then Sgt. Rintoul's evidence about the text messaging is not before the court. [144] Defence says that Crown has failed to adduce any direct evidence in this case and, accordingly, their entire case rests oncircumstantial evidence. Defence notes that in R. v.

Arcuri, the Supreme Court of Canada articulated a requirement for a limitedweighing of evidence in such a case.

Thus, says defence, when undertaking this limited weighing of evidence, this preliminary inquirycourt must conclude that Crown has failed to meet the requirements of the Shephard test. [145] Defence argues that based on Crown's tendered evidence there are no objective facts that can be relied upon in order to confirmthe Accused's possession of the named drugs at the Quinsam Road Residence on the day of the alleged offence. [146] Defence further says that Crown has failed to show that the various documents found in the Quinsam Road Residence weredocuments in the possession of the Accused.

However, it is further submitted that the Crown is then attempting to assert that thosedocuments found in the residence prove a measure of control of the Quinsam Road Residence by the Accused. [147] Defence says that the limited weighing required by R. v. Arcuri can only lead to a reasonable and logical inference that on the

charge date, the Accused was neither in possession of those documents nor in possession of the Quinsam Road Residence and, hence, not in possession of the drugs found therein. [ 148 ] In that regard, reliance is placed upon the decision in R. v. Abdel-Malek and that this is a situation wherein "evidence crystallizing suspicion into legal proof is absent.” (para.15) ANALYSIS [ 149 ] I must again instruct myself that in R. v.

Arcuri , the Supreme Court of Canada specifically notes that where the Crown adduces direct evidence on all the elements of the offence, the case must proceed to trial, regardless of the existence of defence evidence, as the only conclusion that needs to be reached is whether the evidence is true.

However, where the Crown's evidence consists of, or includes, circumstantial evidence, I must engage in a limited weighing of the whole of the evidence (i.e. including any defence evidence) to determine whether a reasonable jury, properly instructed, could return a verdict of guilty. [ 150 ] Furthermore, in performing the task of limited weighing as the preliminary inquiry judge, I do not draw inferences from facts, nor do I assess credibility. Rather, my task is to determine whether, if the Crown's evidence is believed, it would be reasonable for a properly-instructed jury to infer guilt.

This task of limited weighing never requires consideration of the inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence.

In this case, before committing the Accused to trial, as the preliminary inquiry judge, I must consider the evidence as a whole, surveying the circumstantial evidence presented by the Crown as well as any exculpatory evidence tendered by the defence. [ 151 ] In my view, Crown has properly relied upon s. 540(7) of the Criminal Code in order to put before the preliminary inquiry court as evidence some information that would not otherwise be admissible, but which the court considers to be credible or trustworthy in the circumstances of the case. [ 152 ] In my further view, s. 540(7) permits the Crown to enter such evidence as the transcripts relating to the four cellphone calls that were seized.

Defence has raised issues concerning such matters as authentication and the integrity of the text messaging downloads.

Those are important issues, but they are important issues for the trier of fact in the trial of these charges rather than at the preliminary inquiry stage. [ 153 ] There is sufficient evidence before me to conclude that the source of the information tendered by Crown is both credible and trustworthy as it relates to the downloading and production of the transcripts. [ 154 ] Much of defence's submissions urge me to not only conduct some limited weighing of the evidence, but to cross the line beyond and undertake an assessment of the evidence.

That is simply beyond the jurisdiction of the preliminary inquiry court. [ 155 ] Several of the defence case authorities accurately set out the applicable legal tests and burdens imposed upon Crown in the context of a trial following committal at a preliminary inquiry. [ 156 ] I agree with Crown's submissions as they relate to the whole of the evidence that is before me. Accordingly, I am satisfied on the whole of the evidence that is before me that Crown has discharged its burden at this preliminary inquiry on each of the two counts.

CONCLUSION [ 157 ] Therefore, having applied the necessary Shephard test to each of the two counts on the indictment before me and on the basis of the whole of the evidence before me, the Accused will be committed to stand trial on each count. [ 158 ] Ms. Piechotta, please stand. [ 159 ] Therefore, pursuant to s. 548 (1) (

a) of the Criminal Code , I order the Accused, Jennifer Ann Piechotta, to stand trial on the amended Count 1 of the indictment on file 36208 C-3 that states: Matthew Christian Ladret and Jennifer Ann Piechotta, on or about the 27th day of November, 2014, at or near the City of Campbell River, in the Province of British Columbia, did unlawfully possess a controlled substance, to wit: Fentanyl, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act . [ 160 ] Further, pursuant to section 548(1) (

a) of the Criminal Code , I order the Accused, Jennifer Ann Piechotta, to stand trial on Count 2 of the indictment on file 36208-C-3 that states: Matthew Christian Ladret and Jennifer Ann Piechotta, on or about the 27th day of November, 2014, at or near the City of Campbell River, in the Province of British Columbia, did unlawfully possess a controlled substance, to wit: Cocaine, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act . [ 161 ] Pursuant to s. 548(2.1), I have the power to fix the date for the trial or the date on which the Accused must appear in the trial court to have that date fixed.

I will now hear submissions on that point. (REASONS AT COMMITTAL CONCLUDED)