R. v. Orgill Date:, 2012 BCPC 461

Citation: R. v. Orgill Date: 20120523 2012 BCPC 0461 File No: 42552-1 Registry: Penticton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JONATHAN MICHAEL ACE ORGILL ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.R. SMITH Counsel for the Crown: A. Baylis Counsel for the Defendant: C. Johnson Place of Hearing: Penticton , B.C. Date of Hearing: May 23, 2012 Date of Judgment: May 23, 2012

[ 1 ] THE COURT: The accused, Mr. Orgill, is represented by Mr. Johnson. Ms. Baylis has acted for the Federal Crown on this Information 42552, which has proceeded by indictment. [ 2 ] The trial commenced on the 11th of April, 2012, and now completed with the evidence and submissions today, the 23rd of May, 2012.

The charges are three, alleging that on the 23rd of January 2012, he was in possession of methamphetamine for the purpose of trafficking, in simple possession of cocaine and simple possession of heroin. [ 3 ] Two weeks earlier than the alleged offence date, that is the 5th of January 2012, police were doing some type of surveillance on Mr. Orgill in relation to some drug investigation. In that process Constable Lewendon testified that a vehicle being driven by Mr.

Orgill had purportedly driven away in a dangerous manner, in the process making contact with Constable Lewendon, not physically hurting him but coming close enough that it made actual contact. [ 4 ] Police did not pursue Mr. Orgill on that date of the 5th of January 2012.

They said that the decision had been made to simply locate him on a later date and arrest him then for dangerous driving . [ 5 ] With that background, on the 23rd of January, 2012, Constable Lewendon, along with another officer, were driving around in the Penticton area, actually looking for this particular vehicle that had earlier been purportedly driven by Mr. Orgill, and around 11:20 a.m. the police located the vehicle, which had been parked in Penticton near the Columbia Elementary School. [ 6 ] Mr. Orgill and Ms. Queenie Kruger were in the vehicle. Mr.

Orgill was arrested for the alleged 5th of January dangerous driving without incident. However, the search incidental to arrest involved two items, a cellphone that was seized from his right jacket pocket and his wallet was also seized, eventually returned, but the money was kept as an exhibit, some $890 in cash. [ 7 ] No officer could clearly testify as to the exact denominations of that cash. The exhibit officer simply could say that it included 50s and some smaller denominations, but it mostly contained 20s.

That was exhibit officer Constable Glasper giving that evidence. [ 8 ] So with the wallet initially seized and the cellphone seized, Mr. Orgill is taken to the police detachment. This is an arrest that occurred actually in fairly close proximity to the police detachment, so we are not talking a very long time here, just a few very short minutes and he was at the detachment. [ 9 ] However, Constable Lewendon gave evidence that he thought that Mr.

Orgill had sat in the police cruiser in some awkward position, and that he had originally arrived at the police cruiser walking in some unusually slow and rigid manner, and then when he exited the police vehicle that he similarly was walking in some slow and rigid manner. [ 10 ] Shortly after arrival at the police detachment for booking in, Corporal Myhre informed Constable Lewendon that the corporal had recently received reliable source information that Mr. Orgill was yet again selling controlled substances in Penticton and that he was hiding those substances between his butt cheeks.

A decision was made to do a strip search at the detachment. [ 11 ] I made an earlier ruling that the strip search was not contrary to s. 8 of the accused's Charter right to be protected from unreasonable search and seizure, in effect that there had been adequate grounds for the conduct of the strip search, and that it had been carried out in a proper and dignified manner, in compliance with the Supreme Court of Canada ruling in R. v.

Golden . [ 12 ] That was primarily where the evidence had been left off with the first trial date of the 11th of April, where I had made my voir dire ruling regarding the admissibility of the evidence seized as a result of this particular strip search. [ 13 ] With that strip search the police recovered from Mr.

Orgill various illegal drugs that had, in fact, been concealed between his butt cheeks in a type of saran-wrapped packaging that one officer said was approximately the size of a small egg. [ 14 ] Within that small egg-shaped packaging there were three separate bags, one containing methamphetamine, one cocaine, and one heroin. The exact amount of each of those three items recovered is less than 100 percent clear.

I say that because two different sets of numbers was given, one set of numbers that would be consistent with double-counting the smaller amounts that eventually had been sent for analysis. [ 15 ] For example, with regards to the methamphetamine it was either 11 grams or 13.2 grams.

There had been a 2.2 gram sample that had been sent to the lab for analysis, and so what was unclear was whether the 2.2 grams was part of the 11 grams or whether the total amount was actually 13.2 grams, of which 2.2 grams were sent to the lab. [ 16 ] Giving the accused the benefit of any doubt in that regard, I simply will reference it as if it is the lower of those amounts in each case, in other words a total of 11 grams of methamphetamine, 1.9 grams of cocaine and .3 grams of heroin. [ 17 ] Since the voir dire ruling, Mr.

Orgill is not denying his possession of all three of these drugs and he testified acknowledging that they were his drugs, but the focus of the evidence was a claim that the methamphetamine was for personal consumption and not for trafficking. [ 18 ] In other words, while there had been a Charter argument with regards to the Count 2 and Count 3 simple possession of cocaine or heroin, once the voir dire ruling did not go in favour of the defence in that regard the accused testified and acknowledges his possession of those drugs, the cocaine and the heroin, and therefore on Counts 2 and 3 convictions must follow. [ 19 ] As I said earlier, he is not disputing on Count 1, possessing the methamphetamine, but simply claiming that he ought not be convicted of possessing it for the purpose of trafficking, but for simple possession only. [ 20 ] So what other evidence did the police have with regards to possessing it for the purpose of trafficking?

[ 21 ] While the police were at the detachment very shortly after the arrest, a text message was received on the cellphone that had been seized. It came from a person claiming to be Caitlyn [phonetic]. Corporal Myhre responded to that text message and the following written conversation is recorded between Corporal Myhre and this person purporting to be Caitlyn. [ 22 ] Caitlyn says, "Hey, can you stop by?" The corporal says, "What did you need again?" Caitlyn says, "I need 40 for a friend and 60 for me." The corporal responds, "Of down or side?" Caitlyn responds, "Sideways, obvious. So you coming?

How long you going to be?" The corporal responds in text by saying, "Two years." Caitlyn responds by saying, "Two years eh?" And the corporal responds by saying, "I am going to the Federal pen." That ended the correspondence. [ 23 ] The police officer giving the expert evidence with regards to the jargon involved with the drug trade testified that the words "I need 40 for a friend and 60 for me," was making reference to $40 worth of some drug and $60 worth of some drug, and that the response of the officer of down or side was making reference to heroin or methamphetamine, heroin being something that can make someone go down and the methamphetamine something sideways, as opposed to cocaine, which is referred to as up, and that when this Caitlyn person responded, "Sideways, obvious," that it was referencing that she was wanting this $100 worth of methamphetamine. [ 24 ] One officer looked at old text messages and one was found that was recorded back on the 14th of January, which would have been nine days before this arrest, and that text message was from someone named Wes.

There was lots of chitchat back and forth with it.

The one comment that the expert witness testified regarding was the comment of, "Trying to get $20, so I get two points off ya." The officer testified that in his belief it was making reference to getting $20 worth of some type of illegal drug that would be the equivalent of two points or .2 grams and "off ya," making reference of "off you," in other words getting the drugs off you. [ 25 ] The accused, when he testified, says that in fact he does know this somebody by the name of Caitlyn and he does know somebody by the name of Wes, but he did not know the meaning of the text message from Wes, and of course he did not participate in the text messaging earlier referenced between the corporal and this Caitlyn person. [ 26 ] The cellphone also had a note electronically recorded which appeared to be consistent with a scoresheet.

It referenced the following, "Marge 175, Carrie 100, Dave 40, Jarrod 40, Luke 200...210, Amanda 40." The officer giving professional evidence testified that he believed that was a scoresheet, making reference to the amount of money owed by each of the named individuals to the person keeping the scoresheet. [ 27 ] The accused testified that he did not know about that list, but that he had bought the phone from some type of secondhand store as a used phone. [ 28 ] In effect the Crown expert, Constable Bayda, testified that it was his opinion that the methamphetamine was possessed for the purpose of trafficking and the accused testified that it was only for his personal consumption, that at that time in his life he was using an eight-ball of methamphetamine, the equivalent of 3.5 grams per day, and that this 11 gram supply was because he was about to head to the coast for three to four days and he was simply taking his personal supply with him for that trip.

The accused testified in chief that he is not a drug dealer, just a drug user. [ 29 ] On cross-examination he agreed that he had been convicted twice prior for possession for the purpose of trafficking, first in June 2000 in Calgary for possession for the purpose of trafficking marihuana, for which he received a 45-day intermittent jail sentence, and secondly in November of 2002, in Calgary, possession for the purpose of trafficking for which he received a 22-month jail sentence. [ 30 ] I pause with that information, because it is important to know for what purpose any criminal record can be used.

Of course a criminal record can only be used for the purpose of addressing credibility and not to show some propensity to commit a particular criminal offence. [ 31 ] The aforesaid information I gave regarding the two prior possessions for the purpose of trafficking are not stated for the purpose of trying to identify any propensity to traffic. It is simply to address the credibility of his statement in chief that he was not a drug dealer, but just a drug user. [ 32 ] The criminal record is consistent with someone that has a difficulty with honesty, dating back to 1993.

I will only make reference to the convictions that deal directly with honesty: in '93 in Youth Court a fail to comply with recognizance; in '96, Youth Court, possession of property obtained by crime, theft, another possession of property obtained by crime, take motor vehicle without consent; 2007, possession of credit card that was stolen, possession of break-in instruments; 2008, theft over; 19 -- if I said 2008, I meant to say 1998; then 1999, theft over, so that is the second theft over, one in 1998 and one in 1999.

Then in 1999 other convictions for possession of break-in instruments, failing to comply with a recognizance times four, fail to attend court; and up until then it had all been Youth Court. [ 33 ] And then starting in 1999, in October of 1999 he started getting some adult convictions that are credibility related; in 2000, fail to attend court, unlawfully at large; 2001, possession of property obtained by crime; 2002, theft under; 2003, possession of property obtained by crime; 2005, fail to comply with probation order, theft under; 2006, fail to comply with recognizance, fail to appear, theft under, another fail to appear, another theft under, and then yet another theft under, and then yet another three theft unders, all in 2006, and another fail to appear. [ 34 ] 2006 was a particularly bad year with regards to credibility related convictions.

I continue on with other credibility related convictions in 2006: fail to comply with recognizance, break and enter, possession of property obtained by crime, another possession of property obtained by crime over $5,000, two mischiefs, theft under, fail to attend court. [ 35 ] All of those were serious enough matters to land him some fairly significant jail time and it was directly related to him being dishonest in those matters, for which he was charged. [ 36 ] 2007, unlawfully at large, possession of property obtained by crime.

[ 37 ] I have multiple other ones. I am going to stop reading these, because the list goes on, but it is a serious, serious record related to criminal acts associated with being dishonest. [ 38 ] This case turns on credibility and the application of the presumption of innocence. This presumption, enshrined in s. 11(

d) of the Charter, requires that an accused cannot be convicted unless all elements of the offence have been proven beyond a reasonable doubt. It places the burden of proof on the Crown. The accused need not prove either the existence or non-existence of a fact essential to guilt. [ 39 ] In accordance with the ruling of the Supreme Court of Canada in R. v. W.(D.), I instruct myself on the following basis. First, if I believe the evidence of the accused which raises a defence I must acquit.

Second, if I do not believe the testimony of the accused, which raises a defence but I am left in reasonable doubt by it, I must acquit. Third, even if I am not left in doubt by the evidence of the accused I must ask myself whether, on the basis of the evidence I accept, I am convinced beyond a reasonable doubt by that evidence of the accused's guilt. [ 40 ] So the accused is claiming that he was personally consuming an eight-ball of methamphetamine on a daily basis.

That would be the equivalent of 3.5 grams. [ 41 ] The officer in question said a heavy user would usually only use 1 gram a day for maintenance, but at times could binge for a weekend for up to the equivalent of an eight-ball per day, but that that would not be sustainable long term. [ 42 ] Anyone who knows anything about any of this knows that at some point you cannot go ten days with not getting any sleep and not collapse at some point.

He says that he was also taking the heroin as the down, which would allow him to sleep and to do some recovery, but he says he was just using prior to this particular arrest, and that he was just about to drive Ms. Kruger to Vancouver, presumably while he is under this heavy influence of the drugs, so that she can go get an abortion in Vancouver. [ 43 ] He clearly did have money that he earned in a job in Saskatoon -- or I don't know where it was, but it was somewhere in Saskatchewan.

He had earned around $11,000 and then returned in late November to the South Okanagan with perhaps four or five grand of that in hand still. [ 44 ] He says that he also won a Keno lotto of $1500 and that that explains why he had the money in hand, that it was not the proceeds of crime, and it was just simply all personal use, and he knew he was going away for three or four days and this is how much he needed to make sure he could keep using. [ 45 ] It is not very believable. I do not believe it, but that does not end the matter. Could it reasonably be true, such that it could create a reasonable doubt?

He need not prove that fact. The Crown, as I said earlier, must always prove guilt beyond a reasonable doubt. [ 46 ] Here, the bigger problem is this text message that was coming in where clearly, and I have no doubt, not even the slightest of doubt, that this person, this gal whom he says he knows, was in fact asking for $40 worth of methamphetamine for a friend and another $60 for her. [ 47 ] No one of these things alone would be enough to prove possession for the purpose of trafficking, but the courts do not look at these things piecemeal.

The Court of Appeal has explained to trial judges make sure you look at all of the evidence in the totality, and when looking at all of the evidence in the totality has the Crown proven beyond a reasonable doubt that this particular methamphetamine was possessed for the purpose of trafficking. [ 48 ] In that regard, Mr. Orgill, I do find that the Crown has proven that the methamphetamine that you possessed was for the purpose of trafficking. [ 49 ] Accordingly I convict on all three counts. (REASONS FOR JUDGMENT CONCLUDED)