R. v. Probe, 2023 BCPC 187

Citation: R. v. Probe 2023 BCPC 187 Date: 20230224 File No: 72298 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. VINCENT JOSEPH PROBE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Crown: A. Murray Counsel for the Defendant: J. LeBlond

Place of Hearing: Prince George, B.C.Date of Hearing: October 20, December 2, 2022Date of Judgment: February 24, 2023 INTRODUCTION [1] In Information 72298-1, Vincent Joseph Probe (“Vincent Probe”) is charged with two counts of possession of a controlledsubstance, namely methamphetamine and cocaine, for the purposes of trafficking contrary to section 5(2) of the Controlled Drugs andSubstances Act (“CDSA”).

The offences are alleged to have occurred on August 9, 2018, in the City of Prince George, BC. [2] On August 9, 2018, after a period of surveillance, the Prince George RCMP Street Crew arrested Vincent Probe without awarrant for drug trafficking. In warrantless searches conducted incidental to his arrest, the police seized inculpatory evidence found onVincent Probe’s person and in his vehicle which the Crown says proves the offences. Specifically, the RCMP found drugs, cash, a scale,packaging materials and scoresheets.

The defence submits the evidence the investigating officers located on Vincent Probe and in hisvehicle point to his possessing drugs, not for trafficking, but for personal use. [3] Vincent Probe brought a Charter application at trial to exclude the seized items and the case proceeded as a blended voir dire.The Crown called the investigating and arresting officers on the voir dire. On July 28, 2022, after a three-day voir dire, I found thatVincent Probe was lawfully arrested and was subjected to a reasonable search incident to arrest.

I found no violation of either ss. 8 or 9 ofVincent Probe’s rights under the Charter of Rights and Freedoms. At the continuation of the trial on October 20, 2022, the evidence andexhibits from the voir dire were traversed into the trial proper. The Crown then called evidence from its expert witness CorporalMoleski. Vincent Probe did not testify or call any evidence in the voir dire or the trial proper. ISSUES [4] The salient issues before the court are: a. Has the Crown proven beyond a reasonable doubt that Vincent Probe was in possession of methamphetamine for the purpose oftrafficking? b.

Has the Crown proven beyond a reasonable doubt that Vincent Probe was in possession of cocaine for the purpose of trafficking? WITNESSES AT TRIAL [5] The evidence at trial came from five police officers, four of whom were members of the Prince George Detachment of the RoyalCanadian Mounted Police and assigned to the “Street Crew”. The fifth officer was qualified as an expert witness, also a member of thePrince George RCMP. The defence did not contest his expertise.

I heard testimony from: Constable Ryan Underhill (“Constable Underhill”), a 15-year veteran of the RCMP who was involved in the August 9, 2018 arrest ofVincent Probe and conducted searches incident to the arrest; Staff Sergeant Chad Chamberlain (“Sergeant Chamberlain”), a 22-year veteran of the RCMP who was a member of the Street Crew’ssurveillance team engaged in the investigation of the matters before the court, an arresting officer and the exhibit custodian; Constable Braden Chamberlain (“Constable Chamberlain”), a 15-year veteran of the RCMP and a participating member of the StreetCrew engaged in the investigation of the matters before the court and the person who directed the arrests; Constable Jared Sweeney (“Constable Sweeney”), a 12½-year veteran of the RCMP who was a member of the Street Crew’s surveillanceteam engaged in the investigation of the matters before the court and one of the arresting officers; and Corporal Adam Patrick Moleski (“Corporal Moleski”), a 14-year veteran of the RCMP now attached to the Prince George DowntownSafety Unit.

His curriculum vitae was marked as an exhibit in the qualification voir dire. [6] The court accepted Corporal Moleski as an expert witness qualified to give opinion evidence in the areas of pricing, methods ofpackaging and concealment, methods of sale and distribution, methods and rate of consumption, drug language and slang, drugparaphernalia, all in relation to cocaine and methamphetamines. Corporal Moleski’s evidence at trial focused on the methamphetamineand cocaine the RCMP seized on August 9, 2018 during its search of Vincent Probe and his vehicle incidental to arrest.

CorporalMoleski gave opinion evidence on the price, packaging and distribution of methamphetamine and cocaine in Prince George in 2018, aswell as the buying, usage and general habits of users of those drugs. [7] I found the police officers to be credible witnesses upon whose evidence the court could rely. [8] I also had an opportunity to review and consider the following Crown authorities: (

a) White Burgess Langille Inman v. Abbottand Haliburton Co., 2015 SCC 23; (

b) R. v. Ballony-Reeder, 2001 BCCA 293 ; (

c) R. v. Dominic, 2016 ABCA 114 ;(

d) R. v. Bhatti, 2018 BCSC 1656; and (

e) R. v. Coates and Theriault (Prince George Docket 45800-6-C), Judge C. Malfair’s Oral Rulingon Voir Dire #4. EVIDENCE AT TRIAL [9] On July 26 and 27 and August 1 and 9, 2018, members of the Prince George RCMP Street Crew began investigating VincentProbe for drug trafficking. On August 9, 2018, the police arrested Vincent Probe for drug trafficking. At the time of his arrest, VincentProbe was in the driver’s seat of his yellow Chevrolet Cavalier. Alita Grass occupied the front passenger’s seat. Although both VincentProbe and Alita Grass were arrested, ultimately only Vincent Probe was charged with drug trafficking.

[ 10 ] The police searched Vincent Probe’s person and vehicle incident to his arrest. The items the RCMP seized in those searches are recorded in the RCMP Major Case Flowsheet and photographed by Sergeant Chamberlain, the designated exhibit custodian.

The Crown tendered into evidence the following exhibits: Exhibit 1 on the trial proper: Insurance Corporation of British Columbia Owner’s Certificate of Insurance and Vehicle Licence showing that between March 25, 2018 and September 24, 2018, Vincent Joseph Probe was the registered owner of a yellow 2004 Chevrolet Cavalier two-door coupe bearing BC licence plate FW0 24F (the “Cavalier”). The Cavalier is depicted in Photographs 31 and 32 of Exhibit 17 (Book of Photographs); Exhibit 2 : $110.25 in Canadian currency seized from the front left pocket of Vincent Probe’s cargo shorts on August 9, 2018.

This currency is recorded as Tag No. 1 in the RCMP Major Case Exhibit Flowchart entered as Exhibit 16 in the trial. The $110.25 is depicted in Photograph 1 of the Booklet of Photographs marked as Exhibit 17 at trial; Exhibit 3 : A red lighter and grey folding knife seized from the front left pocket of Vincent Probe’s cargo shorts on August 9, 2018. This knife and red lighter are recorded as Tag No. 2 in Exhibit 16 and depicted in Photograph 1 of Exhibit 17; Exhibit 4 : $1,465 in Canadian currency found inside a Ziploc bag and seized from the front right pocket of Vincent Probe’s cargo shorts on August 9, 2018.

This Ziploc bag contained $1,465 in Canadian currency in denominations of $50s, $20s and $10s. The cash is recorded as Tag No. 3 in Exhibit 16 and depicted in Photographs 2 and 3 of Exhibit 17; Exhibit 5 : Unused small Ziploc bags, sometimes called ring bags or dime bags, seized from the front right pocket of Vincent Probe’s cargo shorts on August 9, 2018.

These small bags are recorded as Tab No. 4 in Exhibit 16 and depicted in Photograph 2 of Exhibit 17; Exhibit 6 : A prepaid VISA card seized from the rear left pocket of Vincent Probe’s cargo shorts on August 9, 2018, together with one morphine tablet broken in half. This prepaid VISA card was recorded as Tag No. 5 in Exhibit 16 and the Ziploc bag with the severed morphine tablet as Tag No. 6.

These items are depicted in Photographs 5 and 6 of Exhibit 17; Exhibit 7 : Certificate of Analyst No. 18 15305 V issued by Health Canada on September 28, 2018 with respect to a 2.12 gram sample the RCMP took from the 16.33 grams of methamphetamine found in a Ziploc bag seized from the left pocket of Vincent Probe’s cargo shorts on August 9, 2018. This Ziploc bag of 16.33 grams of methamphetamine is recorded as Tag No. 7 of Exhibit 16 and the 2.12 gram sample as Tag No. 8.

The 16.33 grams of methamphetamine is depicted in Photograph 7 and 9 of Exhibit 17; Exhibit 8 : Certificate of Analyst No. 18 15306 V issued by Health Canada on September 28, 2018 with respect to a .25 gram rock of crack cocaine seized from the breast pocket of Vincent Probe’s shirt on August 9, 2018.

This .25 gram rock of crack cocaine is recorded as Tag No. 9 in Exhibit 16 and depicted in Photograph 8 of Exhibit 17; Exhibit 9 : $120 in Canadian currency seized from the breast pocket of Vincent Probe’s shirt on August 9, 2018 (3 x $20 bills; 1 x $50 bill; and 1 x $10 bill) This $120 in Canadian currency is recorded as Tag No. 10 in Exhibit 16 and depicted in Photographs 8 and 10 of Exhibit 17; Exhibit 10 : A black Triton T2 digital scale (the “Triton Scale”) with white residue seized from the front driver’s seat of the Cavalier on August 9, 2018.

The Triton Scale is recorded as Tag No. 11 in Exhibit 16 and depicted in Photographs 11, 12, 34 and 35 of Exhibit 17. It is depicted in the driver’s seat of the Cavalier with the .30 grams of cocaine in situ in Photographs 34, 35 and 37 of Exhibit 17. Sergeant Chamberlain describes the rock of crack cocaine as situated on the Triton Scale which Vincent Probe held on his lap at the time of his arrest; Exhibit 11 : Certificate of Analyst No. 18 15307 V issued by Health Canada on September 28, 2018, with respect to .30 grams of cocaine found on the Triton Scale and seized from Vincent Probe on August 9, 2018.

This .30 grams of cocaine is recorded as Tag No. 12 in Exhibit 16 and depicted in Photographs 11 and 12 of Exhibit 17, and in situ in Photographs 34, 35 and 37; Exhibit 12 : Certificate of Analyst No. 18 15308 V issued by Health Canada on September 28, 2018, with respect to 2.41 grams of cocaine (with some caffeine) found in a green Ziploc bag seized from the front driver’s seat of the Cavalier on August 9, 2018. The 2.41 grams of crack cocaine is recorded on Tag No. 13 in Exhibit 16. The green Ziploc bag which contained the 2.41 grams of cocaine is recorded as Tag No.14 in Exhibit 16.

The 2.41 grams of cocaine is depicted in Photographs 13, 14, 35, 39 and 40 of Exhibit 17, and in situ in Photograph 39; Exhibit 13 : A black and grey LG cellphone and black phone case seized from the Cavalier on August 9, 2018. This LG cellphone is recorded as Tag No. 15 in Exhibit 16 and depicted in Photograph 15 of Exhibit 17 and in situ in Photograph 41; Exhibit 14 : A small black LG flip-phone found inside a NEXT cigarette package seized from the Cavalier on August 9, 2018.

This LG flip-phone is recorded as Tag No. 16 in Exhibit 16 and depicted in Photograph 16 of Exhibit 17, and in situ in Photograph 42; Exhibit 15 : A black Toughbuilt document organizer containing seven documents including, inter alia : (

a) an ICBC Owner’s Certificate of Insurance and Vehicle Licence for a brown Ford Taurus (the “Taurus”) in the name of Saya Louise Weselowski; (

b) a rent receipt to William Trent Starchuk from Park Village Apartments dated May 28, 2018, for “142 June Rent” in the amount of $875 cash; (

c) a small paper notebook containing various mathematical calculations that the RCMP characterize as a scoresheet. This Toughbuilt organizer is recorded as Tag No. 17 in Exhibit 16 and depicted in Photograph 17 of Exhibit 17. Its contents are depicted in Photographs 18, 19, 20, 21, 22, 23 and 24 of Exhibit 17; Exhibit 16 : RCMP Major Case Exhibit Flowchart with respect to items seized incident to Vincent Probe’s arrest on August 9, 2018; and Exhibit 17 : A booklet of photographs Staff Sergeant Chamberlain took of the scene and of the items seized incident to Vincent Probe’s arrest on August 9, 2018.

Constable Chamberlain photographed a number of exhibits in situ prior to the officers removing them from the Cavalier.

[11] The Crown did not enter into evidence the drugs seized incidental to arrest as exhibits at trial. Instead, the Crown submittedphotographs of the drugs (Exhibit 17), the RCMP Major Case Exhibit Flowchart (Exhibit 16), Health Canada Certificates of Analysis(Exhibits 7, 8, 11 and 12) and evidence of Sergeant Chamberlain, the exhibit custodian. The existence, nature and weight of the drugsseized incidental to Vincent Probe’s arrest is uncontested. APPLICABLE LEGAL PRINCIPLES [12] My analysis of the evidence in this trial is governed by some fundamental principles that apply to all criminal trials.

First,Vincent Probe is presumed innocent and second, the Crown bears the burden of proving Vincent Probe’s guilt beyond a reasonabledoubt. In R. v. Lifchus, (SCC), Cory J. stated at para. 27: “If the presumption of innocence is the golden thread ofcriminal justice then proof beyond a reasonable doubt is the silver and these two threads are forever intertwined in the fabric of criminallaw.” As the trial judge, I cannot convict Vincent Probe unless the evidence I accept as credible proves him guilty beyond a reasonabledoubt: R. v.

W.(D.), . [13] The Crown must prove all the elements of the offence of trafficking in a controlled substance beyond a reasonable doubt beforethe court can make a finding of guilt. The static elements for any criminal offence are: (

a) the identity of the accused in the sense that theperson standing in the courtroom is the person who is alleged to have committed the offence; (

b) the jurisdiction of the court over theperson accused; and (

c) the timing of the offence. I am satisfied the Crown has proven the static elements beyond a reasonable doubt andthe defence has not suggested otherwise. [14] To find Vincent Probe guilty of possession of methamphetamine and cocaine for the purpose of trafficking, the Crown mustprove the following elements beyond a reasonable doubt: With respect to Count 1 of Information 72298-1, a. Vincent Probe was in possession of a controlled substance; b. The substance was methamphetamine; c. Vincent Probe knew that the substance was methamphetamine; d.

Vincent Probe had possession of the methamphetamine for the purpose of trafficking. With respect to Count 2 of Information 72298-1, a. Vincent Probe was in possession of a controlled substance; b. The substance was cocaine; c. Vincent Probe knew that the substance was cocaine; and d. Vincent Probe had possession of the cocaine for the purpose of trafficking.

WAS THE SUBSTANCE IN ISSUE A “CONTROLLED SUBSTANCE” UNDER THE CDSA? [15] The Crown tendered a Health Canada Certificate of Analyst No. 18 15305 V (Exhibit 7) confirming the 16.33 grams of whitesubstance the officers seized from the accused’s cargo-shorts pocket and recorded as Tag No. 7 on Exhibit 16 was methamphetamine, acontrolled substance pursuant to

Schedule 1 of the CDSA. [16] The Crown tendered: (

a) Health Canada Certificate of Analyst No. 18 15306 V (Exhibit 8) confirming the .25 grams of whitesubstance seized from the breast pocket of Vincent Probe’s shirt and recorded as Tag No. 9 on Exhibit 16 was cocaine; (

b) HealthCanada Certificate of Analyst No. 18 15307 V (Exhibit 10) confirming the .30 grams of white substance seized on the Triton Scale andrecorded as Tag No.12 on Exhibit 16 was cocaine; and (

c) Health Canada Certificate of Analyst No. 18 15308 V (Exhibit 12) confirmingthe 2.41 grams of white substance seized from the green Ziploc bag wedged between the seat cushion and backrest of the Cavalier’sdriver’s seat and recorded as Tag No. 13 on Exhibit 16 was cocaine. Cocaine is a controlled substance under

Schedule 1 of the CDSA. [17] Section 51(1) of the CDSA creates a rebuttable presumption that a certificate prepared by a Health Canada analyst is admissiblein evidence. In this case, the defence does not challenge the admissibility of the Health Canada certificates. I am satisfied the Crown hasproven beyond a reasonable doubt that the substances seized from Vincent Probe’s person and vehicle were the

Schedule 1 controlledsubstances of methamphetamine and cocaine. DID VINCENT PROBE HAVE KNOWLEDGE AND CONTROL OF THE CONTROLLED SUBSTANCES? [18] Before the court can convict Vincent Probe of possession of a controlled substance for the purpose of trafficking, the Crownmust first prove beyond a reasonable doubt that Vincent Probe had knowledge and control of those substances: Aeichele, at para. 31,citing R. v. Beaver, (SCC); and R. v. Terrence, (SCC), [1983] 1 S.C.R. 357. [19]

Section 2 of the CDSA states that "possession" means possession within the meaning of s. 4(3) of the Criminal Code. Section4(3) of the Criminal Code, R.S.C. 1985, c. C-46, states: Possession

(3) For the purposes of this Act, (

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

(

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

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall bedeemed to be in the custody and possession of each and all of them. [20] In R. v. Pham, (ON CA), at para. 14, aff’d. 2006 SCC 26 , the Ontario Court of Appeal held that s.4(3) of the Criminal Code creates three types of possession: [14] . . . i. personal possession as outlined in s. 4(3)(a); ii. constructive possession as set out in s. 4(3)(a)(

i) and 4(3)(a)(ii); and iii. joint possession as defined in s. 4(3)(b). DID VINCENT PROBE HAVE PERSONAL POSSESSION OF THE CONTROLLED SUBSTANCES? [21] In this case, the 16.33 grams of methamphetamine was found in the pocket of the cargo shorts Vincent Probe was wearing at thetime. The police found a ring bag containing .25 grams of rock cocaine in the breast pocket of the shirt Vincent Probe was wearing at thetime. There is no evidence in this case to rebut the common sense inference that people generally know what is in their pockets. I amsatisfied that the Crown has established beyond a reasonable doubt: a.

Vincent Probe knew he had a plastic Ziploc bag in the pocket of his cargo shorts and that he knew it contained methamphetamine andthat he had personal possession and control over that drug; and b. Vincent Probe knew he had a plastic ring bag in the breast pocket of his shirt and that he knew it contained cocaine and that he hadpersonal possession and control over that drug.

DID VINCENT PROBE HAVE CONSTRUCTIVE POSSESSION OF THE CONTROLLED SUBSTANCES? [22] With respect to the allegation that Vincent Probe was in possession of the cocaine found in the Cavalier, the Crown’s case restson a combination of personal and constructive possession. In R. v.

Ahmadzai, 2012 BCCA 215 , the BC Court of Appeal, atpara. 37, cautions the mere fact that drugs are found in a vehicle driven by the accused does not raise an irrefutable inference that theaccused is in possession of that drug. [23] In Pham, the majority discussed the basic principles that govern the law of constructive possession (citations omitted): [15] In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledgewhich extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. . . . [16] In order to constitute joint possession pursuant to s. 4(3)(

b) of the Code there must be knowledge, consent, and a measure of controlon the part of the person deemed to be in possession. . . . [18] The onus is on the Crown to prove beyond a reasonable doubt, all of the essential elements of the offence of possession. This can beaccomplished by direct evidence or may be inferred from circumstantial evidence. In R. v. Chambers . . .

Martin J.A. noted that the courtmay draw “appropriate inferences from evidence that a prohibited drug is found in a room under the control of an accused and wherethere is also evidence from which an inference may properly be drawn that the accused was aware of the presence of the drug”. [24] In R. v. Villaroman, 2016 SCC 33, the Supreme Court of Canada stated at para. 50 that reasonable doubt must not be imaginaryor frivolous and cannot arise from speculation or conjecture.

The Crown has provided this Court with a number of cases where the courtconsidered whether the accused had constructive possession where the drugs were found in a vehicle the accused occupied. [25] R. v. Ahmadzai, 2012 BCCA 215 , is apropos of the case before me. Mr. Ahmadzai was the driver and owner of thevehicle. At the time of his arrest, Mr. Ahmadzai had one passenger, who he had added as a registered owner 12 days prior to the offencedate. In their search of the vehicle, the police located and seized: (

a) a bag behind the driver’s seat containing Ziploc bags of marijuanawith a total street value of about $5,000; (

b) a digital scale in the seat pocket attached to the rear of the driver’s seat; (

c) a pouchcontaining two shurikens (throwing stars) under the floor mat of the front passenger’s seat; and (

d) brass knuckles between the driver’sseat and the console. The throwing stars and brass knuckles, which are prohibited weapons, were not visible. The trial judge convictedthe driver and acquitted the passenger, which the Court of Appeal upheld. MacKenzie J.A., for the majority, states: [35] I turn now to the statement of law in R. v. Griffin, 2009 SCC 28 . . . that in order to convict on the basis of circumstantial evidence,the trier of fact must be satisfied beyond a reasonable doubt that the only rational inference is one of guilt. I agree with the Crown thatthe competing “possibility” advanced by the appellant requires an untenable

interpretation of the evidence whereby the appellant wouldhave been completely ignorant of contraband in a vehicle he had owned for nearly two years, and that he was driving at the time of thealleged offence. I would add to this description the observation that the marihuana, the weigh scale and the weapons were stashed invarious places throughout the car, making a lack of knowledge on the part of the appellant even more improbable. [26] The Crown has also provided the court with: R. v. Khosravi, 2018 BCSC 2163 ; R. v. Olson, 2004 BCSC 377; R. v.Gosselin, 2002 BCSC 1484; R. v. Russell, 2011 BCCA 277; and R. v.

Aeichele, 2020 BCSC 2300 . In each of these cases theaccused was the driver of the vehicle. In Khosravi, Olson and Gosselin, the accused was not only the driver, but also the owner of thevehicle. In Khosravi and Gosselin, the drugs were found in the trunk of the vehicle; in Olson, the drugs were found in a gym bag in the

rear passenger seat; in Russell , the drugs were in a sealed pouch tucked between the right-hand side of the driver’s seat and the centre console; in Aeichele , the drugs were found in an unlocked dictionary safe in the front console. In Russell , the vehicle was rented; in Aeichele , the vehicle was borrowed from a friend. In each case, the court found the accused was in constructive possession of drugs stashed inside the vehicle.

In each case the accused’s proximity to the drugs was not as close as Vincent Probe’s proximity to the drugs in the Cavalier. [ 27 ] In conclusion, I am satisfied the Crown has established beyond a reasonable doubt that Vincent Probe had possession of the crack cocaine found in the Cavalier. Specifically: a. Vincent Probe was the registered owner of the Cavalier; b. Vincent Probe was driving the Cavalier at the time of the offence; c. Vincent Probe had driven the Cavalier in the past; d. There is no evidence of anyone other than Vincent Probe driving the Cavalier; e.

Sergeant Chamberlain initially observed the Triton Scale bearing the .30 grams of crack or rock cocaine on Vincent Probe’s lap before Vincent Probe exited the vehicle upon his arrest; f. The green Ziploc bag containing 2.41 grams of cocaine was tucked between the seat cushion and backrest of the driver’s seat that Vincent Probe occupied at the time of his arrest; g. The drugs were clearly visible to Vincent Probe as the driver and Vincent Probe was touching them when in the driver’s seat.

DID VINCENT PROBE POSSESS THE CONTROLLED SUBSTANCES FOR THE PURPOSES OF TRAFFICKING? [ 28 ] Section 2(1)1 of the CDSA defines "traffic” as follows: traffic means, in respect of a substance included in any of Schedules I to V, (

a) to sell, administer, give, transfer, transport, send or deliver the substance, (

b) to sell an authorization to obtain the substance, or (

c) to offer to do anything mentioned in paragraph (

a) or (b), otherwise than under the authority of the regulations. ( trafic ) ANALYTICAL FRAMEWORK [ 29 ] The Crown’s case against Vincent Probe for drug trafficking is circumstantial. In Villaroman , Cromwell J. for a unanimous Supreme Court articulated the modern principles for analyzing circumstantial evidence: [35] . . . 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. [36] . . .

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. [37] When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt. . . . the Crown 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”: . . . [38] Of course, the line between a “plausible theory” and “speculation” is not always easy to draw.

But the basic question 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. [Emphasis in original.] CIRCUMSTANTIAL EVIDENCE OF TRAFFICKING [ 30 ] The Crown submits the following evidence indicates Vincent Probe was engaged in drug trafficking: 1. In 2018, on July 26, 27 and August 9, members of the Prince George RCMP Street Crew observed Vincent Probe conducting a series of “short duration meets” with different people at different locations.

These incidents are particularized in my July 18, 2022 Ruling on Voir Dire, which are appended to and form part of these Reasons for Judgment; 2. On August 9, 2018, following a period of police surveillance, the RCMP arrested Vincent Probe from the driver’s seat of his Cavalier. In the search incident to arrest on August 9, 2018, Vincent Probe was found to have controlled substances on his person and in his vehicle, namely: a. 16.33 grams of methamphetamine in a green Ziploc bag in the pocket of Vincent Probe’s cargo shorts (Tag No. 7; Exhibit 16);

b. A total of 2.96 grams of cocaine consisting of: i. 0.25 grams of cocaine found in the breast pocket of Vincent Probe’s shirt (Tag No. 9, Exhibit 16); ii. 0.30 grams of cocaine found on the Triton Scale that Vincent Probe held on his lap at the time of his arrest (Tag No. 11, Exhibit 16); and iii. 2.41 grams of cocaine in a green Ziploc bag wedged between the seat cushion and backrest of the driver’s seat (Tag No. 13, Exhibit 16); 3. Corporal Moleski opined that in 2018, methamphetamine had a street value similar to its present day value.

If sold at the point level (1/10 of an ounce), the 16.33 grams of methamphetamine was worth $1,633. Ultimately, its value is dependant on how the methamphetamine was packaged and sold. I glean from Corporal Moleski’s evidence that drugs are more expensive when packaged and sold in smaller quantities. For example: (

i) a half gram of methamphetamine could sell for $30–$40; (ii) a gram for $50–$60; (iii) an 8 ball, which is 3.5 grams, for $150–$200; (iv) .25 ounce for $300 to $400; and (

v) one ounce or 28 grams from $800 to $1,100. It is unlikely a low-end user would purchase an ounce of methamphetamines; 4. Corporal Moleski testified that 16.33 grams of methamphetamine is far more than an ordinary user would purchase for their own consumption. In his opinion, the amount of methamphetamine seized in this case is itself indicative of trafficking. Heavy users could consume up to three points a day of methamphetamine.

The 16.33 grams of methamphetamine is not only large, it is an atypical weight, suggesting it was purchased in bulk (perhaps at the ounce level), repackaged and sold in smaller amounts; 5. Corporal Moleski testified the total amount of cocaine seized (2.96 grams) is not in itself indicative of trafficking.

The smaller amounts of cocaine weighing .25 grams (Tag No. 9, Exhibit 16), and .3 grams (Tag No. 12, Exhibit 16) were in “rocks” and consistent with how cocaine is sold: as a 10 rock (.10 grams), 20 rock (.20 grams) or 30 rock (.30 grams). “Rocks” or “crack cocaine” is created from mixing powdered cocaine with baking powder and water then cooking it an oven or microwave until it becomes a hard rock formation. It is then chipped off into amounts to be given to a user. Like methamphetamines, crack cocaine is most commonly smoked in a pipe.

It is Corporal Moleski’s opinion the .25 grams of rock cocaine seized from Vincent Probe’s shirt pocket was a “20 rock of crack cocaine” pre-packaged in a ring bag for sale to a user (Exhibit 8, Photograph 8). 6. Cocaine has a street value of roughly double that of methamphetamine. Cocaine in powder form could be sold as: (

i) a half gram for $50–$60; (ii) a gram for $100–$120; (iii) an 8 ball (3.5 grams) for $200–$300; (iv) a quarter ounce for $400 to $600; or (

v) an ounce for $1,600 to $2,200. In this case, the street value of the 2.96 grams of rock cocaine seized would be approximately $300 depending how it was packaged and sold; 7. Although the amount of cocaine seized was not indicative of trafficking, the weight of the 2.41 grams found in the green Ziploc bag (Tag No. 13, Exhibit 16) is atypical and suggests the .25 gram rock (Tag No. 9, Exhibit 16) and the .30 gram rock (Tag No. 12, Exhibit 16) were derived from the larger amount (Tag No. 13, Exhibit 16); 8.

In the search incident to arrest on August 9, 2018, Vincent Probe was found to have on his person a significant amount of Canadian currency: a. $110.25 found in the left front pocket of Vincent Probe’s cargo shorts (Exhibit 2); b. $1,465 inside a Ziploc bag in the right front pocket of Vincent Probe’s cargo shorts (Exhibit 3); and c. Three bundles of cash in the breast pocket of Vincent Probe’s shirt totalling $120 (Exhibit 9). 9. Corporal Moleski testified that drug trafficking is a cash-based business.

Persons engaging in drug trafficking tend to have a lot of cash on their person in denominations of 20 and 50 dollar bills. A drug user has no need to possess large amounts of cash. Corporal Moleski opined the cash totalling $1,695.25 found on Vincent Probe at the time of his arrest suggests low- to mid-level drug trafficking; 10. Vincent Probe was found with clean clear plastic ring bags or “dime bags” on his person at the time of his arrest: Exhibit 5. Both cocaine and methamphetamine are packaged in these small Ziploc bags.

Although drug users may also have a ring bag in their possession, it would likely be used, meaning it would contain residue. In this case the ring bags were new and unused suggesting they were for packaging small amounts of drugs for resale; 11. Vincent Probe had on his lap at the time of his arrest a working Triton Scale with white powdery residue. Possession of a digital scale is a strong indicator of drug trafficking. Scales are an important tool for a drug trafficker. They need to accurately weigh their product to ensure profits.

Drug traffickers buy in bulk, which they break down into smaller amounts for sale to their customers. This happens at each level of the drug hierarchy, down to the street level . End users do not generally have or use digital scales to weigh drugs purchased for their own consumption; 12. Inside the Toughbuilt organizer, the RCMP found a notepad with two pages that appear to be scoresheets. Scoresheets are a business record of drug transactions whereby drug traffickers keep track of what they owe and what they are owed; and 13.

The RMCP seized two cell phones from the Cavalier; however, the Crown led no evidence as to their operability or content. Corporal Moleski did not discuss the presence of the cell phones in the context of his opinion on trafficking. [ 31 ] The Crown submits the evidence, both direct and circumstantial, establishes Vincent Probe had knowledge and control of the drugs found on his person and on the driver’s seat of the vehicle he had occupied at the time of his arrest.

The totality of the circumstances, including the short-duration meets, the quantity of drugs, the large amount of cash, the working scale, the clean packaging and the scoresheets, establish beyond a reasonable doubt that Vincent Probe possessed the methamphetamine and cocaine found on his person and in his vehicle for the purposes of trafficking.

EVIDENCE OF PERSONAL USE [32] The defence argues the evidence does not prove beyond a reasonable doubt Vincent Probe possessed the methamphetamine andcocaine for trafficking. The defence submits that trafficking is not the only reasonable inference arising from the evidence. Mr.

LeBlondpoint to the drug paraphernalia found in Vincent Probe’s vehicle leads to a reasonable inference that the methamphetamine and cocainewere for his own personal use. [33] Specifically, the defence points to the presence of three glass pipes with blackened ends and lighters (Exhibit 17, Photographs 33,34, 35, 37) in the Cavalier, which Corporal Moleski concedes are paraphernalia associated with personal consumption of eithermethamphetamine or crack cocaine or both.

I note there is also plainly visible a ring bag in Photograph 37; however, the court has noevidence whether that was a used or unused ring bag. [34] The defence also points out that when Constable Underhill arrested him at the First Litre Pub, Shane Patrick did not have anydrugs on his person. This is consistent with Shane Patrick approaching the Cavalier to sell Vincent Probe drugs as opposed to purchasingthem. The defence posits that this interaction supports the plausible theory that Vincent Probe possessed the drugs in issue for hispersonal use, which is inconsistent with guilt for the purpose of trafficking.

The Crown points out that given the amount ofmethamphetamine and cocaine Vincent Probe had in his possession, it was unlikely Vincent Probe was negotiating to purchase morefrom Shane Patrick for his own consumption. [35] The Crown provided this Court with the following three cases in which the court found the Crown had failed to prove theaccused possessed the drugs for the purposes of trafficking beyond a reasonable doubt: R. v. Main, 2019 BCPC 241 ; R. v.Bhatti, 2018 BCSC 1657 ; and, R. v. Daniels, 2019 BCSC 253 .

All are distinguishable from the instant case by the factthe accused in each of those cases testified and called defence evidence. They offered the court an explanation for possessing anunusually large amount of drugs and cash and drug paraphernalia. In all cases, the accused professed to be a long-term addict whoclaimed to have purchased drugs in bulk for personal use. In all these cases, some common indicia of drug trafficking were absent. [36] For example, in Main, the police found a collapsible baton in Mr.

Main’s jacket pocket, but they did not observe any suspicioustransactions or recover any scoresheets, cell phones or scales. [37] In Bhatti, the police found in the accused’s vehicle a number of articles of drug paraphernalia indicative of personal use, but didnot observe any suspicious short meetings with third persons, nor did they recover any scoresheets or unused packaging materials.Although the police seized a cell phone and scale from Mr.

Bhatti, they did not adduce any evidence these electronics were operational. [38] In Daniels, although the accused had on him sizeable amounts of drugs and a scale, the police did not find any cash, scoresheets,weapons or cell phones on his person or in his vehicle. Moreover, the ounce of methamphetamine found in Mr.

Daniel’s possession hadnot been broken down into small amounts for resale. [39] In Main, Bhatti and Daniels, the trial judge was not inclined to believe the accused’s evidence in whole or in part, butnonetheless was left with a reasonable doubt the drugs found in the accused’s possession were for the purposes of trafficking as opposedto personal use and acquitted the accused of possession for the purpose of trafficking, but found them guilty of simple possession. [40] In this case, the Crown has not adduced evidence the two cell phones found in the Cavalier were operational.

The police did notseize any operating weapons. The defence submits the “scoresheets” found in the Toughbuilt organizer ought not to be considered asbelonging to Vincent Probe, as the Toughbuilt organizer appears to document belonging to Saya (or “Seija”) Weselowski or WilliamStarchuk. As discussed in my July 18, 2022 Ruling, Saya Weselowski and William Starchuk are two other individuals the Prince GeorgeStreet Crew also associated with the drug trade. I agree with the defence that Vincent Probe’s connection to the scoresheets is weak and Ihave not considered them in my analysis.

It is noteworthy that Corporal Moleski’s opinion that Vincent Probe possessed the drugs forthe purpose of trafficking would not change in the absence of the scoresheets. [41] Although Vincent Probe did not testify or call defence evidence, I still must consider reasonable alternative inferences other thanguilt that arises from the evidence or lack of evidence. An inference need not be based on proven facts. In Khosravi, at para. 60, JusticeBranch explains: [60] . . . The accused is of course not obliged to testify.

However, in the absence of testimony from the accused, the Court is not requiredto speculate about possible defences that he may have given had he chosen to testify: R. v. Youssef, 2018 ONCA 16at para. 6, aff’d 2018SCC 49. [42] In this case, I acknowledge the glass pipes and lighters found in the Cavalier indicate Vincent Probe may have also possesseddrugs for personal use. However, possession of drugs for personal use does not negative their possession for the purposes of trafficking.Many drug traffickers are also drug users.

As Corporal Moleski points out, it is not uncommon for drug users to traffic drugs in order tosupport their own drug habit. I acknowledge that a person could even possess drugs primarily for personal use, but also to sell, give,transfer or deliver, all of which are included in the definition of “traffic” under the CDSA. [43] However, the suspicious short-duration meets, the quantity of the drugs, the atypical weights, the packaging, the clean unusedring bags, the Triton Scale, the rock of crack cocaine located on the scale, and the cash, strongly militates towards the conclusionVincent Probe was trafficking.

The quantity of the methamphetamine alone is inconsistent with personal use, as is the cocaine on thescale. [44] Yes, it is possible to infer from the evidence that Vincent Probe had the methamphetamine and cocaine for personal use;however, it is not a reasonable inference on the totality of the evidence.

In my view, the only reasonable inference the court can draw onthe basis of an examination of the evidence as a whole is Vincent Probe was in possession of the 16.33 grams of methamphetamine and2.96 grams of cocaine for the purposes of trafficking. [45] In sum, I find the Crown has proven beyond a reasonable doubt that on August 9, 2018, in Prince George, British Columbia,

Vincent Probe had in his possession methamphetamine for the purposes of trafficking and cocaine for the purposes of trafficking. As a result, the court finds Vincent Probe guilty of Counts 1 and 2 on Information 72298-1. _____________________________ The Honourable Judge J.T. Doulis Provincial Court of British Columbia