Her Majesty the Queen - v. -, 2014 SKPC 95

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 095 Date: June 19, 2014 Informations: 37292322 (joint), 37292321 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Mohammed Abdi Aden and Gyasi Kojo Riverson Appearing: Ms. A. Pace For the Crown Ms. A. Murray For Mr. Aden Ms. K. Armstrong For Mr. Riverson JUDGMENT B.G. MORGAN , J Introduction [ 1 ] In late August 2012, police received a tip that two black males known as “Jay” and “Toby” were dealing cocaine out of the Northgate Inn in Saskatoon, Saskatchewan.

Physical descriptions of those individuals were provided to the police, and as a result of some surveillance on September 1, 2012, Mr. Aden and Mr. Riverson were jointly charged on Information #37292322 with unlawfully possessing cocaine for the purpose of trafficking, and having proceeds of crime. On Information #37292321 Mr. Aden was separately charged with an alleged incident of trafficking in cocaine. The trial proceeded on the joint Information and that evidence was applied to that one Information respecting Mr. Aden alone.

Issues [ 2 ] This is a very fact specific decision based largely on circumstantial evidence. To answer the ultimate question of whether or not the Crown has established guilt beyond a reasonable doubt of either individual on any count, I need to deal with a number of specific issues, consider the

definitions and case law on trafficking and possession, and assess how to properly deal with circumstantial evidence. [ 3 ] I will start by setting out the law respecting those points, go into a bit more detail respecting the evidence to set out the general background, and then examine in more detail particular areas, as follows: 1) items seized from the room and/or Mr.

Aden at the time of the arrest and search, and the links of either to the room based on that material (paragraphs 37 to 43 generally); 2) the circumstances respecting the alleged storage of the cocaine at the woodpile (paragraphs 44 to 64 generally); 3) other evidence connecting Mr. Aden to Room 147 (paragraphs 65 to 79 generally); and 4) the conclusion, if any, that can be drawn from this, in conjunction with the expert evidence (paragraphs 80 to 105 generally). Once that is done, I make my determination on the joint Information, and then turn to the single count Information respecting alleged trafficking by Mr.

Aden. [ 4 ] Although I am breaking up the evidence and fact finding into these broad categories, I do that only for the convenience of dealing with the evidence. The ultimate test is whether or not either count 1 or count 2 is proven beyond a reasonable doubt with respect to each of Mr. Riverson and Mr. Aden. The defence argument if that the evidence falls short of meeting that test. [ 5 ] The relevant definition of trafficking in this case is set out in s. 2 of The Controlled Drugs and Substances Act as follows: “traffic” means ...

a) to sell, administer, give, transfer, transport, send or deliver the substance; . . . [ 6 ] “Possession” within the meaning of The Controlled Drugs and Substances Act means possession as set out in s. 4(3) of the Criminal Code , which reads: Possession - 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.

[7] In R. v. Morelli, 2010 SCC 8, para. 15, the Court stated that this definition includes personal possession, constructivepossession, and joint possession. That case goes on to give further

definitions of personal possession and constructive possession atparas. 16 and 17 as follows: [16] On an allegation of personal possession, the requirement of knowledge comprises two elements: the accused must be aware that heor she has physical custody of the thing in question, and must be aware as well of what that thing is. Both elements must co-exist with anact of control (outside of public duty): Beaver v.

The Queen, (SCC), [1957] S.C.R. 531 at pp. 541-42. [17] Constructive possession is established where the accused did not have physical custody of the object in question, but did have it “inthe actual possession or custody of another person” or “in any place, whether or not that place belongs to or is occupied by him, for theuse 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 placebelongs to him, and (3) intends to have the object in the particular place for his “use or benefit” or that of another person. [8] The concept of joint possession is discussed in R. v. Fisher, 2005 BCCA 444, at para. 24, where it is stated: [24] As is evident from my

summary of the law, neither constructive possession nor joint possession requires proof of manualhandling... To establish joint possession, the Crown was required to show that someone other than the appellant had possession of thecocaine with his knowledge and consent and that he had some measure of control over it. [9] In R. v.

Griffin, 2009 SCC 28, the Court reiterated that the test for conviction based on circumstantial evidence is that ajury: “. . . must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantialevidence is that the accused is guilty” (para. 33). [10] Finally, in Stewart v. The Queen, (SCC), [1977] 2 SCR 748, at pps. 760 and 761, the Court confirmed that atrier of fact needs to consider the whole of the evidence in considering whether or not proof beyond a reasonable doubt has beenestablished.

Citing an earlier case at p. 761, it is noted: It may be, and such is often the case, that the facts proven by the Crown, examined separately have not a very strong probative value; butall the facts put in evidence have to be considered each one in relation to the whole, and it is all of them taken together, that mayconstitute a proper basis for a conviction. The Background Facts [11] The main north-south artery out of downtown Saskatoon is Idylwyld Drive.

All of the buildings referred to in this case, withthe exception of the Money Mart, are on the east side of Idylwyld Drive, a few blocks north of the downtown core. [12] The Ramada Hotel is on the northeast corner of Idylwyld Drive and 29th Street East. Directly south of 29th Street East is abar, then the Northgate Inn, and then the Northwood Inn and Suites; these three buildings are separated by parking lots.

Immediately tothe west of the Northwood is an L-shaped building that is also part of the Northwood complex, referred to in this case as the extension ofthe Northwood Inn. [13] To the east of the east exit of the Northgate Inn (these three buildings all face Idylwyld Drive) is a shed and woodpile, justacross a lane that runs north and south behind these three buildings.

[ 14 ] Money Mart is located on 22 nd Street West, the main east-west artery out of the downtown core. [ 15 ] The surveillance took place roughly between approximately 4:00 p.m. until approximately 6:00 p.m. on September 1, 2012.

A search was conducted of Room 147 of the Northgate Inn between 8:30 p.m. and 9:22 p.m. that night. [ 16 ] Four officers of the Saskatoon Organized Crime Unit were involved; Constables Walz, Weselowski, Tryon and Holmstrom. [ 17 ] The reason these times are approximate is because all four officers were, although together at some points, observing different things at different places, going back and forth between locations, and although Constable Holmstrom was the “timekeeper”, in that he was tasked with recording times and details of what other officers observed for the Daily Surveillance Report, not all times were provided in evidence.

Further, some officers testified as to things occurring a few minutes after another event, or shortly after another event, without giving a specific time. Exact times are not relevant to the determination of the issues. I simply offer that caveat at the outset. The time line that follows is the general evidence provided by various officers and I am satisfied that it is generally accurate and sets out the overall scenario on which later analysis will be based. I will not continually refer to times as “approximate” in setting out this background. [ 18 ] I also note that the description of “Jay” matched that of Mr.

Aden and the description of “Toby” matched that of Mr. Riverson. Accordingly, I will use their proper names throughout. Identity of each accused is admitted as per an Agreed Statement of Facts (P-1), as well as continuity of exhibits and the fact that these matters took place in Saskatoon, Saskatchewan. It is further admitted that 70.3 grams of cocaine were seized. [ 19 ] The surveillance began at 4:15 p.m., and sometime around then Constable Tryon saw Mr.

Riverson leave the Northgate Inn and get into a cab. [ 20 ] At 4:20 p.m., Constable Weselowski started surveillance at the Money Mart. [ 21 ] At 4:25 p.m., Constable Tryon saw Mr. Aden inside the lobby of the Northgate Inn. [ 22 ] At 4:30 p.m., Mr. Riverson was seen going into the Money Mart. [ 23 ] At 5:00 p.m., Constable Walz saw Mr. Riverson exit the Money Mart and approach a cab driver, walking away shortly afterwards with a standard size white envelope in his hand, place it in his waistband, and then wait for 5 or 10 minutes until a cab picked him up. Constable Weselowski testified that he saw Mr.

Riverson come out of the Money Mart and that he had a white envelope with him and that he got into a cab. Of the two versions, which are very similar, I accept and rely on what Cst. Walz says occurred. Constable Weselowski was more involved with the exhibits seized during the search, and Constable Walz was an integral part of the surveillance team. In either event, I accept that at 5:15 p.m. or so Mr. Riverson left the Money Mart in a cab. Surveillance followed him to the Northgate Inn. [ 24 ] Constable Tryon, who was posted outside the front of the Northgate Inn from the time he started surveillance, noted Mr.

Riverson got out of the cab and went into the Northgate Inn. He took a number of pictures of this (P-5, photos 3-7), although he did not note the time. His evidence was that he saw Mr. Riverson go through the doors of the building and into the lobby, through that lobby and down the hallway which granted access to the rooms, and go into the third room on the right-hand side. He later learned this was Room 147, which was the subject of the search. [ 25 ] Backing up slightly, at 5:10 p.m.

Constable Walz, who had returned from the surveillance at the Money Mart, took up position in a car in the parking lot, his precise location being slightly northeast of the northeast corner of the Northgate Inn, and by his estimation, perhaps 20 feet to the north of the woodpile.

[ 26 ] From that location, at 5:22 p.m. he observed Mr. Aden coming down the lane from the direction of the Ramada Inn, and walk into the east door of the Northgate Inn. Approximately a minute later, he came out, walked to the southeast, putting him somewhat northeast of the Northwood Inn and Suites extension, and out of sight. Within minutes of that, Constable Walz observed Mr. Aden coming back roughly from where he had lost sight of him, and saw him approach the north side of the woodpile; this was at 5:25 p.m. [ 27 ] Just prior to arriving at the woodpile, Cst. Walz noted that Mr.

Aden bent down and picked up a red or orange object from the ground. He then walked along the woodpile, stopping about halfway along to bend down, the bag still in his hands. He did not actually touch the woodpile at that point. He then continued along the woodpile to what would be the west end of it, bent down and tossed or flicked that red or orange object into a niche, or alcove, under the woodpile. He then left along the south side of the Northgate Motor Inn, out of sight of Cst. Walz. [ 28 ] At 5:28 p.m. Constable Tryon saw Mr. Aden coming into the Northgate Inn, go down the hall, and enter into Room 147.

Although Constable Tryon testified to Mr. Aden coming around the north side of the Northgate Inn, he was not sure of the time that this occurred. I suspect this entry into the hotel followed Mr. Aden being observed at the woodpile; however, the timing is not clear. In my view, however, despite there being no precise time of this offered by Constable Walz or there being no evidence of it as to precise time otherwise, it fits what I consider to be the overall time lines. Further, based on the photographs (P-I, photos 10 through 20) and evidence of Cst. Tryon, I think that Mr.

Aden likely proceeded along the north side of the Northgate Inn. [ 29 ] At 5:40 p.m., after receiving the “all clear” signal from other members of the surveillance team, Cst. Walz who had been keeping the woodpile under continuos observation, went over to see what had been flicked into the alcove. He found a Doritos chip bag, which is predominantly red and orange in colour, and inside that bag, wrapped in other packaging, was what turned out to be 70.3 grams of crack cocaine, broken into pieces. [ 30 ] At 6:00 p.m.

Constable Holmstrom, who was at this time parked along the east wall near the south side of the main Northwoods building, observed Mr. Aden come around the corner of the Northwood Inn, into a stairwell along the Northwood Inn and Suites extension, and participate in what could be a drug transaction. This is the incident that leads to the single count against Mr. Aden for trafficking, and will be reviewed in more detail later. [ 31 ] By 6:10 p.m., Mr. Aden was back in the Northgate Inn and was approaching Room 147 when he was arrested by Constables Walz, Tryon and Kuffner, the last-named officer not testifying.

This arrest was done based on observations that had been made to that time, and was a decision of the team. The intention was to arrest Mr. Aden as quickly and quietly as possible so that any occupant of Room 147 would not know that had occurred. At the time of his arrest, Mr. Aden had a Nokia cell phone in his right front pants pocket, and $50.00 in cash in his left front pants pocket. [ 32 ] It is obvious from all this that at some time while the officers were discussing what to do after learning that it was crack cocaine under the woodpile, Mr. Aden exited Room 147, and was observed by Cst.

Holmstrom participating in what might have been a sale of cocaine at the Northwood Inns extension. [ 33 ] Almost immediately after Mr. Aden was arrested, as there was some concern noise might have attracted the attention of any occupant or occupants of Room 147, and that evidence might be destroyed if they waited to obtain the planned search warrant, Cst. Kuffner and Cst. Walz knocked on the door of Room 147, which was answered by Mr. Riverson. Cst. Walz went far enough into the room to determine that there were no other persons in that room, and then left.

While doing that cursory sweep, he noticed a small scale on a table. [ 34 ] Cst. Walz then left to get the search warrant for that room, based on everything that had transpired, and a more detailed search was executed between 8:30 p.m. and 9:22 p.m. [ 35 ] Sometime between the arrest and detention of Messrs. Aden and Riverson and the search, Constable Tryon seized a signature card for Room 147 from the front desk. [ 36 ] It is against this factual background that I will now deal with certain areas in more detail.

[ 37 ] I will start with reviewing what was seized during the search of Room 147: ∙ Three documents that collectively were entered as Exhibit P-7, all found in various locations. The first item was a carbon copy of a money transfer from Western Union, found on the bed, showing $240.00 being sent to a location in Toronto, to a certain James Jones. In the spot for the first name, under “Payment Information”, is the name Riverson and the last name appears to be a G. Assuming this to be Mr. Riverson, it would appear the names have been reversed on the form.

Also as part of Exhibit P-7 is a customer receipt from the Money Mart at the Saskatoon location that was under observation, showing “Riverson Gyasi” as the sender, the receiver James Jones, with the amount of $240.00 being sent, the cost of $258.00 being paid, the difference obviously being the charges. Finally, there is another receipt showing that the Money Mart received $270.00 from the customer, returned $12.00 cash, leaving $258.00 collected from the customer, which would connect up with the other documentation.

That latter document shows that that money was provided September 1, 2012 at 4:55 p.m.; ∙ Exhibit P-8 has been referred to as a pre-paid Visa card, seized by Constable Tryon from a duffle bag on the bed. It is issued to “Riverson Gyasi”, and shows an expiration date of 02/14; it is unsigned; ∙ Exhibit P-9 is a Samsung cellular telephone located on the dresser, which turned out to have the same phone number as a Nokia cell phone found on Mr.

Aden at the time of his arrest; ∙ Exhibit P-10 is a sales receipt from The Joint, with an address approximately three blocks away from the Money Mart on 22 nd Street West in Saskatoon, showing that $40.00 cash was tendered for a Hexx digital scale, which had a retail price of $24.99. This receipt was located on the bed, and shows the transaction taking place on September 1, 2012 at 4:24 p.m.; ∙ Exhibit P-11 contained two pieces of paper. One was a receipt for pre-paid telephone service issued August 29, 2012, at 9:20 p.m.

The second item located was a piece of paper with two phone numbers, one each of a 403 and 647 area code, written in pencil; ∙ Located in a drawer of the night stand was cash totalling $1,785.00. The cash was later counted and was comprised of 2 x $100.00 bills, 1 x $5.00 bill, and 79 x $20.00 bills; ∙ Exhibit P-12 was a receipt for a Greyhound Canada bus ticket from Calgary, Alberta to Saskatoon, Saskatchewan from August 22, 2012. It was issued in Calgary for departure at 8:00 p.m. that night, ultimately arriving in Saskatoon at 6:40 a.m. on August 23, 2012, and has the name “James” on it.

The cost was $74.00 paid in cash. It was located on the coffee table; ∙ Exhibit P-13 is a single page which appears to have been ripped out of a small coiled notebook. On one side, in ink, is written “Wed 4:00 p.m Val Wonc? Clean” and underneath that “shop” and with pencil notation marked “1 hot wings, 2 beer cans of Canadian the tall ones”.

On the other side, in pencil, a number of notes, each preceded by a hyphen as follows (some of it is very difficult to read): what can be read includes: - $55.00 Visa; - $13.00 cigs; - $2.50 mini Bic; - $25.00 Visa for me; ∙ Exhibit P-14 is a corner of a plastic bag and a piece of paper found on the table. One corner of the bag is blue as a result of a Nik test which evidence shows the presence of cocaine at some point in that bag; ∙ Exhibit P-15 is a box for a Hexx scale with a sale price of $24.99, which was on the floor near the table. It also contains the Hexx scale itself, which was on the dresser.

This was the scale noted earlier by Cst. Walz; ∙ Exhibit P-15.1 is a receipt for a Fido phone “refill of time”. It was purchased at the 7-11 store at 1435 Idylwyld Drive North, which would be a number of blocks north of the location of the Northgate Inn, for a cost of $10.00, at 3:20 on September 1, 2012 (it does not indicate if that is a.m. or p.m.);

∙ Exhibit P-16 is a Western Union Preferred Customer Plus card with the Money Mart logo on it in the name of Riverson Gyasi. This was located on the night table. The number of that card is 835 379 089. These same numbers are recorded on the customer receipt from Money Mart referred to as Exhibit P-7.

The last seven numbers that are clearly visible are 5379089, and although it is very faint, I am satisfied the first two numbers are 83. ∙ Exhibit P-17 is another Fido receipt from the same store, although it is exceptionally faint; ∙ Exhibit P-18 was found on the kitchen table and is a key ring attached to a key fob that is approximately 5 cm wide by 7 cm long, with a photograph embedded in it visible on both sides of the plastic. The photo shows a black male holding a young girl, the image of the man appears similar if not identical to photograph #6 in Exhibit P-5, which is Mr. Riverson.

There is nothing on any of the ten keys that would identify any of them being for any particular door; ∙ Exhibit P-19 is an I-phone which was located on the floor; ∙ Exhibit P-20 is some packaging material that was found on the bathroom floor. It is the corner of a plastic bag; ∙ Exhibit P-21 is a photo driver’s licence issued from Ontario in the name of Alexander Berquas referred to later in this decision [para. 73-75]; ∙ Exhibit P-22 is the registration card for Room 147. It was issued to Mr. Berquas, showing him being a single guest arriving on August 26 and departing on August 27.

However, the card shows continual occupancy from August 26 through to September 1 and it appears that each day’s stay was being paid for on an ongoing daily basis. I would infer that the date of check-in was August 26, and at that time, it was planned for a one night stay; ∙ Exhibit P-23 is the Nokia cell phone that was found on Mr. Aden at the time of his arrest, and was, as noted, not actually located in the room. I note that the documents found in that room are not evidence of the truth of the contents, although they are circumstantial evidence that can be considered. (See R. v Grant ABCA 211). [ 38 ] Mr.

Riverson, as noted earlier, was the sole occupant of Room 147 when the arrests and detentions were made. The room was described by one witness as a “suite”, and it appears from the pictures that it is a slightly larger room, as it has a couch and chair and a table in one part, with a bathroom off the main living area. It was generally in an unkempt fashion, the bed was unmade and there were a number of items scattered around. I find it of some significance that items that might otherwise normally be in the personal possession of a visitor were scattered around the room, such as papers associated with Mr.

Riverson, that is, the Western Union receipts, the pre- paid Visa card, the receipt for the scale, the Preferred Customer Card, and the key ring. A casual visitor would not be likely to scatter personal effects around a room being used or occupied by someone else. [ 39 ] There was nothing found in the room that could prove Mr. Aden had been in that room. Further, there is no evidence that Mr. Riverson and Mr. Aden were ever actually seen in each other’s company. However, it is of note that Mr. Aden was seen going into Room 147 by Cst.

Tryon, and was arrested within feet of that room and by all appearances about to go into it. [ 40 ] With respect to the room generally, and what transpired after the initial entry, Constable Weselowski testified that between the time of the arrest at approximately 6:00 p.m., and entry into the room at 8:30 p.m. to conduct the search, a few people wandered up to the door which, of course, officers were standing outside of awaiting arrival of the search warrant.

[41] Constable Weselowski testified that he kept possession of the phone that had been seized from Mr. Aden, and that the phonerang several times while it was in his possession, then estimating “ten or twelve times, maybe more”. He says he answered some of thecalls, and there was a person on the other end, testifying that the phone, in his words, “rang continuously”. Cst. Holmstrom was alsopresent at that time and he also said that was the case. [42] This evidence is somewhat confirmed by Sgt.

Racicot, who did a forensic examination of that phone, and noted that duringthis time, there were two missed calls and nine incoming calls. I will return to this examination later. [43] Further, he testified that when Mr. Aden was arrested, which I am satisfied would have been after the alleged traffickingincident I will deal with shortly, he had $50.00 in his pocket, which I am satisfied was in denominations of $20.00 x 2, and $10.00 x 1,again according to Constable Weselowski’s notes. Arguably, this would be the proceeds of the alleged drug sale I will deal with shortly. At this point I merely note that Mr.

Aden was going towards the room that was occupied by Mr. Riverson, and in which there was,among other things, a large stack of small bills. [44] Turning now to the cocaine located in the woodpile, Constable Weselowski testified respecting the bag that was found there. His evidence was that there was a brown bag and a ziplock bag, both of which were inside the Doritos bag. There is a photograph of thecocaine in Exhibit P-5, photograph 48, and that shows the pieces in a ziplock bag.

Photograph 49 shows a brown bag, from which itappears the ziplock bag was inside, and photograph 50 shows that brown bag open, with a number of chunks of the cocaine. [45] With respect to the sizing and weight of those pieces, Cst. Ingrouille, who gave expert evidence in this case (I will deal withhis evidence in more detail later), was asked if he would be able to form an opinion on how that crack cocaine would have been sold, if itwere being trafficked.

He testified that he didn’t know the weight of any individual piece, but they looked very similar in size; based onthe fact that it was already broken up, he thought it would be intended for sale at the one-half gram or gram level. [46] The evidence as to what transpired at the woodpile is the uncontradicted evidence of Constable Walz. That evidence was, asmight be expected, subject to extensive cross-examination. [47] The Crown’s position, as set out in paragraph 47 of its brief, is that there was direct evidence from Constable Walzdemonstrating that Mr.

Aden had control of the 70.3 grams of crack cocaine that were found inside the Doritos bag, as Constable Walzobserved Mr. Aden handling that specific bag. As continuity of exhibits has been admitted in Exhibit P-1, and as that 70.3 grams hasalso been admitted to be cocaine, coupled with the fact that Constable Walz testified to having kept the package, or at least its location,under continual and uninterrupted observation between the time Mr. Aden flicked it into the alcove, and he retrieved it (approximately10 minutes later), Mr.

Aden had actual physical possession of the cocaine and his knowledge of the contents of the bag can be inferredfrom his actions constituting control. The Crown relies on the case of R. v. To, (BC CA), 1992 CarswellBC 1039, acase in which the issue was whether or not the knowledge could be inferred based on physical possession by the accused. [48] In To, supra, the accused was observed carrying two plastic shopping bags, and was arrested immediately after he opened thedriver’s door to a vehicle and placed the bags in the back seat. One of the bags contained 4.4 pounds of heroin.

As in this case, therewere no fingerprints on the plastic bag in which there was another bag containing that heroin. The trial judge rejected the accused’sexplanation that he was asked to take the bag and place it in the vehicle. After reviewing a number of authorities, the Court held that “itwould be legitimate, on the broad facts of this case, to infer beyond a reasonable doubt that the accused knew the plastic bag containedthe prohibited drugs. In fact, I think that would be the only reasonable inference which could be drawn” (at para. 40). [49] The position of Ms. Murray, on behalf of Mr.

Aden, properly concedes that based on the allegation of Mr. Aden directlyhaving the bag, his alleged possession is personal, rather than joint or constructive. However, she argues that the case against Mr. Adenon this point is circumstantial, and that the circumstantial evidence must show he had both knowledge and control of the cocaine in theDoritos bag. She argues that circumstantial evidence must be capable of supporting an inference of knowledge, and she cites a number ofcases in support of her position. In essence, she argues that at no time did Constable Walz see Mr.

Aden put anything into that Doritosbag, and that he did not see any bags in which the cocaine was placed, both bags being inside the Doritos bag, going in or out of thatDoritos bag.

[50] I accept the evidence of Constable Walz as follows: 1) When he returned from being out of sight for a very few moments, Mr. Aden went towards the woodpile, a route he would not have tofollow to go to the hotel. That is, the woodpile was out of his route of travel; 2) As Mr. Aden approached that woodpile, he bent down and picked up, off the ground, “something red or orange in colour”, which Ifind to be the Doritos bag; 3) As Mr. Aden then approached the woodpile with the Doritos bag in his hands, he stepped up onto it and began walking across it. Hishands were “moving around”.

As Constable Walz put it, and I accept, “at that point I was unable to see - - I was able to see largermovements but it was difficult to see exactly what he was doing, but I could see the move . . . the general movement.” [51] The reason that Constable Walz’s vision was obscured when Mr. Aden was at the middle portion of the woodpile was due tothe convergence of a chain link fence at a 90 degree angle, that fence being immediately adjacent to the woodpile. That middle portionof the woodpile was obscured from Constable Walz’s view, because Mr. Aden was immediately adjacent to it, Constable Walz waslooking at Mr.

Aden from a distance of (by my estimation, 40 feet, by his, 20), and he was trying to detect fine movements while lookingthrough two layers of chain link fence that were at that point in close proximity to each other and to Mr. Aden. [52] Mr. Aden then proceeded across the woodpile, to the point where the alcove was under the woodpile, and at this pointConstable Walz’s vision of Mr. Aden and the woodpile was no longer obstructed by the chain link fence.

I am satisfied from looking atthe various exhibits, and comparing the scale of vehicles in the picture, and Constable Walz’s location (in particular, Exhibit P-4), thatConstable Walz was, as I indicated earlier, closer to 40 feet away. However, be it 20 feet or 40 feet, he had an unobstructed view of whatMr. Aden was doing at the corner of the woodpile where the alcove was. [53] At this point, Mr. Aden “leaned down with his hand right next to the edge of the woodpile and just sort of like a flick of hishand, essentially, ...and at that point the object was out of his view underneath the woodpile.” [54] Mr.

Aden then left. When Constable Walz received the all clear signal, approximately 10 minutes after that, he went to thewoodpile, knelt down, discovered the alcove that I have been referring to, and took from that “only one object that resembled what I’dseen, which was . . . it was a red Doritos chip bag. There was no other garbage underneath . . . underneath there.” [55] Returning to the points raised by Ms. Murray, and during cross-examination, Constable Walz was clear that he would not havebeen able to see a small movement, such as things being taken out of Mr.

Aden’s pockets, as part of the “fiddling”, as his view wasobstructed by the two layers of chain link fence. He agreed that he could not “really see whether he was taking things in or out of hispockets.” He again insisted that he wouldn’t have been able to see where his pockets were as “it would have been behind my view”,referring again to the chain link fence. [56] The argument has been made that Constable Walz had testified that there was no other litter in the area, and that he hadlooked for litter, and saw none.

I am satisfied he was referring to there being no other litter in the immediate area where the Doritos bagwas flicked; there is clearly litter in looking at, for example, Exhibit D-1. The fact that there was other litter around is confirmed partlyby the fact that Mr. Aden picked up a discarded Doritos bag, which I would define as litter. [57] Ms. Murray cites a number of cases that are, in my view, distinguishable on their facts.

In most of them, location ofcontraband in a situation in which one or more people had access to that area did not establish “possession” to the satisfaction of theCourt with respect to a particular individual, or if it did at trial, was overturned on appeal. For example, in R. v. MacLeod, 2001 NBCA48, a firearm was located hidden in a dog run in a residence in which two individuals lived. It could not be said in that situation that theindividual accused had knowledge of the location of that gun or control of the dog run. The same was held in R. v. Haggerty, (BC CA), [1947] 3 D.L.R. 335 (B.C.C.A.).

[ 58 ] Further it is argued, the woodpile was a very open area in which numerous individuals had access, and the expert evidence itself would suggest hiding contraband away from one’s personal space is a common practice. [ 59 ] In my view, Mr. Aden picked up the Doritos bag specifically because he was looking for something in which to conceal cocaine that I infer he must have had on him at that point, and that he must have placed inside the bag. I can think of no reason whatsoever why an individual would pick up a discarded Doritos bag from the ground, carry it to a woodpile, and re-conceal it.

Sometime during that trip, I find, Mr. Aden put cocaine in the bag; that is to my mind the only reasonable inference that can be drawn. [ 60 ] I say this for a number of reasons. The first is that, in the unlikely event Mr. Aden picked up the bag for the purpose of perhaps seeing if there was any food in it (a distinctly unlikely and speculative inference at best, I would note), he would have simply discarded it on the spot, had it contained nothing, or presumably he would have eaten the contents. [ 61 ] Secondly, the bag was intentionally concealed by him in what can best be described as a hiding place.

What possible conceivable reason would there be to pick up an empty Doritos bag, walk across a woodpile, and then bend over and conceal that bag, if Mr. Aden did not wish to maintain control over it, albeit in a hidden location? [ 62 ] As to the possibility that the cocaine was in the bag at the time that Mr. Aden picked it up, that would be pure speculation, as there is simply no evidence to suggest that could be the case. That is, the expert did testify that it was a common practice for a dealer to conceal his or her stash away from him or her, for reasons I will get into.

Leaving a bag on the ground in plain view is not concealing it in the fashion explained by the expert. [ 63 ] Although it is fair to say that Constable Walz did not actually see Mr. Aden put the cocaine into the bag, I am fully satisfied that Constable Walz would not have been able to see that particular movement due to his vision being obscured. However, as he said, there was a lot of “fiddling around” with Mr. Aden’s hands, again a situation where the only logical inference I can draw is that he was placing something inside the bag. [ 64 ] I am satisfied beyond any doubt that Mr.

Aden picked up that empty Doritos bag for the purpose of using it to conceal cocaine that he subsequently put into that bag, and that the reason he put it into the alcove was to separate himself physically from it to avoid detection, while at the same time maintaining control of it such that he could return to the woodpile when necessary, and obtain cocaine from that bag. [ 65 ] Turning to an examination of other connections between Mr. Aden and Room 147, it is true that no documentation respecting Mr.

Aden was found in the room, nor was he ever seen in the room, with two exceptions. [ 66 ] Prior to the arrest, while Constable Tryon was conducting surveillance, he was alerted that Mr. Aden was coming around the corner, and approaching the hotel. Although the exact time was not noted, I am fairly comfortable that this occurred immediately after Mr. Aden had left the woodpile area, notwithstanding there is some divergence in the evidence as to whether he walked along the north side of the Northgate building or the south side.

I am satisfied he was walking along the north side, and the reference to him being on the south side is an error. In any event, Constable Tryon testified that he saw him walk through the front door (there are pictures of that occurring), down the hallway and into the third room on the right, which is Room 147. [ 67 ] That observation made by Constable Tryon was the subject of considerable cross-examination.

His evidence was that he was within 200 feet of the front door conducting surveillance, and for purposes of future investigations, he was reluctant to give his exact location. [ 68 ] A concern was raised that there was considerable glare on the window, as noted in looking at the pictures in Exhibit P-5 of the entry way, and it is noted that these particular doors face west, with the pictures being taken at approximately 5:30 p.m. on September 1. Further, it was argued that this observation was not recorded on the Daily Surveillance Report, nor reported to Cst. Holmstrom, the keeper of that document.

Thus, there was a concern raised by Defence that perhaps Constable Tryon’s vision wasn’t as good as he felt it was.

[ 69 ] However, I am satisfied that Constable Tryon was accurate in what he said on that point, particularly his comments that, although there is glare apparent on the pictures, his vantage point was such that he was in fact able to see down the hallway. He testified that there was a canopy that provided some protection from the glare for him, which appears evident on the photographs. That is, for example, as Mr. Aden is photographed approaching the doors, he is partly in shadow, and looking at the photos, it appears that there is some overhang that would provide some protection from the sun.

As well, Exhibit P-4, being the largest view of the Northgate Inn taken from above, does show a covering over the entry area. The fact that the sighting may not have been recorded could be due to any number of reasons. I believe Cst. Tryon, and I am satisfied that he is accurate on what he said. [ 70 ] The second observation respecting Mr. Aden was that immediately prior to the arrest, he was heading towards Room 147. As one officer put it, he was going down the hall, and started to “angle” towards that door.

The police had determined to arrest him before he made entry, and did so, so it cannot be said with certainty that he was going to actually go into that door, although that is clearly, from the evidence, where he was intending to go. He was arrested mere feet from that door. [ 71 ] There was, sometime earlier during the surveillance period, a sighting of Mr. Aden in the lobby area, but Constable Tryon testified that he lost sight of him thus I am not able to conclude that, at that time, he went into Room 147. [ 72 ] I am satisfied that Mr.

Aden had been in Room 147, and I am satisfied that he knew what was in the room. Nothing in that room was concealed in any meaningful way, most notably, the money and the scale. Sale of drugs is a cash business, and $20 bills are commonly used, as will be dealt with later in reviewing the expert evidence.

The fact that the scale tested negative for cocaine is of little consequence, as it was clearly brand new. [ 73 ] The registration card for that room shows that it was registered to a certain Alexander Berquas, with an address of Mississauga, Ontario; the registration card referred to identification being given as an identification number taken from a driver’s licence (Exhibit P-22). [ 74 ] Found on a ledge in the closet in Room 147 was a driver’s licence issued to an Alexander Berquas, with matching identification number on that licence to what was recorded on the registration card.

The photo on the licence is of a black male, although I cannot say who that individual is. He certainly does not appear to be either Mr. Aden or Mr. Riverson. [ 75 ] The obvious inference I am invited to draw on this is that the driver’s licence was stolen, and was used for someone to rent that room using false identity, that is, specifically not using his or her actual name, nor providing his or her actual identification. I would not conclude from the evidence that perhaps Mr.

Berquas himself did rent that room, and was somehow involved with matters, because I cannot think of any logical reason why, if he were in the picture somehow, he would be leaving his driver’s licence on a shelf in a closet. [ 76 ] There is one other connection between Mr. Aden and Room 147, which is based on the Nokia phone found in his possession when he was arrested. Sergeant Racicot conducted a forensic analysis on that phone, as well as the other two phones found in the room.

It is the results of the Nokia search that are significant, although I note that he determined that the phone number for each of the Samsung phone and the Nokia phone were identical. I accept his evidence, which was uncontradicted; it is what is to be made of his evidence that is in dispute. [ 77 ] I conclude that, although there is not a lot of text messaging on that phone, there are incoming and outgoing text messages (Tab A of his report, P-29) that show incoming inquiries as to what room the holder of the phone is in, and outgoing messages of “147” and “Northgate”.

Again, this is the phone that was in the possession of Mr. Aden when he was arrested, the outgoing text messages appearing to have been sent almost moments before his arrest. [ 78 ] The record of activity on that phone respecting outgoing phone calls, incoming phone calls, and missed calls, does not show anything overly significant to me, other than the records do tend to confirm Constable Weselowski’s evidence, as noted earlier, respecting activity on the phone while he was waiting for the search warrant.

[ 79 ] Thus, on this evidence there is in my view a significant and valid connection between each of Mr. Aden and Mr.

Riverson and Room 147, and all the contents of that room. [ 80 ] The next question is what conclusion, if any, can be drawn respecting all of this from the expert evidence? [ 81 ] By consent, Constable Ingrouille was qualified to give opinion evidence in the areas of: a. the methods of packaging, distribution, and pricing of cocaine/crack; b. the general usage and effects and the observable signs of cocaine/crack and cocaine/crack usage, as well as the usage patterns of cocaine/crack in Saskatchewan; and c. the language and paraphernalia and proceeds of crime connected to the possession, use, and distribution of cocaine/crack.

His evidence was not really contradicted, although it was the subject of detailed cross-examination. I found his evidence to be fairly and even-handedly presented, and cogent and reliable. He has had extensive experience in the areas in which he was qualified, as set out in his Curriculum Vitae (P-30), and I accept his evidence. I find as follows. [ 82 ] Most of the cocaine that finds its way to Saskatoon is produced and manufactured outside Canada, usually arriving in this country through a port city such as Vancouver.

It usually arrives in a powdered form, pressed into one kilogram “bricks” for ease of transit. [ 83 ] Powdered cocaine is water-soluble, and is almost inevitably diluted to some degree prior to being offered for sale to users, in order to maximize the profits of those selling it. The more it is diluted, the less potent the effect; if it is diluted too much, customers will look elsewhere for their product. [ 84 ] Crack cocaine is created by adding a few ingredients and heating the cocaine to put it into a crystal-like rock form, which is then smoked.

The advantage of crack cocaine is that it can be handled and transported as a solid that is no longer water-soluble. During the cooking process, the now “crack” cocaine takes the form of the container it is cooked in, much like a cake takes the shape of the pan it is cooked in. During the cooking process, the powdered cocaine is often cut with cutting agents, to increase the bulk.

Once cooked, the crack cocaine is broken into pieces, and depending on how it is intended to market it, broken into smaller pieces. [ 85 ] Crack cocaine is smoked by applying a heat source to a cylindrical glass tube, called a crack pipe, and then inhaling the vapours that are created. [ 86 ] One ounce of cocaine usually will contain a true weight of 28 grams, and would sell for between $1,300.00 and $2,000.00 at the relevant time in Saskatoon. However as it gets cut down to smaller amounts, the true weight begins to differ from the stated weight, again in order for the dealer to maximize his or her profits.

An eight-ball, or 1/8 of an ounce (3.5 grams), would sell between $250.00 and $300.00. A gram would typically weigh between .5 and .8 of a true gram, and would sell for $80.00 to an experienced user, and maybe $100.00 to a novice. Half a gram, typically weighing .2 to .4 of a true gram, would sell for $40.00 to an experienced user, and $50.00 for a novice. The price seldom varies; rather, the weight will fluctuate due to a number of factors. [ 87 ] Taking the 70.3 grams that were seized in this investigation, and using “true” weights to favour the accused, as well as the lower prices, Cst.

Ingrouille calculated that 70.3 grams sold at the half gram level would net $5,624.00, as it would at the gram level, $5,022.50 if sold at the 1/8 level, and $3,012.85 if sold “as is”, that is, 2.51 ounces. [ 88 ] His evidence was that an average user would consume one gram a day, which would mean that if all of the cocaine was the property of either Mr. Aden or Mr. Riverson, for his or her personal use, it would be a 70 day supply, 35 days if it were equally divided

between them. His opinion is either amount would not be consistent with personal use. [ 89 ] I pause at this point to note that, in the recent case of R. v. Sekhon , 2014 SCC 15 , the Supreme Court cautioned trial judges to not assign any weight to inadmissible parts of an expert’s testimony if that expert strayed beyond the proper scope of his expertise. In Sekhon , the issue was whether or not a “blind courier” was aware of the existence of cocaine seized in a search.

The expert testified as to his own experience with blind couriers, to the effect that he had never been involved in a case in which such a courier was not aware of the existence of the drug. That evidence was found to be neither necessary not relevant to the question before the Court, that being what did this courier know? This expert testified that “I’ve never come across a user that would–that would ever purchase that amount of cocaine for their own use because they–they don’t want to believe that they would use that amount”.

That seems to me to be very close to what the expert said in Sekhon . [ 90 ] I have disregarded such personal observations, where made, while at the same time accepting what the expert properly said based upon all of his experience and training. Part of the expert’s evidence is based on what he personally participated in as an undercover officer, so whereas there may be some apparent overlap, the point is that I have focussed on what the expert’s evidence was based on all of his sources of knowledge. The argument was advanced that Cst.

Ingrouille said more in evidence that he mentioned in his report, which I do not find surprising, as the report is provided as a

summary of what the expert will testify to in order to allow the defence to prepare and plan the defence; I do not view the report as limiting what the expert can say within his area of expertise. Finally on this point, I have also disregarded the expert’s evidence that in effect attributed the cash seized as sale proceeds of the amount of “missing” cocaine, in effect a reverse calculation, such that the amount of $1,785.00, if it were taken to be sales proceeds of cocaine, and then added to the 70.3 grams of cocaine seized, would almost perfectly equal 84 grams, or three ounces, of cocaine.

That is a calculation that can be done by a non-expert, and the point is, I have evidence of 70.3 grams of cocaine being seized, not 84 grams. [ 91 ] Cst. Ingrouille continued to make a number of comments to support his view that the cocaine was intended for trafficking. He said it was becoming a trend to hide drugs in an outside location, away from wherever sales were being conducted, for a number of reasons. One is to avoid it being seized if the police execute a search warrant. Another is to prevent losing it to another dealer, or a user, if one were selling out of a home or a hotel room.

It is a common practice to keep the drugs apart from the cash. [ 92 ] It is common to have a trafficking scenario in which one person holds the drugs, and one person holds the money. Cocaine sales often have more than one person involved. [ 93 ] It is common to use pay as you go cell phones, both for purposes of anonymity, and to keep in contact with your customers.

The more things that can be done by cash, and the more things done to avoid leaving any trail as to personal identity, the better. [ 94 ] It is common to travel by ways in which there is no need to show identification, one example given being travelling by car, bus, or train. [ 95 ] Pseudonyms are common; it is rare for a user of drugs to know the actual real name of his or her supplier, absent a personal friendship. [ 96 ] Digital scales are common and typical of a drug trafficking operation as the product is usually purchased in bulk, and it needs to be weighed to piece it out in smaller pieces to distribute it to the street.

What happens is that pieces are broken off, weighed, and then sold. As noted in paragraph 45 of this decision, the expert was of the view, based on the sizes of the broken-up cocaine seized, that it was intended for sale at the gram or one-half gram level. [ 97 ] I note at this stage that Constable Ingrouille did not place significance on the text messages that were retrieved from the Nokia cell phone seized from Mr. Aden, as there was nothing particularly incriminating on the text messages. I raise it as I have relied on the text messaging as a connection between Mr.

Aden and Room 147. [ 98 ] I am not relying on the text messages as proof of trafficking or that the text messages were used for the purposes of making sales, for the reasons Constable Ingrouille gave. The point to be gained from this evidence is that cell phone use and text messaging is a common denominator in drug trafficking operations, although as Constable Ingrouille points out, a lot of communications happen over

the phone, as text messages can of course be incriminating if subsequently recreated during a police investigation. [ 99 ] In terms of communicating with potential customers, Constable Ingrouille testified that it is not at all uncommon for individuals to sell out of a hotel room, and that a way to build a customer base, so to speak, is to talk to sex trade workers, and generally “get the word out” that you are at a certain location and open for business. As the officer testified, word gets around quickly for those looking for cocaine.

Thus, I conclude many sales would be to “walk-up” traffic. [ 100 ] With respect to the notations located on the paper, such as the cost of ginger ale, Constable Ingrouille testified that in a lot of cases, drug traffickers are working for someone higher up the chain and that it is not uncommon to keep track of your expenses and deduct those expenses from the proceeds of the sales, when the proceeds are forwarded to whoever they are sent to. [ 101 ] On that point, he notes as well that wiring money by Western Union or some like organization is a common way to send funds, both for convenience, and reasons of anonymity. [ 102 ] Pre-paid Visa cards are also commonly used, again because the ownership of that card can be kept anonymous, and proceeds of sales can be used to purchase the card, both to help keep track of expenses and to forward proceeds of sales to another individual. [ 103 ] With respect to the connection of Mr.

Riverson to Money Mart, I note that transfer of cash through wire transfers is a common practice for a drug trafficking operation. Taken as an individual piece of evidence, the fact that he wired some money to Toronto in these circumstances is not in and of itself determinative of that money being proceeds of a drug trafficking operation. It is one piece of circumstantial evidence that I put into the mix when weighing all of the evidence. [ 104 ] With respect to the money, it was of significance to Constable Ingrouille that most of the money seized from the room was in $20.00 bills.

Based on the fact that a half gram would sell usually for $40.00, a gram for $80.00, both numbers are easily divisible by $20.00, and the fact is that automatic banking machines are generally stocked with $20.00 bills. [ 105 ] The conclusion of Constable Ingrouille was that the cocaine was purchased for the purpose of trafficking, based mostly on the amount of drugs that were seized, the fact of the cash, and the scale; these three factors are what he put the most weight on. I agree with his opinion that the cocaine was possessed for the purpose of trafficking, for all of the reasons set out above.

Many of the items seized from the room are consistent with what Cst. Ingrouille testified are indicia of a trafficking operation. Notably, there was no evidence of anything that is indicative of personal use, such as the presence of a crack pipe. The closest connection to a heat source is a reference to a Bic lighter contained in a note. [ 106 ] As the authorities have made clear, it is not a matter of weighing each individual piece of evidence, it is a matter of weighting all of the evidence as a whole. Clearly, Mr. Aden was in personal possession of the cocaine at the woodpile.

There is evidence connecting each of the accused to the room, and with that, knowledge of the contents. This was a joint operation in which each was in possession of the cocaine for the purpose of trafficking, on the basis that each of Mr. Aden and Mr. Riverson were, with the full knowledge and consent of the other, conducting a drug trafficking operation. Anything in possession of one was in possession of the other, including all of the items located in the room, and the cocaine. I am satisfied beyond a reasonable doubt of the guilt of each of Mr. Aden and Mr.

Riverson on count 1. [ 107 ] I am further satisfied beyond a reasonable doubt that the money located in the room, $1,785.00, was proceeds of crime. The evidence is compelling and clear that these two individuals were conducting a drug trafficking operation of cocaine at the street level, and I infer that this money was the proceeds of such an operation. Each is guilty of count 2. [ 108 ] The final matter that has to be addressed is whether or not Mr. Aden is guilty on the single count information of trafficking. The factual background for that was given by Constable Holmstrom.

He testified that he was in his car, getting ready to join the other officers, when Mr. Aden walked right in front of him and up a staircase in the extension of the Northwood Inn. Coming down the same stairway was a male, who had come to that location by walking along an outside corridor of that extension, in the company of two

others. One male came halfway down the stairs that Mr. Aden had gone halfway up, and they met briefly. [ 109 ] His specific evidence was that “I don’t know if–they’re–they’re in the stairway when–when they meet...I don’t know what was exchanged, or what–or even if anything was exchanged...it looked to me as if they...handed something off to each other”. [ 110 ] He went on to note that it was something small, that they “could have just been shaking hands, but it was straightforward, and then they both basically departed in the same direction they came”. [ 111 ] Cst.

Holmstrom suspected that they were “meeting in order to exchange something”. [ 112 ] I share Cst. Holmstrom’s suspicion. However, on these facts, I cannot say with certainty that anything was exchanged, let alone that it was cocaine. I can of course draw inferences from proven facts in order to conclude that this was in fact a transaction involving money (Mr. Aden was found with $50.00 in his pockets moments later) and cocaine (in the absence of solid evidence of anything being exchanged). The path to conviction would require me to be satisfied of Mr.

Aden’s guilt beyond a reasonable doubt, based on sketchy facts as to what actually transpired, coupled with my conclusion that Mr. Aden was an individual who was in possession of cocaine for the purposes of trafficking. On these facts, I am unable to conclude that, and I find Mr. Aden not guilty of trafficking as set out in the single count Information against him. [ 113 ] In conclusion, findings of guilt on each of counts 1 and 2 on Information 37292322 are entered against each of Mr. Aden and Mr. Riverson. Mr.

Aden is not guilty on the single count contained in Information 37292321. [ 114 ] Before leaving this, I wish to thank all counsel for the detailed briefs of law each filed, as well as the cases that accompanied or supplemented those briefs; that material was very helpful to me. Dated at Saskatoon, Saskatchewan, June 19, 2014. _____________________ B.G. Morgan, J