R. v. White and Coombs, 2018 BCPC 147

Citation: R. v. White and Coombs 2018 BCPC 147 Date: 20180601 File No: 59293 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. JEFFREY RICARDO WHITE and SHAWN VINSEN COOMBS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S. MERRICK Counsel for the Crown: K. Guest Counsel for the Defendants: D. Markovitz for White, R. Bellows for Coombs Place of Hearing: Richmond , B.C. Dates of Hearing: Jun. 26, 27, 28, 29, 30, Dec. 13, 14, 2017; Mar. 20 & Apr. 18, 2018

Date of Judgment: June 1, 2018 THE CHARGES [1] Jeffrey Richard White and Shawn Vinsen Coombs are charged with possession of Red Phosphorus and Ephedrine on January11, 2015 knowing that it would be used to produce for traffic methamphetamine.

SUMMARY OF THE CHARGES [2] On January 11, 2015 two members of a congregation went to 14291 Triangle Road, property owned by the congregation. When they got there Mr. White was there. This concerned them. They left the property and returned a little while later with a thirdmember of the congregation. As they were driving towards the front of the property Mr. White and Mr. Coombs were in the process ofdriving off the property. The congregation members were in two vehicles and they blocked the driveway. Mr. White stopped the carand he and Mr.

Coombs left the property on foot, 10.75 kg of Ephedrine and 4.25 kg of Red Phosphorus were found in the car. [3] In one of the buildings on the property a laboratory was discovered that in the opinion of the expert witness was capable ofextracting Ephedrine. Red Phosphorus and Ephedrine were found in the laboratory. THE LAW OF CIRCUMSTANTIAL EVIDENCE [4] Crown Counsel submits that its case rests on circumstantial evidence.

Therefore the Crown submits the evidence must supporta reasonable or rational inference that the accused is guilty and there must be no other rational inference that can be drawn from theproven facts. [5] With respect, I disagree. The assessment of circumstantial evidence does not require that inferences found to be inconsistentwith guilt arise from proven facts. The defence is not burdened with having to establish facts from which such an inference may bedrawn.

The question of whether there exists a reasonable doubt concerning guilt is to be assessed on the totality of the evidence, notsimply on the proven facts. See R. v. Defaveri 2014 BCCA 370 at para. 10. [6] The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there arereasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt. See R. v.

Villaroman 2016 SCC 33 at para. 35. [7] When assessing circumstantial evidence the trier of fact should consider “other plausible theories” and “other reasonablepossibilities” which are inconsistent with guilt. The onus is on the Crown to negative these reasonable possibilities. However, theCrown does not need to “negative every possible conjecture, no matter how irrational or fanciful which might be consistent with theinnocence of the accused”. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience appliedto the evidence or absence of evidence, not on speculation.

See R. v. Villaroman at para. 37 CREDIBILITY AND THE PRESUMPTION OF INNOCENCE [8] Mr. While testified and denied knowledge of the Red Phosphorous and Ephedrine in his car. He also denied knowledge of thelaboratory. He explained that he and Mr. Coombs were hired to clean another building on the property that his uncle was acquiring andthat he was at the property on January 11, 2015 to meet his uncle who would be reviewing the cleanup work done by him and Mr.Coombs. [9] This raises the issue of credibility and involves the application of the presumption of innocence.

This most fundamental rule isthat the burden of proving the guilt of the accused is upon the prosecution. Before an accused can be convicted of an offence the trier offact must be satisfied beyond a reasonable doubt of the existence of all of the essential elements of the offence. See R. v. Vaillancourt (SCC), [1987] 2 SCR 636 at para. 94 [10] The principal of reasonable doubt applies to issues of credibility as well as fact. See R. v. Ay (BC CA), [1994], 93 C.C.C. (3d) 456 BCCA at 460. [11] The reasonable doubt standard is a single objective and exacting standard of proof.

It is not the same as proof of probability andis not like the subjective standards of care that we apply in important everyday situations. It is not proof to an absolute certainty. It isnot proof beyond any doubt nor is it an imaginary or frivolous doubt. It is based on reason and common sense and not on sympathy orprejudice. See R. v. Lifchus (1997) (SCC), 9 C.R. (5th) 1 SCC at para. 36 [12] Proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities.

See R. v. Starr (2001) 2000 SCC 40 , 36 C.R. (5th) 1 SCC at para. 236 [13] In accordance with the ruling by the Supreme Court of Canada in R. v.

W.D. (SCC), [1991] 1 SCR 742 at 757, Iinstruct myself on the following basis: First, if I believe evidence raising a defence or negating an essential element of the offence I mustacquit.; Second, if I do not believe evidence raising a defence or negating an essential element of the offence but I am left in a reasonabledoubt by it, I must acquit; Third, even if I am not left in doubt by evidence raising a defence or negating an essential element of theoffence, I must ask myself whether on the basis of the evidence I accept, I am convinced beyond a reasonable doubt of the accused’sguilt. [14] What I must not do is view the decision as an either or choice.

My decision does not depend on a stark choice of who isbelieved but whether the charges are proven beyond a reasonable doubt. I must not inadvertently shift the onus to the accused to requirehim to show a motive for others to lie. As well, I must not weigh the evidence piecemeal, nor am I to shift the onus to the accused topersuade me that the defence evidence might reasonably be true. ANALYSIS [15] I do not believe Mr. White for the following reasons: 1. As noted, Mr. White testified that he did not know there was Red Phosphorus and Ephedrine in the trunk of his car.

It simplydefies belief in the circumstances of this case to suggest that someone else would have placed the Red Phosphorous and Ephedrine in thecar, without his knowledge. There is no plausible reason for someone to have done that. 2. I appreciate Mr. White may have panicked, and that is why he abandoned his vehicle when he met up with the members of thecongregation. However, Mr. White made no attempt to try and get his car back or call police. In my view, a person with nothing to hidewould have made those attempts. 3. Mr. White testified that Mr. Coombs was not a friend of his.

When confronted with the fact that between September 4, 2014and January 11, 2015 there were 383 communications between Mr. White’s phone and Mr. Coombs’ phone, Mr. White was not able toexplain why there were so many. 4. Mr. White admitted that several items he purchased were found in the extraction lab. He testified that he had purchased themfor his uncle and left them in the building he was cleaning. He further testified that when he told his uncle that they were missing, hisuncle told him to not to worry about it and he would be reimbursed.

It defies belief to suggest that someone else was taking these items. 5. A Home Depot receipt for items purchased by Mr. White was found in the extraction lab. Mr. White could not provide anexplanation for how the receipt got there. 6. Mr. White was aware that Mr. Coombs brought a heavy and expensive drill press ($519.00) to the property which was found inthe extraction lab. That too, he ways was taken from the building he was cleaning. Again it defies belief to suggest that someone elsetook this. Also it must be remembered that Mr. White testified that he and Mr. Coombs were hired to clean.

The purchase of a drillpress is inconsistent with the suggestion that they were there to clean. Similarly the purchase of the heat lamp and the brass barbadapters is inconsistent with the suggestion that they were there to clean. [16] For the reasons I have just stated, Mr. White’s evidence does not raise a reasonable doubt. I affirmatively reject his testimony. [17] An extraction lab was discovered in one of the buildings on the property. Mr. White was located on the property, albeit, not inthe building where the extraction lab was. He purchased items which were used in the extraction lab.

Red Phosphorus and Ephedrinewere found in his vehicle. The only reasonable inference to be drawn is that Mr. White possessed Red Phosphorus and Ephedrineknowing that it would be used to produce methamphetamine. Accordingly, I find him guilty as charged in counts 2 and 3. [18] With respect to Mr. Coombs, his Counsel submits that a reasonable inference to be drawn is that Mr. Coombs assisted in the“preliminary construction” of the extraction lab but never possessed the Red Phosphorus or Ephedrine.

He submits that while Mr.Coombs was on the property on January 11, 2015 he was not found in the extraction lab, nor was it established when he arrived at theproperty. He further submits, that while Mr. Coombs purchased items found in the extraction lab, those purchases, a drill press, a dolly,and brass adapters are consistent with the construction of the extraction lab. They do not show active participation in the extractionprocess. He points out that the finding of Mr. Coombs’ blood on a carboy in the extraction lab is as well consistent with construction.

Finally, he submits that the evidence does not show that Mr. Coombs ever had the requisite control of the Red Phosphorus andEphedrine. I agree. That is a reasonable possibility. It may be that Mr. Coombs’ role was limited to assisting in the set up. I find that tobe a “plausible theory” based on logic and experience applied to the evidence and absence of evidence in this case. Consequently, I findMr. Coombs not guilty of both charges. _____________________________ The Honourable Judge S. Merrick Provincial Court of British Columbia