R. v. Bigl, 2020 MBPC 51

CITATION: R. v. Bigl , 2020 MBPC 51 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) M. Sinclair for the Crown ) - and - ) ) Jason Bigl ) ) J. Malloy for the Accused Accused ) ) Reasons for Decision ) Delivered: October 14, 2020 C.A. DEVINE, P.J. Introduction [ 1 ] Mr. Bigl was arrested on March 29, 2019, on the charges of possession of methamphetamine for the purpose of trafficking and possession of property resulting from trafficking methamphetamine, that is, $190.00 in Canadian currency. [ 2 ] In a previous decision, I upheld the granting of the search warrant of Mr.

Bigl’s home, and declined to allow cross- examination of the police officer who swore the affidavit in support of the warrant application, in R. v. Bigl , 2020 MBPC 20 . [ 3 ] At trial, the Crown called two civilian witnesses who lived in the same home as Mr. Bigl, and several police witnesses, including the officer who arrested Mr. Bigl in his Jeep, the officer who photographed and seized exhibits in the home, the Winnipeg Police Service (WPS) civilian drug processor, and an expert police officer in methamphetamine and its trafficking, Sergeant Claudio Belfiglio. [ 4 ] Mr.

Bigl also testified. [ 5 ] The main issues in this case are whether the Crown can prove beyond a reasonable doubt that Mr. Bigl had knowledge and control of the drugs that were seized by the police in the Jeep and in the house, and whether the money can be proven to be proceeds from drug trafficking. [ 6 ] Because Mr.

Bigl testified, I have analyzed and weighed the credibility and reliability of the evidence I heard in order to determine if the Crown has proven the offences beyond a reasonable doubt. [ 7 ] I am not satisfied that the Crown has proven the offences beyond a reasonable doubt for the reasons that follow. The Seized Drugs and Cash [ 8 ] Police arrested Mr. Bigl in his vehicle and conducted a search of him and the vehicle and coincidentally, executed the search warrant of his home.

Neither the Jeep nor the house were owned by him, but he had been driving the Jeep loaned to him by his step- brother, and he was living in the house owned by his step-father. [ 9 ] The following drugs and other items of interest were found in the house and in the Jeep. [ 10 ] Over one kilogram of methamphetamine [1] was found in a three large Ziploc bags inside a backpack. The methamphetamine was the only thing in the backpack. It did not contain any clothing, documents or anything that might link it to Mr. Bigl. The backpack was not found in Mr. Bigl’s bedroom.

It was found in what all witnesses described as the laundry room. It was jammed among what appeared to be some building materials. The laundry room was in the basement of the house, as was Mr. Bigl’s bedroom. [ 11 ] Also found, this time in Mr. Bigl’s bedroom, was a box of Ziploc bags the same size and appearing to be the same style as the bags containing the methamphetamine in the backpack. There was a small notebook found in one of the dresser drawers.

There was a bag containing smaller size zip bags on a dresser in the room. [ 12 ] The other methamphetamine, Canadian currency and items of interest were found in the Jeep at the time of Mr. Bigl’s arrest. There was one ounce of methamphetamine in a smaller size zip bag, appearing to be the same size as the bags on Mr. Bigl’s dresser. It was inside a Number 7 cigarette package in the glove box. There were several other Number 7 cigarette packages found in the vehicle according to police evidence, although none were seized and the vehicle and its contents were not photographed.

There was $80.00 in older Canadian currency on the passenger seat in the Jeep. There were two cell phones, a Nokia and a Samsung with its back damaged.

There was no information from the police that either phone was working. Mr. Bigl also had $110.00 cash in his pocket. Surveillance Evidence [ 13 ] Constable Herman was the only witness who testified to seeing Mr. Bigl engaged in any activity that might be construed as drug trafficking. He testified that his team had witnessed what they believed to be several hand-to-hand transactions in the days leading up to March 27, 2019, but he was unable to provide any detail except for one instance which he testified that he had personally observed. He testified that on March 27, 2019, he saw Mr.

Bigl drive to and park in the Keg parking lot on Garry Street downtown. He saw Mr. Bigl get out of the Jeep and text on his phone. A few minutes passed and then a man arrived on foot. Mr. Bigl handed a bag to the man and the man handed something to Mr. Bigl. Constable Herman did not see drugs or money and could not identify any items that were exchanged. [ 14 ] Mr. Bigl testified that he believed that the sale was a laptop he sold that week. He would have had it in a black President’s Choice reusable shopping bag.

There were lots of those bags in the house and he used them to transport the various electronic items he sold. He said the transaction was brief, maybe five minutes, but no more than 10 minutes. [ 15 ] Constable Herman testified that he believed it to be a hand-to-hand drug transaction. The style of a quick hand-to-hand transaction is consistent with the testimony of the expert witness Sergeant Belfiglio who testified that in these types of transactions, drugs and cash are often “palmed”, that is, secreted in the palm of the hand, to avoid detection by police surveillance.

Sergeant Belfiglio testified that officers often do not actually see the money and drugs and that this type of transaction is consistent with trafficking of smaller amounts of methamphetamine, such as the approximate one ounce amount found in the Jeep. It is not consistent with a large amount of drugs that would have to be carried in a shopping bag or some other larger container. [ 16 ] Mr. Bigl and Mr. Beales testified to Mr. Bigl’s work buying, repairing and selling small electronics. Mr. Beales had taught him.

At the time of the offence, in addition to his work at Pinky’s Laundromat, he was doing repairs and resales on buy and sell sites such as Kijiji and Vapes Buy and Sell. The Search of the House [ 17 ] The police simultaneously executed the search warrant at 637 Airlies Street and arrested Mr. Bigl in his Jeep at about 5:30 p.m. on March 29, 2019. [ 18 ] The police had received information from a confidential informant and had conducted surveillance which provided sufficient grounds for them to obtain the search warrant.

The evidence contained in the Information to Obtain (ITO) is not part of the evidence in the trial. [ 19 ] 637 Airlies Street is a three-bedroom bungalow with a fourth bedroom and a laundry room in the basement. It is owned by James Beales, Mr. Bigl’s step-father. Mr. Beales testified in the trial for the Crown. All witnesses testified as to the extremely cluttered, crowded, unkempt condition of the house, and the photographs taken by the police confirmed the accuracy of their descriptions. Mr. Bigl described the house as having a two-foot path for people to walk between all the stuff.

The “stuff” was described as wall-to-wall and floor-to-ceiling by the defence. Mr. Bigl characterized his step-father, who owns the house, as a hoarder. None of these descriptions are exaggerations. [ 20 ] The doors of the house were never locked. [ 21 ] Mr. Bigl’s bedroom was in the basement, adjacent to the laundry room, which is where over one kilogram of methamphetamine was found in a backpack. [ 22 ] Seven people lived in the house.

Everyone used the laundry room and the freezer in the laundry room. [ 23 ] In addition to the permanent residents, other people frequently stayed at the house, sometimes for lengthy periods of time. They also used the laundry room. [ 24 ] Two girls, friends of his sister, were staying in the basement in Mr. Bigl’s bedroom at the time the search warrant was executed. They had been there for five days prior to the search by police. [ 25 ] A teenager named Jared had stayed there for a month. All the civilian witnesses testified to Jared’s trouble with huffing. He took solvents from under the kitchen sink. Mr.

Bigl found paint thinner and brake clean solvents in his room days before the arrest. [ 26 ] Another man, Steven, also stayed at the house, although he had been kicked out six months earlier because of his methamphetamine use. [ 27 ] Witnesses testified that various teenagers on the run would also stay at the house. The homeowner, Mr. Beales would allow them to stay at the house to avoid being on the street.

Witnesses testified about a drunken person once wandering into the house and being allowed to “sleep it off.” [ 28 ] The large quantity of methamphetamine was found in three freezer bag size Ziploc bags in a black backpack. The backpack was stuffed between some building materials behind a door in the laundry room. [ 29 ] In Mr. Bigl’s bedroom, police found a box of Ziploc bags identical to the type containing the methamphetamine in the backpack, small Ziploc plastic bags consistent with a bag containing methamphetamine in the Jeep, and a notebook characterized by

Sargent Belfiglio as scoresheets. [ 30 ] Mr. Bigl testified that he used the large Ziploc bags for food. He testified that he cooked upstairs and brought his food downstairs to eat and he stored food and leftovers in his fridge. During his testimony, he pointed out the fridge in the photographs taken by police and looked for the spices which he keeps on the window sill. This was compelling testimony and consistent throughout. The additional detail of the spices added credulity to Mr.

Bigl’s evidence on his reason for keeping Ziploc bags. [ 31 ] He was not able to explain why there were small plastic bags on his dresser. Given the state of his room and the house, it is not unreasonable for unknown items and items that were not his to be on his dresser. He did not attempt to create an explanation for the small baggies. [ 32 ] It is consistent with the testimony of the other civilians that people were in and out of the house and Mr. Bigl’s bedroom. His own testimony provided more detail.

He had lived in Selkirk, Manitoba for four months just before his arrest, working with a friend doing auto-wrecking and salvage. He had returned to Winnipeg and the Airlies Street house 10 days before the search and arrest. He was working for Pinky’s laundry and also buying, fixing and selling small electronics such as vapes, gaming systems and cameras. He testified that his step-father had previously worked in a computer and electronics store, and had taught him the skills of fixing small electronics.

This is also the explanation for a lot of the “stuff” in the house – his father retained all the stock from the business when the store closed, and he continued to collect more. [ 33 ] When Mr. Bigl came back to the house after his time in Selkirk, he found his bedroom “trashed” in his words. There were clothes and things (like the aforementioned solvents) that did not belong to him in his room. He found two handwritten journals in one of his dresser drawers when he opened the drawer to get a shirt. The journals were stuffed under clothing. Mr.

Bigl testified that the journals contained information about childhood trauma, “really messed up stuff” in his words. The detail is, again, compelling. [ 34 ] The so-called “score sheets” consisted of a small notebook that was also found in a dresser drawer in Mr. Bigl’s room. I attach no significance to the fact that it was in his drawer, given the existence of far more private material like the journals he found, also in his dresser drawer. [ 35 ] The notebook contains writing on only three or four pages. Sergeant Belfiglio attached very little significance to the markings in the journal.

He testified that one of the markings “might” have indicated that a person with the initials “KH” paid and owed some money for drugs. The handwriting in the notebook was not analyzed. Search of the Jeep [ 36 ] Police had Mr. Bigl under surveillance when he left the house and got into the Jeep on March 29, 2019. There was no evidence that he was carrying anything or that he put something into the glove box of the Jeep. Mr. Bigl testified that he was on his way to Save- On-Foods to buy groceries.

Indeed, he was stopped by Constable Herman and his partner at McPhillips Street and Polson Avenue. [ 37 ] Police stopped and arrested Mr. Bigl. They searched him and the Jeep incident to arrest and found 27.85 grams of methamphetamine in a small plastic baggie in a Number 7 cigarette package in the glove box. [ 38 ] In addition to the Number 7 package containing the methamphetamine, there were 12 to 15 empty cigarette packs strewn about the vehicle. The Crown did not ask that I infer that these were trash from previous drug transactions. [ 39 ] Mr. Beales testified that everyone in the house smokes Number 7. Ms.

Halle (Mr. Bigl’s step-brother’s girlfriend) testified that everyone except Mr. Beales’ partner smoked that brand. Mr. Bigl testified he smokes different, cheaper brands, specifically Canadian Classics, PlayFare’s and Dakota’s. This is one area where I found Mr. Bigl’s testimony lacking in credibility. I do not believe his evidence that he did not smoke Number 7 at the time of the offence, when everyone else testified that he did.

It may be that he has now switched to these cheaper brands. [ 40 ] Police also found in the Jeep two cell phones in the center cup tray, $80.00 in Canadian currency on the passenger seat and $110.00 worth of Canadian currency on his person. Mr. Bigl testified that $50 was from the laundromat; he was going to replenish change for the machines with it. The remaining was from his income tax return, which he had filed the week before.

He had the money to help his step-father with bills. [ 41 ] Sergeant Belfiglio testified that is very common for drug dealers to have one cell phone for business and one phone for personal use. [ 42 ] In this case, the cell phones were not tested. One of them was cracked. There is no evidence that they were both working, except from Mr. Bigl, who testified that one of the cell phones was his. He testified that the other one was not working. He had found it in an abandoned apartment attached to the laundromat where he worked.

It was “Google-locked.” He testified that he had tossed it in the vehicle to fix at some point. [ 43 ] There was no evidence that the phones were ringing, consistent with drug trafficking. The phones were not examined. There was no evidence that the phones contained text messages consistent with drug trafficking. [ 44 ] Several people had access to the vehicle. Mr. Bigl’s step-brother Eric owned the vehicle, according to Mr. Bigl and the other civilian witnesses. Eric retained a key for the vehicle and used it. Other people got rides in the vehicle. The vehicle was never locked, nor was the glove box. [ 45 ] Mr.

Bigl denied knowing anything about the methamphetamine in the glove box.

Findings of Fact and Analysis [46] I do not accept that Mr. Bigl placed almost $10,000.00 of methamphetamine in a place where so many people had access to it. This includes his younger sister. Six months earlier he and his step-father had kicked out a person named Steven for usingmethamphetamine in the home because it was a bad influence on Mr. Bigl’s younger sister, Cora. Any of the seven residents and variousand sundry visitors could have put the backpack in the laundry room. [47] Mr. Bigl was not home during the search, nor did he flee the house to avoid the search and arrest.

If the drugs belonged to himand he had been home or fled to avoid the police, it is more plausible that he would quickly jam the backpack with drugs outside hisbedroom in a high traffic area of the house. But that was not the circumstance here. [48] Moreover, Mr. Bigl testified that he did not recognize the backpack and that he had never used a backpack. [49] Although all the items seized from the house were tested for fingerprints, no fingerprint matches were made. [50] Additionally, there was a complete absence of many of the indicia typically seen in drug trafficking operations.

There were noscales for weighing the methamphetamine that is broken down. There was no evidence from surveillance officers that the breakingdown into smaller amounts would have taken place at some other location. There is no evidence that the larger kilogram bags or halfkilogram bags were broken down into one ounce packages, other than the existence of the small bags in Mr. Bigl’s room. There were noringing cell phones. [51] There was no area in the house, which was photographed quite extensively, where it could be suggested that packaging ofmethamphetamine may be taking place.

The photographs show such a degree of clutter and disorganization, that there was simply noclear surface where one could imagine drugs would be packaged. [52] The Jeep was accessible to many others, like the house. The cell phones were not ringing which is typical for drug trafficking. I accept that one of the cell phones belonged to Mr. Bigl and that he found the other cell phone and it was not operational. Neither of thecell phones were examined, tested nor did I hear any evidence that they were tested for fingerprints. The cash found could have been forchange for the laundromat and from Mr.

Bigl’s income tax return. Credibility and Reliability of the Evidence [53] The forgoing demonstrates that I have accepted some of Mr. Bigl’s evidence. I found some of his evidence to be believableand some of it is not believable, as I have indicated. Overall, however his evidence raises a reasonable doubt that he possessedmethamphetamine for the purpose of trafficking and that the cash found were proceeds of that crime. I found all the witnesses to becredible. This case does not turn on the credibility of the witnesses. Even without the reasonable doubt raised by Mr.

Bigl, the Crown’scase was thin. [54] The Crown’s case against Mr. Bigl is based entirely on circumstantial evidence. Circumstantial Evidence and Reasonable Doubt [55] The leading case with respect to circumstantial evidence is R. v. Villaroman, 2016 SCC 33. [56] Ultimately, I must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from thecircumstantial evidence is that the accused is guilty. I am not. [57] Underlying the rule about the use of circumstantial evidence is a central tenet of Canadian law, that guilt must be establishedbeyond a reasonable doubt.

The standard is always the same. A doubt is based on “reason and common sense”. It does not involve proofto an absolute certainty. It is logically connected to the evidence or absence of evidence (R. v. Lifchus, (SCC), 1997CarswellMan 392). [58] If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond areasonable doubt (at para. 35). Conclusion [59] There is insufficient evidence of possession of methamphetamine by Mr. Bigl. Many, many people had access to the drugs.

There was a reasonable explanation for the cash found. [60] There was also very little evidence of trafficking. The expert witness did not provide an opinion that Mr. Bigl was traffickingmethamphetamine out of 637 Airlies Street. His testimony was confined mainly to the issue of trafficking versus personal use. That wasnot the issue in this trial. The issue was knowledge and control. [61] While I might have a lurking suspicion that Mr. Bigl was involved in some illegal activity involving drugs, a lurking suspiciondoes not pass muster.

I have a reasonable doubt that he was involved, for all the reasons I have mentioned. [62] The Crown has not proven their case beyond a reasonable doubt. Mr. Bigl is acquitted of both charges. “Original signed by:”

C.A. DEVINE, P.J. [1] The methamphetamine was found in three Ziploc bags in the back pack. Two bags contained 485.85 grams and 289.91 grams of methamphetamine respectively, both of which was confirmed as methamphetamine by Health Canada. The third bag, containing 484 grams, was not sent for testing by the drug processor. The expert witness testified that it appeared to be methamphetamine.