R v Ahmadi Date:, 2015 BCPC 135

Citation: R v Ahmadi Date: 20150417 2015 BCPC 0135 File No: 59187-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RAVIJ AHMADI ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B. DYER Counsel for the Crown: L.H. Dumbrell Counsel for the Defendant: M. Cheema Place of Hearing: North Vancouver , B.C. Date of Hearing: January 22, 2015 Date of Judgment: April 17, 2015 [ 1 ] THE COURT: The accused is charged with possession of cocaine, contrary to s. 4 of the Controlled Drugs and Substances

Act . He was arrested at about 7:48 p.m. in North Vancouver on February 14, 2013, by Constable Hakonson, the North Vancouver RCMP, following a motor vehicle stop, as a result of two unlawful turns and speeding in a laneway. On a search of the rented VW vehicle he was then driving, a small white object, later weighed by Constable Hakonson and found to be .2 grams of what was later tested by Health Canada to be cocaine, was found in the driver's side foot well. [ 2 ] There is no issue in this case as to the identity of the accused.

This was established at the scene when the accused produced his driver's licence, and Hakonson compared the photo thereon to the accused and so testified at trial. [ 3 ] This matter was first heard by me in a Charter voir dire, at which both Constable Hakonson and the accused testified. Earlier I gave lengthy reasons and dismissed the accused's Charter challenge, finding none of his Charter rights had been breached as he alleged.

In the course of doing so, I found, solely for purposes of the voir dire, that the accused was not a credible witness. [ 4 ] When this matter came on for a continuation of the trial before me on December 5, 2014, both counsel agreed that Hakonson's evidence given on the voir dire would form part of the Crown's evidence on the trial proper. He was nonetheless recalled and gave reasonably extensive evidence, including covering some of the ground he covered on the voir dire. No other Crown witnesses were called. [ 5 ] The accused testified in his own defence.

He, too, gave similar evidence, and I generalize, as he did on the voir dire. [ 6 ] There are three issues in the trial before me: 1. Credibility of the only two witnesses. Each counsel invites me to find that where the evidence of one differs from the other, I should believe their own witness. 2. Has Crown proven on this constructive possession case, beyond a reasonable doubt, that the accused had both contemporaneous knowledge and control of the drug in question? As the case is substantially based on circumstantial evidence, the well-known test referred to, for example, in the case of R. v.

Johnson , 2008 BCSC 1272 , must be considered, and has it been met? 3. Can I have regard to the evidence given by the accused on the voir dire for any purpose in this trial, including in assessing his credibility? This third issue I raised ex mero motu , and asked both counsel to consider the same in their closing submissions, which they did. [ 7 ] I intend to summarize the evidence of the two witnesses, set out the legal principles that bear on credibility, make findings of credibility, then set out a

summary of the relevant legal principles relating to possession and the use of circumstantial evidence, deal with the third issue above, refer to the position of each party, and make findings of fact and, following a discussion of same, make my conclusion on the sole count before the court. [ 8 ] I turn now to the evidence of Constable Hakonson. I intend to set it out in point form. 1.

On February 14, 2013, Hakonson was a seven-year veteran of the RCMP with some prior policing experience dealing with drugs and dial-a-dope drug operations where a vehicle is used, drugs are inside same, and the driver or assistant has the use of one or more cellphones and can meet buyers at various locations to complete sales arranged telephonically. He estimated he had been involved in approximately 15 prior drug trafficking investigations involving motor vehicle stops.

As well, he said investigation of drug-related matters was always part of his overall policing duties while engaged in general duties or in the traffic section, as he was on February 14, 2013. 2. On February 14, 2013, in the afternoon, he had been advised by a fellow constable, Pacheco, that he had received what he felt was reliable information concerning a grey-coloured VW Beetle motor vehicle bearing licence number 065-RNE, to the effect that it was involved in a dial-a-dope operation.

The essence of his evidence was that he thereafter, on February 14, 2013, held such a belief in his mind as he performed his policing duties. Otherwise, this would be hearsay evidence. 3. At 7:40 p.m., he had gone to watch a home on the corner of 5th Street and St. Davids Avenue in North Vancouver, which: (

a) he had earlier, prior to February 14th, seen known dial-a-dope persons attend thereat; and (

b) at which a person known to be a drug user resided, one G.D. Insofar as I earlier described this person as G.B., in my reasons on the voir dire, this was an error. The G.B. there described ought to have been described as G.D.; as well (

c) a short time before February 14th, he had seen G.D. on his property with a known drug trafficker. Thus, on February 14th, he was surveilling G.D.'s residence to see if any known dial-a-dope dealers attended thereat. 4. Hakonson parked on 5th Street and observed G.D. leave his home and walk northbound on St. Davids Avenue using a cellphone. Hakonson testified he never knew G.D. not to ride a bike. Hakonson turned his unmarked police car to follow G.D. As he turned, he saw a VW motor vehicle proceeding southbound on St. Davids towards him and G.D., who was still on his cellphone.

He could read the licence plate in his headlights and it was 065-RNE. G.D. walked towards a lane running between 5th and 6th Streets off St. Davids. Hakonson saw G.D. give a "concerned look" both at his vehicle and the VW motor vehicle. He then believed a dial-a-dope transaction was about to occur. At one point, G.D. was about 40 feet away from the VW motor vehicle. 5. At this point, the VW made a very sharp, abrupt turn, without signalling, into the lane and accelerated westbound. Hakonson followed him.

Approximately one-quarter of the way down the lane, Hakonson got up behind the VW, about one and a half to two car lengths from his rear bumper, and paced it, determining the VW's speed to be about 55 kilometres an hour in a lane where the lawful speed limit was only 20 kilometres per hour.

6. The paving in the lane was relatively smooth. There was space for two cars to pass, with about one foot between them. There were no cars parked in the alley or containers, nor was there a lot of traffic in it at the time. When the VW was at the end of the alley, and there is no evidence it ever slowed in the alley prior to its exit therefrom, and when Hakonson estimated he was one car length from the rear of the VW, he activated his cruiser emergency lights and siren. The VW did not stop in the lane. I find there was room to have done so safely.

Rather, it made an abrupt left turn without signalling to proceed southbound on St. Andrews. 7. Hakonson followed the VW on St. Andrews. It slowed to approximately five to 10 kilometres per hour, but did not immediately stop. It appeared to drift within its lane as it proceeded slowly southbound on St. Andrews. The VW stopped approximately one and a half blocks later. There is no evidence to suggest the state of parked traffic on St. Andrews south of the lane exit was such that this was the only safe spot to pull over. 8.

Hakonson, at the time before the VW stopped, believed, based on his experience, he was dealing with a dial-a-dope entrepreneur, as they often attempt to "buy time" before stopping to swallow their drugs and wash them down with any available liquid inside the vehicle. He testified that unlike the VW, 95 percent of motorists pull over and stop immediately when he activated his lights and siren. It took the VW approximately 30 seconds to pull over from the time he first activated his siren. 9.

Hakonson advised RCMP dispatch of his traffic stop and then went over and stood beside the VW on the driver's side near the front door post, about one foot from the side of the car. The driver's window was down and he had a clear view of the driver and the interior of the car. The driver, who was the accused, was the sole occupant. 10. While the accused got out his licence, Hakonson observed the interior of the VW. He saw two water bottles in the middle console area, one having a loosened or insecure lid sitting on top. The accused had water on the bottom of his shirt.

At some point, the accused said one of the water bottles was his. He saw a small white object wrapped in clear plastic on the vehicle's black floor mat on the driver's side foot well, approximately six to eight inches from the door, he estimated approximately 10 inches from the brake pedal and to its left. It was situate where the accused's left foot would be if not on the brake pedal. He was initially able to see this object through the open window.

When he first saw it, due to its size, shape, plastic cover and knot at the top of the plastic cover, he suspected it might be rock cocaine due to its very distinct shape and packaging. He then shone his flashlight on it and, having done so, believed it was rock cocaine. It was then mostly dark inside the VW. As a result of his observations of the water bottle and loose top and water on the accused's shirt, he was then suspicious that the accused had earlier, while driving, attempted to swallow drugs and had spilled water on himself in the process of doing so. 11.

On cross-examination, he said without using his flashlight at the scene, he was not certain the white object was drugs, but once he did so, he could clearly make it out. Only then could he confirm his initial suspicion as to what it was. 12. He also observed other objects inside the car and, following his arrest of the accused and using his flashlight and during the course of his search, took photos of same. Under one plastic water bottle he saw a piece of plastic consistent with the plastic the above white object, later found to be cocaine, was wrapped in.

There was a knot at the top of this piece of plastic and he testified it looked like whatever was inside had been ripped out. This item is seen in Exhibit 4, Photo 3, whereas the cocaine seized is shown in Exhibit 3, Photo 1. I observe the knot on each item appears similar. Constable Hakonson also observed a white residue on the left of the cup holder in the VW, which he felt was consistent with cocaine as well. 13. When, at Hakonson's direction, the accused got out of his vehicle, he threw his BlackBerry cellphone across onto the passenger's seat.

It was on and Hakonson could see a text on the screen and words to the effect that he had been pulled over. There was a second Nokia cellphone on the passenger's seat. Hakonson did not recall either cellphone ringing during the course of his investigation and said he did not answer either phone. 14. When the accused was outside the VW, Hakonson told him that the VW was a suspected dial-a-dope vehicle. He searched the accused and located a wad of folded Canadian currency in his left sweater pocket.

In total, $510, being three fives, four tens, 18 twenties, and one hundred-dollar bill, all of which he seized and initially gave to a second RCMP, Officer Carlson, to hold while he placed the accused in the rear of his cruiser. Later, he retrieved same from her and put it all in an exhibit bag which he sealed. He located a set of Acura keys on the accused. He asked the accused if his vehicle was damaged. He wondered why he was driving the VW. The accused advised it was not, but initially did not really explain why he was driving the VW. He admitted they were his keys to his vehicle, nonetheless. 15.

At some point, Hakonson learned the vehicle was leased, and on a later search of the vehicle located an Avis rental agreement in the glove box, disclosing it was rented to one Milad Rahimi. The accused confirmed this was his understanding and that Mr. Rahimi was a friend of his. Hakonson recognized the name Milad Rahimi, who was known to him at the time and with whom he had had many dealings over the prior six and a half years. Rahimi was a known or suspected drug dealer with many police files. The accused confirmed his understanding that the vehicle had been rented to Mr. Rahimi.

The rental agreement was marked as Exhibit 2 at the trial. I note there is nothing on Exhibit 2 that shows the accused to be an authorized or insured user of this VW vehicle or that he is the customer or that there is a second driver's licence (his) set out on the document. On its face, only Mr. Rahimi would appear to be an authorized user of the vehicle. In fact, Exhibit 2 states in part at the bottom in block letters, "No additional drivers allowed without prior written consent", followed by a place for the lessee to initial, as Mr. Rahimi appears to have done. 16.

At some point, the accused first told Constable Hakonson that he was in the area to pick up food, then quickly said he was there to see his girlfriend, whose name was not provided. Hakonson testified that there were very few restaurants in the area where the accused was first seen. When Hakonson was questioning the accused, he noted his demeanour, which he described as his face was pale and whitish. He appeared shaky and visibly nervous while being questioned. 17. After placing the accused in the rear of his cruiser, he searched the VW, took photos of the interior, and seized the white object and two cellphones.

He did not seize the two water bottles or anything else. The drugs were put in an exhibit bag. Hakonson had not earlier seized any other drugs. On later analysis by Health Canada, the drugs which were found were tested to be cocaine (see the certificate of analysis marked as Exhibit 3).

18. Hakonson questioned the accused at the scene about the drugs he had earlier seized. He could not recall verbatim the questions he asked, but testified that the accused had said they were in the vehicle before he got in and were not his. 19. On Hakonson's return to the North Vancouver RCMP detachment on February 14th, he lodged the bag containing the money in an evidence locker separate from lockers where seized drugs are held.

On April 3, 2013, Hakonson arranged for another RCMP member described as a dog handler to attend at the North Vancouver Detachment and conduct, with respect to the seized currency, what he called a "drug dog search" of the item in question. The handler apparently was a Mr. Flint, who was not called as a witness at trial. Hakonson understood that the dog in question, also not named, would sit beside the location of any drugs he detected. He was not familiar with the dog, but knew he was in service with the RCMP as a drug dog. Hakonson did not explain how or where he obtained this understanding.

On April 3, 2014, Hakonson took the package of currency out of the exhibit locker and opened it. He then placed it, wearing gloves all the while, under a green empty garbage container located in the corner of Bay Number 1, which is an area in the North Vancouver Detachment used by, for example, RCMP members of the identity squad. The bay measured approximately 20 feet by 40 feet. Approximately 13 minutes after doing so, Mr. Flint introduced the dog to the bay and guided him around in a clockwise manner. When the dog got to the garbage container, he smelled the bottom and sat down.

The handler then informed Hakonson that the dog had hit on the money. I understood that Hakonson watched this process through the entry door into Bay Number 1 and understood, without Mr. Flint telling him, that the dog had hit on the money, he believed because there was a smell of drugs associated with it. Hakonson said in cross-examination that on April 3rd, Flint and the dog did not know where the money was hidden in Bay Number 1. He agreed the can had been used for garbage, but would not be used for the disposal of any drugs seized by the RCMP. The can was empty. Bay Number 1 was not an off-limits area.

He agreed he had never sent the $510 for a scientific test for drug residue and that nothing else seen or seized in the VW vehicle had been sent out for such purpose. Mr. Flint, as I have said, was not called to testify. I have little evidence of the pedigree, sex, training, or importantly the skill set and track record or reliability of the sniffer dog in question. Such evidence would be required, in my view, for a court to place any significant weight on the type of evidence led by Crown herein with respect to the sniffer dog. [ 9 ] I turn now to the evidence of the accused.

On February 14th, he went to a friend's place in North Vancouver for a guys' night out. He brought no drugs, he said, nor did he have any on his person that day, and nor did he do any that day. He parked half a block away, as the underground visitor parking area was full, all seven to 10 spaces. [ 10 ] He later went to pick up some food and wanted to drive by his girlfriend's place first to see if she was home that night. They had broken up two weeks previously and had not seen one another in this time, but were still talking and texting one another, including on February 14th.

She wanted to see him, but not that night. No specific date was set. [ 11 ] He was interested in ascertaining if she was still interested in him. Based on her texts, he assumed she wanted to see him, but testified he did not want to see her that night. None of the text messages were placed in evidence at the trial. However, he did not tell her that he wanted to see her on the night in question in a text. It would be weird if she then saw him, according to his testimony, but he wanted to see if she was telling him the truth. [ 12 ] When he was at his friend's place, another friend had texted him.

This unnamed friend advised in the text, also not placed before the court, that he had just seen the accused's ex-girlfriend out. He understood from her texts that she was to be in. He decided he wanted to drive by her place to see if she was home and to see if, in her texts to him, she was telling him the truth. He elected not to take his car, an Acura, as she was quite familiar with it. They had dated for approximately one and a half years, and she had been in it numerous times, often daily and at other times he estimated four to five times a week.

He did not want her to see it and know he had gone by, so he borrowed a friend's car, a VW, namely that of Milad Rahimi, who was age 26, the same age as the accused. He had been a close friend of the accused since Grade 2 and for the 19 years prior to February 14. While he was a close friend, the accused said they did not see much of one another in February of 2014. Mr. Rahimi's vehicle was parked in the friend's underground garage. He left the friend's place at 7:30 p.m. It was dark out. He had Mr. Rahimi's keys at the time. [ 13 ] The accused got in the VW motor vehicle and turned it on.

He had never been in it before. He did not look in the foot well. It was dark. He saw nothing unusual inside the car, including a small package at the extreme left edge of the driver's foot well. He was shown Exhibit 4, Photo 1, being a picture of the crack cocaine seized, and said he was certain he had not seen it at any time when he was in the VW on the night in question. [ 14 ] The lighting in the underground garage, according to his evidence, was dim. He then set off to drive towards his girlfriend's residence.

As well, he was supposed to get food at Andreas, but left a bit early so as to first go by the girlfriend's place some five to 10 minutes' drive away from where the friend's place was located. Her place was five to seven minutes away from Andreas. [ 15 ] She lived in a basement suite in a house with a front and rear entry. He wanted to see if her lights were on. If so, this would indicate, in his view, she was home. He testified he could not see if she was home, as there was a police officer behind him in the lane trying to pull him over.

He testified he was a hundred percent sure he was going less than 20 kilometres per hour in the back alley or lane at the time. [ 16 ] He was stopped by the police officer. He did not explain in his direct evidence why he did not stop in the lane, when the sense of his evidence was that this was where the police officer tried to pull him over, or why he drove slowly for one and a half blocks before finally stopping. He said he was pulled over between 5th and 4th Street on St. Andrews. Had he not been stopped, he was going to Andreas.

I note Andreas is really a right turn out of the alley and not a left turn. [ 17 ] He could not recall Hakonson having a flashlight. He felt he was asked to get out within 15 to 20 seconds of Hakonson approaching his vehicle. He had his BlackBerry with him. He was unsure if there was another cellphone in the car. If there was, it would be his friend Milad's. [ 18 ] He brought his own water bottle with him, which he said he put on the passenger's seat of the VW. The water bottle shown in Constable Hakonson's photo, Exhibit 4, Number 4, the one with the Dasani label was his.

Both are shown to be situate in or on the

centre console. There is no water bottle shown on the passenger's seat, however Photo Number 2 shows only one water bottle in thecentre console area. [19] On cross-examination, he testified that he did not recall the VW lights turning on automatically when he entered the VW car.

Inote there is no evidence as to the model year of this VW vehicle, but the Avis rental agreement states the odometer reading was some20,143 kilometres, not a lot of mileage in the grand scheme of things, and some circumstantial evidence pointing to the VW being a morerecent model vehicle and potentially equipped, as most modern cars are, with automatic interior lights, automatically displaying on entry. [20] The accused said after the police officer activated his lights, there was no place to pull over to the right on St. Andrews, so hewent left.

He saw the cruiser's lights, but there was no place to pull over also on St. Andrews, once he had entered it on his left turn. Healso seemed to suggest there was no safe place to stop in the alley either. The safest place to park was on a public street, not in the alley. He did not explain to my satisfaction why it would be unsafe to stop in the alley. [21] He admitted he knew that he was not insured to drive Mr. Rahimi's rental vehicle, and said Mr. Rahimi was the registeredowner, I assumed he meant lessee. Crown asked if the accused on February 14 was aware that Mr.

Rahimi was involved in the drugtrade and he answered, oddly I thought, "No, not that I recall." He denied Mr. Rahimi had given him the drugs or told him about them. He also denied he was approached by anyone before he first turned off St. Davids into the alley. He denied he was doing a drug run forMr. Rahimi. [22] He agreed, after Hakonson told him five to seven times there were drugs in the car, that he had said if there were any, they werethere before he got in.

He could not recall the second cellphone shown on the passenger's seat in the VW in Exhibit 4, Photo 4, beingthere the whole time. [23] The above evidence was given by the accused at the trial only. The law with respect to credibility [24] I discussed the principles that courts often use in assessing the credibility of witnesses in my reasons following the Charter voirdire given on September 10, 2014. I will not here repeat what I then said. In Bradshaw v.

Stenner, 2010 BCSC 1398, Dillon PCJ said this about the principles a court can use in assessing the credibility of awitness at paragraph 186: Credibility involves an assessment of the trustworthiness of a witness' testimony based upon the veracity or sincerity of a witness and theaccuracy of the evidence that the witness provides . . .

The art of assessment involves examination of various factors such as the abilityand opportunity to observe events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection,whether the witness' evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimonyduring direct and cross-examination, whether the witness' testimony seems unreasonable, impossible, or unlikely, whether a witness has amotive to lie, and the demeanour of a witness generally . . .

Ultimately, the validity of the evidence depends on whether the evidence isconsistent with the probabilities affecting the case as a whole and shown to be in existence at the time . . . [25] Referring to Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.). I have omitted certain of thecitations in the above quotation. [26] These principles derive from both civil and criminal cases and, in my view, are applicable in both. Findings of fact with respect to credibility [27] I have applied these principles in the case before me.

As to Constable Hakonson, I found that he gave his evidence both at trialand on the voir dire, which evidence by consent both parties said that I was able to rely upon at the trial as it forms part of the Crownevidence thereat, in a careful and detailed way.

He was not, in my view, shaken in cross-examination. [28] One example of the care he gave in testifying was his evidence that when he first looked in the open driver's side window of theVW, he suspected he saw a package containing cocaine on the floor, and in the absence of using his flashlight, he could not be certain itwas and that he needed the flashlight to confirm his prior suspicion. [29] He was not shown to have given any material inconsistent evidence on the voir dire as compared to later at trial, both bodies ofevidence being properly before the court at the trial. [30] I conclude, as I did when I assessed his testimony at the voir dire, that he was a credible witness who gave accurate, truthful,and reliable evidence at all times. [31] I turn now to the accused.

I find that I reach the same conclusion as I did on the voir dire in considering the evidence he hasgiven only at the trial. My conclusion as to his credibility on the voir dire has played no

part in my assessment of his credibility at thetrial. That said, my reasons for finding that his story lacked an air of reality and did not make sense remain substantially the same,particularly as the main components of his story did not change at the trial. [32] I adopt my reasons at paragraphs 100-102 and 104-105 in the voir dire for purposes of the trial finding. I will not repeat thesevarious points to save time. [33] In addition, and in dealing with the overall sense or lack of same in the accused's evidence, it is clear that a cellphone which the

accused suggested belonged to the lessee, Mr. Rahimi, was in the rented VW at the time he says he got in it. It is also clear that there were drugs in it when he was first stopped by Hakonson, and as well that it was a leased vehicle and not leased to the accused. [ 34 ] One result of this latter arrangement, of course, is that if he were to be stopped by the police and if he was doing anything unlawful at the time, the vehicle could not be directly linked to him or seized in some fashion. [ 35 ] The linchpin of the accused's story is that he borrowed Mr.

Rahimi's vehicle to go past his girlfriend's place in the dark, incognito, to see if she was home, even though this trip was out of his way and not directly en route to Andreas. I have found this entire proposition to be nonsense, especially when he testified he did not wish to see his girlfriend that evening and as well that the VW he asserts he borrowed in accordance with all the evidence in this case: (

a) just happened to have Mr. Rahimi's cellphone in the front passenger's seat; (

b) had .2 grams of cocaine in the driver's foot well when he was stopped and a very similar empty package in the console area; and (

c) was a vehicle that he knew he was not insured to drive. [ 36 ] The foundation of this central element or linchpin is that Mr. Rahimi agreed to the accused using his VW rental vehicle, and only for the above nonsensical purpose. Without the back lane run in the dark to check on the former girlfriend, with whom he did not wish to be on the evening of February 14th, there was no reason for the accused to request Rahimi's leased vehicle or for Rahimi to loan it to him. [ 37 ] The foundation of the accused's story also requires me to accept that a person known to the police on February 14th, Mr.

Rahimi, would accidentally or knowingly leave his cellphone in the car and, as well, a quantity of drugs, neither of which the accused said he saw on first entry as it was dark out, and also let the accused drive it when he knew or ought to have known he was not insured to do so. [ 38 ] As well, factored into this chain of reasoning is the further fact that the accused and Mr.

Rahimi were, on February 14th, very good friends who had known one another for years, since age two. [ 39 ] I observe in our modern culture the vast majority of young people do not leave their cellphones anywhere, but keep them with them or on their person at all times, for the most part. [ 40 ] I do not accept that if the suggestion or thesis implicit in the accused's story is that the drugs found in the foot well were Mr. Rahimi's or anyone else's but his, and Mr. Rahimi would be the most logical candidate, that they were accidentally left on the floor of the car.

While I agree there is no evidence as to the market value of the drugs seized, they were valuable enough that someone would run the risk of obtaining a criminal record if found in possession of same. It greatly offends my common sense to assume, for purposes of analysis of the accused's story, that the drugs seized by Hakonson unfortunately earlier fell out of someone's pocket, for example Mr.

Rahimi's, onto the floor of the car, resulting, as argued by the defence, for the accused being then stopped "in the wrong car at the wrong time." [ 41 ] Drugs are valuable enough that people who possess them take care of them and most often secret them in some fashion.

If you are careless with their custody and lose them accidentally, you cannot use them, sell them, and if they are owned by another, you are out of pocket their value, and also run the risk of having them found in circumstances that could result in a charge, as occurred here. [ 42 ] If, on the other hand, you know where your drugs are, for example in your leased car, you would not store them on the floor mat of the driver's side foot well.

Nor, in my opinion, if you knew they were in your leased car with your cellphone, would you loan it to your longstanding, very close friend, so he could go check to see if his former girlfriend, with whom he did not want to spend the evening, was home or not. This is particularly so if the longstanding, very close friend, here the accused, was not at the time insured to drive your rental car. [ 43 ] These are not the kinds of things very close friends, even if one of them might be involved in the drug trade, would do to the other, in my opinion.

Thus, the central element or linchpin of the accused's story makes no sense and, in my opinion, is incapable of any reasonable or rational analysis. His version of events is not at all the most consistent or even consistent at all. It is inconsistent with the probabilities affecting the case as a whole or the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions shown to exist at the time: see Farnya v.

Chorney . [ 44 ] I also observe it is far from clear to me what the accused would have accomplished driving by his former girlfriend's apartment at the speed Constable Hakonson clocked him at, 55 kilometres per hour. I accept as true Hakonson's evidence on point. I do not understand the accused's evidence to the effect that he could not see into her basement suite to see if her lights were on or if she was home, because Hakonson was behind him and trying to pull him over. [ 45 ] He could not recall whether the interior lights of the VW went on automatically when he got in. Hakonson was not asked about this.

The lease contract, as I have said, shows the VW had an odometer reading of about 22,000 kilometres. No model year is shown thereon nor was Hakonson asked this question. It was leased by Avis. I find it could not have been an antique and that it would be highly improbable that it was not equipped with automatic display entry lights like most modern vehicles are. [ 46 ] The accused could not recall if Hakonson had a flashlight with him when he got stopped or if there was a second cellphone in the VW, or if either his or it rang after he had been pulled over.

Thus, at times, particularly when it suited him, his memory was less than clear. [ 47 ] If it was dark out when he left to go by his former girlfriend's, why did he need to borrow a car to do so at all?

[48] The accused admitted on cross-examination, he was not insured, in essence, to drive the VW, he said, "for the rental". Whywould he drive it at all? Why was checking on the whereabouts of a former girlfriend, with whom he did not want to spend the evening,worth the possible consequences of driving a vehicle while uninsured to do so? This makes no sense. [49] On cross-examination, the accused was asked, in essence, "You were aware on February 14th that Mr. Rahimi was involved inthe drug trade?" And responded, as I have said, "No, not that I recall." [50] He denied that Mr. Rahimi told him about the drugs.

I do not accept as true the above evidence. I think a very close friendwould know what his very close friend did and would not answer that he did not recall. [51] Much of the accused's evidence was very vague. No names were provided for the ex-girlfriend, the friends he was to spend theevening with, or the friend who called him or texted him concerning the whereabouts of his prior girlfriend.

Such evidence could not,therefore, be verified if anyone wished to do so. [52] Lastly, I noted when the accused testified before me in court, very frequently he spoke in a very soft, almost hesitant voice, andat no time looked at me when he testified. His demeanour was such that I was not able to conclude I was hearing a truthful account ofthe events of the evening of February 14, 2013. However, I give this last factor very little weight in my overall assessment of theaccused's credibility. [53] I conclude I do not find, based on all the evidence I have heard at trial, that the accused is a credible witness.

I believe verylittle of what he told me. Where his evidence differs from that of Constable Hakonson, generally I prefer that of Constable Hakonson. [54] I refer below in my discussion to what evidence the accused gave that I do accept as reliable. However, the fact that I do notbelieve the accused does not mean I must find him guilty of the charge that he faces. It is necessary that I consider both R. v. W.(D.), andthe other legal principles applicable in this matter, which I now turn to.

The law with respect to possession and control of drugs [55] This case involves constructive possession, as no drugs were found on the person of the accused. The legal principles on pointare set out in R. v. Johnson, a judgment of Mr. Justice Barrow referred to above, at paragraph 15-16 citing R. v. Fisher, 2005 BCCA 444, [2005] B.C.J. No. 1955, a judgment of our Court of Appeal, both of which cases have been provided by Crown counsel.

Bothcounsel are agreed that the central issue in this case is whether or not Crown has properly proven that the accused had both knowledgeand control of the drugs in question and contemporaneously. [56] Knowledge need not be proven by direct evidence. It may be inferred from surrounding circumstances and proven facts: see,for example, R. v. Anderson (1995), (BC CA), 67 B.C.A.C. 311, or 2005 BCCA 444 (B.C.C.A.). [57] Constructive possession does not require proof of manual handling of the drug in issue: see R. v. Fisher, above, at paragraph 24.

The Crown need only prove that the accused had some measure of control over its location. This point is made clear in a recent BritishColumbia Court of Appeal decision, namely R. v. Tahirsylaj, 2015 BCCA 7 at paragraph 30, as follows, and I quote: [30] In R. v. Savory, (ON CA), [1996] O.J. No. 3811 at para. 4, leave to appeal ref'd [1997] 2 S.C.R. xv, the Courtsaid this about possession: Control for the purpose of constructive possession does not require that the accused did in fact exercise control over the object inquestion. In R. v.

Terrence . . . the Supreme Court accepted that control means power or authority over the object in question. Similarly,in R. v. Chambers . . . the court held that the right to grant or withhold consent to drugs being stored in a bedroom was sufficient toconstitute control. Again, control is established if there is the right to grant or withhold consent. It is not necessary that the consent in fact be granted orwithheld. [58] I have omitted the citations.

The law with respect to circumstantial evidence [59] Barrow J. says this as to cases where Crown, as here, places substantial reliance on circumstantial evidence: [17] Where constructive possession is said to rest on circumstantial evidence, as is frequently the case, the proven facts must be suchthat the constituent elements, namely knowledge and a measure of control on the part of the accused, are the only reasonable inferencesto be drawn (see generally R. v. Cooper . . . and R. v.

To [citations omitted]). [18] This is simply an expression of the concept of proof beyond a reasonable doubt in the context of a circumstantial case. While thestandard is high, it is not a standard of absolute certainty. The task of determining whether it has been met must be approached with ameasure of common sense. As McEachern C.J.B.C. put it in R. v. To [in paragraph 41 as follows]:

[41] It must be remembered that we are not expected to treat real life cases as a completely intellectual exercise where no conclusion can be reached if there is the slightest competing possibility. The criminal law requires a very high degree of proof, especially for inferences consistent with guilt, but it does not demand certainty. . . [ 60 ] As to proof using circumstantial evidence, the judgment of our Court of Appeal in R. v. Ngo , 2009 BCCA 301 , is instructive.

The court said this in paragraph 53 and 54: [53] The Crown may prove the essential elements of an offence through direct or circumstantial evidence, or a combination of both. Where the case rests on circumstantial evidence, the trier of fact must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the facts: R. v. Vu . . . However, the criminal standard of proof is not to be applied to each individual piece of evidence. In that regard, what was said by Sopinka J. in R. v.

Morin . . . is helpful (at para. 36): The argument in favour of a two-stage application of the criminal standard has superficial appeal in theory but in my respectful opinion is wrong in principle and unworkable in practice. In principle it is wrong because the function of a standard of proof is not the weighing of individual items of evidence but the determination of ultimate issues. Furthermore, it would require the individual members of the jury to rely on the same facts in order to establish guilt.

The law is clear that the members of the jury can arrive at their verdict by different routes and need not rely on the same facts. Indeed the jurors need not agree on any single fact except the ultimate conclusion. [Internal citations omitted.] [54] In considering whether the circumstantial evidence supports an inference of guilt beyond a reasonable doubt, the trier of fact must not examine each individual circumstance in isolation.

Instead, the proper approach is to consider whether all the evidence, taken together, establishes the guilt of the accused and is inconsistent with any other rational conclusion . . .[citations omitted]. [ 61 ] These then are the principles to be applied in the case at bar. Use of the evidence given by Mr. Ahmadi on June 30, 2014, on the Charter voir dire at trial [ 62 ] I raised this as an issue on completion of the trial evidence. In addition, I gave both counsel the citation for R. v.

Henry , 2005 SCC 76 , and asked them both to consider this point further and address it as one issue in their closing oral arguments that I heard in January of 2015. [ 63 ] Mr. Doucette for the Crown said initially I could use this evidence to assess Mr. Ahmadi's credibility. Ms. Cheema's initial position was that I could not, and she noted that Crown had not cross-examined him on it at trial. Later during final submissions and after having reviewed R. v. Henry , Mr.

Doucette said that where a witness is compelled to give evidence in a proceeding and is thereby exposed to a risk of self-incrimination, s. 13 of the Charter , according to Henry , would apply. [ 64 ] This

section states: A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence. [ 65 ] Mr.

Doucette argued that s. 13 does not protect an accused who voluntarily testifies, for example at a first trial as in Henry , and therefore Crown could cross-examine him as to his evidence given at a first trial on his second trial, as occurred in Henry , where the accused had testified at a first murder trial, and on a subsequent retrial five years later told a different story under oath as compared to what he had said at the first trial.

The Crown there cross-examined him at the second trial on the earlier inconsistent evidence for purposes of attacking his credibility and later secured a conviction. [ 66 ] The headnote in Henry states in part, and I quote:

Section 13 of the Charter is not available to an accused who chooses to testify at his retrial on the same indictment. The purpose of s. 13 is to protect individuals from being indirectly compelled to incriminate themselves. As in the case of s. 5 of the Canada Evidence Act , s. 13 embodies a quid pro quo : when a witness who is compelled to give evidence in a proceeding is exposed to the risk of self - incrimination, the state offers, in exchange for that witness's testimony, protection against the subsequent use of that evidence against him.

Here, the accused freely testified at their first trial and freely testified at their second trial. The compulsion, which is the source of the quid pro quo which in turn lies at the root of s. 13, was missing. Accordingly, their s. 13 Charter rights were not violated by the Crown's cross - examination. They were in no need of protection "from being indirectly compelled to incriminate themselves".

[67] Following receipt of counsel's closing submissions, I had an opportunity to review another case seemingly on point, namely R.v. Hurry, 2002 ABQB 420, decided prior to Henry.

In Hurry, the issue for decision as stated by Lutz J. at paragraph 1 was, and I quote: The sole issue before me is whether these Accused, through Defence counsel, may admit a fact for the purposes of a voir dire, thusenabling them to launch a s. 8 Canadian Charter of Rights and Freedoms (Charter) challenge, but reserve the right to take a contraryposition at trial, thus requiring the Crown at trial to prove the same fact that was admitted on the voir dire. [68] In Hurry, the two accused were charged with production and possession of marihuana for purposes of trafficking.

Theychallenged the reasonableness of a premises search, and defence counsel, for purposes of the s. 8 Charter challenge on a voir dire,conceded the two accused were occupants of the residence so as to establish the requisite protectable privacy interest therein. Neitheraccused testified on the voir dire. [69] The Crown then wished to use this admission on the voir dire at trial, arguing the accused could not at the voir dire, throughcounsel, take a position that was inconsistent at trial.

Lutz J. held that because there was a distinct separation between a voir dire and atrial proceeding, that an accused could admit a fact for purposes of a voir dire, but yet require the Crown to prove the fact at trial (seeparagraph 3). [70] Crown should not be allowed to rely on an admission made on a voir dire by an accused to prove its case. Justice Lutz relied inpart on R. v. Gauthier in coming to this decision and said this at paragraph 4 of his reasons: Our Supreme Court has, on several occasions, emphasized that a voir dire and a trial must be treated as distinct and separate proceedings.

Such a position is obvious when an accused is being tried by judge and jury, but in R. v. Gauthier, . . . the court statedthat the demarcation between a voir dire and main trial must also be respected when the trial is by judge alone: In deciding as it did in the case at bar, the Court allowed the accused to testify on the voir dire on a portion of the case that suited hispurposes, while avoiding cross-examination on the rest and preventing the prosecution from referring to it.

This can hardly be describedas formalism; it touches one of the most basic aspects of the administration of justice, namely, the rule that any judgment must be basedexclusively on the evidence presented at the trial.

If it were to be held that in a trial without a jury it is not essential to hold a voir dire,and the Judge may admit evidence of statements made by the accused, provided he rules on their admissibility at the end of the trial, Iwould not agree, but I would consider it less objectionable than a voir dire that does not respect the basic rule, namely, that it is a trialwithin a trial, and accordingly the evidence produced therein is to be used on the voir dire only, even though the same Judge presides atthe voir dire and decides on the merits.

In Gauthier, the accused did not testify at trial, but the trial judge had considered exculpatory statements given by the accused on voirdire in acquitting the accused. The Supreme Court [of Canada] ordered a new trial due to that error. [71] Mr. Doucette said if there were inconsistencies in the two bodies of evidence, I, as the trial judge, could draw inferences of guilttherefrom. The fact the evidence was originally given prior to trial on a Charter voir dire made no difference. I could compare the twobodies of evidence.

This was so, notwithstanding he had not sought to cross-examine the accused on same at trial and did not argue thatthere were inconsistencies in the two bodies of evidence. [72] Ms. Cheema, for the defence, having reviewed Henry, agreed that this was the leading case on s. 13 of the Charter. Shepointed out that factually the case at bar was different in that there was no prior trial, only a voir dire. She agreed with Crown's positionthat her client had indeed given his evidence on both occasions voluntarily, and therefore that I could use the two bodies of evidence inassessing his credibility.

That said, she argued there were no material inconsistencies in what her client had testified to on the twodifferent occasions and therefore, in essence, any comparison would be fruitless. [73] The Hurry decision is not binding on me, being an Alberta judgment, but it has been considered in several B.C. cases, namely R.v. Tran, 2005 BCPC 440, R. v. Nguyen, 2006 BCPC 651, and R. v.

Nguyen, 2011 BCPC 517. [74] In the 2006 Nguyen case, the Hurry decision was cited as authority to permit an accused to make an admission of occupancy forpurposes of obtaining standing on a Charter voir dire, i.e., to establish a privacy interest, which admission could not be used on the latertrial: see paragraph 3. [75] In Tran, a similar issue as in Nguyen was considered, namely an accused's admission through counsel of occupancy to support arequest for a Charter voir dire: see paragraph 4.

Hurry was cited as authority permitting this to occur. [76] In the 2011 Nguyen decision, the two accused wished to challenge the validity of a search warrant which was the basis for asearch of certain business premises, and again the matter of their standing was in issue and the Hurry case was cited at paragraph 10 insupport of the accused's submission that she did have the necessary standing. [77] In the result, insofar as I can see, the Hurry decision has not been applied or considered in this province on the above issue Iraised with counsel at the conclusion of the trial. [78] Notwithstanding the apparent agreement of counsel, in light of R. v.

Henry, that I might consider the accused's evidence on thevoir dire as well as his trial evidence in assessing his credibility, I have decided not to do so for a number of reasons:

1. It was not agreed by both counsel that all his evidence could form part of the evidence at trial. Lutz J. states, as the general rule, that evidence on the voir dire does not become evidence in the main trial, being subject to an exception that it may become trial evidence with the consent of both Crown and the accused or defence counsel: see paragraph 9, R. v. Hurry .

I am not prepared to find that defence counsel's closing argument in this case amounted in part to her consenting to my use of her client's evidence on the voir dire at trial, in the context in which she advanced her submission really as to the effect of the Henry decision. 2. Crown neither sought to cross-examine the accused during the trial as to inconsistencies in his voir dire evidence as compared to his trial evidence and I do not say there are any, or did so without seeking my leave as trial judge. In the result, the provisions of s. 10 of the Evidence Act were not complied with.

The accused was not confronted, as he was entitled to be, with allegedly inconsistent evidence and given a fair opportunity to explain any such alleged inconsistency. This did occur in Henry , where the accused was cross-examined by Crown in his second murder retrial concerning sworn testimony he gave at his first trial. Hence, in the case at bar, the usual methodology for putting allegedly contradictory evidence to an accused was not followed. 3.

The Crown in the case at bar did not take the time to review the accused's voir dire evidence and made no submission that there were, in fact, any material inconsistencies therein as compared to his trial evidence. Ms. Cheema for the defence submitted that there were none.

In my view, a trial judge who, on his or her own motion, elected to conduct his or her own review of the accused's voir dire evidence side by side with the accused's trial evidence would be acting on the above facts in this case improperly, not impartially, and could well be seen to be doing work, if it could be properly done at all which should have been done by Crown seeking, as did Mr. Doucette, to show that the accused was not a credible witness.

While I am of the view that the accused gave his evidence voluntarily in the voir dire, Henry does not clearly deal with the issue I raised and does not clearly guide me with a solution. [ 79 ] In the result, I have not considered any evidence given by the accused on the voir dire in coming to my decision in this case, nor, to be clear, do I find he in fact said anything on the voir dire materially inconsistent with his evidence at trial. Position of the parties The Crown [ 80 ] Mr.

Doucette asserts that Crown has proven the charge against the accused beyond a reasonable doubt, and in particular those elements of the offence of possession, namely knowledge and control, really an issue in this case involving, both parties agree, an allegation of constructive possession. [ 81 ] He asserts that the only reasonable non-speculative inference that I can draw from the evidence presented, much of which is circumstantial, is the guilt of the accused and that both knowledge and possession of the cocaine is proven by Crown beyond a reasonable doubt. [ 82 ] He relies on the following points: 1.

The cocaine located by the police was not hidden. It was right by the accused's left foot in plain view. 2. The lessee of the vehicle was known by the police to be involved in the drug trade. Cocaine is a fairly valuable substance. It is probable that the vehicle owner, that is to say the lessee, knew the cocaine was in the vehicle and that he would have told the accused it was there. I did not understand that Mr. Doucette argued this advice would have been given by the lessee Rahimi to the accused just before he headed off to check on his girlfriend, thus accepting as true the accused's evidence. Mr.

Doucette agreed that it was an assumption, but based on strong grounds, he made that the accused would know the drugs were in the car. 3. A known drug user, G.D., on his cellphone got within 40 feet of the VW before it veered off down the lane. G.D. was approaching the VW, which initially was coming down St. Davids straight at him. The accused, of course, had two cellphones in his vehicle at this time and was thus, from a technological standpoint, able to make and receive such cell communications, at least with his BlackBerry. Crown says this approach was an attempted drug transaction. 4.

The accused was not a credible witness. The essence of Mr. Doucette's evidence was that the accused had made up a story to conform to the Crown case. I will deal with his various points below when I make a finding of fact with respect to credibility. 5. Hakonson observed water on the accused's shirt and on the vehicle console, and this is supportive of Constable Hakonson's belief that the reason he did not stop immediately when Hakonson first put on his emergency lights and siren, as 95 percent of drivers do, when he might have safely done so in the lane and proceeded very slowly down St.

Andrews Street for approximately one and a half blocks before stopping, that he was attempting to dispose of drugs by swallowing them with water. Mr. Doucette noted that Exhibit 4 photos show that the drug package seized was tied with a similar knot to that on the clear plastic found ripped open in the cup holder. There was white powder as well on the console. 6. The accused's demeanour when pulled over was consistent with someone not telling the truth. For example, his statement he was going to get food changed very quickly to one that he was going to see his girlfriend. 7.

The VW was rented to a lessee, a person known to him from prior dealings and to the police generally to be involved in the drug trade. The accused knew Rahimi had leased the vehicle. His evidence that he did not know his close friend of 19 years was involved in such business was not capable of belief. 8. The drug dog test in the North Vancouver RCMP Detachment done on April 3, 2014, showed that the $510 seized from the accused's left sweater pocket had recently been in contact with some drug. The Defence [ 83 ] Ms. Cheema argued that the Crown had not proven its case against her client beyond a reasonable doubt.

She argued that I

should believe him, and where his evidence differed from that of Hakonson, I should prefer his. R. v. W.(D.) applied, and I should at least, by reason of his evidence, have a reasonable doubt as to his guilt on Count 1. [ 84 ] She made the following points, and this is not intended to be an exhaustive and complete

summary of her entire closing submission: 1. The accused had never been in the VW before he borrowed it from Rahimi. 2. He wanted to check up on his girlfriend in an inconspicuous way. 3. Her place and Andreas were five minutes apart. It was reasonable to go by her place on the way to get food for his friends. 4. It was dark outside and the garage where the VW had been parked was poorly lit. 5. He did not see the drugs when he got in the vehicle. They were not in plain view.

She seemed to accept, for purposes of her argument, that they were at all material times in the driver's side foot well where first seen by Hakonson. 6. Cash money changes hands many times. If the bills smelled of drugs, it could be because someone other than the accused handled them who had been handling drugs himself or herself. 7. The drugs in issue were in a small, hard-to-see package. 8.

There was no hand-to-hand drug transaction observed to have taken place, that is to say no dial-a-dope transaction, but the defence did admit the indicia for same were present, by which I understood counsel to mean an automobile, a quantity of drugs, two cellphones, and a quantity of cash money possessed by the sole occupant of the vehicle. It is true there was no scale, but the appearance of things is that the drugs were prepackaged. There was no score sheet; however, this is hardly the sine qua non of indicia of a dial-a-dope operation. Ms.

Cheema notes, as well, that no one came to the window of the VW, including G.D. 9. There was no drug scale found in the vehicle. 10. The owner of the drugs would not know the drugs were in the car or tell the accused about them, as the quantity was so small. There is no evidence of any such conversation having occurred. 11. There is no evidence as to the value of the drugs in issue. It is not improbable that Mr. Rahimi would give the accused the keys to the VW, so he could go see his girlfriend, seemingly with the drugs in the vehicle, as the value of same was so small. 12. As to Mr.

Rahimi being in the drug trade, this was a coincidence. He was not a co-accused and the accused could not be convicted essentially by way of guilt by way of association. 13. Hakonson did not hear the cellphones ring or answer either and speak to a potential purchaser. 14. There was no place for the accused to safely pull over, once Hakonson activated his lights and siren, prior to where the accused did stop. 15. The water bottle, empty plastic baggie, and white residue found inside the VW were never scientifically tested for the presence of an illicit drug residue, nor was the money. 16.

Longstanding friends, as Mr. Rahimi and the accused admittedly were, do not always know about one another's background. Crown offered no evidence that the accused knew Rahimi was a suspected drug dealer. 17. The dog sniffer evidence was a highly biased exercise, and the suggestion was that the dog could have been attracted to the bin due to the odour of garbage, not drugs. 18.

Nothing turns on the accused's statement to Hakonson with respect to the presence of drugs in the car, as the accused was responding to his repeated questions about drugs being present in the car, and in this context was saying if there were drugs, they were there before he got in. 19. Lastly, the accused was not the registered owner of the VW vehicle, by which he meant the lessee, as the accused admitted he knew it was leased by Mr. Rahimi.

Discussion [ 85 ] In my view, the important pieces of evidence or facts that I am to consider in this matter, and which have been proven by Crown and found substantially in Hakonson's trial evidence, which I accept as truthful, are the following: 1. At all material times the accused was the sole occupant of the VW motor vehicle and possessed its key. 2. As he was in possession of its key and the sole occupant, and insofar as the interior space of any motor vehicle can be seen as a closed container or location, he had the sole ability to control this space, including to admit or refuse entry of others: see R. v.

McIntosh , 2003 CarswellOnt. 1099 at paragraph 62 , a judgment of Hill J. 3. At all material times, he possessed this VW motor vehicle with the consent of the lawful lessee, Rahimi. I believe the accused when, in essence, he testified that on February 14, he obtained the keys to this vehicle from Mr. Rahimi.

4. On February 14, Hakonson believed that the VW vehicle was involved in a dial-a-dope operation. 5. On February 14, Mr. Rahimi was well known to Constable Hakonson, based in part on past personal experience, and to the North Vancouver RCMP, and was associated with the drug trade. 6. Rahimi was, on February 14, a longstanding and very close friend of the accused. 7.

The drugs in issue (cocaine) were found in the VW when the accused was stopped, in plain view, very close to his left foot, and were wrapped in such a way that they were light or whitish in colour, in clear contrast to the darker carpet and driver's side foot well floor mat. 8. The drugs were close enough to the accused to be accessible by him. 9. The empty wrapper found in the console had a similar knot to that which secured the drugs and, but for the torn bottom of same, was similar in size to the wrapper on the drugs. 10.

As well, inside the leased VW, two cellphones were located or present and the accused had $510 in mostly smaller denomination bills. These items were all either on or in close proximity to the accused. I note in passing that while this accused was first arrested for trafficking in a narcotic, that is of course not the charge he now faces. However, the above items, including the leased vehicle, are commonly found in suspected dial-a-dope operations in accordance with the case law. 11. The accused was first seen by Hakonson approaching one G.D., a known drug user, using his cellphone and walking towards him on St.

Davids Avenue in North Vancouver, and who got within 40 feet of the front of the accused's vehicle. 12. Based on his experience with drug investigations, including dial-a-dope operations, on February 14, Hakonson understood that persons in possession of drugs will sometimes try to consume them with an available liquid to avoid being caught in possession of illicit drugs. 13. Inside the VW vehicle, a water bottle with a loose cap was located following the accused's detention, as well as the empty plastic wrapper (see above para. 9) and the accused had water on the bottom of his shirt. 14.

The VW could have safely stopped in the lane immediately upon Constable Hakonson activating his lights and siren therein, but proceeded to turn left and drive slowly and somewhat erratically for approximately one and a half blocks, taking approximately 30 seconds before stopping. Hakonson has testified as to his suspicion, if not belief, as to what the accused was doing during this period of time. I need not find whether his suspicion is accurate or not. I accept at the time he held the above-described belief or suspicion.

I do find in the time from when Hakonson activated his lights and siren to when the accused stopped, roughly 30 seconds, there was time enough to attempt to dispose of drugs if individually wrapped, as per the seized drugs in the case at bar. 15. The drugs seized had some value, granted less than, for example, in McIntosh , above. 16. The accused knew Mr. Rahimi leased the car. 17.

On April 3rd, a dog trained to identify the presence of illicit drugs detected the smell of same on the currency seized by Constable Hakonson from the accused's left sweater pocket on February 14th in the stall at the North Vancouver Detachment. Importantly, as I have said above, I give this particular piece of evidence very minimal weight in making my decision in this case. It is not, on its own, a difference maker of any kind or nature in my overall assessment of all the circumstantial evidence in this case. [ 86 ] Our Court of Appeal in R. v.

Tahirsylaj , above, at paragraph 29 , a case where control was the main issue, makes it clear that in analyzing circumstantial evidence of control, the court must consider circumstantial evidence that weighs against control as part of the cumulative or whole body of evidence being considered, and I think the court's assessment and finding whether it establishes the guilt of the accused and is inconsistent with any other rational conclusion: see also R. v. Ngo , above, at paragraph 54 . [ 87 ] I think the same approach is also called for on the issue of knowledge.

For that reason, I have above taken the time to set out the main points advanced by defence counsel as to why she asserts the Crown evidence does not support a finding of guilt. I will comment on a few of them now that have not been disposed of thus far by my finding the accused overall is not a credible witness. I have considered all of them in reaching my conclusion. I use the same subparagraph numbers here as I did above immediately under the heading in these reasons of "The Defence": 10. The owner of the drugs would not know they were in the car or tell the accused about them.

This argument is found in paragraph 10 and is purely speculative as to what the owner of the drugs might or might not have told the accused. There is no evidence other than that of the accused, who I have not believed that anyone other than himself owned the drugs. I have neither found or assumed, other than for purposes of assessing the accused's credibility, that this is so; that is to say that there was another owner of the drugs. 16. Longstanding friends do not always know about one another's background.

I think it is highly unlikely that two young men, said to be longstanding, very close friends since age two would not know what each other did to make a living. This point makes little sense and offends my common sense. 17. The dog sniffer evidence was highly biased and the dog could have been attracted to the smell of garbage in the bin.

I have commented above on the weight I give this piece of evidence, but I do say there is no evidence that the drug sniffer dog Hakonson requested through RCMP channels was trained to detect garbage and sit once he had done so, or that illicit drugs had ever been disposed of in the garbage can used to hide the currency. Hakonson said seized drugs were disposed of in a different way, not involving the use of garbage cans, as I understood his evidence. In any event, the law is that all circumstantial evidence is to be assessed together, and not taken for examination piece by piece: see R. v.

Ngo , above, in paragraph 54 .

Conclusion [ 88 ] I have considered whether or not all the circumstantial evidence in this case, considered as a whole, would permit some other rational non-speculative conclusion to be drawn, other than that the Crown has proven both knowledge and possession on the part of the accused and thus his guilt beyond a reasonable doubt: see R. v. Fisher , paragraph 48 . In my view, there is not. [ 89 ] In my discussion above dealing with the accused's credibility, I attempted to examine really unproven suggestions or premises that might arise in the evidence in this case.

None make any sense or could be described as either rational or reasonable, let along non-speculative, in my view.

For example, in my view, it is not at all reasonable to imagine or find or have a reasonable doubt, based on the proposition that Rahimi owned the drugs found in the VW and left them there accidentally or intentionally, in plain view, with his cellphone and allowed his very close friend to drive his rental vehicle as an unauthorized and likely uninsured driver, so he could satisfy his curiosity as to whether his former girlfriend, with whom he did not want to spend the evening in question, had her lights on in her basement flat and thus might be at home. [ 90 ] Under R. v.

W.(D.) , I have not believed the accused, nor do I find I am left with a reasonable doubt by the evidence that he has given. [ 91 ] On the basis of the evidence which I do accept, I am convinced, beyond a reasonable doubt, by the evidence of the guilt of the accused, in that he had the required knowledge and control of the illicit drug in question contemporaneously, namely cocaine. [ 92 ] Hence, I find the accused guilty of Count 1 on the information before the court. (REASONS CONCLUDED)