Her Majesty the Queen - v. -, 2020 SKPC 55

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 55 Date: November 16, 2020 Information: 991098068, 991098069 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Paul Lister Appearing: C. Carlson For the Crown P. Moreau For the Accused JUDGMENT D.C. SCOTT , J Background [ 1 ] On July 22, 2019, at approximately 11:30 p.m., patrol officers Cst. Blake Atkinson and Cst. Justin Pesony attended at the approved residence of the accused Paul Lister to execute an outstanding arrest warrant for an alleged breach of Recognizance.

Only Mr. Lister was present at the time. Because Mr. Lister was bound by a condition of his Recognizance requiring him to submit to a search without warrant of his residence, vehicle and cell phone, the police searched the premises. They found varying amounts of cocaine in different locations within the apartment, and a shotgun and 19 rounds of ammunition hidden inside an internal wall. They also found a stolen bicycle on the balcony.

[ 2 ] Mr. Lister was charged with possession of cocaine for the purpose of trafficking, a number of offences related to the alleged possession of a shotgun and ammunition and breach of recognizance conditions. [ 3 ] Mr. Lister was also charged with possession of a stolen bicycle. At the conclusion of the trial, Crown counsel invited me to acquit with respect to that charge, conceding the Crown had failed to prove beyond a reasonable doubt that Mr. Lister was aware the bicycle found at his approved residence was stolen. [ 4 ] Mr.

Lister testified at his trial, denying any knowledge of the cocaine or the firearm and ammunition and denying that those items belonged to him. He had recently moved into the apartment, which was rented by his friend Shawn Desjarlais. [ 5 ] The key issue to be decided in this trial is whether Mr. Lister was in possession of the cocaine, firearm and ammunition. Evidence [ 6 ] A number of admissions were made at the outset of the trial, including the date and time of the alleged offences, jurisdiction of the court, identity of the accused and continuity of the exhibits.

In addition, it was admitted that the seized substance was cocaine, a controlled substance listed in

Schedule I of the Controlled Drugs and Substances Act , SC 1996, c 19 [ CDSA ] in accordance with the Certificate of Analyst filed as Exhibit P-1. [ 7 ] It was admitted that the shotgun seized is a firearm as defined in the Criminal Code . Similarly, it was admitted that the 19 rounds of 12-gauge shells are ammunition as defined in the Criminal Code . [ 8 ] A certified copy of a Recognizance dated June 21, 2019 was filed as Exhibit P-3.

A certified copy of Informations 90165819 [Exhibit P-4] and 90165820 [Exhibit P-5] with endorsements were filed. [ 9 ] In relation to the stolen bicycle, the Affidavit of Wayne Kzyzyk dated December 19, 2019 was filed as Exhibit P-6 as well as the Certificate of Sgt. Joslin pursuant to s. 491.2 of the Criminal Code and photographs as Exhibit P-7. [ 10 ] Cst. Atkinson and Cst. Pesony testified they attended at 208 - 215 Tait Crescent, the residence of Mr. Lister, to execute a warrant for Mr. Lister’s arrest in relation to a breach of recognizance.

The officers could not recall how they gained entrance to the apartment building. They found Mr. Lister in the apartment wearing a t-shirt and boxer shorts. Cst. Pesony arrested Mr. Lister who was then detained on the living room couch while Cst. Atkinson searched the premises in accordance with the condition in Mr. Lister’s Recognizance. Cst. Pesony called for dispatch to transport Mr. Lister to detention allowing the officer to assist in the search. [ 11 ] According to Cst.

Atkinson, the apartment was laid out so that the kitchen, dining room and living room were adjacent to one another in an open space, with the kitchen immediately to the left of the entrance. The bedrooms were to the right of the entrance. The master bedroom appeared to be occupied by an adult male, given the clothing in the closet. [ 12 ] No evidence was presented regarding the leaseholder of the apartment as that matter was not investigated. [ 13 ] Cst. Atkinson searched the kitchen, dining area and master bedroom. Inside the master bedroom closet, Cst. Atkinson discovered behind the clothing a hole in the wall.

It appeared to him that a hole had also been pushed out from the other side of the wall from the hallway. He investigated the front hallway and discovered a hole behind a hung picture. Concealed within the wall between the closet and the hallway was a firearm and ammunition. [ 14 ] Cst.

Atkinson testified he seized the following items from the apartment, as documented in a photo booklet, Exhibit P-8: 1) Red glass kitchen plate, with two spoons and two knives and what appeared to be cooked cocaine the size of a thumbnail, all found inside the microwave, which was located on a stand in the dining room area of the apartment; 2) Two large Ziploc freezer bags folded together and coated with cocaine residue found in plain view beside the microwave; 3) One large Ziploc bag containing cocaine, with a total weight of 1.7 grams found beside the microwave; 4) One sandwich bag containing individual bags of cocaine with varying weights: (1) 4.6 grams; (2) 0.8 grams; (3) 1.3 grams; (4) 4.6 grams; and a straw on a red plate with residue, located on a red plate in the master bedroom dresser drawer; 5) Manulife Financial card in the name of Paul Anthony Lister, found on the same red plate in the master bedroom dresser drawer; 6) One baggie of cocaine weighing 1.2 grams, marked as SPS Exhibit 8, sent for analysis, which may have been found in the sandwich bag with the four other bags, but that was not made clear; 7) Two bags of cocaine weighing 29.2 grams and 27.9 grams, found in a Kleenex box on top of other boxes in the right-hand corner of a closet shelf in the master bedroom; 8) Ziploc baggies, spoon and 23.9 grams of unknown powder, believed to be a cutting agent found in the master bedroom closet; 9) Large Ziploc bag with white unidentified powder believed to be cutting agent found in a cereal box in the kitchen; 10) 1.2-gram bag of cocaine found in a green box on top of the main dresser in master bedroom; 11) 19 rounds of Winchester 12-gauge ammunition in Lululemon bag found inside the interior wall between the master bedroom and the main entrance hallway;

12) Pistol handle Canuck Regulator shotgun, unmodified, found with the firearm in the wall; 13) A bunch of small baggies with “gold Crowns” imprinted on them found in the master bedroom dresser drawer; 14) Operational Samsung cell phone found on the master bedroom night table; 15) LG cell phone found in or on the master bedroom night table; 16) Samsung Galaxy cell phone found on the master bedroom dresser; 17) Cash in the amount of $400 (4 x $100 bills) found in the cookie jar in the kitchen; 18) Wallet found on the nightstand in the master bedroom containing $490 (14 x $20; 4 x $50; 1 x $10); 19) Operational digital scale found in a shoe box in the master bedroom; 20) Ziploc bags found in a hallway closet; 21) Stolen bicycle under a tarp on the balcony. [ 15 ] According to Cst.

Atkinson, the operational Samsung phone was ringing and buzzing. [ 16 ] Cst. Pesony searched the “second” bedroom which appeared to be used by a child as it contained a small bed, children’s clothing and toys. No adult items were observed and nothing was seized from that room. Cst. Pesony also searched the bathroom. He seized a small box of baking soda placed inside a Ziploc bag from the bathroom. He did not search any other locations within the apartment. The search was concluded at 2:02 a.m. [ 17 ] Constable Mark Hansen testified as an expert. After hearing Cst.

Hansen’s evidence regarding his qualifications and reviewing his curriculum vitae (Exhibit P-9), I ruled that he was able to testify with regard to (1) methods of packing, distribution and pricing of cocaine; (2) value, usage and trafficking of cocaine; (3) general usage and observable signs of cocaine use, as well as the usage patterns in Saskatchewan; (4) paraphernalia associated with the possession, use and distribution of cocaine; (5) use and possession of cell phones and devices, as well as currency to facilitate the distribution of cocaine. [ 18 ] Because of the variety in the quantities of the drugs found, it was Cst.

Hansen’s opinion that the bulk of the drugs were being held for the purpose of trafficking, but that some drugs were for personal use. He noted that drug users can also be traffickers. [ 19 ] According to Cst.

Hansen, he based his opinion on the following evidence seized by patrol officers: 78.2 grams of cocaine; multiple Ziploc bags; smaller baggies; $890.00 in cash; a functional digital scale; three cell phones, two of which were operational; a large bag of unknown substance believed to be a cutting agent; two red plates with cocaine or residue; a straw; a Manulife card in the name of Paul Lister; two spoons and two knives; a stolen mountain bike; and a Canuck 12-gauge short-barrel shotgun with ammunition. [ 20 ] Cst. Hansen testified that weights referred to by Cst.

Atkinson in his exhibit descriptions are the weights of the drugs and the bags combined. Det. Cst. Hansen agreed that a Ziploc freezer bag could weigh on average one gram. Accordingly, the “1.7-gram Ziploc bag” contained approximately .7 to 1.3 grams of actual cocaine. Cst. Hansen acknowledged that amount was consistent with personal use. [ 21 ] The bag containing four bags of various weights found in the master bedroom dresser on top of a red plate with a straw could indicate the drugs were stockpiled for personal use.

The odd amounts could be explained if some of the drugs had been consumed using the straw found with the drugs. [ 22 ] Cst. Hansen also opined that some of the drugs were for the purpose of trafficking. For example, the 29.2-gram and 29.3-gram bags in the Kleenex box in the closet were for trafficking. I note that these amounts differ from those recorded by Cst. Atkinson as being 29.2 grams and 27.9 grams in weight. [ 23 ] Cst.

Hansen’s opinion that some of the drugs were for the purpose of trafficking was based upon the multiple baggies in different sizes, the cutting agent; the drugs in different weights in the individual baggies; the presence of a firearm; and the presence of a stolen bicycle.

The presumed cutting agents were not analyzed and the officer could not definitively say that the substance found was to be used for that purpose. [ 24 ] The expert was unwilling to provide an opinion regarding the significance of the presence of the cell phones, without an analysis of the phones which was not done. [ 25 ] The officer drew no conclusions from the amount of cash seized. Paul Lister’s Testimony [ 26 ] Mr. Lister is a journeyman red seal electrician by trade. He was employed as an apprentice since 1999 and as a journeyman since 2008.

In May, June and early July 2019, he had been working in Saskatchewan, Manitoba and Alberta in that capacity. He and his wife, from whom he separated, owned a rental house in Manitoba. Mr. Lister moved into the Tait Crescent apartment in early June and changed his address with SGI on his driver’s licence on June 11. [ 27 ] According to the Recognizance dated June 21, 2019, Mr. Lister was required to reside at 208 - 215 Tait Crescent, Saskatoon. Mr. Lister testified that his address is actually 215 – 208 Tait Crescent, his apartment unit being #215 and the building being #208, and

that the Recognizance and testimony of the officers was incorrect on that point. At the time of the alleged offences, Mr. Lister had beenresiding at that address for one month. [28] Mr. Lister explained how he came to be living at the residence. The apartment was rented by Mr. Lister’s friend, ShawnDesjarlais. The lease on Mr. Lister’s house expired in May 2019 so he was living with friends and in hotels. In early June, Mr.Desjarlais offered Mr. Lister a place to stay as Mr. Desjarlais had been recently separated and was in and out of town sometimes for days,as a long-haul truck driver. Mr.

Desjarlais’s daughter stayed with him from time to time. [29] Mr. Lister explained that he had permission from his probation officer to be away from his residence from June 21 to June 30to attend a wedding in Manitoba. Otherwise, from June 30 to July 21 he had been at the apartment every night. [30] According to Mr. Lister, Shawn Desjarlais used the master bedroom and Mr. Desjarlais’s daughter, the second bedroom. Mr.Lister kept a mattress at the apartment, which he leaned against the wall in the hallway and set out in the living room to sleep. Onoccasion, he slept on the couch. According to Mr.

Lister, he was primarily occupying or residing in the living room. He kept his clothesin travel luggage in the living room. He testified that he did not sleep in Mr. Desjarlais’s bedroom. He had been in that bedroom only “acouple of times” to move boxes. Mr. Lister denied looking in the closet, dresser drawer or boxes in that room. He acknowledged that heused the kitchen area to prepare and eat food but denied being aware of the presence of cocaine in or near the microwave. [31] Mr.

Lister testified he typically left his keys, wallet and any personal belongings and papers on the kitchen table, which wasthrough the kitchen in the common area. He explained that when he came home, he would typically place his wallet on the kitchentable. On the night he was arrested, his wallet, cell phone and keys were on the kitchen countertop. According to Mr. Lister, Cst.Atkinson seized his wallet, keys and cell phone from the kitchen and not the master bedroom. His keys and wallet were returned to himwhile in detention, but his cell phone was never returned.

He disputed that his wallet was found in the bedroom. [32] Mr. Lister described his cell phone as a Moto Z SaskTel phone registered in his name. He denied having any other cellphones and understood that his release conditions prohibited him from owning more than one. He denied owning the Samsung Galaxyor LG cell phones found by Cst. Atkinson. Mr. Lister thought Mr. Desjarlais used an iPhone but believed the Samsung may havebelonged to Mr. Desjarlais or his wife. [33] Mr. Lister explained that the Manulife card was not a credit card, but rather an expired insurance card from his previousemployment.

At some point he had switched wallets and did not know how the card came to be in the master bedroom dresser drawerbut thought Mr. Desjarlais could have picked it up. Mr. Lister had last seen the card on the kitchen table where he kept his personalbelongings and papers. [34] Mr. Lister explained that the four $100.00 bills found in a tin can in the kitchen was the rent money. Mr. Lister had placedthe cash in the can as he and Mr. Desjarlais split the cost of rent. He acknowledged that he had $490.00 cash in his wallet. [35] Mr.

Lister denied any knowledge of the cocaine found in the master bedroom and stated he had never seen cocaine in theresidence. Mr. Lister testified that he believed Mr. Desjarlais had used cocaine. However, he had not seen Mr. Desjarlais use it and hadnever used it with him. [36] Mr. Lister acknowledged in cross-examination that he used the microwave from time to time. The microwave was mounted toa stand or desk with drawers and a box beside it. He stated that the items found in and around the microwave were not there when he hadused it.

He testified that he believed the officer took the 1.7-gram bag of cocaine from a box containing other items beside themicrowave. [37] Mr. Lister denied using the red plate found in the microwave on the day of the charges and denied being under the influenceof any substance. He had not used the microwave that evening having eaten out. Afterward, he came home and was watching televisionwhen the police arrived. He testified that typically his curfew checks occurred around midnight, so he was waiting before going to sleep. [38] During the month that Mr. Lister lived in the apartment, Mr.

Desjarlais was home approximately one-third of the time becauseof his work but Mr. Lister was not asked when Mr. Desjarlais was last present in the residence. Decision [39] Because Mr. Lister testified on his own behalf, I am mindful that I must apply the principles set out in R v W.(D.), (SCC), [1991] 1 SCR 742. I must consider his testimony in light of all of the evidence when determining whether the Crownhas proven the offence beyond a reasonable doubt. I recognize the burden is on the Crown to prove that the evidence, as a whole,establishes Mr.

Lister’s guilt beyond a reasonable doubt. [40] If I believe the evidence of Mr. Lister regarding his lack of knowledge and control over the drugs, firearm and ammunition, Imust acquit. If I do not believe his testimony on this point, but I am still left with a reasonable doubt by it, I must acquit. If I am not leftin doubt by his testimony, on the basis of the evidence that I do accept, I must consider whether I am convinced beyond a reasonabledoubt by the totality of the evidence of his guilt. [41] As mentioned, the key issue in this case is whether Mr.

Lister was in possession of the drugs, firearm and ammunition. [42] The definition of “possession” for the purpose of s. 5(2) of the CDSA is found in s. 4(3) of the Criminal Code as follows: 4…(3)(

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 anotherperson; 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. [43] Possession requires knowledge and control, both of which the Crown must prove beyond a reasonable doubt. [44] Possession can be personal, constructive or joint.

Constructive possession arises where the accused; (1) has knowledge of thenature of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intendsto have the object in the particular place for his “use or benefit” or that of another person: R v Morelli, 2010 SCC 8, at para 17, [2010] 1SCR 253 [Morelli]. [45] To establish constructive possession, the Crown must establish knowledge, which is more than mere passive or quiescentknowledge, and some measure of control: R v Pham, (ON CA), [2005] 77 OR (3d) 401, para 15 (Ont CA) [Pham]. [46] Joint possession requires knowledge, consent and a measure of control of the item: Pham, para. 16, citing R v Terrence, (SCC), [1983] 1 SCR 357 (SCC).

A measure of control does not mean exclusive or predominant control. Rather, it must beproven that the accused was in a position to “exercise a directing or restraining power”: R v Dipnarine, 2014 ABCA 328, at para 18, 316CCC (3d) 357 [Dipnarine]. [47] The Crown must prove that Mr. Lister knew of the drugs, firearm and ammunition and had the ability to exercise some poweror control over them. It is not necessary for the Crown to prove that such power was in fact exercised: R v Wu, 2010 BCCA 589 at para20; Morelli. [48] The Crown’s case against Mr. Lister is circumstantial.

Proof that an accused had the requisite knowledge and control may beestablished by circumstantial evidence.

The onus is on the Crown to prove beyond a reasonable doubt all essential elements of theoffence of possession by direct evidence or by inference from circumstantial evidence. [49] As such, direct evidence of an accused’s knowledge of the presence of drugs in a residence is not required: R v Sparling,[1988] OJ No 107 (QL) at para 6 (Ont SC (H Ct J)), upheld on appeal: R v Sparling, [1988] OJ No 1877 (QL), 31 OAC 244 (Ont CA). [50] When assessing circumstantial evidence, the Court should consider “other plausible theories” and “other reasonablepossibilities” that are inconsistent with guilt.

The question is whether the circumstantial evidence, viewed logically and in light ofhuman experience and common sense, is reasonably capable of supporting an inference other than that the accused is guilty: R vVillaroman, 2016 SCC 33, at paras 37, 38, [2016] 1 SCR 1000 [Villaroman]. [51] In R v Learning, 2019 SKCA 5 at para 24, the Court of Appeal summarized the principles set out in Villaroman as follows: a) “The inferences that may be drawn from [an] observation must be considered in light of all of the evidence and the absence ofevidence, assessed logically, and in light of human experience and common sense” (at para 30). b) “In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts” (at para 35). c) “The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it.

If there arereasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt” (at para35). d) “[A] reasonable doubt, or theory alternative to guilt, is not rendered ‘speculative’ by the mere fact that it arises from a lack ofevidence. As stated by this Court in Lifchus, a reasonable doubt ‘is a doubt based on reason and common sense which must be logicallybased upon the evidence or lack of evidence’: para 30 (emphasis added). A certain gap in the evidence may result in inferences otherthan guilt.

But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light ofhuman experience and common sense” (at para 36). e) “When assessing circumstantial evidence, the trier of fact should consider ‘other plausible theor[ies]’ and ‘other reasonablepossibilities’ which are inconsistent with guilt” (at para 37). f) “[T]he Crown thus may need to negative these reasonable possibilities, but certainly does not need to ‘negative every possibleconjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused’. ...‘[O]ther plausibletheories’ or ‘other reasonable possibilities’ must be based on logic and experience applied to the evidence or the absence of evidence, noton speculation” (at para 37; emphasis in the original). [52] Therefore, to justify a conviction, the circumstantial evidence assessed in light of human experience should be such that itexcludes any other reasonable alternative.

The alternative inferences must be reasonable, not just possible: Villaroman, paras. 41, 42. [53] Further, the Court must be careful that the inferences drawn be distinguished from conjecture or speculation: R v Switucka,2009 SKQB 260, 336 Sask R 311. Possession of Cocaine [54] The drugs, firearm and ammunition were found in Mr. Lister’s residence and he was present at the time of the seizure of thoseitems. Mr. Lister denied the cocaine was his and denied any awareness of its presence in the apartment, explaining that he was bound bya Recognizance not to possess drugs. Mr.

Lister’s testimony was straightforward, internally consistent and was not shaken under cross-

examination. [ 55 ] No Crown evidence was presented regarding the lessee of the apartment as the matter was not investigated. I accept Mr. Lister’s uncontroverted evidence that Mr. Desjarlais was the lessee of the apartment and that Mr. Lister moved in sometime in early June. He was required to reside there as of June 21, 2019 the date of his Recognizance. [ 56 ] One reasonable inference which can be drawn from the evidence is that Mr. Lister and Mr. Desjarlais jointly possessed all of the cocaine found in the apartment. Mr. Lister and Mr. Desjarlais were friends and Mr. Lister believed that Mr.

Desjarlais used cocaine. Some of the cocaine was found in close proximity to the microwave, an area Mr. Lister used from time to time. Mr. Desjarlais was away for extended periods allowing Mr. Lister uninterrupted access to the master bedroom where most of the drugs were located. [ 57 ] Another reasonable inference is that Mr. Lister knew of the drugs found in the common area of the apartment but not the drugs stored in the master bedroom. According to Cst. Atkinson, he found a plate with spoons, two knives, a small amount of cooked cocaine inside the microwave.

He found two Ziploc bags with cocaine residue beside the microwave in plain view and found a bag of cocaine weighing 1.7 grams beside the microwave. [ 58 ] There is no evidence as to when or how long the cooked cocaine had been inside the microwave or who placed it there although Mr. Lister testified he had eaten out and did not use the microwave that evening. One possibility is that Mr. Lister placed the items in the microwave or was at least aware of their presence. Another possibility is that Mr. Desjarlais placed those items in the microwave and that Mr. Lister did not see them.

There was no evidence as to when Mr. Desjarlais was last present in the residence. [ 59 ] The nature of the residue in the folded Ziploc bags may not have been apparent or readily identifiable to Mr. Lister. Even Cst. Atkinson described it as “suspected cocaine residue” at the time. [ 60 ] Mr. Lister testified that he saw the officer locate the 1.7-gram bag of cocaine from inside a box containing other items beside the microwave. During the search of the apartment, Mr. Lister was present and seated on the living room couch approximately eight to ten feet away according to Cst. Atkinson. Mr.

Lister’s testimony raises a doubt about whether that cocaine was in plain view or hidden in a box. [ 61 ] The police checked Mr. Lister’s curfew from time to time. It is questionable that Mr. Lister would have knowingly kept controlled substances in plain view understanding not only that was it likely the police would attend but that they were permitted to search his residence. [ 62 ] At times, Cst. Atkinson seemed confused with respect to some of the items seized and their location. In fairness, Cst. Atkinson attended at Mr. Lister’s residence to perform an arrest. He was not there to execute a search warrant.

As such, he acted as both the searching officer and the exhibit officer. [ 63 ] The officers’ testimony was not always reliable. While a small point, both officers stated that they attended at the apartment building #215 and entered the suite #208, which was disputed by Mr. Lister. I accept that Mr. Lister would know his address. [ 64 ] A further reasonable inference is that all of the cocaine belonged only to Mr. Desjarlais and that Mr. Lister had no knowledge of it. [ 65 ] I accept Mr. Lister’s testimony that the master bedroom was Mr. Desjarlais’s bedroom and the child’s bedroom was used by Mr.

Desjarlais’s daughter when she stayed there. [ 66 ] Mr. Lister did not use the master bedroom and did not enter it. He testified that he slept on the couch or on a mattress which was leaned against the wall during the day. Cst. Atkinson confirmed having seen the mattress leaning against the wall in the hallway. Mr.

Lister’s testimony on these points was not shaken in cross-examination and there is an air of reality to his explanation regarding the nature of his occupancy in the apartment, given that he had only recently moved in. [ 67 ] The bulk of the cocaine was found in the master bedroom, most hidden in a dresser drawer, in a box on the dresser or in a Kleenex box inside the closet. The digital scale was found in a shoebox in the master bedroom. Along with the cocaine were found a plate and straw, likely used for consuming cocaine.

A bag with unidentified powder, believed to be a cutting agent, was found in the master bedroom closet. [ 68 ] According to the expert, drug traffickers will often be in possession of weapons for protection. The firearm and ammunition were stored in a wall accessible through the master bedroom closet as well as the hallway closet behind a picture, therefore connecting the firearm to Mr. Desjarlais. [ 69 ] Although the expert did not place much significance on the cell phone evidence, I note that all three phones identified by Cst. Atkinson were located in the master bedroom.

No analysis of the cell phones was conducted and no evidence was presented regarding the individuals to whom the seized phones were registered. The evidence did not connect Mr. Lister with any of the seized phones. Mr. Lister testified that his Moto Z phone was seized by Cst. Atkinson but no such phone was identified by Cst. Atkinson. I accept Mr. Lister’s testimony on this point, as it is verifiable information. [ 70 ] One item connecting Mr. Lister to the master bedroom was the expired Manulife card in his name found with the plate and cocaine in the dresser drawer. Mr.

Lister did not know how the card came to be in the master bedroom, as he kept his wallet, papers, keys, cell phone and other personal items on the kitchen table or counter, a common area of the apartment accessible to Mr. Desjarlais. As the card had expired, it is reasonably possible that Mr. Lister discarded it from his wallet and that Mr. Desjarlais found and used it for cutting and consuming cocaine. The card was located by Cst. Atkinson on a plate, with drugs and a straw, indicative of drug consumption according to the expert. [ 71 ] Cst.

Atkinson testified that he assumed the wallet found on the nightstand in the master bedroom belonged to Mr. Lister. The

officer could not say with certainty whose wallet it was or whether he located any identification in that wallet. I accept Mr. Lister’stestimony that his wallet was seized from the kitchen table where he placed it when he came into the apartment. He was candid that hiswallet held $490.00 cash and that the wallet was returned to him in detention. [72] While Mr.

Lister has denied actual knowledge of the drugs, I must nevertheless consider whether he was wilfully blind as totheir presence. [73] Actual knowledge is not necessary because in some circumstances wilful blindness can substitute for knowledge: R v Spencer,2014 SCC 43 at para 84, 312 CCC (3d) 215 cited in R v Montague-Mitchell, 2018 SKCA 78, 368 CCC (3d) 322 [Montague-Mitchell]. [74] As stated at paragraph 75 of Montague-Mitchell: [75] The nature of wilful blindness was explained as follows by Charron J in R v Briscoe, 2010 SCC 13 (SCC) at para 21, [2010] 1 SCR411: Wilful blindness does not define the mens rea required for particular offences.

Rather, it can substitute for actual knowledge wheneverknowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion isaroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. SeeSansregret v.

The Queen, (SCC), [1985] 1 S.C.R. 570, and R v Jorgensen, (SCC), [1995] 4 S.C.R. 55.As Sopinka J. succinctly put it in Jorgensen (at para. 103), “[a] finding of wilful blindness involves an affirmative answer to the question:did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?” [75] In Montague-Mitchell, the Court of Appeal held it was necessary to consider whether an accused, who was a trusted associateof a stash house occupant and who was given keys to that place, was wilfully blind as to the presence of drugs inside the stash house. [76] Mr.

Lister believed Mr. Desjarlais used cocaine, although Mr. Lister had not seen him do so according to his testimony. If Mr.Lister did not place the plate, spoons, knives and cooked cocaine in the microwave, then it is reasonable to infer that it was Mr.Desjarlais who did, knowing that it would be possible for Mr. Lister to find those items. Although there is no evidence as to when thoseitems were placed in and around the microwave, or when Mr. Desjarlais was last in the apartment, the items’ presence in a common areaindicates Mr. Desjarlais considered Mr.

Lister to be a trusted confidante regarding the presence of cocaine in the apartment. [77] While Mr. Lister believed Mr. Desjarlais used cocaine and was trusted by Mr. Desjarlais, that does not mean Mr. Lister wasstrongly suspicious as to the presence of cocaine particularly in quantities for the purpose of trafficking. [78] I cannot conclude that Mr. Lister’s suspicion was aroused to the point where he saw the need for further inquiries butdeliberately chose not to make those inquiries about the presence of cocaine.

In other words, I am not satisfied beyond a reasonable doubt that he shut his eyes because he knew or strongly suspected that looking would fix him with knowledge: Briscoe[1], para 21, citingSansregret and Jorgensen. [79] Even if Mr. Lister was wilfully blind as to the presence of cocaine within the apartment, thus clothing him with knowledge,there is insufficient evidence from which to conclude beyond a reasonable doubt that he had a measure of control over the drugs. Asindicated, most of the drugs were found in the bedroom belonging to Mr. Desjarlais. There is no evidence to suggest Mr.

Lister was ableto “exercise a directing or restraining power” over them: Dipnarine. [80] I have reviewed cases where drugs were found in a residence. In R v Hassan, 2017 ONCJ 928 [Hassan], cocaine and drugparaphernalia were found in plain view in the common kitchen area of an apartment leased by the accused. Two cell phones and a scale,suitable for weighing drugs were located in the accused’s bedroom. Two others also resided in the apartment. Applying Villaroman, theCourt concluded there were other reasonable inferences to be drawn from the evidence.

The drugs could have been brought to theapartment by another occupant only minutes prior to warrant execution at a time when the accused was sleeping. Further, mere presenceof the drugs known to be in the apartment was not sufficient to infer control.

The accused was acquitted. [81] In R v Mah, 2014 SKCA 135, 451 Sask R 103 [Mah], the trial judge was upheld in her conclusion that the only reasonableinference to be drawn was that the accused and another had joint possession of marihuana found in their bedroom, basement laundryroom, basement bedroom and kitchen and resin found in the kitchen of the residence, where five people were located at the time thedrugs were seized. Packaging and scales were found in the kitchen and cash under the mattress as well as on the person of the accused.

The knowledge, consent and measure of control by both accused was inferred by the evidence. On appeal, the Court stated that it was“unbelievable” that the appellants were unaware of the large quantity of resin in the kitchen of their home. [82] In Dipnarine, the Alberta Court of Appeal upheld a conviction where a large amount of marihuana was found in theroommate’s bedroom and baggies containing cocaine were found on a small table in an unfinished basement room, as well as on top of aceiling rafter.

The accused and his roommate were both listed as tenants, there was no evidence of other occupants, and both had equalaccess and control of the entire residence, including the basement where the drugs were in plain view. A jacket in the accused’s area ofthe house held a large sum of cash. There was no drug paraphernalia related to cocaine in the accused’s bedroom. The appeal Court didnot accept that it was reasonable to infer the accused was a “tolerant or ignorant co-tenant”.

The appeal Court confirmed there was noevidence that the accused had “mere quiescent knowledge” and agreed with the trial judge that the only reasonable inference was that theaccused had knowledge and a measure of control over the cocaine. [83] In R v Arruda, 2014 ONSC 6754 [Arruda], the Court held that occupancy in an apartment was not sufficient to establishpossession, particularly where drugs were found “tucked away in a drawer or stashed in a lunch box in a refrigerator rather than sitting in‘plain view’ in the common areas of the residence”: para. 49.

While it was open to the Court to speculate, it could not conclusively inferthat the accused was in control or knew of heroin in a refrigerator in a basement of family home occupied by a number of others. TheCourt stated there was a “small chance…but not a negligible one” that a particular family member who stayed at the house from time totime was in control of those spaces at the relevant time: para 53. It was not enough for the Crown to show that the accused was one of

two possible possessors. [ 84 ] As in Arruda , while this Court can speculate, I cannot conclusively conclude that Mr. Lister was in control or knew of the drugs. It is reasonably possible that only Mr. Desjarlais possessed the drugs. It is not enough that Mr. Lister was one of two possible possessors. Like in Hassan , this Court cannot infer control by the mere presence of drugs known to be in the accused’s apartment. [ 85 ] Unlike in Mah , this Court does not find it “unbelievable” that Mr. Lister was unaware of the drugs in his home. Neither can this Court, unlike in Dipnarine , infer that both Mr.

Lister and Mr. Desjarlais had equal access and control over the entire residence or that Mr. Lister had knowledge of the residue in the bags found in plain view. [ 86 ] In all of the circumstances, I am not satisfied that the only reasonable inference to be drawn from the evidence, as a whole, is that Mr. Lister had knowledge and control of the cocaine in the residence. Mr. Lister’s testimony has raised a reasonable doubt that he was in possession of the drugs. I therefore find Mr. Lister not guilty of possessing the cocaine. Possession of Firearm and Ammunition [ 87 ] According to Cst.

Atkinson, while he was searching the master bedroom closet, he observed two or three strips of drywall in two-foot by four-foot lengths stacked neatly on the floor inside the closet. Men’s clothing was hung inside the closet. While searching the pockets of the clothing, he noticed a hole in the drywall of the closet wall at about stomach-to-chest height, the size of approximately two fists. The officer shone his flashlight into the small hole. He saw hockey laces hanging down into the hole and pulled up something heavy. The laces were attached to a black Lululemon shopping bag.

The bag would not fit easily through the hole, so he had to pull off some of the drywall. Inside the black bag were 19 rounds of 12-gauge shotgun shells. [ 88 ] It appeared to the officer that the hole had been pushed out from the other side of the wall. He went to the inside hallway of the apartment. Hanging on the wall was a two-foot by three-foot picture. The officer removed the picture and saw an approximately one and one-half-foot by one and one-half-foot hole neatly cut into the drywall between two 16-inch studs.

He pulled off the drywall and saw a nail and hooks in the stud, where the bag with the ammunition had been hanging. On the other stud was a bag hanging from the nail by hockey laces. He pulled them up to find the shotgun attached to the laces. There was no trigger lock on the firearm, which was unloaded. It did not appear to have been modified or altered in any way. [ 89 ] Mr. Lister was definite that he was unaware of the cut-out drywall inside the master bedroom closet, creating an opening in the wall where the shotgun and ammunition were located.

His testimony was not shaken in cross-examination. [ 90 ] The firearm was stored inside the wall, which was accessible by a hole in the master bedroom closet containing clothing and by a hole in the hallway wall, covered by a picture. As such, access to those items was concealed. [ 91 ] For Mr. Lister to locate the firearm and ammunition on his own, he would have had to enter the master bedroom and look behind clothing in the closet. Alternatively, he would have had to remove a picture hanging on the hallway wall. Mr. Lister testified he had no reason to go into Mr. Desjarlais’s bedroom.

I accept there is no reason why an occupant staying in someone else’s apartment would move or look behind another’s clothing in a bedroom or a picture on a wall or would suspect that there was any reason to do so. [ 92 ] The firearm and ammunition were well-hidden in such a way that an occupant would not come upon them in the ordinary course of their occupancy without specifically having been shown the items. [ 93 ] While Mr. Lister believed Mr. Desjarlais used cocaine, there would have been no basis for Mr. Lister’s suspicion to have been aroused regarding the presence of the firearm.

Nothing in the evidence leads me to conclude that Mr. Lister strongly suspected the presence of a firearm and ammunition. [ 94 ] One reasonable inference is that the firearm and ammunition belonged to and were stored by Mr. Desjarlais but that he made Mr. Lister aware of their presence and location. Even so, there is no evidence to suggest that Mr. Lister would have consented or had any measure of control or power over the firearm and ammunition. [ 95 ] It is not reasonable to conclude that if the firearm and ammunition belonged to Mr.

Lister, he would have hidden them in the manner in which they were stored, requiring him to damage the wall in someone else’s bedroom in an apartment leased by someone other than himself, knowing that the hole could be detected by the user of that room. Neither is it reasonable to conclude that Mr. Desjarlais would have gone so far as to damage the walls to store a firearm belonging to Mr. Lister. [ 96 ] A reasonable inference is that the firearm and ammunition belonged to Mr. Desjarlais who did not disclose their presence to Mr. Lister. Great lengths had been taken to conceal those items.

It seems clear that the owner did not want them to be discovered. One means of access was through Mr. Desjarlais’s bedroom. It is not reasonable to conclude Mr. Lister would have found the items on his own without having been shown. Further, it is not reasonable to conclude that, had Mr. Lister been made aware of the firearm and ammunition, he would have had any control over them. [ 97 ] As there are reasonable inferences other than guilt, I find that the Crown has failed to prove beyond a reasonable doubt that Mr. Lister had knowledge and control of the firearm and ammunition. I find Mr.

Lister not guilty of possessing the firearm and ammunition. Remaining firearm and ammunition offences [ 98 ] Because I have found that Mr. Lister was not in possession of the firearm and ammunition, he cannot be guilty of storing those items in a careless or dangerous manner. In addition, there is no evidence that the firearm was obtained by the commission of an offence. Therefore, I find Mr. Lister not guilty of Counts 1 through 7 on Information 991098069.

[ 99 ] I point out an additional problem with the Crown’s evidence regarding count 4, possessing a firearm without a licence, contrary to s. 92(1) of the Criminal Code . [ 100 ] The Affidavit of Carole Sabourin, Firearms Officer, dated September 12, 2019 was admitted into evidence as Exhibit P-2 by consent. The officer stated that she conducted a careful examination and search of the Canadian Firearms Information System with respect to Paul Anthony Lister, date of birth June 27, 1981 .

She stated there is no record of a Possession and Acquisition Licence, Possession Only Licence or Minors Possession Licence, Authorization to Transport or Authorization to Carry, issued to that individual, in particular, between the alleged offence date of July 21, 2019 and July 22, 2019. [ 101 ] I note that the date of birth of the accused Paul Lister on all Informations as well as his Recognizance is stated as February 15, 1984 . Officer Sabourin’s Affidavit indicates she was provided the name and date of birth from Sgt. Dan Emery of the Saskatoon Police Service. [ 102 ] Mr.

Lister was not questioned about his birthday at trial, but he testified that he is 36 years of age, which is consistent with his stated date of birth on the Informations and Recognizance and inconsistent with that of the individual who was investigated by Officer Sabourin. Breach of Recognizance dated June 21, 2019 [ 103 ] Mr. Lister was required to reside at 208-215 Tait Crescent. He was to stay inside his approved residence from 11:00 p.m. to 7:00 a.m. daily and to present himself to police officers checking his residence and curfew. He was not to possess drugs or firearms and ammunition.

He was allowed to possess one cell phone registered in his own name. He was to submit to a search without warrant of his person, vehicle, cell phone or residence that he owned, operated, controlled or possessed by a police officer on demand. He was to keep the peace and be of good behavior. [ 104 ] Because I have found Mr. Lister not guilty of possessing drugs, firearms or ammunition, he did not fail to keep the peace and be of good behavior and did not breach his Recognizance. I find him not guilty of count 8 on Information 991098069. Stolen Bicycle [ 105 ] According to Mr.

Lister, the bicycle was under a tarp on the balcony when he moved in. Cst. Atkinson confirmed the bicycle was stored in this way. Mr. Lister denied bringing it to the apartment, riding it or having any involvement with it. He looked at it once and believed it to be brand new. Mr. Lister thought the bicycle might have been for Mr. Desjarlais’s wife. There was also a bicycle inside the apartment that he believed belonged to Mr. Desjarlais which he used from time to time. [ 106 ] By Affidavit of Wayne Kzyzyk, the owner of the bicycle, it was stolen on September 6, 2018.

However, there is nothing in the evidence to establish that Mr. Lister knew or ought to have known that the bicycle was stolen. I agree with the Crown that it has failed to prove beyond a reasonable doubt that Mr. Lister possessed the stolen bicycle. I therefore find him not guilty of count 9 on Information 991098069. Conclusion [ 107 ] In conclusion, I have found Mr. Lister not guilty on all counts on Informations 991098068 and 991098069. ___________________ D.C. Scott, J