R. v. O’Day, 2019 BCPC 136

Citation: R. v. O’Day 2019 BCPC 136 Date: 20190613 File No: 36337-1 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LUCAS LEE O'DAY REASONS ON VOIR DIRE #2 OF THE HONOURABLE JUDGE FLEWELLING Counsel for the Crown: N. Holubowich Counsel for the Defendant: S. Runyon Place of Hearing: Campbell River , B.C. Dates of Hearing: January 9, 10, 11 and March 12, 2019 Date of Judgment: June 13, 2019 A Corrigendum was released by the Court on June 19, 2019. The corrections have been made to the text and the Corrigendum is appended to this document.

Introduction: [ 1 ] Lucas Lee O’Day is charged with possession of cocaine for the purpose of trafficking on January 24, 2018. [ 2 ] His co-accused, Andrew Best was also charged with possession of cocaine for the purpose of trafficking and possession of a prohibited device namely, a spring loaded knife all alleged to have occurred on January 24, 2018.

[ 3 ] On that day, Mr. O’Day was the driver and Mr. Best the passenger of the vehicle in which they occupied – a Santa Fe. Upon arrest, Mr. Best was found to have 77 spitballs of crack cocaine hidden on his body underneath his testicles as well as cash in the amount of $450.00 in his pants pocket. An LG cell phone fell from Mr. Best’s lap and received several incoming calls shortly after the arrest. [ 4 ] Crown says that the two were jointly involved in a drug trafficking enterprise and Mr. O’Day should be also found guilty of the offence of possession of cocaine for the purpose of trafficking.

Crown supports that contention by asserting that Mr. O’Day was either in constructive possession or joint possession of the drugs found on Mr. Best. [ 5 ] Alternatively, Crown says that Mr. O’Day was a party to the offence pursuant to s. 21(1) (

b) of the Criminal Code in that he aided Mr. Best in the commission of the offence. Specifically, Crown says that Mr. O’Day was driving the vehicle in which Mr. Best was the passenger, he knew that Mr. Best was selling drugs and was thereby assisting him in the drug trafficking enterprise. She also submits that even if Mr. O’Day is not found to have direct knowledge of Mr. Best’s drug trafficking, in the circumstances and based on the evidence, I should accept Mr. O’Day was wilfully blind and should be found guilty as a party on that basis. [ 6 ] The evidence in this case is circumstantial in nature.

Crown has the burden of establishing, beyond a reasonable doubt, that the only reasonable inference is that Mr. O’Day is guilty of the offence. The Evidence January 11, 2018 [ 7 ] On January 11, 2018, Cst. Stewart and Cst. Vose were on duty together at the Discovery Inn for an unrelated matter. They saw a beige Toyota Camry car parked in the parking lot next to Shoppers Row and set up surveillance. They saw Mr. O Day sitting in the driver’s seat of the car wearing a red neck pillow. The officers watched a man with black hair get into the car which was then driven away. This man later identified as a Mr. Jourval.

The car was driven a short distance away and pulled into an alley behind the Bank of Montreal. [ 8 ] The officers circled the block to get a view of the other end of the alley and saw the car leaving. Both officers saw a man walking away from the car or the alley. This man was described as having scabs all over his face and they suspected they had witnessed the end of a drug transaction although they didn’t see the person approach the car, get into it or leave it. Mr. Best was not a passenger in this vehicle.

The Surveillance Operation: [ 9 ] A surveillance team was established to investigate what was suspected to be a drug trafficking operation. On January 19, 2018, Cst. Vose was shown video footage from a local restaurant. He recognized Mr. O’Day and another male, Mr. Best and Mr. Jourval. Cst. Vose was interested in Mr. Best based on a prior surveillance operation in the summer of 2017 in which Mr. Best was a passenger in a vehicle involved in suspected trafficking in the lower mainland. [ 10 ] Once the surveillance operation was established, the officers made observations of Mr. O’Day and Mr.

Best on three days – January 20, January 23 and January 24, 2018. January 20, 2018: [ 11 ] On January 20, 2018, Cst. Vose was conducting surveillance on the Toyota Camry parked near Ironwood Technicians. At 2:25 pm he saw Mr. O’Day drive up in a Santa Fe with plate BM585T. Mr. O’Day got out and walked over to the Toyota Camry and retrieved a red neck pillow and put it in the Santa Fe. He walked into the shop then left and drove away. Cst. Vose saw another occupant in the passenger seat but couldn’t identify that person as the seat was reclined. Cst.

Vose continued to follow the Santa Fe and observed it make a number of stops at various places including at Walmart, the Sportsplex, a gravel pull out on the Island highway and Colwyn Street. [ 12 ] Cst. Stewart picked up the surveillance at Walmart. He saw the Santa Fe pull into the handicap stall and park. He saw a man wearing a black leather jacket and black pants walk to the passenger side of the vehicle, get into the rear of the vehicle and leave on foot less than a minute later. Cst. Stewart believed this was a drug transaction.

He was candid and forthright in his evidence under cross- examination that he believed that Mr. Best was the passenger but couldn’t say for certain. He was not questioned about this evidence on re-examination. [ 13 ] It should be noted that Cst. Stewart explained that there are some discrepancies in the times that each member recorded observations but that they each review the surveillance report, share observations and add to it to reflect what was observed. He testified that if they notice some difference in times, as long as the length of time is accurate, they approve the report.

So for example, in the case of the observations at Walmart that day, there were some discrepancies between the times he recorded compared to Cst. Vose but the length of time that Cst. Stewart recorded from the time the man in the black leather jacket was in the rear of the vehicle is accurate. I accept his evidence on this point. [ 14 ] Cst. Vose next observed the Santa Fe drive into the parking lot at the south end of the Sportsplex parking lot. He saw it pull up to a grey truck also parked there. Three minutes later Cpl.

Larsen observed that the Santa Fe left the Sportsplex. [ 15 ] Several minutes later, the Santa Fe turned onto Colwyn Street and parked with its lights off at 4:10 pm. Shortly afterwards, Cst. Vose saw a white car also go north on Colwyn Street but as he was driving past didn’t see much. Two minutes later he saw a person get out of the rear passenger seat of the Santa Fe and get into a white car parked in front of the Santa Fe. He noted that when the Santa Fe originally parked there were no vehicles parked in front of it. Cst. Vose testified that Mr.

O’Day was driving and the same passenger that had been seen earlier was present. [ 16 ] The two vehicles drove off in opposite directions. Surveillance was discontinued at approximately 5:00 pm.

January 23, 2018: [ 17 ] On January 23, 2018 Cst. Vose was again following the Santa Fe. Mr. O’Day was driving and Mr. Best was the front seat passenger. The Santa Fe was followed to the Walmart parking lot and the time noted was 2:00 pm. The vehicle was then driven to the Alder Medical Clinic where it stopped for about a minute by the front doors and then drove to the bottom of the parking lot. It left shortly after 2:30 pm. The vehicle was then followed to the McDonalds restaurant on 16 th Avenue into the parking lot where it parked. Cst.

Vose saw a male in dark clothes get into the back seat and the vehicle left in under a minute. Cst. Vose lost contact with it and didn’t see the man in the back seat exit the vehicle. He didn’t see any actual hand to hand drug transactions. Not long afterwards, he located the Santa Fe parked in the driveway of a known drug house. He circled and when he returned, the Santa Fe was gone. January 24, 2018: [ 18 ] On January 24, 2018 the team decided that if they observed activities consistent with drug trafficking, they would make an arrest that day. Cpl.

Larsen and the team began a surveillance operation and maintained communication with each other. Cpl. Larsen first saw the Santa Fe at 11:33 that morning and identified Mr. O’Day as the driver and Mr. Best as the front seat passenger. She was aware that the Santa Fe was parked at the TD Bank in Discovery Mall and had set up surveillance there. As Mr. O’Day was driving away, he was involved in a minor collision and then left after about 15 minutes. Cpl. Larsen testified that the Santa Fe left the parking lot and the front seat passenger sat up at 11:50 am.

At 11:58 am the vehicle was at 4 th and Dogwood Street. [ 19 ] Cst. Vose next saw the Santa Fe stop near the old hospital in an alleyway (called Whitmore). Cpl. Larsen described this alley as a dead end street. Cst. Vose saw a man wearing a green hat and a black shirt get into the rear seat of the Santa Fe. Others picked up surveillance as Cst. Vose drove past. Cpl. Larsen saw the Santa Fe drive a short distance down this alley and saw a person wearing a green hat get out from what appeared to be the rear passenger seat and walk away down the alley.

The Santa Fe was observed driving away but without a passenger in the rear seat. Mr. O’Day was driving and Mr. Best was the front seat passenger. Cst. Vose picked up surveillance again as the Santa Fe was being driven away and he also observed that the man with the green hat was not in the vehicle any longer. According to Cst. Vose, these events took place within a couple of minutes. The short duration is also confirmed by Cpl. Larsen who testified that the Santa Fe passed her as she was leaving the hospital parking lot.

She didn’t have the exact time but testified that it was all right after 12:01 after the man in the green hat got out of the back seat. [ 20 ] During her evidence, Cpl. Larsen referred to their plans to effect an arrest if they saw a “clean” drug deal.

She explained that if they observed a stop of a quick duration involving two people of about 5 minutes or less in duration, that is something they can infer is a drug deal and as I understand her evidence, would inform their grounds for arrest. [ 21 ] She testified that the police can, based on observations, determine that they have grounds for arrest if they believe there was a hand to hand transaction of short duration – something that “fits within the parameters of what we believe is a drug deal”.

Her evidence is that the short stop in the alley on Whitmore Road was a “clean drug deal” - the vehicle picked up a pedestrian in an alley, the pedestrian got into the back seat, they drove a short distance and the passenger got out – all in less than a minute. The person who had entered the rear seat then walked away in a different direction from the vehicle. Based on her experience she formed the opinion that this was a drug deal. [ 22 ] She testified that in her opinion, the driver and front passenger were the traffickers and not picking up a dealer then dropping that person off.

In cross-examination she was asked if purchasers pick up their dealers and asked if she agreed with the proposition that it is not always the case that a driver of a vehicle in a short duration stop is a trafficker. She agreed that in this jurisdiction that the latter was possible but did not believe that to be the case in this incident. The Arrest on January 24, 2018: [ 23 ] The team decided to make an arrest after their observations in the Whitmore alley. When the Santa Fe pulled into a gravel parking lot near the Island Highway, Cst. Vose, Cpl. Larsen, Cst. Clelland and Cst.

Stewart blocked the vehicle and arrested Mr. O’Day who was in the driver’s seat and Mr. Best who was in the right front passenger seat. [ 24 ] During a search of Mr. Best, officers found a baggie of seventy seven spitballs of crack cocaine weighing a total of 17.72 grams. They were hidden behind his testicles. [ 25 ] Four cell phones were also recovered – two were in the passenger side door that were owned and possessed by Mr. Best. One was in the centre console of the dashboard of the vehicle (the Samsung Cell Phone) but found by Cpl. Larsen on the driver’s seat after the arrest.

The fourth fell to the ground from Best’s lap as he was being taken from the vehicle (the LG Phone). [ 26 ] Cst. Stewart’s evidence is that while at the scene of the arrest, the LG cell phone rang several times. He answered a number of calls that are clearly indicative of and consistent with drug trafficking. He answered five calls over a twenty five minute period: 12:47 pm, 12:50 pm, 13:02 pm, 13:08 pm; and 13:12 pm. He removed the battery after the last call. He also testified that there were other missed calls that he didn’t answer and some were from people he had already spoken to.

He turned over the cell phone to Cpl. Larsen who was in charge of exhibits. [ 27 ] Officers also found $450.00 in cash in Mr. Best’s pants pocket and some minor amounts of cash from his pocket. Hotel registration and records from the Oyster Bay Resort were also found but Crown counsel did not question Cpl. Larsen or the other officers about this item. [ 28 ] Mr. O Day was also searched. No drugs were found on his person. Cash in the amount of $480.00 was found in a wallet in a bag slung across the driver’s seat. Suboxone and Zoplicone medications were also found. Cpl.

Larsen agreed that no illicit substances or cash were in plain view of Mr. O’Day. They also found drug paraphernalia in the bag – a pipe, tinfoil and a straw along with a variety of gift cards and a receipt from the TD bank for a withdrawal that day.

[ 29 ] During a Voir Dire , I ruled that the Crown could admit extraction reports relating to the Samsung cell phone found in the dashboard console and the LG cell phone that fell from Mr. Best’s lap. This was subject to my consideration of the degree of weight to be given to those reports. I am satisfied that the extraction report, as it relates to the LG cell phone, should be accorded some weight and accept that it offers evidence showing the incoming and outgoing calls as well as the content of those calls from that cell phone.

In reference to the extraction reports relating to the Samsung cell phone found in the dashboard, there is no evidence that it belongs to or is associated with Mr. O’Day and it is accorded less weight. I will return to this subject later in my decision. Cst. Brown: [ 30 ] Cst. Brown testified and was qualified as an expert for the purpose of giving opinion evidence about methods of packaging and concealment, trafficking, prices, usage, drug jargon and slang all in relation to cocaine. [ 31 ] She testified that a dial-a-dope operation typically, but not always, requires some transportation.

She has observed these operations carried out on foot, by skateboard, bicycle or vehicle. Typically, a hand to hand transaction involves a quick exchange between drug user and trafficker. The user will hand money to the trafficker who hands the user the drugs. She testified this can take place within one to three seconds and they part ways. A typical drug transaction can be from one to three minutes but she has seen them take place over up to twenty minutes.

When at a street level of trafficking, transaction are commonly of shorter duration. [ 32 ] Trafficking at the street level involves drugs being sold in quantities ranging from points, grams or ounces but not higher. A point is .1 of a gram and in Campbell River, a point of crack cocaine sells for $10.00 or $80.00 to $100.00 if sold in bulk by the gram.

Quantities involving kilograms are not considered street level trafficking. [ 33 ] She testified that the amounts of drugs used by individuals varies from two to four points per day. [ 34 ] Common methods of communication in dial-a-dope operations are cell phones, computers, IPads or other social media such as Facebook messenger or SMS (text messages). [ 35 ] A drug user will typically have less drugs in their possession than a trafficker because they generally do not have enough money to purchase larger quantities.

Some traffickers carry larger amounts; at the street level some only carry 10 to 20 points at a time due to fears of being robbed or being apprehended by the police. [ 36 ] Cst. Brown reviewed photographs taken of the drugs seized from Mr. Best and which showed the quantities, weight (a total of 17.2 grams) and method of packaging. The cocaine was pre-packaged in the form of seventy seven individual spitballs. The spitballs ranged from a weight of 0.12 grams to 0.36 grams and all were contained in one larger bag. Cst. Brown described them as ranging from one point to four points.

She also testified that it is common for a male to hide a baggie of drugs under his testicles. In a hypothetical scenario put to her by Crown, she testified that in her opinion, the drugs were pre-packaged in different weights in order to be sold. She estimated the street value of the drugs at between $1,400.00 to $1,700.00. [ 37 ] She opined that $450.00 in cash found on the passenger (Mr. Best) and $480.00 in cash found on the driver (Mr. O’Day) was a small amount and consistent with trafficking at the street level. [ 38 ] The tin foil, pipe and glass straws found in Mr.

O’Day’s bag were consistent with drug use. [ 39 ] In her opinion, the four cell phones being found inside the vehicle are an indicator of drug trafficking. She testified that often multiple phones are used. For example, the trafficker may have a cell phone for personal use and another referred to as a “work phone” to communicate with significant person like a supplier or other clients.

She has also seen traffickers who have a “line phone” which consists of contacts well known to the trafficker and which is handed back and forth between different traffickers working in shifts. [ 40 ] She was asked to consider the transcribed communications between Cst. Stewart and the individuals who called the LG cell phone that fell from Mr. Best’s lap as he was taken from the Santa Fe.

She testified about each one and I won’t repeat all her evidence but her opinion, which I accept, is that the conversations are in relation to drug transactions from people wanting to purchase drugs and arrange a place to meet to make the purchase. [ 41 ] She also was asked to review an “extraction report” relating to this LG cell phone. Her opinion was that the cell phone was used in a dial a dope operation and that many of the messages were in reference to wanting to purchase “hard” (street language for crack cocaine) or other drugs, quantities of money (the price) as well as arranging a location to meet.

She also opined that the same message was sent from that cell phone to multiple contacts for the purpose of advising clients that there is product (drugs) on hand. [ 42 ] Cst. Brown was asked to consider, by way of a hypothetical question, the various observations of the Toyota Camry and the Santa Fe by the surveillance team between January 11, 2018 and January 24, 2018. She placed no weight on the pattern of driving particularly in isolation because in her opinion it was not clear enough.

She would look for evidence of observations of an exchange or seeing someone put something in a pocket. [ 43 ] In her opinion, based on the hypothetical scenario put to her based on what occurred during the arrest on January 24, 2018 and which summarized the evidence of the officers and the items seized, this was a dial a dope operation. She also provided the opinion that a vehicle can be a piece of the evidence in a drug trafficking operation.

A vehicle is used for travel between locations but is also a method of concealment because a person gets inside the vehicle, the exchange of drugs for money takes place and they walk away or the vehicle drives to another location down the street or around the corner and then the purchaser will get out there. I add that it would be impossible for a police officer to observe a hand to hand transaction taking place inside a vehicle in that manner. [ 44 ] Cst.

Brown has seen many dial a dope operations whereby two people are in a vehicle where a driver is responsible for getting them from one location to another and the passenger is in charge of the business side by answering the phone, handling the cash and has the drugs. She clarified that she has not seen this in every case, but she has purchased drugs in an operation such as this on more than two occasions.

[45] All officers testified in a clear, candid and straightforward manner. There are no issues of credibility in this case. Mr. O’Day, asis his right, did not testify. Was Mr. O’Day in constructive or joint possession of cocaine for the purpose of trafficking? [46] Possession is defined in s. 4(3) of the Criminal Code: 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. [47] Constructive possession may be established where the person did not have physical custody of the object but has knowledge ofit, knowingly puts or keeps the object in a particular place and intends to have the object in that place for his “use or benefit” or that ofanother person: R. v. Ahmadzai, 2012 BCCA 215 citing R. v.

Morelli, 2010 SCC 8. [48] Joint possession may be established where more than one person has anything in his custody with the knowledge and consent ofthe others. In that situation, the object is deemed to be in the possession of all of them. [49] However, in order to prove either constructive or joint possession, the Crown must establish, beyond a reasonable doubt, thatMr. O’Day had not just knowledge of the presence of the cocaine but that he had some measure of control or right of control over it: R. v.Fisher, 2005 BCCA 444 , [2005] B.C.J. No. 1955 (C.A.) citing R. v.

Terrence, [1982] 1 S.C.R. 357. [50] Crown counsel points to what she describes as very strong circumstantial evidence that “lends strength to the assertion that theonly reasonable inference is that they are involved in a drug trafficking enterprise.” [51] The real issue is whether Crown has proven, beyond a reasonable doubt, that Mr. O’Day had knowledge of the presence of thecocaine found hidden on Mr. Best and some measure of control over it. The element of control must be established even if it wasestablished that Mr. O’Day had knowledge of or was wilfully blind to Mr.

Best’s possession of the substance. [52] Knowledge or control may be proven by both direct and circumstantial evidence. If the Crown is seeking to prove its case bycircumstantial evidence, as is the case here, the Crown must prove beyond a reasonable doubt that there is no other reasonable inferenceother than Mr. O’Day knew about the presence of the cocaine and had some measure of control over it. I am also mindful thatcircumstantial evidence must be considered as a whole and not piecemeal. [53] In R. v. Fisher, 2005 BCCA 444 , [2005] B.C.J.

No. 1955 (C.A.) knowledge and control over a quantity of cocaine wasestablished on the basis of circumstantial evidence. In that case there was evidence that the cocaine was found in an unlocked drawer inthe kitchen - an area in which none of the occupants had any expectation of privacy; a scale was in plain view and Mr.

Fisher tried tohide it by putting it in the drawer with the cocaine when the police entered; there was white powder on the scale, a measuring cup, thecalculator and the counter suggesting that the cocaine had been recently weighed on the counter above the drawer with the cocaine; Mr.Fisher had a large amount of unexplained cash on his person and he had a key to the apartment and could grant or refuse entry toeveryone except to his girlfriend and her co-tenant of the apartment. [54] In this case, the circumstantial evidence Crown points to is a number of observations by members of the surveillance team andwhich have been described and are characterized by Crown as “suspicious and unusual driving patterns” all of which “are consistent withdrug trafficking”.

She also references the ringing cell phone that fell from Mr. Best’s lap, evidence that the two were seen together at arestaurant and finally that there is “no evidence that Mr. Best and Mr. O’Day are involved in any legitimate employment or businesstogether”. She also refers to phone calls made from Mr. Best’s cell phone (the LG Cell phone) to someone by the name of “Lucas” and toa phone number that is associated to the cell phone found in the dashboard cubby or console (the Samsung cell phone) during the arrest. [55] With respect, it appeared that Crown was often conflating her submission that Mr. O’Day and Mr.

Best were involved in a jointenterprise with whether there is evidence to establish that Mr. O’Day had knowledge and some measure of control over the cocaine andtherefore was either jointly or constructively in possession of the cocaine for the purpose of trafficking. [56] Crown must establish both elements - knowledge and control - beyond a reasonable doubt. [57] Crown asserted that simply by virtue of being the driver of the Santa Fe, Mr. O’Day is presumed to have the right to grant orwithhold consent to Mr. Best being in his vehicle but provided no authority for that proposition.

It seems to me that the existence of thisright would depend on the evidence. [58] Cpl. Larsen testified that the registered owner of the Santa Fe was Geraldine Klughart who is from Chemainus. There was noevidence about who she is or her relationship to Mr. O’Day or Mr. Best and Cpl. Larsen was not questioned about this. [59] There was no evidence about whether Mr. Best provided the vehicle to Mr. O’Day or whether Mr. Best or Mr. O’Day borrowedthe vehicle from Ms. Klughart. The first time Mr. O’Day was observed by Cst. Vose and Stewart, he was driving a Toyota Camry with adifferent plate number.

There is no evidence about who the registered owner of that vehicle is although there was evidence that onJanuary 20, 2018 it was at Ironwood Technicians which I understand is a vehicle repair facility. It is possible that Mr. Best arranged to

have the Santa Fe provided to Mr. O’Day in which case Mr. O’Day may not have had the right to refuse him as a passenger – there issimply no evidence on this point. [60] In reviewing the photographs of the Santa Fe taken at the scene of the arrest, I observed that it was filled with personal effectsand other items. There was no evidence about whether any of those items belonged to either Mr. O’Day or Mr. Best or whether therewas any circumstantial evidence to suggest that either of them was a principal operator of the vehicle. [61] While Mr.

O’Day does not necessarily have to be the registered owner to have some control over who and what is placed in thevehicle, there must be some evidence that Crown can point to substantiate this assertion. For example, in R. v. Galye, 2019 BCSC 808,Madam Justice MacNaughton found that Mr. Galye had control over a shotgun found in the vehicle he was driving. This was based uponevidence that Mr Galye’s father was the registered owner but Mr. Galye was the registered principal operator. Furthermore, Mr.

Galyetestified that he would not permit the co-accused to drive it and that he would not allow the vehicle to be used for a drug-related purposefor fear of it being seized. [62] Crown counsel has not established beyond a reasonable doubt that Mr. O’Day had a measure of control or right of control overthe cocaine. Accordingly, on that basis alone, Crown has not established that Mr. O’Day had joint or constructive possession of cocainefor the purpose of trafficking. Was Mr. O’Day a Party to the Offence? [63] Crown took the position at trial that its strongest submission was that Mr.

O’Day was a party to the offence as that is meant bys. 21 of the Criminal Code. That provision states: 21.

(1) Every one is a party to an offence who (

a) actually commits it; (

b) does or omits to do anything for the purpose of aiding any person to commit it; or (

c) abets any person in committing it. [64] Crown counsel asserts that s. 21 (1) (

b) is applicable to the case at Bar and says that Mr. O’Day, by virtue of his driving theSanta Fe with Mr. Best as his passenger was assisting and aiding in the operation of a dial a dope trafficking enterprise. [65] Defence counsel says that the evidence is consistent with some relationship or friendship between Mr. O’Day and Mr. Best orthat Mr. O’Day was one of Mr. Best’s clients. The cash found on Mr. O’Day is consistent with the evidence that he had just been to thebank prior to the arrest and which had been observed by the officers.

She points to the fact that no drugs, weapons or cash were in plainview of Mr. O’Day and the only drugs found in Mr. O’Day’s possession were prescription medications. [66] There is no DNA or fingerprint evidence directly linking Mr. O’Day to the Samsung phone found in the dashboard of the SantaFe. It is to be recalled that this is the phone that received and sent calls to and from Mr. Best’s LG phone that fell from his lap. Themessages from the LG cell phone were sent to someone named “Lucas” which is Mr. O’Day’s first name. However, defence counselpoints to evidence from Cst. Stewart and Cpl.

Larsen that they are familiar with individuals named David Lucas and Lucas Macoshayboth of whom are involved in the drug culture although they did not know if either had any relationship or were associated with Mr. Best. [67] She also points to the fact that Mr. O’Day wasn’t found with score sheets on his person and that there was no evidence directlylinking Mr. O’Day to the packaged spitballs or any of the four cell phones. The Law: [68] Aiding and abetting are two distinct concepts. Here, Crown is relying on s. 21(1)(b) – that Mr. O’Day was assisting or aidingMr. Best in his trafficking operation.

The Crown must establish, beyond a reasonable doubt, that: • Mr. O’Day assisted or aided Mr. Best by driving a vehicle in which Mr. Best conducted drug sales (the actus reus); • Mr. O’Day intended to assist Mr. Best in committing the trafficking offence; and • Mr. O’Day knew that Mr. Best intended to traffic drugs (the mens rea). R. v. Briscoe, 2010 SCC 13 , [2010] S.C.J. No. 13 [69] Although not argued fully, Crown says that even if Mr. O’Day had no knowledge of Mr. Best’s trafficking from and in theSanta Fe, in the alternative, Mr.

O’Day would have to have been wilfully blind to the offence. [70] Wilful blindness can substitute for actual knowledge when the latter is a component of the mens rea as it is here. This conceptwas explained at paragraph 21 of Briscoe: The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the needfor further inquiries, but deliberately chooses not to make those inquiries. Discussion: [71] I accept Cst. Brown’s evidence and find that Mr. Best was involved in the trafficking of cocaine.

This is based in particular uponthe quantity of cocaine, the manner of packaging of seventy seven individual spitballs and the conversations between Cst. Stewart andthe people calling in on the LG cell phone and which continued to ring after Mr. Best’s arrest. I also accept her evidence that these drugs

were not for personal use but for sale to others. That evidence alone is sufficient to allow me to make this finding. However, I also accept Cst. Brown’s opinion that the calls to and from the LG cell phone to which she was referred also bolster my finding that Mr. Best was engaged in trafficking. I am satisfied that the LG cell phone was used in the drug trafficking operation. [ 72 ] At the time of the arrest on January 24, 2018 Mr. O’Day was driving the Santa Fe in which Mr. Best was a passenger and also found in possession of cocaine and a cell phone used for the trafficking operation.

It was only a short time earlier, in the Whitmore alley, that the Santa Fe was driven by Mr. Best into a dead end alley and a man got in and then out of the rear seat within only a few minutes. That has all the hallmarks of a drug trafficking operation. [ 73 ] I find that by driving the Santa Fe on January 24, 2018 he was assisting Mr. Best in that operation. [ 74 ] The real issue is whether the Crown has proven beyond a reasonable doubt the mens rea element of s. 21 – that Mr. O’Day knew that Mr. Best was trafficking and he intended to assist him in that endeavour or, alternatively was wilfully blind to what Mr.

Best was doing. [ 75 ] The messages between the Mr. Best’s LG phone and the Dashboard Samsung phone do not establish that the messages between someone called “Lucas” and Mr. Best relate to drug trafficking or even drug purchasing. Cst. Brown was only asked in direct examination about one message (Item 41 on Exhibit 6) and she could not form any opinion about it. She was not asked about the other messages from ‘’Lucas” but on my reading of them, they do not disclose anything that could establish that they were about matters relating to trafficking. [ 76 ] Furthermore, even if there was such an

interpretation, there is no evidence establishing that the dashboard cell phone belonged to Mr. O’Day. [ 77 ] The circumstantial evidence that does point to Mr. O’Day knowing that Mr.

Best was selling drugs from the Santa Fe is the following: • There were two incidents observed that are consistent with drug trafficking in a dial a dope operation: • On January 20, 2018 (the Walmart incident) while the Santa Fe was parked in the Walmart parking lot a man in a black leather jacket got into the back seat, left within a few minutes and walked away. • On January 24, 2018 (the “Whitmore incident”) at approximately 12:01 pm Cst. Vose observed the Santa Fe drive down a dead end alley.

A man in a green hat got into the back seat of the vehicle and a few minutes later got out and walked away. • At approximately 12:32 pm and only a short time after the meeting in the Whitmore alley, Mr. O’Day and Mr. Best were arrested and Mr. Best was found with the hidden cocaine on his person. • Mr. Best had a cell phone which fell from his lap upon his arrest. The cell phone rang frequently and Cst. Stewart answered five calls in twenty five minutes from people who wanted to purchase drugs and arrange a meeting with Mr. Best. • Cst.

Brown’s opinion and evidence is that a vehicle can be used in a dial a dope operation and that such an operation can involve both a driver and a passenger. [ 78 ] On the other hand, there is evidence relied upon by the Crown that does not support its submission. On January 11, 2018, the officers did not actually see a man approach the Camry being driven by Mr. O’Day. The passenger that day was not Mr.

Best but someone else. [ 79 ] On January 20 and 23, 2018 there were short stops observed such as at the Sportsplex, at a medical clinic, on Colwyn Street and at a pull out on the Island Highway but no observations were made of anyone getting into and then leaving the vehicle a short while later.

On January 23, 2018 near McDonalds restaurant, a man was seen getting into the Santa Fe but he was not observed leaving although the Santa Fe was observed a short time later. [ 80 ] In relation to the officers’ observations on January 20 and 24, 2018, they did not approach anyone who left or walked away from the vehicle so as to confirm that a drug purchase had in fact taken place.

However, I accept that to do so would completely jeopardize the investigation as it would undoubtedly alert the suspects that they were being watched and investigated by the police. [ 81 ] There is no fingerprint evidence from the dashboard Samsung cell phone that may have established that Mr. O’Day handled it. While that is not necessary to prove possession and control, it may have been strong evidence of communications by cell phone between Mr. O’Day and Mr. Best. [ 82 ] There were also two other Samsung cell phones in the passenger door by Mr. Best. No fingerprint evidence was obtained from those.

Conclusion: [ 83 ] This is a case based on circumstantial evidence. I must be satisfied that the only reasonable inference is that Mr. O’Day assisted Mr. Best in the commission of the offence, that he intended to assist and finally that he knew Mr. Best was trafficking drugs - cocaine. I must also consider whether there is evidence to support an alternative inference to guilt but that alternative inference must be reasonable, not just possible. [ 84 ] Circumstantial evidence is not to be considered in a piecemeal fashion but rather, its cumulative effect must be considered.

I have considered the totality of the evidence. [ 85 ] Cst. Brown testified that drug transactions in dial a dope operations can take place in a vehicle for two reasons. One is that it

provides transportation to the customer and secondly, it provides a place where the sale of drugs takes place. [ 86 ] Cst. Brown also testified that she has seen operations in which one person is the driver and the passenger conducts the business end by having possession of the drugs and the cash, contacting the clients and carrying out the sale. That is consistent with Mr. O’Day driving while Mr. Best, the passenger, kept the drugs and cash on his person. [ 87 ] On January 20, 2018 (the Walmart event) and January 24, 2018 (the Whitmore event), Mr. O’Day was driving the Santa Fe with Mr.

Best as a passenger and on each of those days police officers observed a person get into the rear seat of the vehicle, get out a few minutes later and walk away from the vehicle. These short duration events are consistent with a drug sale taking place inside the vehicle. [ 88 ] The evidence relating to the Whitmore event is that Mr. O’Day drove the Santa Fe into a dead end alley where a person was met and entered the back of the vehicle. As soon as the person got out of the vehicle and walked away, the Santa Fe was driven away.

I find that there is no other reasonable inference other than that a drug transaction took place inside the vehicle on that day after which the individual left and walked away. [ 89 ] Mr. Best had an LG cell phone which fell from his lap at the time of his arrest which was actively ringing shortly thereafter. In the space of twenty five minutes, Cst. Stewart answered five calls from people who wanted to purchase drugs and arrange a meeting with Mr. Best to complete the purchase. The arrest was made only thirty minutes or so after the Whitmore event took place.

I have considered whether the cell phone had only just started to ring after Mr. Best was arrested but find that highly unlikely if not completely fanciful. For clarity I wish to make it clear that counsel did not suggest this but it is something I considered. [ 90 ] Circumstantial evidence is assessed logically and “in light of human experience”. I have concluded that the only reasonable inference on the totality of the evidence is that on January 24, 2018 Mr. O’Day, by driving the Santa Fe, aided Mr. Best in a dial-a-dope drug trafficking operation, that he knew Mr.

Best was selling drugs and he intended to assist Mr. Best. [ 91 ] Therefore, pursuant to s. 21 of the Criminal Code , Mr. O’Day is a party to the offence of possession for the purpose of trafficking a controlled substance namely, cocaine. _____________________________ The Honourable Judge Flewelling Provincial Court of British Columbia CORRIGENDUM - Released June 19, 2019 In the Reasons on Voir Dire #2 dated June 13, 2019, the following changes have been made: [1] Paragraph 26 be amended to read: [26] Cst. Stewart’s evidence is that while at the scene of the arrest, the LG cell phone rang several times.

He answered a number of calls that are clearly indicative of and consistent with drug trafficking. He answered five calls over a twenty five minute period: 12:47 pm, 12:50 pm, 13:02 pm, 13:08 pm; and 13:12 pm. He removed the battery after the last call. He also testified that there were other missed calls that he didn’t answer and some were from people he had already spoken to. He turned over the cell phone to Cpl. Larsen who was in charge of exhibits. [2] Paragraph 77 subparagraph 3 be amended to read: [77] The circumstantial evidence that does point to Mr. O’Day knowing that Mr.

Best was selling drugs from the Santa Fe is the following: • Mr. Best had a cell phone which fell from his lap upon his arrest. The cell phone rang frequently and Cst. Stewart answered five calls in twenty five minutes from people who wanted to purchase drugs and arrange a meeting with Mr. Best. [3] Paragraph 89 be amended to read: [89] Mr. Best had an LG cell phone which fell from his lap at the time of his arrest which was actively ringing shortly thereafter. In the space of twenty five minutes, Cst. Stewart answered five calls from people who wanted to purchase drugs and arrange a meeting with Mr.

Best to complete the purchase. The arrest was made only thirty minutes or so after the Whitmore event took place. I have considered whether the cell phone had only just started to ring after Mr. Best was arrested but find that highly unlikely if not completely fanciful. For clarity I wish to make it clear that counsel did not suggest this but it is something I considered. _____________________________ The Honourable Judge Flewelling

Provincial Court of British Columbia