R. v. Aird, 2023 BCPC 208

Citation: R. v. Aird 2023 BCPC 208 Date: 20230908 File No: 42032-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. RANDI CHANTELLE AIRD ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: V. Sissons Counsel for the Accused: S. Sheets Place of Hearing: Duncan , B.C.

Dates of Hearing: April 25, 2023; July 10, 11, 12, 2023; September 6, 8, 2023 Date of Judgment: September 8, 2023 Introduction [ 1 ] THE COURT: Randi Chantelle Aird has been charged by way of indictment on a single count of unlawful possession of a controlled substance, namely, methamphetamine, for the purposes of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act . The offence is alleged to have occurred on April 16,

Section 5 of the Controlled Drugs and Substances Act [ 2 ]

Section 5 of the Controlled Drugs and Substances Act (“ CDSA ”) provides as follows: Trafficking in substance 5(1) No person shall traffic in a substance included in

Schedule I, II, III, IV or V or in any substance represented or held out by that person to be such a substance. Possession for purpose of trafficking

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

Schedule I, II, III, IV or V. Punishment

(3) Every person who contravenes subsection (1) or (2) (

a) if the subject matter of the offence is a substance included in

Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life; (a.1) [Repealed …] (

b) if the subject matter of the offence is a substance included in

Schedule III or V, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or is guilty of an offence punishable on

summary conviction and liable to imprisonment for a term not exceeding eighteen months; and (

c) where the subject-matter of the offence is a substance included in

Schedule IV, (

i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding three years, or (ii) is guilty of an offence punishable on

summary conviction and liable to imprisonment for a term not exceeding one year. (4) [Repealed …] [ 3 ] Methamphetamine is included in CDSA

Schedule I, paragraph 18. [ 4 ] The definition of "possession" in s. 4(3) of the Criminal Code is incorporated in the Controlled Drugs and Substances Act , supra, by virtue of s. 2(1) of that statute. Subsection 4(3) of the Code provides:

(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 be deemed to be in the custody and possession of each and all of them.

The Voir Dire [ 5 ] At the commencement of the trial, a voir dire was declared (“Voir Dire #1”) to address issues raised pursuant to the Charter notice filed by Randi Chantelle Aird (the “Accused”) on April 24, 2023, being the day immediately preceding the commencement of the trial. [ 6 ] The Accused sought to exclude all evidence obtained following a traffic stop conducted by two RCMP plainclothes officers at the intersection of Boys Road and Allenby Road at or near the City of Duncan in the Province of British Columbia in the early hours of April 16, 2020.

[7] The Accused alleged that her Charter rights were violated on the following basis: Alleged

Section 8 breach of the right against unreasonable search and seizure (

a) the Accused was the subject of a warrantless search and which was not authorized by law; (

b) the police lacked reasonable suspicion to implicate the Accused and the offence being investigated and there was no evidence toimplicate the Accused; (

c) the search was unreasonable and it violated the Accused’s rights under s. 8 of the Charter. Alleged

Section 9 breach of the right against arbitrary arrest and detention (

d) the police officers lacked reasonable grounds to arrest the Accused after she had come to a complete stop at a stop sign and,hence, there was no motor vehicle infraction upon which to base the traffic stop; (

e) she was handcuffed and placed in the back of a police vehicle thereby effecting the arbitrary arrest and detention; (

f) the Accused was arbitrarily detained because the arrest was not authorized by law and thus violated her right under s. 9 of theCharter. Alleged breach of

Section 10(

b) of the right to counsel (

g) the Accused was handcuffed and placed in the back of a police vehicle without the opportunity to speak to counsel; (

h) this violated the Accused’s rights under s. 10(

b) of the Charter. [8] The Accused sought an order pursuant to s. 24(2) of the Charter excluding all evidence obtained in violation of the Accused's s.8, 9, and (10)(

b) Charter rights. [9] The Crown’s evidence in the voir dire was provided by Constable Matthew Laing and Constable David Grey. Defence did nottender any evidence in the voir dire. [10] My ruling on Voir Dire #1 was delivered on July 12, 2023. For the reasons set out in R. v. Aird, 2023 BCPC 198 (“the Voir Dire#1 Ruling”), I dismissed the Accused's Charter application and the relief claimed therein. [11] In the result, the evidence produced by the search of the Accused incidental to arrest was ruled admissible and entered into thetrial proper.

Presumption of Innocence [12] The obligation is upon Crown to prove all elements of each offence beyond a reasonable doubt. If that occurs, then and only thencan the court convict the accused person. Where reasonable doubt exists on any element of the offence charged, the accused must beacquitted. The burden of proof rests upon the prosecution throughout the trial and never shifts to the accused person. [13] Reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice.

Reasonable doubt is a doubtbased on reason and common sense which must logically be derived from the evidence or absence of evidence. The Crown must provemore than probable guilt. However, reasonable doubt does not involve proof to an absolute certainty since that would be an impossiblyhigh standard. The standard of reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities.

Inshort, if, based upon the evidence before the court, the finder of fact is sure the accused committed the offence then the finder of factshould convict since this demonstrates that the finder of fact is satisfied of the accused’s guilt beyond a reasonable doubt (see R. v.Lifchus, (SCC), [1997] 3 S.C.R. 320, and see R. v. Starr, 2000 SCC 40 , [2000] 2 S.C.R. 144).

The Court's Approach in Summarizing the Evidence [14] For the purpose of these reasons, I have broken the evidence into three categories. [15] First, what I view as non-controversial background facts that surround this case. [16] Next is the evidence adduced by Crown in support of the Crown’s theory of this case for the most part provided by ConstableLaing, Constable Grey, and by the Crown’s expert, Constable Kimberly Babala. [17] Last is the evidence adduced by defence in support of their theory of the case which has been provided by the Accused. [18] For the benefit of all the parties and their supporters present in court today, it is important to understand the approach that I havefollowed in summarizing the evidence in these reasons for judgment.

It is the same approach usefully and concisely set out by theHonourable Judge T.S. Woods in the decision of R. v. Connell, 2017 BCPC 123, at paragraphs 5 and 6, quoting: [5] Finally in this introduction, before turning first to set out the Crown and defence theories of this case, I will candidlyacknowledge that in these Reasons for Judgment I have not made reference to all of the testimony given by the witnesses who werecalled, or to all of the documentary evidence that was received and marked.

I have, rather, referred to evidence that I consider it necessaryto mention in connection with my factual findings and the legal conclusions that flow from them. In places I have made mention ofevidence that I have been unable to accept, and of the reasons why I have been unable to accept it. If evidence is not mentioned in thisdecision, both Crown and defence may take comfort that the omission is not the result of my not having taken note of it. I have read allof the transcripts from end to end. I have done the same with all of the documentary exhibits. If witness testimony or documentary

evidence do not come up for specific mention in these reasons, that is because: (

a) The evidence was not relevant; (

b) The evidence is to the same effect as other evidence of which mention has been made; or (

c) The evidence was tendered in support of alleged facts I have not found and arguments that I have not accepted, having regard to the facts that I have found and the arguments that are supported by those facts. [6] That it is an acceptable practice for a trial judge to confine him or herself, in Reasons for Judgment, to a compressed and somewhat selective canvassing of the evidence heard at trial is well established on the authorities.

The law is clear that where there is substantial support in the record for a trial judge's findings and the inferences drawn from them, the trial judge does not make a reversible error by failing to refer to every item of evidence that was adduced [case authorities relied upon deleted] …

Summary of the Undisputed Circumstances [ 19 ] In April 2020, Constables Matthew Laing and David Grey were members of the Street Crimes Unit of the Duncan-North Cowichan detachment of the RCMP.

Their task was to target, prevent, and investigate property and drug offences. [ 20 ] On the evening of April 15, 2020, and in the early morning hours of April 16, 2020, they were on duty in plainclothes in an unmarked police vehicle. [ 21 ] They decided to travel to and make observations of a certain house on Daniels Crescent located on Cowichan Tribes Reserve lands immediately south of the City of Duncan (the “Daniels Crescent House”). They were not responding to any recent reports or complaints nor conducting a surveillance to obtain a search warrant.

They were seeking to gather information and intelligence. [ 22 ] The Daniels Crescent House was known by the two of them and other members of their RCMP detachment to be a “drug house” and also a “flophouse” and to be a “nuisance house", frequented by numerous people involved in drug and property crimes. Daniels Crescent is a cul-de-sac containing five or six residences.

It is a dead-end cul-de-sac which accesses only onto Boys Road. [ 23 ] At approximately 12:30 a.m. on April 16, 2020, they drove past Daniels Crescent and observed what appeared to be a grey motor vehicle stopped and idling at the entrance to the driveway for the Daniels Crescent House.

Constable Laing testified that any vehicle at the Daniels Crescent House was regarded by them to be suspicious on the basis of their knowledge of the Daniels Crescent House and the activity taking place about it. [ 24 ] They then turned around and parked their unmarked police cruiser on Boys Road in such a fashion that they could observe the intersection of Daniels Crescent and Boys Road. Constable Laing was driving and Constable Grey was in the front passenger seat.

From their location, they did not nor could they observe the Daniels Crescent House or the entry or exit of any individuals into it. [ 25 ] They observed a grey vehicle turn out of Daniels Crescent onto Boys Road, turning right and heading in a westerly direction. They proceeded to follow it.

They believed that it was the same vehicle they had seen parked in the driveway at the Daniels Crescent House. [ 26 ] According to Constable Laing’s testimony, since there was no actual offence being investigated, the plan of the two police officers was to follow the suspicious vehicle and look for a traffic infraction which would give them a lawful reason to pull over the grey vehicle. That would permit them to conduct a “dual purpose stop,” to deal with the traffic infraction, but also identify the occupants of the vehicle which had just departed from the Daniels Crescent House.

Constable Laing denied that the purpose of the stop was to look for drugs or drug paraphernalia. [ 27 ] While following the grey vehicle and shortly before eventually stopping it, they were able to get close enough to obtain the licence plate numbers and to conduct a computer inquiry from their unmarked police cruiser. It disclosed that the Accused was the registered owner with an address in Chemainus, BC. She was unknown to either of the two RCMP members. [ 28 ] They also determined that the vehicle in question was a four-door grey 2004 Pontiac Grand Prix (the “Vehicle”).

The police constables were unable from their observations to determine if there were other occupants in the Vehicle other than a driver. [ 29 ] The Vehicle proceeded at a normal rate of speed in accordance with or below the speed limit in a westerly direction along Boys Road, proceeding through a greenlight at the intersection of the TransCanada Highway and continuing in a westerly direction to the T- intersection of Boys and Allenby Road. At that intersection is a stop sign for traffic proceeding along Boys Road.

That traffic can either turn left heading south or right turning north on Allenby Road. [ 30 ] The Vehicle was observed from a distance of some 50 to 75 metres by the following police constables as it approached the intersection of Boys Road and Allenby Road. The Vehicle slowed down as it approached the stop sign, but it never stopped completely and continued to make a right-hand turn heading north on Allenby Road. There was no other traffic on Allenby Road.

The two police officers concluded that they had just observed a “rolling stop,” which was a motor vehicle traffic infraction, namely, failing to stop at the stop sign. They both testified that, in the course of performing their duties, they have infrequently conducted traffic stops for these “rolling stop” infractions.

As noted above and below, the Accused testified in the trial proper, but not in Voir Dire #1, that she came to a full stop. [ 31 ] At that point, around 12:44 a.m., the emergency equipment of their police cruiser, including the emergency flashing lights and sirens, were activated and the Vehicle pulled over on the right-hand side of Allenby Road. [ 32 ] Constable Grey exited the police cruiser and walked to the passenger side of the Vehicle. In the meantime, Constable Laing also immediately exited the police cruiser and walked to the driver’s side of the Vehicle to deal with his concerns about individuals moving

their locations in the car or moving drugs or weapons. He observed that there were four occupants, including the driver whom he did not recognize. Constable Laing held a flashlight which he used to illuminate the Vehicle and to see who was in the Vehicle. Constable Laing did not detect any movement of the occupants in the Vehicle. [ 33 ] Seated behind the driver was an individual known to Constable Laing as Travis Jury.

In the front passenger seat was another individual known to Constable Laing as Andrew Bell and in the rear passenger seat behind Andrew Bell was a First Nations female who was unknown to the police officers but ultimately identified as Caylene Joseph. [ 34 ] Both Constable Laing and Constable Grey knew and had prior police interactions with both Andrew Bell and Travis Jury. Constable Laing testified that he knew that both Travis Jury and Andrew Bell had a history of violence and were known illicit drug users and associated with the drug trade.

Constable Grey testified that he knew both of these individuals to be violent and involved with illicit drugs. [ 35 ] Through the open driver’s side window, Constable Laing spoke to the Accused and requested that she produce her driver’s licence. He did not tell her why he had pulled her over. The driver produced her driver’s licence. The picture on the driver’s licence matched the driver and identified her as the Accused. [ 36 ] Constable Laing also requested the Accused to turn off the Vehicle’s engine and exit the Vehicle which she did.

He testified that he made that demand to exit the Vehicle for officer safety concerns and, specifically, because he had concerns based on his prior experience of pulling over a motor vehicle and then having the stopped vehicle flee from the scene. [ 37 ] These officers’ safety concerns were informed by Constable Laing’s knowledge of Andrew Bell and Travis Jury and the fact that the Vehicle had recently departed the Daniels Crescent House, which itself was affiliated with the illegal drug culture and persons associated with drugs and property crime.

Constable Laing testified that these individuals often carried weapons such as knives and bear spray. Constable Laing was concerned that the Accused, who was previously unknown to him, may be involved with these type of individuals. He was also apparently concerned that she might possess such a weapon. [ 38 ] Constable Laing indicated that he was intending on dealing with the Accused on the traffic infraction outside of the Vehicle once the officer safety concerns had been addressed.

At this point, Constable Laing testified that the Accused was detained for the motor vehicle violation. [ 39 ] At this point, Constable Laing was standing beside the “B pillar” of the Vehicle, being the division between the front and back- seat areas of the Vehicle. When the driver’s door was opened and the Accused stepped out, Constable Laing observed that there was a handle of a sheathed machete beside the front of the driver’s seat and the B pillar. Thus, it was on the left-hand side of the driver’s seat and within easy reach of a seated driver.

Constable Laing explained that it would likely take two hands to unsheathe the machete. He also concluded that the location of the machete was within reach of a person seated directly behind the driver.

That person was Travis Jury. [ 40 ] Constable Laing testified that he believed it to be there for a dangerous purpose on the totality of the circumstances, including the Accused being in the Vehicle in the presence of “some violent people” who he knew “were involved in the drug trade." He further concluded that, “It wasn’t there because they were cutting blackberry bushes the other day.” [ 41 ] At that point, Constable Laing formed the opinion that he had grounds to arrest the Accused for possession of a dangerous weapon.

Based on his training and experience, he also concluded that, once one weapon is located, there is potential for another and such weapons could be used as a means of escape. He also indicated that such a weapon was often possessed by individuals involved with illicit drugs, along with other types of knives. [ 42 ] Thus, he arrested the Accused and, in accordance with his training, handcuffed her and again stating it was for officer safety concerns and the possibility that she had other weapons on her. From memory, he then also chartered and warned the Accused on the dangerous weapon charge.

That was just before 12:45 a.m. Constable Grey overheard Constable Laing telling the Accused that she was being arrested on that charge. [ 43 ] A police radio call was made for additional uniformed police backup because of the number of individuals in the Vehicle that were being dealt with by Constable Laing and Constable Grey. [ 44 ] Constable Laing also testified that he wanted to secure the Accused in order to permit a search incidental to arrest for the possession of the dangerous weapon.

The other police officers arrived on the roadside scene at approximately 1:00 a.m. or shortly thereafter, including Constable Hill. [ 45 ] Constable Laing remained with the Accused while continuing his observations of the Vehicle’s occupants. The Accused was turned over to Constable Hill shortly after his arrival and she was placed in the rear seat of his marked police cruiser.

Constable Grey walked with them to Constable Hill’s police cruiser. [ 46 ] While he had been standing outside the Vehicle and dealing with the Accused, Constable Laing glanced down at the lower interior door pocket of the open driver’s door and observed a clear bag of substance which, in his experience, appeared to be methamphetamine.

It contained crystals or chunks of white substance which in his experience was consistent with crystal methamphetamine. [ 47 ] He testified that he was not inspecting the Vehicle, but rather, the clear bag was quite visible having not been pushed down entirely into the interior door pocket. When the driver’s door was closed, the door pocket and its contents would be in easy reach and accessible to the seated driver.

It is noteworthy that, as described by Constable Laing, the door pocket was immediately located beside the machete when the driver’s door was closed and, therefore, that door pocket was possibly also accessible to a person seated behind the driver. [ 48 ] At that point, Constable Laing spoke to the remaining three occupants and told them that they were under detention for drug

possession. [ 49 ] He directed Travis Jury to exit the Vehicle whereupon he conducted a safety pat-down search, had him handcuffed, and then passed him on to a uniformed police constable. [ 50 ] He then went to the front passenger side of the Vehicle and dealt with Andrew Bell in the same fashion. [ 51 ] The pat-down searches were conducted for officer safety reasons because Constable Laing was concerned that these two individuals, having recently departed from the Daniels Crescent House, may be in possession of weapons. [ 52 ] Caylene Joseph was also asked to exit the Vehicle in order to obtain her identity.

She was also handcuffed. [ 53 ] None of the other three occupants were ever arrested and all were released sometime shortly after 1:00 a.m. [ 54 ] Constable Laing did not recall telling the Accused that she was being arrested for possession of drugs or possession for the purposes of trafficking, but he indicated Constable Grey dealt with that. [ 55 ] Constable Grey testified that he returned to Constable Hill’s police vehicle where the Accused was seated and chartered and warned her, reading from his issued police card, about the possession of drugs and for the purposes of trafficking at approximately 1:04 a.m.

That was after some of the suspected amphetamine drugs had been located in the Vehicle.

As I understand it, he had also chartered and warned her about possession of the dangerous weapon. [ 56 ] Constable Grey also testified that when he asked the Accused if she wished to speak to a lawyer, she indicated that she did not know if she wanted to speak to a lawyer, although she indicated to Constable Grey that she understood her right to do so. [ 57 ] Constable Grey noted that, at the roadside scene, there was no suitable private and secure place for the Accused to make a telephone call to a lawyer if she had chosen to do so.

While seated in the rear of the police car, she did not have sufficient privacy and there was a risk that the audio recording system within the police vehicle could pick up her discussion with a lawyer. The Accused never made the request to speak to a lawyer and Constable Grey did not offer his cellphone, but indicated that, in some instances, he has allowed arrested persons to use his government-issued cellphone in order to speak to a lawyer. [ 58 ] A Samsung cellphone was seized at the roadside scene from the Vehicle.

Constable Grey believed that its battery was dead at the time of the arrest and the search and seizure. No search warrant was obtained for the cellphone and no data was removed. [ 59 ] The Accused was released from custody at the roadside with her Vehicle at between 1:20 and 1:30 a.m. after being told by Constable Laing that she would be receiving a summons. She and the other occupants then drove away in the Vehicle. [ 60 ] The Accused had both a valid driver's licence and insurance on the Vehicle.

Constable Laing says he exercised his discretion and did not issue her a motor vehicle violation ticket for the failure to stop at the stop sign. [ 61 ] After the arrest of the Accused for possession of the dangerous weapon but preceding her release, it was Constable Laing’s intention to conduct a search, incidental to arrest, of the Vehicle to locate any other weapons in the Vehicle. That was undertaken by himself, Constable Grey, Constable Hill, and possibly by some of the other uniformed police officers who had responded to the request for assistance.

As I understand it, the search included a search of the trunk of the Vehicle which was first conducted by Constable Hill, who was then joined by Constable Laing who was able to make some observations about the items discovered in the trunk of the Vehicle.

Items Seized in the Search Incidental to Arrest [ 62 ] Following the observations by Constable Laing of the suspected drugs in the driver’s side-door pocket, Constable Grey also participated in the search of the Vehicle at the roadside scene and took custody of the items seized, including two plastic bags of suspected methamphetamine. [ 63 ] One bag was a clear plastic press seal bag that had been observed by Constable Laing and the other was a black plastic bag which was located by Constable Grey.

Both bags were found in the driver’s side-door pocket and were therefore accessible to a person seated in the driver’s seat.

The clear bag was located slightly in front of the black bag. [ 64 ] Also located and seized from the driver’s side-door pocket was a tin bearing a Bacardi liquor logo containing three empty small plastic bags, one of which contained methamphetamine residue. [ 65 ] Both the clear bag and the black bag contained what was confirmed by Health Canada testing to be granular crystal methamphetamine. [ 66 ] Located in an unknown location, but photographed by Constable Grey on the driver’s side rear passenger seat, was a small bag (sometimes referred to as a “dime bag”) containing a white substance which was believed by Constable Grey to contain drugs.

Travis Jury had been seated in that location. [ 67 ] Constable Grey also photographed various items, including the suspected drugs and the sheathed machete, at the scene and later at the RCMP detachment. [ 68 ] The photographs of the interior of the Vehicle, and in particular the driver’s seat and front seat areas, showed a number of used drink cans and other apparent refuse. [ 69 ] The seized items photographed at the scene had been laid out at the scene in the Vehicle on the driver’s seat by someone other than Constable Grey and, presumably, by another RCMP member.

Those items included a cellphone, a digital scale, some cash, and a

handbag. Therefore, that photographed location on the driver’s seat was not the exact location where those various seized items were apparently located during the search. [ 70 ] Some five days after the seizure at the RCMP detachment, Constable Grey subsequently also weighed the suspected drugs and completed some NIK tests on the suspected methamphetamine which resulted in positive tests. [ 71 ] Items were sent away to Health Canada for testing which confirmed them to be methamphetamine.

Two Health Canada Certificates of Analyst were admitted into evidence to confirm this. [ 72 ] A seized four-inch-by-five-inch electronic scale located by Constable Grey in the middle console area of the Vehicle and was thus reachable by the driver. It was also sent away to determine whether there were traces of illicit drugs. The existence of traces of fentanyl and methamphetamine were confirmed by the Health Canada analysis.

One Health Canada Certificate of Analyst was admitted into evidence to confirm this. [ 73 ] Two portions of the seized methamphetamine were weighed by Constable Grey with results of 14.6 grams contained in the clear plastic bag (as depicted in Exhibit 2, tab 1, photograph 10) and another 7.9 grams contained in the black bag (as depicted in photograph 16). Thus, the total of methamphetamine equalled 22.5 grams. [ 74 ] The blade of the sheathed machete was measured at between 16 to 18 inches in length.

Two additional folding knives were located by Constable Grey in the driver’s side-door pocket near the seized drugs. [ 75 ] A total of $155 cash in denominations of two $50 bills, two $20 bills, one $10 bill, and one $5 bill were seized along with a handbag. Again, the location of these items in the Vehicle at the time of the search was unknown. [ 76 ] According to Constable Laing’s evidence, he observed that Constable Hill was searching the trunk of the Vehicle and joined him at the back of the Vehicle. In an open shoebox container, Constable Laing observed identification for the Accused’s children.

Although he could not say where located in the trunk, he also observed a large clear plastic bag containing approximately 50 one-inch to one-and- a-half-inch new, empty, clear plastic baggies with a press seals. Constable Laing testified that, in his experience, these types of bags were often used to hold “user levels of controlled substance”.

No police photographs were introduced of the trunk portion of the Vehicle to show the relative location of any items located in it during the search. [ 77 ] Constable Laing testified that, during the search of the trunk of the Vehicle, it appeared that there were lots of personal belongings that would be indicative of someone living in the Vehicle. [ 78 ] A glass vial containing suspected heroin or fentanyl was found in an unknown location within the Vehicle, but as I understand it, not near the driver’s seat.

It and some other items, including the plastic bags containing the suspected heroin or fentanyl and the dime baggie which was located on the rear passenger seat, were not tested for drugs. The ownership of these items was unknown. [ 79 ] As the exhibit officer in this investigation, Constable Grey stated he could have had a fingerprint analysis conducted on various items seized.

However, he did not proceed in that fashion with any of the seized items, including the knives, the scale, and the cellphone. [ 80 ] Constable Grey testified that he was unaware as to whether or not any “scoresheets”, being the name utilized to describe the records kept by drug dealers with respect to their customers, were located in the Vehicle. There was no evidence regarding scoresheets being located in the Vehicle or upon any of the occupants, including the Accused. There was no evidence of any drug paraphernalia being located in the Vehicle.

Constable Kimberly Babala, Crown's Expert Witness [ 81 ] Crown proffered Constable Kimberly Babala as an expert and qualified to provide expert opinion evidence in the areas of: drug trafficking and specifically methods of packaging and concealment, trafficking, prices, usage of certain drugs and specifically methamphetamine (the “Field of Expertise”). [ 82 ] Defence opposed this court accepting Constable Babala as being qualified to be an expert on the basis of bias, given that she had been and continues to be a serving member of the RCMP and for the past three years with the Campbell River RCMP detachment’s Street Crimes Unit which investigates offences under the CDSA . [ 83 ] It is noteworthy that Constable Babala was not involved in the investigation of this matter nor part of the investigative team. [ 84 ] Constable Babala’s Curriculum Vitae was entered as an exhibit in Voir Dire #2.

She testified in chief and was cross-examined on her background and qualifications. [ 85 ] Constable Babala started active duty in general duty with the RCMP from June of 2004 to March of 2010. From April 2010 to July 2015, she spent over five years in a number of roles with the Special "O" Unit which is British Columbia’s full-time surveillance unit.

These surveillance operations included targets which were involved in many street-level drug trafficking and multi-kilo-level trafficking offences. [ 86 ] From July 2015 to November 2019, she was a member of the Surrey RCMP detachment Drug Unit which concentrates on offences under the CDSA and deals with everything from street-level drug trafficking to clandestine drug laboratories. [ 87 ] She has fulfilled a wide number of police enforcement roles, including being engaged in undercover operations, during which time, she immersed herself in the drug world and completed multiple purchases of illicit drugs in varying amounts.

In these capacities, she has dealt with a full range of illicit drugs, including methamphetamine. [ 88 ] She has attended and participated in a number of educational courses and seminars about illicit drugs. She has worked closely

with police officers of all ranks and services, including expert drug witnesses, and shared experiences with them concerning all facets of controlled substances, including trafficking methods, packaging, pricing, current trends, methods of consumption, and amounts per dose. [ 89 ] In the course of her police duties, she dealt with confidential informants, drug traffickers and drug users and individuals arrested and/or accused of simple possession and possession for the purposes of trafficking regarding various drugs. [ 90 ] She continues to take a number of steps to keep up to date with trends in the proposed Field of Expertise. [ 91 ] In the course of her RCMP service, she has been involved in approximately 400 drug investigations.

As an undercover operative, she has also purchased an extensive list of drugs, including methamphetamine, on some 318 occasions by portraying herself as a drug user.

About a quarter of these purchases have been methamphetamine. [ 92 ] Based upon all of this training and experience, she has thereby gained a significant amount of knowledge about the proposed Field of Expertise. [ 93 ] Constable Babala has been consulted by various RCMP members and detachments to provide about 30 expert reports in various forms relating to the proposed Field of Expertise, in which she has concluded in some 25 incidences that the circumstances supported an opinion that it was possession for the purposes of trafficking and, in the other five, it did not. [ 94 ] She has never been pressured, reprimanded, disciplined, or otherwise sanctioned by the RCMP when she presented an opinion that did not support a charge of possession for the purposes of trafficking. [ 95 ] Between June of 2016 and February of 2023, Constable Babala has been presented to and qualified as an expert witness six times in the Provincial Court and once in the Supreme Court of British Columbia in the Field of Expertise or a variation thereof.

She has never been asked to nor testified as a defence expert in the proposed Field of Expertise. [ 96 ] The Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co. , 2015 SCC 23 , confirms that expert witnesses have a duty to the court to give fair, objective, and nonpartisan opinion evidence. [ 97 ] As appears in the headnote

summary and, in particular, paragraphs 11 to 13, 32 to 40, and in paragraphs 45 to 53, Justice Cromwell sets out the approach to consideration of this criteria. [ 98 ] Cromwell J. notes that the proposed expert witness must be aware of this duty and be able and willing to carry it out. The expert opinion must be independent in the sense that it is the product of the expert’s independent judgment uninfluenced by who has retained the proposed expert or the outcome of the litigation.

It must be unbiased in the sense that it does not unfairly favour one party’s position over another. [ 99 ] Constable Babala provided evidence during Voir Dire #2, in chief, and in cross-examination about her understanding of this duty, her requirement to adhere to the duty, and her willingness to do so in the present case. [ 100 ] At the conclusion of Voir Dire #2, I ruled that Crown had discharged their burden and I accepted Constable Babala as an expert in the proposed Field of Expertise.

Expert Opinion Evidence of Constable Babala [ 101 ] In the course of her evidence, Constable Babala expressed her expert opinion that the 22.5 grams of methamphetamine that was found in and seized from the Vehicle was for the purposes of trafficking and not for personal use. [ 102 ] She based this expert opinion on the totality of the circumstances which were provided to her by the Duncan-North Cowichan RCMP investigative team. Based upon this information, she observed and was able to conclude as follows: (

a) the amount of methamphetamine found in the driver’s side of the Vehicle, being two bags of 14.6 grams and 7.9 grams, being a total of 22.5 grams, far exceeded an amount for personal use and is more consistent with a bulk buy for trafficking purposes; (

b) the electronic scale, which is commonly used to weigh drugs for packaging and distribution, and in this case, contained traces of fentanyl and methamphetamine; (

c) the location of the weapons which were found in the Vehicle, being the machete and the two folding knives; these are commonly just some of the variety of weapons used by drug traffickers for protecting their drug turf and themselves against competitors and for enforcing compliance and drug debts; (

d) a cellphone found in the Vehicle; cellphones are commonly used by drug traffickers to communicate with their clients; (

e) the amount of cash found in the Vehicle totalling $155; as a cash-based business, it is the common method of payment received by a drug trafficker from drug customers; (

f) the 50 unused baggies which are commonly used for breaking down larger quantities of drugs, such as methamphetamine, into street-user quantities for selling and transport by the end user. [ 103 ] Specifically, Constable Babala provided some important information about common quantities for the use and sale of methamphetamine. [ 104 ] In

summary, methamphetamine is commonly bought and sold in the following quantities: (

a) one ounce which equals approximately 28 grams;

(

b) one-half ounce which equals approximately 14 grams; (

c) one-quarter ounce which equals approximately 7 grams; (

d) one-eighth ounce which equals approximately 3.5 grams (known in street jargon as an “eight-ball”). [ 105 ] The larger sizes are broken down into smaller sizes for sale and purchase at the street level and thereafter for consumption. [ 106 ] Street-level sales of methamphetamine are commonly made on a “point” basis; one gram is equal to 10 points. A typical methamphetamine user would purchase and utilize one point at a time, commonly by smoking it in a glass pipe.

That would provide them with a high of some six to eight hours. [ 107 ] Using these conversions, the amount found and seized, being 14.5 grams of methamphetamine, equals approximately one-half ounce and 7.9 grams equals just over one-quarter ounce and, thus, 22.5 grams equals about three-quarters of an ounce. [ 108 ] On the basis of a typical user using one point of methamphetamine per day, the amount of 22.5 grams of methamphetamine, being the amount discovered in and seized from the Vehicle, would last some 225 days. [ 109 ] A heavy user would commonly use one gram (being 10 points) to one-and-a-half grams (being 15 points) per day.

Thus, 22.5 grams would equal a 15-day supply for a heavy user. [ 110 ] Constable Babala testified that generally a user does not purchase a multiple day supply because of methamphetamine’s cheap price and its ready availability as a street drug; a user’s concerns about the risks of being robbed by other users; a user’s fear of large amounts being found by the police and seized; and the user’s fear of overdosing on large amounts in their possession.

Also, use of a large amount of methamphetamine over several days would likely result in a high level of impairment for the user, likely with psychosis. [ 111 ] Thus, in Constable Babala’s experience, it would not be typical for a user to have a multiple day supply of methamphetamine and, although it is possible that a user might have a one or two-day supply, that is not common. [ 112 ] When asked about the cost of the 22.5 grams (approximately three-quarters of an ounce) of methamphetamine found and seized, in 2020, she stated it would be in the range of $300 to $400 on the basis of one ounce costing $600.

There has not been a substantial difference in the cost of these drugs for single ounce purchases from 2018 to 2023. [ 113 ] If sold on a one point basis at the common price of between $5 to $10 per point, the value of the approximately three-quarters of an ounce (being 22.5 grams) would have a street value of between $1,125 to $2,200. [ 114 ] In cross examination, Constable Babala stated that, even if the cellphone was not found and seized, it would not change her opinion. [ 115 ] Further, that the specific denominations of the bills were not significant to her opinion. [ 116 ] She agreed with the Defence’s proposition that it would not be uncommon for a heavy user of methamphetamine to use two grams (20 points) daily.

A user who snorted methamphetamine rather than smoked to thereby get a faster rush from that method of consumption, would use more than a user who smoked it. [ 117 ] She also agreed with Defence’s proposition that 22.5 grams of methamphetamine divided by four (being the number of people in the Vehicle) would equal 56 points. Further, that amount would equal a three-day supply for four heavy methamphetamine users.

However, she again stated that for the various concerns of a user, as enumerated above, it would be uncommon for a user to have such a large multiple day supply. [ 118 ] She testified that two-and-a-half grams of methamphetamine would, effective January 31, 2023, be a decriminalized amount, but would still be subject to seizure if found in a vehicle. [ 119 ] She agreed that a user may have a scale in their possession to prevent being cheated as to the amount. [ 120 ] Notwithstanding her evidence on cross-examination, she was unwavering in her opinion.

The Defence Case [ 121 ] The Accused testified on her own behalf and was the sole witness for the defence. She is presently 34 years of age and a resident of Texada Island. [ 122 ] She has two children, aged 12 and 7, who presently reside with her. In April 2020, her children were not living with her because of her drug use. They resided with other family members, but were returned to her in August 2020, at which time, she sought sobriety.

She testified that she fully quit the use of methamphetamine on December 20, 2020, which she described as “my sobriety day” and has not used since that date. [ 123 ] In and around April 15 and April 16, 2020, she did not have a stable residence and was living in her car, that being the Vehicle. She was generally living in and around the Nanaimo area, but in mid-April 2020, more often in the Parksville area.

As noted below, she further stated that, on occasions, she shared the Vehicle with other homeless individuals who were also drug users and, on occasion, loaned the Vehicle out to these individuals. [ 124 ] In April of 2020, she described herself as an “extremely heavy user” of methamphetamine. In April of 2020, she had been using methamphetamine for some 13 years.

[ 125 ] She could not quantify her daily use, but described it as “quite a bit”. She utilized methamphetamine by smoking it, snorting it, and injecting it a “fair amount at a time” and “until she was numb”. [ 126 ] The Accused testified that, in or around April of 2020, she would purchase methamphetamine for her personal use one ounce at a time, describing it as “easier” for her. She paid approximately $500 per ounce.

In cross-examination, she was able to more accurately quantify her use as being approximately one ounce of methamphetamine every five to seven days and, therefore, was using about four ounces per month. Therefore, she was spending about $2,000 per month for methamphetamine. [ 127 ] In her evidence, the Accused explained that she was able to sustain this habit from three sources of income namely: Provincial social assistance payments of approximately $1,300 per month, Federal child support benefits of $1,100 per month, and Federal CERB payments of $1,900 per month.

I understand these monthly payments, totalling approximately $4,300, were being direct deposited to her bank account. [ 128 ] She testified that, because she did not have stable housing and was residing in the Vehicle, she had limited expenses, the most significant being her monthly car insurance payments of $150 per month. [ 129 ] In cross-examination, she denied that she ever was fearful of being robbed or having that quantity of methamphetamine in her possession stolen. [ 130 ] The Accused stated she had a pretty clear recollection of the events of April 15 and April 16, 2020, but stated that there were some things that she could not remember. [ 131 ] The Accused testified that on April 15, 2020, she arranged to meet up with her cousin in Duncan and, therefore, travelled from Parksville arriving very late in the evening in Duncan.

Her cousin and she normally smoked methamphetamine together. Her cousin directed her to a local motel where she met up with a number of other users who were unknown to her. [ 132 ] One person that she did meet there who was known to her was Andrew Bell. She continued to use methamphetamine at the motel and he injected her with some. At some later point, they left the motel and she drove Andrew Bell to the Daniels Crescent House.

Along the way, they picked up Travis Jury and Caylene Joseph, although she could not recall if it was separately or they were together. [ 133 ] When they arrived at the Daniels Crescent House, she remained in the Vehicle and did not purchase any drugs. She did not recall using drugs while waiting. She was not certain if any of the other occupants of the Vehicle purchased drugs. She was unaware if Travis Jury and Caylene Joseph were utilizing drugs while in the rear of the Vehicle.

She was uncertain which of the occupants of the Vehicle may have gone inside the Daniels Crescent House. [ 134 ] Her plan was to drive the other three occupants to a campsite in the Allenby Road area, to not stay, but to immediately drive back to Parksville. She was familiar with the Allenby Road area, but followed the directions of Andrew Bell to the campsite. [ 135 ] She testified that she was aware that the Vehicle was being followed and figured it was a police vehicle. She contends that she came to a complete stop at the intersection of Boys Road and Allenby Road.

She pulled the Vehicle over when she observed the flashing lights on the following police vehicle. [ 136 ] The Accused admitted that the black bag located in the driver’s door pocket was hers, but she was not sure of the amount it contained.

Ultimately, it was determined to be containing 7.9 grams of methamphetamine, which she said was hers and it was for personal use. [ 137 ] However, she denied that the clear plastic bag containing 14.6 grams of methamphetamine was hers and stated that she had never seen that clear plastic bag, was not aware of its contents, was not aware of it being in the driver’s door pocket and did not know how it got there. [ 138 ] She stated that she could not remember if the cash located in the Vehicle was hers, but stated that the handbag was hers. [ 139 ] She also stated the electronic scale located in the Vehicle was not hers, that she had never seen it before and did not know that there was a scale in her Vehicle at that time.

She suggested it might belong to one of the other three occupants of the Vehicle. [ 140 ] She acknowledged that some users do possess scales especially if they do not trust the individuals from whom they are buying their drugs. She stated that she did not have to measure her doses of methamphetamine for personal use on a scale and did not know of other users who did. [ 141 ] She further denied that the other located drugs and suspected drugs, including the dime bag, were hers or that she knew that they were in the Vehicle. She stated that she never used heroin.

She suggested these drugs could have belonged to one of the other three occupants. [ 142 ] She further denied knowing of the presence of the 50 baggies located in the trunk of the Vehicle and denied that they belonged to her. [ 143 ] She denied that the seized cellphone belonged to her or that she knew of its presence in the Vehicle. [ 144 ] She admitted the machete was hers, but did not remember if the two knives found belonged to her.

She was not questioned about the purpose or the use of the machete or the knives. [ 145 ] By way of explanation, she indicated that she permitted other individuals without stable housing to stay in the Vehicle with her on occasion and on occasion she allowed them to leave items in the Vehicle, along with some of her own belongings, and as noted above on occasion to even borrow the Vehicle.

[146] On April 15, 2020, she had spent time in the Vehicle and on the beach in the Parksville area with another homeless user identifiedas Kelsie. On occasions, she permitted Kelsie to store items in her Vehicle, usually a backpack. She was unaware of what items may havebeen left in the Vehicle by Kelsie or by other drug users with whom she associated in the Nanaimo-Parksville area.

She testified that shehad no knowledge of whether or not Kelsie had put drugs in and or left any in the Vehicle, but indicated that it was possible because shehad been with her on April 15, 2020, but could not recall if it was day or night. [147] Thus the explanation offered by the Accused with respect to some of the seized items which she denied were hers or of which shewas not aware or had no knowledge was that of the permitted common use of the Vehicle by other drug users with whom she associated.Therefore, she says she was not always aware of what was in the Vehicle and, in particular, the trunk.

For example, she was unaware thather children’s identification documents were in the trunk. [148] When presented with Exhibit 2, tab 2, photo 5, which depicted the various items on the front seat of the Vehicle laid out forphotographing, she testified that the front seat did not appear like this at the time she was stopped by the police, got out of the Vehicle,and she did not know how the items became staged in that manner. [149] Therefore, she denied that she knowingly had the clear bag of what was determined to 14.6 grams of methamphetamine in theVehicle.

She also denied that she had or was intending on offering, selling, providing, or sharing any of the methamphetamine locatedwithin the Vehicle with anybody, including the methamphetamine in the black bag that was for her personal use. Hence, she denied thatshe was in possession of the methamphetamine for the purposes of trafficking. [150] A number of case authorities were presented to the court by Crown for the court's consideration. Those case authorities are asfollows: 1. R. v. Liu, 2011 BCSC 1269; 2. R. v. Bishop, 2006 BCCA 101; 3. R. v. Fisher, 2005 BCCA 444; 4. R. v. Lola, 2020 SKCA 103; 5. R. v.

Villaroman, 2016 SCC 33; 6. R. v. Russell, 2011 BCCA 277; 7. R. v. Wells (2nd July 2019) Courtenay, 38979-2 (Courtenay, BC) - unreported. [151] Crown and defence also referred to and made reference to the seminal decision of R. v. W.(D.), (SCC), [1991] 1S.C.R. 742. Assessing Credibility and Reliability of Witnesses [152] In this case, I have heard evidence that is conflicting on some material matters. Therefore, I must assess credibility and thereliability of the witnesses who provided this conflicting evidence. In doing so, I must weigh all of the evidence.

In so weighing theevidence, I may reject or accept some or all of the witness' testimony after having taken into account a multitude of factors whichinclude, but are not limited to, appearance or demeanour, ability to perceive, ability to recall, motivation, probability or plausibility, andinternal or external consistency. [153] I must also direct myself that even honest witnesses may make mistakes in their evidence, or have errors of recollection, or maypresent upon the stand in a nervous or uncertain manner for reasons unrelated to the truthfulness of their testimony. [154] It is an error in cases of contradictory evidence to simply weigh the evidence of one witness against the evidence of another (seeR. v.

Jackson, 2007 BCSC 636; see also R. v. Mann, [2010] A.J. No. 1094). The Difference Between Credibility and Reliability of Evidence [155] As noted above, I must have regard to the credibility and to the reliability of each witness’ evidence. In R. v. C.(H.), 2009 ONCA56 , Watt J.A. explained the difference between credibility and reliability at paragraph 41: Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’stestimony.

Accuracy engages consideration of the witness’s ability to accurately i. observe; ii. recall; and iii. recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, onthe other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514, at 526 (C.A.). Factors to be Taken Into Account When Assessing a Witness' Evidence [156] There are many factors to take into account when assessing a witness’ evidence, some of which are:

1. Did the witness seem honest? Was he or she evasive or argumentative with counsel? 2. Did the witness have an interest in the outcome of the case? 3. Did the witness have a good memory about the event? Did any inability to remember seem genuine or an excuse to not answerquestions? 4. Did the witness appear to be testifying as to what they actually heard or saw or are they adding in details based on other sources? 5. Was the testimony of the witness reasonable and consistent? Was the witness’s evidence consistent with the other evidence in thecase? 6.

Do any of the inconsistencies in the witness’s evidence make their testimony more or less believable and reliable? Is theinconsistency about something important, or a minor detail? 7. Was the witness’s evidence plausible? (See R. v. Shields, 2017 BCPC 395 , [2017] B.C.J. No. 2608; 2017 BCPC 395, at paragraph 60). Perspectives for Assessing the Credibility and Reliability of Witnesses [157] In assessing the credibility and reliability of those witnesses who have provided the conflicting evidence about the allegedoffence, the testimony of each of the witnesses can be considered from three perspectives: (

a) their truthfulness, whether they are trying to tell the truth or intentionally lying when testifying; (

b) their objectivity, whether they have been influenced by assumptions or emotions which may affect the accuracy of theirperceptions; and (

c) the accuracy of their observations, their abilities to observe, remember, and communicate accurately. Assessment of Crown Witnesses [158] I have found that Constable Laing and Constable Grey were both credible and reliable witnesses. Specifically, they were bothcandid, fair, and straightforward in their testimony. They were not evasive nor argumentative during cross-examination. They made fairconcessions when appropriate. I find their evidence was not shaken during cross-examination. For the most part, their evidence isconsistent.

Although there are a few differences in their accounts of the events of April 16, 2020, those inconsistencies are not material. [159] I have found Constable Babala fulfilled her obligations and her duty to the court. She was both a credible and reliable witness.Specifically, she was candid, fair, and straightforward in her testimony. She was not evasive nor argumentative during her cross-examination. She also made fair concessions when appropriate.

Assessment of the Accused as a Witness [160] The Accused presented as a straightforward witness who admitted when she could not recall certain facts or circumstances thatoccurred close to three years ago. She admitted certain facts which were not necessarily helpful to her case. Her story was consistent bothinternally and externally with few contradictions. She stood up well under cross-examination. She offered relatively plausibleexplanations for the items located in the Vehicle which she denied owning or having knowledge of them.

Crown's Position and Submissions [161] Crown submits that its case against the Accused is circumstantial. [162] Therefore, one issue the court must decide is whether there is evidence capable of supporting the lone reasonable inference that,based on the totality of the circumstances, the Accused is guilty of possession of the methamphetamine located in the Vehicle. [163] For the court to find that the Accused is in possession, the court must assess whether there is evidence of both knowledge andcontrol of the drugs. [164] Furthermore, Crown submits that, in its determination, this court must use the formulation in R. v.

W.(D). [165] Therefore, if the court accepts Ms. Aird’s evidence, she should be acquitted of the charge of possession for the purpose oftrafficking. Similarly, if the court does not accept her evidence, but is left with a reasonable doubt, she should be acquitted. [166] Crown relies upon R. v.

Liu, supra, wherein it is submitted, Justice Romilly sets out the elements of the offence of possessionstarting at paragraph 17. [167] In Liu, at paragraph 18, subparagraph 53, Crown notes that Justice Romilly cites from Rowles J.A in Ngo, stating as follows: The Crown may prove the essential elements of an offence through direct or circumstantial evidence, or a combination of both. Wherethe case rests on circumstantial evidence, the trier of fact must be satisfied beyond a reasonable doubt that the guilt of the accused is theonly reasonable inference to be drawn from the facts: R. v.

Vu (T.T.), 2004 BCCA 381, at para. 31, [2000] [sic, 201] B.C.A.C. 293.However, the criminal standard of proof is not to be applied to each individual piece of evidence. [168] In Liu, still at paragraph 18, subparagraph 54, the court reminds us that pieces of evidence are not assessed in isolation, but

instead: … the proper approach is to consider whether all the evidence, taken together, establishes the guilt of the accused and is inconsistent with any other rational conclusion … [ 169 ] Again, relying upon Liu , Crown notes the discussion about circumstantial evidence, at paragraph 18, subparagraph 55, then refers to the oft-cited case of To , which says: It must be remembered that we are not expected to treat real life cases as a completely intellectual exercise where no conclusion can be reached if there is the slightest competing possibility.

The criminal law requires a very high degree of proof, especially for inferences consistent with guilt, but it does not demand certainty. [ 170 ] In the present case, the Crown says that it is not relying on personal possession, but relying on constructive and joint possession to prove the elements of possession. [ 171 ] That is discussed in Liu at paragraph 20 . Justice Romilly sets out the types of possession.

At paragraph 21, he cites from Morelli for the definition of "constructive possession." At paragraph 21, subparagraph 17, the court says: Constructive possession is established where the accused did not have physical custody of the object in question, but did have it “in the actual possession or custody of another person” or “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.” ( 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 place belongs to him, and (3) intends to have the object in the particular place for his “use or benefit” or that of another person. [ 172 ] Again, in Liu at paragraph 24 , Justice Romilly cites from Webster in discussing the meaning of consent and control.

At paragraph 24, subparagraph 42, the court notes that: … what must be kept in mind is that for a person to be deemed to be “in possession” of an item, he or she need not have in fact exercised power over it; all that is required is an ability to exercise some power. [ 173 ] Again, relying upon the Webster excerpt from Liu , at paragraph 24 , subparagraph 44, sub-subparagraph 7, wherein the court states that: control for the purpose of constructive possession does not require that the accused did in fact exercise control over the object in question. … Again, control is established if there is the right to grant or withhold consent.

It is not necessary that the consent in fact be granted or withheld. [ 174 ] Crown notes that Justice Romilly also indicates that the presence of money on the accused’s person is circumstantial evidence available for consideration to support the accused's knowledge and control of drugs (paragraph 36). [ 175 ] In the present case, Crown submits and relies upon the discovery of the two bags containing methamphetamine which were located just to the left of the driver’s seat, in the driver’s door pocket, within arm’s reach.

A scale with fentanyl/methamphetamine residue was located in the center console also within arm's reach. A machete in a sheath was located next to the driver’s seat by the “B” pillar of the Vehicle. A cellphone and cash were located on the seat. [ 176 ] Therefore, says Crown, the drugs would be right beside where Ms. Aird was sitting. They were closer to her than anyone else. As the registered owner and driver of the Vehicle, she had the ability to grant or withhold consent for items to be in the Vehicle. Considering the close proximity of the drugs to the driver and her control over the Vehicle, Ms.

Aird had a measure of control over the methamphetamine. She had a measure of control over the scale that was located in the console. She similarly had a measure of control over the machete located next to the driver’s seat, the knives located in the door, the cash and the cellphone on the seat. She also had a measure of control over the plastic baggies in the trunk of the Vehicle, as she was living in her Vehicle. [ 177 ] Crown references R. v.

Bishop , supra, wherein the Court of Appeal reviewed and upheld a guilty finding of the trial judge that both the driver and front passenger in a vehicle were in possession of cocaine for the purpose of trafficking. The facts are laid out at paragraph 5.

The drugs, 3.52 ounces of cocaine, were located on the rear floor of the car. [ 178 ] In Bishop , at paragraph 13 , subparagraph 17, the Court of Appeal upheld the trial judge’s findings, citing his overall reasons, including that the vehicle had all the typical accoutrements of drug trafficking, including saleable quantities of cocaine, scales with cocaine residue, cellphones, and significant amounts of cash including 22 $20 bills.

Crown says that Bishop helps to show that even when multiple people are in a car and the drugs are not found specifically on either individual, findings of guilt can still be made against the driver of the vehicle. [ 179 ] Crown further cites R. v. Fisher , supra, wherein Smith J.A, writing for the court, upheld the conviction of an accused who was located inside an apartment where approximately an ounce of cocaine was located. Crown concedes that the facts are by no means synonymous with the present case, but Fisher provides guidance on knowledge and control.

At paragraphs 21 and 22, there is a comprehensive overview of the meaning of joint and constructive possession. At paragraph 24, the Court of Appeal points out that there is no requirement for the Crown to prove manual handing of a drug in order to demonstrate knowledge and control. The Court of Appeal points out that, for control, the Crown must prove beyond a reasonable doubt that "he had some measure of control over its location.” [ 180 ] In Fisher at paragraph 13 and 14 , the Court of Appeal noted that two individuals testified in the defence case claiming that Mr. Fisher did not own the cocaine.

At paragraph 25, subparagraph 57, the court recites from the trial judgment mentioning that, in finding him guilty: It may well be that others were involved in this enterprise, but Fisher’s knowledge and control, in conjunction with his nervousness and

the large amount of cash found on him at the time of his arrest, leads me to the conclusion that the only reasonable inference from the evidence is that he is guilty as charged. [ 181 ] In Fisher , the appellant asserted that it was an error on the trial judge not to assess who the owner of the cocaine was. Justice Smith at paragraph 33 states the following in disagreeing with such submission: Thus, the trial judge made no finding at all as to who was the owner of the cocaine found in the drawer. Indeed, she was not required to do so.

While ownership of the cocaine may be relevant to prove possession, the question for the trial judge was whether the appellant was in possession of the cocaine regardless of who owned it. [ 182 ] In Fisher at paragraph 36 , the court comments on the cogent evidence of the unexplained cash ($1,380) on the accused’s person to assist in coming to the conclusion that he had knowledge of the cocaine found in a drawer in the kitchen. In addressing control at paragraph 41, the court further notes that the accused had a key to the apartment where the drugs were found.

Thus, he had control of the location as he could grant or withhold consent to entry to anyone except the two individuals living there. [ 183 ] Crown concedes that, while Fisher deals with an apartment rather than a vehicle, there are numerous similarities that can assist this court in finding in the present case that knowledge and control existed.

Crown submits that this includes the presence of “the large amount of cash” in the front of the Vehicle, positioned near the Accused; the fact that the drugs were within arm’s reach of the driver, “in a location in which she had a measure of control.” Crown also relies upon the digital scale located in close proximity to the drugs, the machete found next to the driver’s seat, and two knives in the driver’s door.

Thus, Crown submits that this court does not have to find that the Accused owned the drugs and it may be that others are also involved in the drug trafficking operation, but even if others are involved, says Crown, the court still has sufficient evidence to find the lone reasonable conclusion which is that the Accused had both knowledge and control of the drugs that were in the two plastic bags next to the driver’s seat.

Thus, any other proposed conclusion says Crown: … is speculative and based on a piecemeal assessment of the evidence. [ 184 ] Furthermore, Crown notes that the Accused does not deny that some of the methamphetamine was hers. The Crown then submits that it is highly improbable that she would be aware of one bag and not the other that is located directly next to it. Crown then notes that the Accused denies knowing about the scale or the plastic bags in the Bacardi tin or the supply of baggies in the trunk.

However, Crown says that, given their close proximity to her and that she was living in the car, it is highly improbable that she would be unaware of these items. [ 185 ] Crown then references R. v. Lola wherein the court dismissed an appeal from conviction for drugs located in a vehicle. In that case, the police had located more than 200 grams of cocaine secreted behind the stereo console (para 6(a)). There were a number of documents in Mr.

Lola’s name located in the vehicle. [ 186 ] As in the present case, in Lola , the defendant asserted that there were alternative plausible theories, that someone else could have placed the cocaine in the vehicle (para 10). However, the trial judge found that the quantity and value of drugs made it inconceivable that they would be casually entrusted to someone who did not know what was in the vehicle (para 13). [ 187 ] The Saskatchewan Court of Appeal then goes on to cite from R. v. Learning , 2019 SKCA 5 , which addresses Villaroman , 2016 SCC 33 , for the assessment of circumstantial evidence.

The Court of Appeal points to the cogent considerations at para. 25 of Lola , stating: [24] Importantly, the Court in R v Villaroman had earlier commented on the reasoning process in cases of circumstantial evidence, noting: (a) “The inferences that may be drawn from [an] observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense” (at para 30). (b) “In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts” (at para 35). (c) “The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it.

If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt” (at para 35). (d) “[A] reasonable doubt, or theory alternative to guilt, is not rendered ‘speculative’ by the mere fact that it arises from a lack of evidence. As stated by this Court in [ R v Lifchus , - cited above], a reasonable doubt ‘is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence’ : para. 30 (emphasis added [in Learning ]). A certain gap in the evidence may result in inferences other than guilt.

But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense” (at para 36). (e) “When assessing circumstantial evidence, the trier of fact should consider ‘other plausible theor[ies]’ and ‘other reasonable possibilities’ which are inconsistent with guilt” (at para 37). (f) “[T]he Crown thus may need to negative these reasonable possibilities, but certainly does not need to ‘negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused’. … ‘[O]ther plausible theories’ or ‘other reasonable possibilities’ must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation” (at para 37; emphasis in original).

Drawing on all of this, the Court said (at para 38) that the “basic question” in such cases is “whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty”.

[25] On this basis, the question for an appeal court in a case of circumstantial evidence is not whether there were other possible explanations for what happened. The question is whether the trial judge unreasonably concluded that the evidence, when taken as a whole and when applying common sense, human experience and logic to determine the probability of outcomes, leads to only one reasonable conclusion, namely, that the accused committed the crime.

To paraphrase the Court in R v Villaroman (at para 69 ), while not every trier of fact may inevitably have reached the same conclusion as the trial judge did in this case, her conclusion need only be a reasonable one. [26] Coming at this question from another angle, the Court in R v Dipnarine [2014 ABCA 328 , 316 CCC (3d) 357] (at paras 24-25) said the presence of competing inferences does not necessarily mean a finding of guilt is an unreasonable verdict. Rather, if the trier of fact considers an alternative

interpretation of the circumstances, taken as a whole, to be unreasonable or irrational, the trier of fact is not bound to give effect to that alternative simply because it is impossible to exclude it entirely. In concluding its analysis, the Court said: “The law does not require such proof to absolute certainty: see R v Lifchus [citation omitted] … [ 188 ] Crown notes that at paragraph 46, the Court of Appeal reiterates paragraph 25 of Learning as set out above and concludes that it was for the trial judge to decide whether alternative

interpretations of the circumstances taken as a whole were unreasonable or irrational. Then, at paragraph 47, the Court of Appeal notes while it is impossible to entirely exclude alternative suspect theories, it does not make the theory plausible or reasonable. The Court of Appeal, at paragraph 52, points out that it may be open to a trier of fact to infer not only knowledge of the nature of the subject, but also knowledge of the substance itself where the substance is of significant value. The Court of Appeal then upheld the decision of the trial judge to find Mr.

Lola guilty of the drugs secreted behind the stereo. [ 189 ] Crown then cites and relies upon R. v. Russell , supra. In that case, our Court of Appeal upheld the conviction of the driver of a vehicle when a pouch of drugs was located beside the driver’s seat. In addition to the accused, there was also a passenger. At trial, the court noted the accused had $3,500 in his possession (para 3, subparagraph 84). On appeal, the accused pointed to a lack of forensic evidence and that the contents of the pouch were not in plain view (para 6).

The Court of Appeal, however, upheld the conviction, noting that, the drugs being so close to the driver, he came close to having direct possession of them (para 13). The Court of Appeal concluded that the proximity of the drugs along with the carefully packaged cash were compelling evidence of knowledge and control of the drugs. [ 190 ] Crown further relies on R. v. Wells (supra). In that case, the Supreme Court assessed a circumstantial case where cocaine was found hidden in the centre console of a vehicle driven by the accused, but where a passenger was also present.

The vehicle was registered to another individual (para 3). A number of items were located on arrest (see paragraph 14). $6,760 was found in a purse atop the centre console (para 14). Neither a scale nor the drugs were in plain view and the accused was cooperative (para 15). The court in Wells assessed whether there were other reasonable inferences other than guilt at para 49. Justice Weatherill reviewed the lack of forensic evidence, the drugs not being in plain view, and the accused’s cooperative behaviour.

At paragraph 50, the court considered whether the drugs could have belonged to the passenger, the registered owner, or some other person. The court then goes on to reject those suggestions as “fanciful conjecture.” (para 50). The Court concludes that, "It’s highly doubtful that [the registered owner] or anyone else would have simply left crack cocaine worth $600 to $1,000 in an easily accessible centre console” (51). [ 191 ] Therefore, Crown asserts the same logic can be applied in the present case.

Crown concedes that, while no two sets of facts are exact, it does submit that both the Russell and Wells decisions assist in establishing that the driver can be found guilty of possession of drugs that are not in plain view. [ 192 ] In conclusion, Crown argues that the totality of the evidence leads to the sole reasonable conclusion that the Accused was either constructively or jointly in possession of the methamphetamine located in the two plastic bags beside the driver’s seat. [ 193 ] Crown further submits that the lone reasonable inference on the totality of the circumstances was that the Accused was engaged in selling drugs from her car and, therefore, knew of the presence of the two plastic bags with methamphetamine in them. [ 194 ] Crown then says that while others may have also been involved in the drug trafficking operation, it is: … fanciful speculation to suggest that Ms.

Aird was not engaged in the drug trafficking operations given that the methamphetamine was directly within her reach, within the vehicle she was driving, and that she was the registered owner of.

The accoutrements of drug trafficking were all around her. [ 195 ] Crown specifically points to: … a significant quantity of methamphetamine, a scale with drug residue, a machete knife next to her seat, two knives in the door pocket next to her, $155 cash, and a large number of dime bags in the trunk. [ 196 ] Thus, says Crown, that as the driver being right beside the methamphetamine in the driver’s door pocket puts the Accused with control of the drugs. Hence, says Crown: The web of circumstantial evidence supports the lone reasonable inference that Ms.

Aird was engaged in drug trafficking, and possessed the methamphetamine. [ 197 ] Therefore, Crown seeks a conviction against the Accused. Defence's Position and Submissions [ 198 ] Defence submits that this case must be decided on the W.(D.) formulation. [ 199 ] Defence says that there are some significant gaps in the investigative procedures of the RCMP in this case.

Specifically, Defence says that there was an “absence of a thorough catalogue of what was found in the Vehicle and where.” [ 200 ] Defence points specifically to the evidence of Constable Laing and Constable Grey as to being unable to specifically indicate

where some of the important seized items were actually located. [ 201 ] Specific mention is made to the photograph at Exhibit 2, number five, which depicts a number of items (including the cash and the scale) about which the investigating police officers were unable to say where some of the items were actually found. [ 202 ] Similarly, there is an absence of any photographic evidence of the Vehicle's trunk and the relative location of important items such as the Accused's children’s identification and the supply of small baggies which Crown seeks to link, in order to demonstrate the Accused’s knowledge and possession of the packaging material. [ 203 ] Also, there is a question about the actual location of the discovery of the vial of suspected fentanyl and two bags of suspected heroin. [ 204 ] Defence then points to the lack of forensic evidence such as fingerprinting to determine the possible use of and ownership of the cellphone and the scale. [ 205 ] Furthermore, there is no fingerprint evidence that links the Accused to any of the seized drugs, although the Accused admitted that the black bag of methamphetamine was hers. [ 206 ] Defence also submits that it is a reasonable conclusion, given the fact that Andrew Bell and Travis Jury, both being individuals known to the police to be drug users and who were present in the Vehicle, that the various drugs belonged to them.

Furthermore, that upon the Vehicle being stopped by the police that those individuals would take steps in order to remove the drugs and items, such as the scale and cellphone, from their person to other locations within the Vehicle. [ 207 ] Also, based upon the proximity of Travis Jury seated immediately behind the driver's seat, within reach of the driver’s door pocket, that it is a reasonable conclusion that he placed the clear plastic bag of methamphetamine in the door pocket without any knowledge of the Accused. Defence submits th

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