Her Majesty the Queen - v. -, 2016 SKPC 126

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 126 Date: September 29, 2016 Information: 38551117, 3855115, 90014363 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Christopher H. McDougall Appearing: R. Zielke For the Provincial Crown J. P. Malone For the Federal Crown A. Hitchcock For the Defence JUDGMENT B. HENNING , J INTRODUCTION, CHARGES AND PROCEDURE [ 1 ] Christopher H. McDougall is charged with a number of offences on Information 38551117 that all occurred on or about December 15, 2015. The charges that are subject of this trial are as follows:

(1) On or about the 15 th day of December, A.D. 2015

at or near Regina, Saskatchewan did possess a prohibited weapon, to wit: a Remington 870, while he was prohibited from doing so by reason of an order made pursuant to

section 109 of the Criminal Code , contrary to

section 117.01(1) of the Criminal Code.

(2) On or about the 15 th day of December, A.D. 2015 at or near Regina, Saskatchewan did possess ammunition, to wit, 12 Gauge Slugs, while he was prohibited from doing so by reason of an order made pursuant to

section 109 of the Criminal Code , contrary to

section 117.01(1) of the Criminal Code.

(3) On or about the 15 th day of December, A.D. 2015 at or near Regina, Saskatchewan did was an occupant in a motor vehicle in which he knew there was a prohibited firearm and that no occupant of the motor vehicle was the holder of an authorization or license to possess the firearm and an authorization or license to transport the prohibited firearm or a registration certificate for the firearm, contrary to section 94(1) (a)(ii) of the Criminal Code .

(4) On or about the 15 th day of December, A.D. 2015 at or near Regina, Saskatchewan did have in his possession a weapon, to wit: bear mace for a purpose dangerous to the public peace; contrary to

section 88 of the Criminal Code .

(5) On or about the 15 th day of December, A.D. 2015 at or near Regina, Saskatchewan did not being authorized under The Firearms Act to carry concealed, a weapon to wit: a knife, did carry it concealed, contrary to

section 90 of the Criminal Code .

(6) On or about the 15 th day of December, A.D. 2015 at or near Regina, Saskatchewan have in his possession a weapon, to wit: Remington 87 Shotgun for a purpose dangerous to the public peace; contrary to

section 88 of the Criminal Code .

(7) On or about the 15 th day of December, A.D. 2015 at or near Regina, Saskatchewan did have in his possession ammunition, to wit: Shotgun Shells for a purpose dangerous to the public peace; contrary to

section 88 of the Criminal Code .

(11) On or about the 15 th day of December, A.D. 2015 at or near Regina, Saskatchewan did have in his possession a prohibited weapon prohibited device, to wit: Remington 870 without being the holder of a license under which he may possess it, contrary to section 91(2) of the Criminal Code .

(12) On or about the 15 th day of December, A.D. 2015 at or near Regina, Saskatchewan did without lawful excuse, transport a firearm prohibited weapon, to wit: Remington 870 in a careless manner, contrary to section 86(1) of the Criminal Code .

(14) On or about the 15 th day of December, A.D. 2015 at or near Regina, Saskatchewan did have in his possession property to wit: wallet with ID and Xbox One, the property of Adam Baker of a value not exceeding five thousand dollars knowing it was obtained by the Commission in Canada of an offence punishable by indictment, contrary to

section 355 (

b) of the Criminal Code .

(15) On or about the 15 th day of December, A.D. 2015 at or near Regina, Saskatchewan did have in his possession property to wit: Petro Canada Gas cards the property of Finning Canada and Kramer Ltd. of a value not exceeding five thousand dollars knowing it was obtained by the commission in Canada of an offence punishable by indictment, contrary to

section 355 (

b) of the Criminal Code . (as amended) [ 2 ] In addition it will be noted that guilty pleas have been entered with respect to counts 9

and 13. They are:

(9) On or about the 15 th Day of December, A.D. 2015 at or near Regina, Saskatchewan did operate a motor vehicle while disqualified from doings so, contrary to section 259(4) of the Criminal Code .

(13) On or about the 15 th day of December, A.D. 2015 at or near Regina, Saskatchewan did without reasonable excuse, fail or refuse to comply with a demand made to him by a peace officer pursuant to section 254(3) (

a) of the Criminal Code , to provide samples of his breath for analysis contrary to section 254(5) of the Criminal Code. [ 3 ] At the close of all of the evidence it was agreed that all of the evidence would apply to the two other information’s that had been before the court. Although the proceedings on each information is in law a separate trial, the argument proceeded on all of the proceedings together, and this judgment is the judgment for all of the information’s referred to. The application of evidence and combined argument and judgment is on information’s 3855115 and 90014363.

The charges on those two information’s, argued together, to which this judgment also applies are as follows. All charges under consideration are therefore set out above and below. Information 3855155:

(1) On or about the 15 th day of December, A.D. 2015 at or near Regina, Saskatchewan did unlawfully have in his possession a controlled substance to wit: cannabis marihuana for the purpose of trafficking, contrary to section 5(2) of The Controlled Drugs and Substances Act. Information 90014363:

(2) On or about the 1 st day of September in the year 2015 at or near Regina, Saskatchewan did operate a motor vehicle while disqualified from doing so, contrary to section 259(4) of the Criminal Code . [ 4 ] At the outset of the trial, a number of admissions were made by the defence. They are as follows: (

a) A firearm and ammunition referred to in the charges is admitted to be in fact the firearm and ammunition as charged, and the firearm is a prohibited weapon. (

b) Marijuana that is referred to is admitted to be in fact marijuana without proof of analysis. (

c) The identity of the accused throughout was admitted without specific identification or other proof. (

d) Continuity of exhibits seized is admitted. [ 5 ] It was also indicated by the defence at the outset that in the charges of possession of various items, that knowledge and mens rea would be essential points in contention. The Crown then proceeded to present its case indicating that seven witnesses would be called. PROSECUTION EVIDENCE [ 6 ] The first witness was Mr. Adam Baker. Mr. Baker indicated that he lived at 1163 Edgar Street in the City of Regina and had done so for approximately one year.

He described how a group of persons had kicked in the door of his house and stated they were part of the Regina City Police, when in fact they were conducting a criminal invasion. He was not able to identify any of the persons, but he had the impression he saw the “nozzle” of a gun carried by one person. He stated that a number of

things were taken including a large amount of alcohol and a small quantity of marijuana, an Xbox and a wallet. [Transcript, T-16, line 20-21] He described the liquor as being for a charity event that he was involved in. He indicated that his wallet contained credit cards, bank cards, a birth certificate, his social insurance number and a health card. He did not state that there was money in that wallet. [ 7 ] Mr.

Baker also stated that he used marijuana sparingly for a glaucomic condition and he was attempting to get authorization for medical purposes to keep and use it, but he did not have that at the time of the invasion. No charge was laid against Mr. Baker with respect to marihuana. [ 8 ] The defence brought out in cross-examination that in the original statement given by Mr. Baker to the police that he had not mentioned the marijuana. It was suggested later in argument that perhaps a much larger quantity of marijuana found in Mr. McDougall’s vehicle may have originated with Mr. Baker.

The defence position was that except for one small amount, all of the marijuana found in the Accused’s vehicle was there without his knowledge. The marijuana subject of the charges must be proven to be in Mr. McDougall’s possession, regardless of where it might have originated. [ 9 ] The next witness was Mr. Stanislav Gendreau of the Regina Police Service. He indicated that he was part of the “Investigative Response Unit” that dealt with various firearm, violent drug and gang related offences, and when Mr. McDougall was arrested he became involved.

This was because a firearm, ammunition, alcohol and other items of interest had been seized by the initial investigators who dealt with Mr. McDougall. He reviewed a file at the police service that dealt with the home invasion described by Mr. Baker. He connected the items seized as possibly coming from that home invasion. He was able to confirm from a serial number that the Xbox was the one stolen from Mr. Baker and it was found in a vehicle connected with Mr. McDougall.

Other items, marijuana, a sawed-off shotgun and ammunition for it were found in that vehicle and are the subject of charges. [ 10 ] Constable Gendreau proceeded to interview Mr. McDougall with Constable Sebulsky, also of the Regina Police Service as a monitor. No statement of the Accused was introduced by the Crown. However, Constable Gendreau did state that the interview focused upon the home invasion incident. He indicated that he became aware that the victim’s wallet (Mr. Baker’

s) had been found in the vehicle and also a significant amount of marijuana. He telephoned Mr. Baker again to confirm some of the details of items taken. Constable Gendreau indicated that the car that Mr. McDougall had been found in was a Lincoln Navigator, which was described in more detail by other witnesses. [ 11 ] This vehicle had been taken to a secure compound of a company called “ABC Towing”. This was after the vehicle had been found on a public street in Regina with Mr. McDougall in it. More details of that came from subsequent witnesses.

Constable Gendreau indicated that he inspected the vehicle and took note of the vehicle’s tire tread pattern. Constable Gendreau did not give expert evidence on comparing tire tread patterns, but he was of the opinion that there were similarities in the tire pattern of this particular Lincoln Navigator to the tire tracks or patterns that were left at the scene of the home invasion. Similarity of tread patterns is a straight-

forward observation that does not require

interpretation or expert knowledge to make. It may, of course, be challenged in a number of ways, but it was not so challenged. The comparison made by Constable Gendreau may have been made by the use of photographs from the crime scene with Mr. Baker, and the vehicle itself. No issues were raised with respect to the manner of comparison, and the defence appeared later to be content to refer to this as being in favor of the defence as no connection of the Accused’s footwear was made. No inference with respect to Mr.

McDougall results from this evidence. [ 12 ] The next witness was Tyler Sebulsky, a Corporal with the Regina Police Service. Corporal Sebulsky was also part of the investigative response unit which is a plain clothes unit that assists patrol members with major investigations. He indicated that he had attended to the scene where Mr. McDougall had originally been apprehended.

The scene was one that involved a person passed out behind the wheel of a vehicle, and in monitoring the description of this investigation over police radio, there was reference to a firearm which triggered interest and resulted in the attendance of police members Sebulsky and Gendreau. He and his partner then proceeded to assist Constables Fay and Wade who were there already dealing with some seizures that had come from Mr. McDougall. [ 13 ] Corporal Sebulsky indicated that they examined various items of interest including a wallet that included gas cards from two companies, ‘Finning’ and ‘Kramer Ltd’.

He proceeded to determine by investigation to whom these belonged. The names on the cards did not include Mr. McDougall. He found they were corporate cards. The result of his investigation is hearsay, but it was not challenged by any assertion that the cards were Mr. McDougall’s. They may have come from the home invasion, but that was not confirmed specifically by Mr. Baker. [ 14 ] Corporal Sebulsky indicated that it had snowed the night before, and so he examined photos that had been taken at the scene of the home invasion showing both foot prints and tire tracks. He was not able to match Mr.

McDougall’s foot wear with any of the foot prints that had been photographed at the scene of the invasion. However, he did examine photographs of tire tracks and he was of the opinion that there was a clear match with the Lincoln Navigator that Mr. McDougall had been found in. This would suggest that the vehicle had been at that scene. This is some evidence that Mr. McDougall’s vehicle was at the scene of the home invasion, additional to the finding of items from that crime in the vehicle. [ 15 ] Mr. McDougall is not charged with respect to the home invasion (robbery and break-in) of Mr. Baker’s residence.

No identification of footwear impressions was obtained that might have connected Mr. McDougall to the scene. That fact, however, does not disprove or exclude him from having participated in that event. Items found in his vehicle, which form the basis of

possession charges before the court, were identified as coming from that event. [ 16 ] The next witness was Ms. Lesley Donst. She identified herself as an advanced care paramedic with the Regina EMS. She went through her qualifications. She spoke of a scene that involved the accused person Mr. McDougall. She indicated that she and her partner, Jaclyn Westaff were sent to the Ring Road and Mcdonald Street ramp area in Regina. There was a stationary vehicle, the Lincoln Navigator described, on the off-ramp on a downward incline, and a lone male person in it who was unconscious.

She stated that when they arrived there were bystanders on the scene who pointed out the vehicle and the person in it. They gave her the information that they had been unable to wake up that person by activity that included banging on windows and sounding horns. The vehicle had locked doors and they could not enter it. One person had parked their vehicle directly in front of the Lincoln Navigator and another was parked directly behind it. These persons had been concerned because the Lincoln was in gear and could move. [ 17 ] Ms.

Donst described how she and her partner approached the vehicle and had pounded on windows, yelled and checked all of the doors to see if they could enter the vehicle. They called their supervisor to get permission for a forced entry. The witness referred to a patient care report, which had been made immediately after the event, and that was accepted as a suitable note for refreshing memory. From her notes she indicated that they had arrived at the scene at 12:48 hours and had made immediate contact with the patient.

She indicated that her partner broke the window, unlocked the door, and then they both entered the rear seat from opposite doors. She entered behind the driver and her partner turned the ignition off. There was a person in the driver’s seat who was Mr. McDougall. The witness indicated she put her arms around the unconscious person so that if that person woke up and was startled no harm would happen to her partner. They left the keys in the ignition and all doors were unlocked. Ms. Donst then got out of the backseat and opened the driver’s door and put the vehicle into park.

She proceeded to rub the patient on the sternum to stimulate him into a conscious state. [ 18 ] The person did wake up and appeared confused. They told him that he had been passed out and they needed to check him out. He denied being passed out. Christopher McDougall was the only person in the vehicle and no other person connected with the vehicle was seen. Mr. McDougall got out of the vehicle and he did not need assistance, but he did need some persuasion to do that. He walked back to the ambulance and the police arrived on the scene at about that time. [ 19 ] Ms. Donst stated that Mr.

McDougall answered questions but not appropriately, in her opinion. He said everything was fine and upon questioning he denied using alcohol or drugs.

Ms. Donst felt his responses were not appropriate as he was asserting that nothing was wrong, and she did not think that was the case. However, some of his responses were appropriate as well. [ 20 ] This discussion was occurring in the back of the ambulance. One of the officers came to them and indicated that a firearm had been found and Mr. McDougall was put in handcuffs. Ms. Donst indicated that they checked his pockets and found a bag of marijuana, or what they took to be marijuana, as well as a knife. Those items were given to a police member.

She indicated that there was one male and one female police member present at that time. [ 21 ] Ms. Donst also stated that in the vehicle she noted that there were empty beer cans as well as what might have been a bag of marijuana in the center console of the SUV. She indicated that Mr. McDougall was uncooperative with checking to see to see if he was hypoglycemic, which to them was a concern and possible cause of unconsciousness. He would not sign a form confirming his refusal to accept their services and confirming his wish not to go to the hospital. Ms.

Donst gave the opinion that she thought he was impaired in some way but did not give any further details or opinion. [ 22 ] The next witness was Jaclyn Westaff who was also a paramedic with the Regina EMS. She gave evidence to much the same effect as the prior witness, Ms. Donst. They had been dispatched to an unresponsive male person in a running vehicle and they observed bystanders at the scene who had been unable to wake up the person in the vehicle. She indicated she had been the one who found the marijuana on Mr. McDougall’s person. She confirmed with reference to her notes that Mr.

McDougall had denied that anything of significance had happened to create this situation. He denied drug use and admitted to drinking “a few beers”. Neither this witness nor the last witness indicated that they noted any firearm in the vehicle. [ 23 ] Ms. Westaff described the scene in somewhat more detail, placing the vehicle on an off ramp from ring road so that it was facing a decline and that the ramp would connect to McDonald Street, a major street in the northern light industrial area of Regina.

She confirmed that the vehicle was running and that it was in gear. [ 24 ] This concluded the evidence taken on June 29, 2016, and the case was adjourned for continuation which occurred on July 21, 2016. At the beginning of the second day Mr. M. Miller appeared for the Provincial Crown and indicated that provincial prosecutors would not be attending further that date. The case continued with Mr. J.P. Malone for the Federal Crown. [ 25 ] The next witness in the trial was Constable Grant Campbell of the Regina Police Service.

He had been working on general patrol on the day in question and had been dispatched to the person on the ring road in a Lincoln Navigator vehicle. He indicated that the EMS personnel were on the scene when he and his partner arrived. They were assisting a person out of the vehicle. He was with a Constable Fay and they both went to the ambulance with the person removed from the vehicle. He described the vehicle as a large SUV with four doors. He also described the off ramp from an over pass that allowed one to go north or south on McDonald Street.

He stated that the vehicle had been stopped in a suitable position if the light that controlled the intersection was being waited for. When he approached the vehicle he saw immediately a sawed off shotgun on the floor of the vehicle. It was on the floor of the vehicle on the driver’s side not as far forward as the pedals of the vehicle, but not in any way under the seat. The muzzle was facing toward the center console of the vehicle. The breach of the firearm was downward on the floor of the vehicle and therefore not visible.

Constable Fay, who was his partner, was with the ambulance at this point and he immediately went there for safety reasons. This would have been the point at which Mr. McDougall was handcuffed. He then returned to the vehicle and made the firearm safe. It had not been loaded with any ammunition. [ 26 ] He indicated that Mr. McDougall was placed in Constable Wade’s vehicle for transportation to the Regina Police Service. Two police vehicles were present at that point. He and Constable Fay searched the Accused’s vehicle.

Constable Fay acted as the exhibit officer. [ 27 ] The next witness and final witness for the Crown was Constable Lisa Fay. She described the scene much as it had been by other witnesses. She stated that she talked with the accused Mr. McDougall in the ambulance. He had identified himself to her. While she was talking to him Constable Campbell came up and indicated that a sawed off shotgun had been found in the vehicle as well as a quantity of marijuana. She told Mr. McDougall that he was under arrest for possession of marijuana having a prohibited firearm and for impaired driving. She placed him in handcuffs.

Marijuana had been found on his person as well as a knife. She escorted him from the ambulance to the police cruiser with Constable Wade. She stayed at the scene and searched the vehicle with Constable Campbell, seizing evidence from the vehicle. She placed the evidence in her police cruiser and exhibited the items at the police service when they returned. She describes the vehicle in some detail and also gave a description of the area in which they had encountered it. [ 28 ] Constable Fay described Mr.

McDougall as having red eyes, slow movements, loss of fine motor skills and being somewhat drowsy as if he had just been awakened. In her opinion he was under the influence of alcohol, or alcohol and drugs. He was still able to interact with her. He appeared to understand rights and warnings that were read to him. She indicated that as she dealt with him he became more and more hostile. He refused medical care from EMS. She

stated she found the marijuana in his right front pants pocket and also a knife as the EMS persons were interacting with him. [ 29 ] She went on to describe exhibits seized and the manner of exhibiting them. This occurred at the Regina Police Service. The prosecution exhibits presented at trial were not all of the items seized shown in the exhibit report, and some documentary exhibits were presented at the close of the Crown case, which were not items seized. The exhibits P-1 to P-21 were presented through this witness. However, for ease of reference the complete list of prosecution exhibits are as follows: No.

Description Page Vol.

P-1 FOR IDENTICIATION – Drug property report T88 2 P-2 Knife T89 2 P-3 Shot gun T92 2 P-4 Marijuana T95 2 P-5 Beer can T95 2 P-6 Bear mace T96 2 P-7 Cell phone T97 2 P-8 iPad T97 2 P-9 Wiser’s whisky bottle T98 2 P-10 Kokanee can T98 2 P-11 Marijuana T98 2 P-12 Marijuana T100 2 P-13 Marijuana T102 2 P-14 Set of keys T102 2 P-15 Licence Plate T102 2 P-16 Cigarette butts T103 2 P-17 Black wallet T104 2 P-18 Vet bill T105 2 P-19 Business card T106 2 P-20 $190 cash T106 2 P-21 Petro-Canada SuperPasses T107 2 P-22 Certified copy of firearms prohibition order T117 2 P-23 Certificate of analysis of firearms and ammunition T118 2 P-24 Certified copy of driving prohibition order T118 2 P-25 Criminal record of the accused T140 2

[ 30 ] Constable Fay described the items. The shotgun exhibit P-3 was accompanied by two shot gun shells that were in storage in a compartment of the weapon, but not loaded for firing. The next item, exhibit P-4 was consisted of two bags of marijuana weighing 15.92 grams in one bag, and 15.18 grams in the other, found in plain view on top of the center console. Exhibit P-5 was a Miller beer can found in the cup holder adjacent to the driver’s seat. Exhibit P-6 was a container that appeared to be bear mace, and it was found in plain view on the front passenger seat. P-7 was a cell phone; and P-8 was an iPad.

Exhibit P-9 was a Wiser’s whisky bottle, 25 ounce size, in plain view on the front passenger seat with the bear mace and iPad. [ 31 ] P-11 was a package of 28.01 grams of marijuana found in the middle console of the vehicle. P-12 was also marijuana, 17.97 grams, found in Mr. McDougall’s pants pocket.

P-13 was the largest package of marijuana located in a black back pack in the trunk or rear storage area of the vehicle, and it weighed 64.42 grams. [ 32 ] A licence plate was exhibited as P-15 which was also found in the trunk area of the vehicle. [ 33 ] A black wallet was found and it is described in the charge as belonging to Mr. Baker, the home invadee. It was never presented to Mr. Baker and identified as his. It had also been found in the same backpack with the marijuana. It was exhibited as P-17.

Significant items were found inside of this wallet, including the two credit cards described and subject of a charge. It was tendered as Mr. Baker’s wallet. [ 34 ] One item was a veterinarian bill, Exhibit P-18, with Christopher McDougall’s name on it for services obtained and it was found in the same black wallet with Mr. Baker’s identification. The veterinary bill became exhibit P-18. The next item was what the Crown described as a “score sheet”, and is exhibited as P-19 ‘business card’. It has a number of names and tick marks on the reverse side. It is a Central Auto Rentals and Sales business card.

It was also found within the Timberland wallet P-17, from the black backpack in the back of the vehicle. Mr. McDougall subsequently identified P-19 and gave evidence explaining that this alleged ‘score card’ was a different kind of record keeping card. Regardless of its true purpose, it is connected to him, along with the veterinary bill inside Mr. Baker’s wallet. [ 35 ] The wallet also contained one fifty dollar bill and seven twenty dollar bills for a total of $190.00 in cash, which was marked as Exhibit P-20. This amount of money was the amount that Mr. McDougall stated later in his evidence that he had.

The wallet also contained two Petro Canada ‘SuperePass’ cards one in the name of “Kramer Ltd.” and the other in the name of a company “Finning or Fitting Canada” and they formed the basis of a charge. They became

Exhibit P-21. That completed the exhibits for the prosecution. [ 36 ] The defence cross-examined Constable Fay with respect to her grounds for making a demand for examination for a drug recognition expert. She believed that he had been under the influence of alcohol and drugs as both had been found in the vehicle. She read the drug recognition examination demand to him from a card. In evidence, she went over the grounds that had been stated earlier for making a demand.

In cross-examination it was brought out that a vaporizer and a “vape accessory” had been seized, and that vaporizer was exhibited as D-1. [ 37 ] Constable Fay also indicated that exhibit P-6, the bear spray, was not tested to determine if it was in fact what it was labelled to be. Constable Fay was cross-examined at some length about her observations and the fact that she is also qualified as a registered nurse and practices as such in her own time.

She made some additional notes to give to the prosecutor between the first day of evidence in this trial and the day on which she testified and there was brought out by the defence that the notes contained possible inconsistencies with her observations and earlier notes and observations. However, they do not appear to have any significance. She explained that some of her observations were based on her medical training and did not reflect the wording that would be used for legal purposes.

Much of this discussion centered upon the terms “consciousness” and “impairment” the first of which the witness considered to be a medical term, and the second to be a legal term. [ 38 ] At the close of the Crown’s case the prosecutor tendered some certified copies of documents. Exhibit P-22 was a certified copy of a firearms prohibition made against Mr. McDougall. The next exhibit, P-23, was a Certificate of Analysis of firearms and ammunition with respect to the shot gun shells and the shot gun exhibited. Exhibit P-24 was a certified copy of a Driving Prohibition Order. That completed the Crown’s case.

The defence reserved the right to argue on the admissibility on the last two exhibits which had not been disclosed prior. On recommencement of the case at 2:00 p.m., no objection was taken to receiving those documents as full exhibits for the proof of their contents. Those documents were under the seal of the court and are receivable without further proof or notice. However, Mr. McDougall in cross-examination later, admitted to being prohibited from possessing ammunition and firearms, and that he was also a prohibited driver. DEFENCE EVIDENCE [ 39 ] The defence called Christopher McDougall.

He accepted that it was he who was found in the Lincoln Navigator vehicle on December 15, 2015 and he was asked to describe his activities the night before.

[ 40 ] Mr. McDougall indicated that he had been working from around nine in the morning the day before on the Lincoln Navigator as it was not running. He finally got the car started about 6:30 p.m. or 7:00. He decided to drive it. He is not a qualified mechanic but he was rather proud of the fact he was able to solve whatever the problem had been with the vehicle. In his evidence at one point he said that the vehicle had been a gift from his mother, but he also referred to making payments for it.

He also indicated he had been working for a construction company doing grade beams and basements and concrete work, in about 2008 or 2009 as well as other random jobs since in the construction industry. He stated that he never had any identification— none whatsoever. This is hard to understand if he had any regular employment at any time. He admitted that he had a criminal record and that this record was “kind of lengthy”. [ 41 ] He was then asked what he did with his vehicle. He went on to describe as follows which is from a transcript prepared of the proceedings. T-123 lines 17-41to T-124 line 1-22: Q.

What did you do after you fixed this vehicle? A. I, kind of, didn’t really have permission to take it out ‘cause, like, I wasn’t paid for it or anything. Like, I was just – be working on it. But I just, kind of wanted to see that it was running properly and took it around the block a couple of times.

And that’s when I noticed a similar vehicle and I just, kind of, wanted to drive it home to show my girlfriend that, you know, I got it running and now she has a car, a nice car that she’s going to be able to drive. ‘Cause I don’t have licence, so I was going to be – it was, like, my car but she would be the one driving it. Q. What do you mean you, kind of, didn’t have permission to take it out? A. Well, I just wasn’t allowed to, like, take the car. I was supposed to be working on it.

I wasn’t like, allowed to be driving it around ‘cause if the guy that I was buying it from, he almost got a dealership and, like, the information I had was just to drive – I mean, just to work on it, get it running. Q. Were you making any payments on this vehicle? A. Yeah, I was. I was making $100 payments and then I – Q. So what – what was the price you agreed on before you could say you owned the vehicle? A. It was going to be – it was, kind of, expensive; $8,500. Q. Now – so when you’re driving the vehicle around, what happened next? A.

I noticed a similar car to mine and I – I ended up taking the plate off of it and putting it onto the Navigator, the one I was driving. Q. Why did you do that? A. To be honest, I just wanted to drive it home and show my girlfriend, I guess. And I, kind of, didn’t want to have – driving with an old plate or the plate that was on it wasn’t a proper plate, I guess. Q. So you were driving with no plate and then you put a plate on it? A. Yeah. Q. Where did you go after you put the plate on it? A.

I went to a Tim Hortons and got myself a coffee and then from there I – I was driving down 4 th Avenue towards Lewvan Street. And across Lewvan is going to be to go home. And I just, kind of, thought to myself, maybe I should take it onto Lewvan and see if would drive properly at those speeds. And then I went to a 7-Eleven to get my girlfriend a Slurpee and that’s when I ran into a friend. Q. Do you remember around what time this would have been? A. This would have been about going on 8:30, close to maybe 9:00.

Q. And we’re talking December 14 th of last year; is that right? A. Yes. [ 42 ] At this point Mr. McDougall indicated that he met a friend and deferred the thought of going and seeing his girlfriend. The friend he met had no last name known to him. He explained it is common not to know his acquaintances real names. They went to some house in the cathedral area by the Safeway Store just off of 13 th . He went in and had some drinks. He did not know the owner of the house who was there with her boyfriend and some other girls. This was around 9:00 p.m.

He said that he had perhaps three or four beers, and that then was changed to “two shots, I guess”. It is not clear if these were instead of the beer or in addition to the beer. At some point they were asked to leave the house and so he and his friend Tommy and the three girls left. They then proceeded to another house in Harbour Landing area, a condominium, which he doesn’t know the address of. He drove to that destination and continued drinking with more people there. He said there were a lot of people there, perhaps 15 or 20. [ 43 ] He met a girl who approached him.

He was also approached by a “bigger white guy” who asked if he could take him to the store. This person was not named but was called “Crazy” and came from Saskatoon. Mr. McDougall said they had only been there 20 minutes and it would have been 10:30 going on 11:00, and he did not want to leave when asked for a ride. He stated that ‘Crazy’ asked for a ride to get “smokes”. As he didn’t wish to go, he lent him his car. This was the car that he obviously valued, which had a stolen licence plate and which he did not have ownership of, yet.

When asked by his counsel why he would do such a thing he indicated he was just trying to be nice, or show off, or something, so he gave “Crazy” the keys. He stayed at the house sitting on the couch. He continued partying and drinking but time went by and he was starting to get anxious after 45 minutes. This person didn’t return. Mr. McDougall indicated some degree of concern as he didn’t know the vehicle’s VIN number, didn’t have a bill of sale and it wasn’t even his car, so he couldn’t call the police.

Nobody at the party seemed to know very much about the person ‘Crazy’. [ 44 ] However, at about 1:00 a.m. he saw lights pull up into the driveway and he went outside and the car had returned and he asked why he had been away so long. Crazy and two others got out. He was told that it was necessary for them to get some friends and a guy in the backseat got out with a brown box and it had the sound of bottles in it. The two persons got out of the car from the passenger side of the front seat and from behind the driver. Crazy then grabbed a bottle out of the box and threw it onto the driver’s seat of the vehicle.

This was, perhaps, repayment for use of the vehicle. Mr. McDougall at that point did not go and look in the vehicle, he says, but he did look to see if there were any scrapes or dents on the car.

[ 45 ] He indicated that he was angry but somewhat intimidated by these people. He let them know that he was angry and they gave him “a little bit of marijuana”. Mr. McDougall said he offered him $80.00 for the marijuana but Crazy accepted just half of that which was sort of a deal. This transaction is noteworthy, as it involved payment of money by Mr. McDougall who later in his evidence made reference to having left his wallet in the vehicle and not seeing it again. It is possible he had additional money in a pocket rather than in the wallet he referred to.

He did later state that he had $190.00, which is the amount found in P-17. It is worth noting that this wallet exhibited is referred to throughout as Mr. Blake’s wallet, but it was never shown to Mr. Blake, nor to the Accused, when each testified. The Accused and the other persons then went into the house again. He indicated that he was feeling somewhat better after getting the bottle and the “deal”. So they all continued partying until the early morning hours. Mr. McDougall said he drank quite a lot. [ 46 ] Mr.

McDougall states that at 5:25 on the morning of December 15 he left that location, and he is quite specific on that timing. It was still dark outside. Mr. McDougall said he knew he was intoxicated and Crazy had asked for a ride home but he didn’t want to do that, and he didn’t want to leave his car there, so he made a decision to drive home in any event. He went out to the car and got in. He says that he did not look around very much. But he “noticed a bag of weed, kind of like, right – right beside me. There was two of them. And I kind of, wish I would have told him that he left it.

But at the same time I remember thinking in my head, like, fuck him. You know he took how long with my car I am keeping this”. [ 47 ] Mr. McDougall claims that his sobriety on a scale of one to ten was about nine, but he thought he could make it home. But the next thing he remembers was waking up with an EMS person working on him. He asserts that he has no memory whatsoever from 5:30 p.m. until he was found in a location on the Ring Road, some seven hours later and a considerable distance away, at approximately 12:45 p.m. [ 48 ] Mr.

McDougall states that he never looked in the trunk of the vehicle or the back seat. He stated he looked in the center console to try and find his wallet, but then he remembered he left it in the vehicle, in the cup holder in the front. However, he didn’t care anymore where it was. His wallet contained money that he owed for the Navigator with “the card”, P-19. He identified the Central Auto Card which the Crown had tendered as a possible score card for sales of drugs. Mr. McDougall then went on to describe what his claim to the vehicle was, and his dealing with the car dealership.

He claims he got the Navigator “kind of like” and he kept track of the money he was giving the seller on this little card. He would put down $100.00 from time to time. The deal with the auto company was made with a person named Dan, and he did not know his full name, but he was from Central Auto. He said that each tick or line drawn on the

card represented a payment of $100.00. There were 12 lines representing 12 payments. Mr. McDougall said “I wasn’t actually going to be able to get full possession of it until I was closed to $5000.00 he said so I just was like – like I said I had permission to work on it and not to drive it”. [ 49 ] The defence went on to ask about the backpack which Mr. McDougall stated was not his. It had not been there before he left the vehicle, and he stated he did have any knowledge of the backpack, its content, or of a shotgun in the vehicle, or a can of bear mace. Mr.

McDougall also stated he had nothing to do with the home invasion and robbery of Mr. Baker. He stated that Crazy had the vehicle from a period from about 11:00 p.m. until 1:00 in the morning. [ 50 ] Mr. McDougall went on to describe in some detail how he got into the vehicle and how he had to step up into it. He did not describe the lighting system in the vehicle, or any other street lighting or other ambient lighting that might have been in the area. Mr. McDougall also went on to describe the knife as something he used as a tool. [ 51 ] The Crown commenced their cross-examination of Mr.

McDougall with a review of his criminal record. It included convictions for not following court orders, property offences and assault convictions. Not all of the record was for activities as an adult. He admitted to using drugs and alcohol but asserted that he was not addicted. On the night in question he admitted to smoking marijuana as well as drinking alcohol, and he also appeared familiar with the use of cocaine. He indicated that his memory was fine up until he lent the vehicle. He again denied having any participation in the activities with Mr. Baker. [ 52 ] Mr.

McDougall went on further about the understanding that existed with respect to this vehicle. It was to be kept in his garage and he could work on it, but it was not supposed to be driven. He indicated that the plate found in the trunk of the vehicle was not stolen and that he had gotten it from Central Auto Sales with the vehicle. Police inquiry suggested it was stolen, but Mr. McDougall was also clear in admitting to stealing the license plate that was actually on the vehicle. [ 53 ] Mr.

McDougall was asked to describe his drinking pattern in more detail, but it was not clarified to any significant extent, and he denied either sleeping or passing out. One of the few things he was very specific about was leaving at 5:25 a.m. because he had seen that time on the stove in the house as he left. He asserts that he was still under the influence of alcohol when he left and had not sobered up significantly, but he isn’t able to state how much he did drink.

In particular, he does not state that he drank any significant amount just before leaving, or that he took drugs for the period of several hours before he left. There was cross-examination about

possible statements on a Facebook page with respect to that evening, but nothing came out that could be considered as having evidentiary value. Mr. McDougall again asserted that after he started the vehicle he could not remember anything including: leaving the Harbour Landing area, where he was for the next seven hours, or how he came to be on an off ramp off ring road unable to be roused. He insisted that he never noticed the shot gun on the floor of the vehicle. Mr. McDougall asserted again that he had no knowledge of the significant quantity of marijuana in the backpack. [ 54 ] Mr.

McDougall was asked about how he came to be at an intersection of the off-ramp, but he could give no explanation of how he got there or of having any recollection of events preceding that moment. He did however assert that he left his wallet in the vehicle, including cash that he did not find again when he checked. He was not asked for any explanation for why Mr. Baker’s wallet would have some items in it relating to him [the veterinarian bill, the business card containing hieroglyphics that he interpreted, or the $190.00]. It is clear, however, that items of Mr. McDougall’s were found in it. Mr.

McDougall said he had left his wallet in the vehicle, so it would be open to speculate that whoever had the vehicle and robbed Mr. Baker was responsible for placing his items in that wallet. Mr. McDougall also stated at one point that he had money, approximately $190.00 after going to the 7-11 store, which is the same amount that was found in the wallet. [ 55 ] Mr. McDougall was also asked about possibly smoking marijuana in the vaporizer that was in the car, which he admitted to owning. After some discussion he admitted to smoking marijuana in the vaporizer in the form of a substance called “shatter”.

This was before the evening started. He admitted that his was the name on the veterinary bill, and it was his.

SUMMARY AND ARGUMENT [ 56 ] At the close of all of the evidence it was agreed that the evidence would apply to the two other information’s that had been before the court. This is noted above. They are information’s 3855115 and 90014363 and allege offences as follows: Information 3855155:

(3) On or about the 15 th day of December, A.D. 2015 at or near Regina, Saskatchewan did unlawfully have in his possession a controlled substance to wit: cannabis marihuana for the purpose of trafficking, contrary to section 5(2) of The Controlled Drugs and Substances Act. Information 90014363:

(4) On or about the 1 st day of September in the year 2015 at or near Regina, Saskatchewan did operate a motor vehicle while disqualified from doing so, contrary to section 259(4) of the Criminal Code .

In addition, there were guilty pleas entered on some counts in information 385511157 as noted at paragraph 2 above, that is, drivingwhile disqualified and refusal to comply with a demand for a breath sample. [57] Argument on all of the charges then proceeded with the defence first. Mr. Hitchcock referred to the fact that possession was part of many of the charges, and that his position was that possession involving knowledge and control required specific intent.

The defence has cited a number of cases: R v Bouchard-Lebrun, 2011 SCC 58, [2011] 3 SCR 575 R v Daley, 2007 SCC 53, [2007] 3 SCR 523 R v Robinson, (SCC), [1996] 1 SCR 683 R v Tatton, 2015 SCC 33, [2015] 2 SCR 574 R v Laplante, (SKQB) A great many cases have reviewed various circumstances from which knowledge and control may be inferred, but in this particular case, the defence position is that due to intoxication, the mental element was not present. The defence argued that the possession of marijuana, the firearm, ammunition, the Xbox, the backpack and its contents did not exist at law because Mr.

McDougall had no knowledge whatsoever of their existence, notwithstanding that the items were in the vehicle for some time when Mr. McDougall was apprehended. This is what Mr. McDougall stated in evidence. Other related charges of storage, transport, etc. relating to the firearm result from the possession charges. [58] The defence argued that the case for possession of these items was circumstantial, and that is indeed so. There is a mental element of these charges that does include knowledge, even if specific formed intent to possess is not required.

The Crown cited the case of R v Bennett, (NL PC), a case where an accused person raised the defence of intoxication sufficient to prevent any knowledge if marijuana found on his person. The case reviewed many leading decisions defining possession ofitems and analyzed knowledge and control in various contexts. The case considered possession of prohibited substances under theControlled Drugs and Substances Act, and whether this required general or specific intent, and it was concluded that it was a case ofgeneral intent. The case also made reference to

section 33.1 of the Criminal Code, RSC 1985, c C-46 which disallows defences forviolent offences against the person based upon voluntary intoxication to situations where only general intent is required. In Bennet, supra,the judge concluded that only automatism could produce a lack of the requisitive knowledge for possession of marijuana. I conclude, asin Bennet, supra, that general intent is all that is required in a case of unlawful possession. There does not have to be further consciousacceptance of the knowledge with any plan to act upon it. If one knows of an item, and has control, then that is possession.

However, thedefence here is that there was no knowledge of the possession—the items were not known to the Accused. This goes further than thesituation in Bennet, supra. Even general intent offences require some conscious element, and in my opinion, the defence arguments herecould apply to an offence of general as well as specific intent.

Even general intent requires a degree of mental element equivalent toawareness of the existence of a prohibited item. [59] The other Crown case cited, Swietlinski v R, (SCC), [1980] 2 SCR 956 was a murder case occurring before the Supreme Court considered the ‘constructive murder’ provisions of the Criminal Code under the Charter, and also before the passage of

section 33.1 supra, and it does not offer as much assistance as the Tatton case, supra. The case of Tatton, supra, is the most

recent Supreme Court case considering the question of the mental element in offences, and particularly general and specific intent. [60] In Tatton, supra, Moldaver, J. at paragraphs 20 and following, defines the issue. At paragraph 37, he characterizes specific intent as having a “heightened mental element” relating to consequences. He concluded that in that case that the consequences of acts that resulted in fire do not specifically have to be foreseen in order for the offence of arson to occur if the causative actions that led to the fire are deliberate or reckless.

Only the general intent to do them is required, and the unforeseeable results flowing from the risky behavior requires do not convert it to an offence of specific intent—those results do not have to be contemplated by the perpetrator. Similarly, in the possession of an unlawful substance, knowledge—the item’s existence and character—combined with control is all that is required for possession. Further complex reasoning and intention with respect to the item is not required. The offence of possession of cannabis for the purpose of trafficking is entirely different and fits within the distinction between.

It requires specific intent. [61] I therefore accept that though we are dealing with possession offences of general intent, there is still a limited mental element that must be proven, and that mental element must include conscious realization that the item exists. Mr. McDougall argues that minimal mental element did not exist. Some cases deal with the issue of how that situation might exist, and it has been usually found to be possible only with automatism, which is not argued to be operative here.

There are, however, in my opinion some rare circumstances where the total lack of knowledge asserted by the defence could exist, and not necessarily only due to use of mind-affecting substances. Also, this case does not appear to be one of the situations to which

section 33.1 of the Criminal Code would apply and eliminate voluntary intoxication as a matter of public policy from being considered as a defence. [62] However, and this is a most important point, for the defence argument to succeed beyond a theoretical possibility, the court must accept Mr. McDougall’s evidence, or at least consider it to have the potential to be true to raise a reasonable doubt, as set out in the cases cited below. This is not a case where there is opposing evidence of witnesses to be considered, but it does involve the weighing of Mr.

McDougall’s evidence to determine whether it has sufficient credibility to counter inferences that might reasonably be drawn according to law from the circumstances in which he was found. It is useful at this point to review the commentary in the case of R v M. (P.N.), (SK CA) wherein in Tallis, J stated the following on the subject of weighing of evidence, evidentiary burden, and reasonable doubt: In fact, both the Supreme Court of Canada and this Court have recently considered this question, and suggestions have been made aboutwhat must be included in the charge to the jury: R. v.

W. (D.) (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.); and R. v.

C.W.H. (1991), (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.). What follows is a composite of the instructions given inthose two cases. The first, third and fourth instructions come from the judgment of Cory J., who gave the majority judgment in R. v. W.(D.) at p.409. The second instruction is suggested by Wood J.A., who gave the judgment of this Court in R. v.

C.W.H., at p.155: First, if you believe the accused, obviously you must acquit; Secondly, if, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

It was stated by Cory J. at the same page that this precise language is not required in every case. It should also be noted that Cory J. wasdealing with a case where there was very little circumstantial evidence, and he naturally directed his attention mainly to the conflictingevidence of the complainant and the accused. ... This case also required a careful instruction on the burden of proof and reasonable doubt. The following passage from the decision ofCory J. in R. v.

W. (D.), (SCC), [1991] 1 S.C.R. 742 at p.757 is apposite: In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. Thetrial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trialjudge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused.

Second, ifthey do not believe the accused’s evidence but still have a reasonable doubt as to his guilt after considering the accused’s evidence in thecontext of the evidence as a whole. See R. v. Challice (1979), (ON CA), 45 C.C.C. (2d) 546 (Ont.C.A.), approved inR. v. Morin, supra, at p.357. In my opinion these observations apply with equal force to situations where the focus is on reliability as well as credibility. [63] Having concluded the defence proposition that Mr.

McDougall did not have any awareness or knowledge of various items in his vehicle is a possible defence at law, there must still be assessment of his evidence as to whether it is credible to determine if there is any factual basis for such a defence. Mental state, including knowledge, may be inferred from facts and circumstances. Mr. MacDougall asserts that he has no knowledge over a period of seven hours, in which a person might be expected to acquire knowledge of what was readily apparent in his vehicle, or was located with his personal items.

His evidence to that effect must be considered in some detail to determine if it has credibility. If the court should conclude that his evidence is not credible, the court would still have to consider whether the Crown has presented sufficient evidence to prove the offences charged. Further if possession is proven, the doctrine of recent possession might have relevance, which is set out in the case of R v Kowlyk, (SCC), [1988] 2 SCR 59. The Crown did suggest that the evidence of Mr. McDougall was not credible and should not be accepted.

The defence in argument admitted that items in the vehicle came from the break-in and robbery.

[64] The defence speculated that the drugs may have been Mr. Baker’s, but that, in my opinion does not assist the credibility of the defence, even if it were true, which is impossible for the court to conclude. Whether the drugs came from the person(

s) who had use of Mr. McDougall’s vehicle, and whether they obtained it from Mr. Baker is irrelevant. Similarly, the fact that his shoe prints were not identified at the scene of the break-in is of no weight or relevance. If his prints did match, that could be some circumstantial evidence of his presence there, but the lack of such prints does not constitute evidence to the contrary and establish that he was not there. The absence of shoe prints is not a factor that assists in the case. [65] There are issues with Mr. McDougall’s assertion of total lack of memory and knowledge.

Particularly, these include the following issues: a. Mr. McDougall had consciousness at 5:25 a.m. when he drove the vehicle away, prior to ending up seven hours later in a very different location. He was conscious when he left at 5:25, and he also had to be conscious immediately prior to being found in the vehicle on the Ring Road off-ramp seven hours later.

There is a logical difficulty in asserting that he had no awareness whatsoever of seven hours with the vehicle when it was apparent that he was capable of operating it in order for him to be found some considerable distance and time away from his departure point. He has not asserted automatism, but only intoxication. On cross-examination, he did make a partial admission to having awareness of the marijuana that was on top of the center console. He had to have more consciousness than he admits in order to do the things that are known to have occurred. b. Mr.

McDougall states the vehicle was out of his possession for two hours or more during which the break-in and robbery occurred, probably with the use of the vehicle, in which he had no part. There is strong evidence connecting it to that criminal activity due to tire marks and the items from that occurrence found in the vehicle. His evidence is to the effect that items from the robbery had been left in the vehicle when the keys were returned, and he left unaware of them, either in the six hours after receiving the keys back and before leaving the location, or later when he operated the vehicle.

This is extraordinary because if other persons committed a major crime, which they would know could have serious consequences, it is not sensible for them to leave items of value that link to the crime in a vehicle whose owner was of such brief acquaintance. If that were so, they might have great difficulty in recovering items at a later time. This is not consistent with rational behavior regardless of whether or not it concerns criminal conduct.

These items most certainly would have value, and to leave them in a vehicle, and return the keys to the owner, without any apparent method of recovering them is not a compelling explanation for their presence. The story of Mr. McDougall requires acceptance of the fact of lending of the vehicle to a person of no prior acquaintance, and that person (and others) leaving the proceeds of a robbery abandoned to a person of similarly minimal acquaintance. This is contrary to common experience or logic.

This is apart from the issue of not noting anything in the vehicle which he was clearly capable of operating at some or all times over a seven hour period, which has been discussed above. c. Further, there is no logical reason for a wallet, P-17, taken from the robbery victim, to contain paper items of no apparent value belonging to Mr. McDougall. If he had no knowledge or physical contact with this wallet, it is difficult to consider any reason or motive for another person in placing his items in this stolen wallet, and abandoning it with money and a large quantity of drugs. Mr.

McDougall says he left his own wallet on the center console of the vehicle, so items of his might have been available in his wallet, or in the vehicle generally to be manipulated by others. However, there would be no logical purpose for someone using the vehicle and committing criminal acts to leave their criminal proceeds, and particularly Mr. Baker’s wallet and credit cards along with two unique papers of Mr. McDougall’s in it. d. Further, there was $190.00 in cash in that wallet and that is the amount of money that Mr. McDougall said that he had.

This could, of course, be another $190.00, but the similar amount would be coincidence. There is no logical reason for his money (if it was his money) to have been taken from his wallet and placed by another into Mr. Baker’s wallet, unless he did it himself. e. The use of the vehicle by Mr. McDougall has a number of strange details. His evidence is that he had the vehicle to work on, but he got it running and then succumbed to temptation to drive. This has credibility, in so far as that goes.

However, at one point he said that he had a license plate on it, but he saw one on a similar vehicle, which was presumably preferable as a police check might not identify an incongruity which might have existed with the prior plate. He then changed the plate, and threw the original in the back seat, where a plate was found. He drove it further with a stolen license plate, and never reached his intended destination after meeting an acquaintance. He had no registration or clear sale agreement for the vehicle that he could describe.

Regardless of the conditions under which he had the vehicle, his evidence discloses commission of a number of criminal offences with respect to driving that evening. f. Mr. McDougall said that he had an accounting system for payments of the car, which was contained on the same item referred to by the Crown as a ‘score card’, which could only be interpreted by him. He stated the value of the car at $8,500.00, but the payments he was making were at best vague, without any details other than occasional $100.00 payments.

Such payments would have taken an enormous period of time for any substantial amount owing, if that was the only method of payment. His narrative with respect to the car is vague and illogical and not in conformity with ordinary or legitimate business practices. g. Mr. McDougall gave evidence regarding friends and acquaintances who did not have full names. This might be consistent with some lifestyles, particularly if they include unlawful activities, but it is not common generally, and particularly, it is unusual for any

person, in my opinion, who has a vehicle they obviously value, to lend it to a person such as this when that person has been met only moments before. That is what happened with the person referred to as ‘Crazy’. [66] I conclude that the evidence of Mr. McDougall has so many vague, illogical, and questionable aspects, contrary ordinary rational experience, that they render it incapable of belief. His narrative also discloses a disregard for court orders and a willingness to engage in unlawful acts, though less serious than some of the other charges under consideration.

The defence has argued that nearly anything is possible, and perhaps some unusual and extraordinary things do occur, but this narrative is made up almost entirely of assertions and explanations that are contrary to ordinary experience and behavior, in my opinion. His assertion that his intoxication rendered him incapable of appreciating the existence of items in his vehicle in plain view when he had sufficient consciousness to operate the vehicle, which is obvious, is not credible. He did on cross-examination, admit to awareness of the marijuana found on the center console where he said he had left his wallet.

I find that the level of unawareness that he asserts could not exist given the driving that occurred. Other aspects of his evidence are not credible either. The effect of rejecting his evidence means that there is no credible explanation that can counter any conclusions that may be properly inferred from the circumstances, consistent with established legal principles, in respect to the various items found in the vehicle. [67] The rejection of evidence given by Mr. McDougall does not, of course, prove the Crown’s case.

This is not a case where there is contradictory oral evidence that must be weighed, but it does involve the rejection for reasons of credibility, evidence that was presented to counter circumstantial evidence that might otherwise have been, and now is, of significance in determining guilt or innocence. CONCLUSIONS [68] In rejecting the narrative of Mr. McDougall in disclaiming any level of knowledge of the items found in the vehicle, I must conclude that the items were known to him.

Ordinary experience would make the items in plain view (the marijuana, firearm, and Xbox) recognizable, and it is not necessary to make some mental decision as to whether their existence is accepted. The items in the backpack included personal papers of Mr. McDougall which I find could not be there if he himself had not manipulated the wallet physically. I do not make any findings or inferences of what else he may have known about the origin of these items.

The doctrine of recent possession set out in the case of R v Kowlyk , supra, might permit some further inferences, but the charges before the court do not require that, and the Crown has not relied upon the doctrine in that case. The case for the offences of possession is circumstantial. There are an enormous number of cases that deal with the question of what may be inferred in various circumstances. The general principle have been considered since Hodge’s Case in 1838

and elaborated upon. The Supreme Court of Canada in R v Griffin, 2009 SCC 28, [2009] 2 SCR 42 considered the issue in the context of a charge to a jury, but the general principles were reviewed when Charron, J stated: [33] We have long departed from any legal requirement for a “special instruction” on circumstantial evidence, even where the issue isone of identification: R. v. Cooper, (SCC), [1978] 1 S.C.R. 860.

The essential component of an instruction oncircumstantial evidence is to instill in the jury that in order to convict, they must be satisfied beyond a reasonable doubt that the onlyrational inference that can be drawn from the circumstantial evidence is that the accused is guilty. Imparting the necessary message tothe jury may be achieved in different ways: R. v. Fleet (1997), (ON CA), 120 C.C.C. (3d) 457 (Ont. C.A.), at para.20. See also R. v. Guiboche, 2004 MBCA 16 , 183 C.C.C. (3d) 361, at paras. 108-10; R. v. Tombran (2000), (ON CA), 142 C.C.C. (3d) 380 (Ont.

C.A.), at para. 29. [34] There is no question that the instructions in the present case fulfilled this essential requirement. The trial judge repeatedly madeclear to the jury that a guilty verdict can only be rendered if guilt is the sole rational inference to be drawn from the circumstantialevidence.

The issue to be resolved, rather, is whether the use of the words “equally rational” and “as reasonable” detracted from theotherwise correct instructions by leading jurors to believe, as the respondents contend, that they could only acquit if they found aninnocent inference from the circumstantial evidence of the same weight as an inference of guilt.

It is argued that the impugned languagehad the potential to engage the jury in an abstract comparative exercise, assessing the qualitative reasonableness of one inference againstanother when the mere existence of any rational, non-guilty inference is sufficient to raise a reasonable doubt. [69] Mr. McDougall is charged in information 38551115 with possession of cannabis marijuana for the purpose of trafficking. I have noted above that this is an offence of specific intent. He admitted he was aware of the marijuana left on the center console, and he recognized it as such. He was well familiar with marijuana.

I have rejected his denial of knowledge of the items found throughout the car that were the basis of the cannabis maijuana charges. As stated above, I do not have to make any conclusion concerning the extent of his knowledge of their origin. The items for which he is charged, were readily recognizable items. Two of the Accused’s personal papers were found in the wallet that was in the backpack containing the largest amount of the substance.

I conclude he had possession, knowledge and control, of all of the various packages of marijuana that were found, including the substantial quantity said to be worth $900.00 in the backpack with Mr. Baker’s wallet and some personal items of his. [70] There is then the question of whether the possession for the purpose of trafficking is proven. There is the quantity of the substance to be considered and also the business card which the prosecution referred to as a ‘score card’. No expert or knowledgeable person gave evidence to interpret this item, and Mr.

Malone in argument admitted that it was “not the best’ score card. Nor was there interpretive evidence with respect to the quantity of drugs, other than Mr. McDougall’s own admission that this was a lot of drugs for ordinary use or possession. I am not convinced beyond a reasonable doubt that this amount of drug, which is large, but not enormous, may be concluded beyond reasonable doubt as being possessed for trafficking. In concluding this, I note that the alleged ‘score card’ is not easily interpreted.

I therefore convict on the included offence of possession of cannabis marijuana only. [71] Charges relating to the sawed off shotgun and ammunition are counts 1, 2 and 3 in information 38551117. Count 1 charges possession of a prohibited weapon, while prohibited

from doing so by an order under

section 109 of the Criminal Code . Mr. McDougall admitted to being subject to such a prohibition, and a certified copy of the order was exhibited. Ammunition was found in the carrier of the firearm, but not loaded in the breech. These items were found in close proximity to Mr. McDougall in the vehicle. I have rejected his explanation of being so intoxicated as to have no knowledge of items, and I find that in these circumstances he had knowledge and control of the firearm.

I find that he is found guilty of those offences, including the third count that involves being an occupant in a vehicle containing a prohibited weapon, which this firearm was. [72] The bear mace subject of charge 4 in the same information was not proven by analysis to be what the label purports to identify. In the absence of evidence that would challenge that, I would conclude that the item was what it purported to be. It is an item that is used to ward off potentially lethal animals, and it is not intended for use against humans.

I would take notice of the fact that in the City of Regina and the immediate area there are no such animals. When considered that it was in proximity to a lethal prohibited weapon, and other valuable and unlawful substances, I would infer that its presence was intended as a potential weapon for purposes other than its intended purpose. In other words, it was there as a weapon for use against persons, and therefore was there for a purpose dangerous to the public peace within the meaning of

section 88 of the Criminal Code . I find the Accused guilty of this offence. [73] Mr. McDougall was found to have a knife on his person when in the ambulance. This knife was not of any extraordinary size or design, and he offered an explanation for its use as a tool. I have rejected his evidence insofar as it related to his lack of conscious awareness during the time after 5:25 a.m., and his explanations with respect to his claim to the vehicle in question, but some things he said could have some credibility, and one of them is this explanation for the knife as a tool.

It is not an uncommon use for a sharp object. I therefore have reasonable doubt as to whether this item was possessed for a purpose dangerous to the public peace. It is fundamentally different in character from the bear mace. I dismiss this charge. [74] The offence of possession of a shotgun for a purpose dangerous to the public peace is very similar to the situation with respect to bear mace.

This was a modified and prohibited weapon, and in the circumstances, it was intended for use against persons, being cut down to be easier to utilize as a handgun, and not held to the shoulder for aiming as would be the case if used for hunting. The ammunition for this weapon must be characterized as enabling the weapon to be used. I conclude both the weapon and ammunition were possessed for a purpose dangerous to the public peace, and I convict on counts 6 and 7 of the information. [75] Count 8 in the information relating to Mr. Baker’s wallet was withdrawn, and a guilty

plea was entered to count 9, that is, operating a motor vehicle while disqualified. [76] Count 10 was also withdrawn, being a second count of driving while disqualified. Count 11 alleges possession of a prohibited weapon, the shotgun, without being the holder of a license. This count may be duplicitous given the convictions on other charges relating to the same firearm, and I defer decision on it for further argument from counsel. It is to be noted that no specific argument occurred on any of the weapons charges, and only the broad question of possession was argued which pertained to all of the items.

A similar situation applies to Count 12. With respect to Count 15, the credit cards referred to were in the wallet referred to in Count 14. All of these charges referred to in this paragraph will be dealt with at the time of argument and submissions on sentencing. [77] A guilty plea was entered on count 13, as amended, which pertains to refusing to comply with a lawful demand made by a peace officer for drug recognition testing. [78] Count 14 alleges possession of a wallet and Xbox the property of Adam Baker, which were found in the vehicle and identified.

I find the Accused guilty of this offence. [79] I will hear submissions on the question of sentence on these charges at a time convenient to counsel. Dated at the City of Regina, in the Province of Saskatchewan this 29 th Day of September, 2016. ____________________ B. Henning, J