R. v. Eheler, 2018 BCPC 390

Citation: R. v. Eheler 2018 BCPC 390 Date: 20180618 File No: 62444-1 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. CLAYTON ARCHIE EHELER, RAYMOND MORRISSEY and MATHEW JORDAN THIESSEN ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.J. BROWNING Counsel for the Crown: J. Cramer Counsel for the Defendant Eheler : M. Nathanson Counsel for the Defendant Morrissey : K. Beatch Counsel for the Defendant Thiessen : J. Reveley Place of Hearing: Chilliwack , B.C.

Dates of Hearing: Jan. 30-31, 2017; Feb. 1, 2017; Sept. 5-8, 11, 14, 2017; Oct. 11, 23-26, 2017; Feb. 20, 22, 23, 2018; Mar. 5, 6, 15, 16, 2018; Apr. 10-12, 2018 Date of Judgment: June 18, 2018 [ 1 ] In October 2014, members of the Combined Forces Special Enforcement Unit (CFSEU) began an investigation in relation to an

[ 1 ] In October 2014, members of the Combined Forces Special Enforcement Unit (CFSEU) began an investigation in relation to an apartment complex located at 45615 Brett Avenue in Chilliwack, British Columbia. [ 2 ] On November 26, 2014, members of CFSEU and the Royal Canadian Mounted Police (RCMP) executed a search warrant at unit 401- 45615 Brett Avenue. In total, 7,879.6 grams of powder cocaine, 1,251.1 grams of crack cocaine and 4,430.1 grams Phenacetin were seized. [ 3 ] Clayton Archie Eheler (“Mr. Eheler”), Raymond Morrissey (“Mr. Morrissey”) and Mathew Jordan Thiessen (“Mr.

Thiessen”) are charged with unlawfully possessing a controlled substance, cocaine, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act . ISSUES [ 4 ] In this case, all of the accused admit through counsel that whoever possessed the cocaine, possessed it for the purpose of trafficking. Therefore, the sole issue in this case is whether the Crown has proven beyond a reasonable doubt that the accused possessed the cocaine. BACKGROUND 1. Execution of search warrant and arrest of Mr. Eheler and Mr. Thiessen [ 5 ] On May 15, 2014, Mr.

Morrissey had commenced renting unit 401-45615 Brett Avenue, pursuant to a one-year rental agreement. [ 6 ] In October 2014, as a result of informant information, members of CFSEU commenced an investigation in regards to Mr. Eheler. The investigation included surveillance of Mr. Thiessen. The investigation ultimately led to the obtaining of a search warrant for unit 401 to be executed on November 26, 2014. [ 7 ] Shortly before 3:57 p.m., on November 26, 2014, Mr. Thiessen and Mr. Eheler were observed on CCTV entering the Brett Avenue building together through the garage door.

They walked through the garage, entered the lobby and went into the elevator leading to the residential floors of the building. [ 8 ] At 4:05 p.m., members of CFSEU and the RCMP executed a warrant at unit 401. [ 9 ] In executing the search warrant, members of the RCMP Emergency Response Team breached the door to unit 401. [ 10 ] Cst.

Brault was the first to enter the unit. [ 11 ] He described the layout of the unit as a long hallway extending from the front door to the kitchen/living room area with doors on either side. [ 12 ] He described on initial entry to the unit hearing a loud sound like a heavy object falling to the floor coming from the kitchen/living room area. [ 13 ] The purpose of the initial entry by ERT was to locate any individuals inside the residence and to secure it. Once the residence was cleared, Cst. Brault entered the kitchen/living room area of the residence where he observed Mr.

Thiessen being dealt with by another officer. [ 14 ] Mr. Thiessen was arrested in the kitchen area of the unit, standing between the fridge and an island countertop that had quantities of white powder on top. This powder later tested positive for cocaine and Phenacetin. [ 15 ] A search of Mr. Thiessen incidental to his arrest located $4,556.50 in cash, seven Oxycodone pills in a clear plastic bag, and a wallet containing identification of Mr. Thiessen, as well as other documents. [ 16 ] As Mr. Thiessen was being arrested, Cst.

Brault noticed the blinds to the balcony of unit 401 were closed, but were pushed through the balcony doors and were shaking. He ultimately observed that the balcony door to unit 401 was open, and the screen door had been pushed out of its frame and left lying on the balcony deck. [ 17 ] Cst. Levesque was a member of the RCMP surveillance team, and was located outside the Brett Avenue building maintaining perimeter surveillance of the building. [ 18 ] She was located on the street, west of the building, about 50 metres from the northwest corner of the building.

From her vantage point, she could observe the west side of the building. [ 19 ] Cst. Levesque described having received notice over the radio that the warrant was being executed. Moments later, she observed a male dressed in dark clothing with light, short hair, running on the balcony of unit 401. Cst. Levesque observed the male run around the northwest corner of the fourth floor balcony from the north side to the west side of the building.

She observed the male swing from the fourth floor balcony onto the third floor balcony and run north around the northwest corner of the third floor balcony. [ 20 ] She later observed a police officer on that third floor balcony. [ 21 ] S/Sgt. Jordan, a member of CFSEU, was also tasked with perimeter containment during the execution of the search warrant. He was familiar with Mr. Eheler. [ 22 ] S/Sgt. Jordan described having heard over the radio that Mr. Eheler had jumped over the fourth floor balcony to the third floor. S/Sgt.

Jordan took a position on the ground level of the northwest corner of the Brett Avenue building. He observed Mr. Eheler on a

third floor balcony on the northwest corner of the building, pacing back and forth, speaking on a cell phone. [ 23 ] After repeated commands by another officer for Mr. Eheler to lie down, he complied. S/Sgt. Jordan observed Mr. Eheler being taken into custody. [ 24 ] Mr. Eheler was arrested on the balcony of unit 301- 45615 Brett Avenue. Unit 301 is located directly beneath unit 401. [ 25 ] When arrested, Mr. Eheler was wearing a black satchel over his shoulder. After being searched, Mr. Eheler's handcuffs were adjusted to allow the satchel to be removed from his shoulder. [ 26 ] Subsequent to Mr.

Eheler's arrest, Csts. Bulman and Ermolaev seized three cells phones, the black satchel, a cheque payable to Mr. Eheler, $150 cash, a key to a motor vehicle, and a package of cigarettes from the balcony floor in the area that Mr. Eheler had laid down. [ 27 ] One of the cell phones was illuminated with an animated picture of paper passing through a document shredder. The officers attempted to power down the phones but were unsuccessful. [ 28 ] Within the black satchel was located a B.C. driver's licence in Mr.

Eheler's name, a wallet containing a Motor Vehicle Sales Authority of BC salesperson's licence in the name of Clayton Archie Eheler of Smoking Deals Auto, two driver's licenses in Mr. Eheler's name, a Canada Trust transaction receipt in the name of Eheler C., and other cards and ID. Also contained in the black satchel was $850 cash, lottery tickets and a keychain. [ 29 ] The keys on the keychain were tested by Cst. Ermolaev in the deadbolt lock to the door of unit 401, with one found to unlock the deadbolt. 2.

Search of Unit 401 [ 30 ] After it was secured, members of CFSEU conducted a search of unit 401 with a protocol in place to maintain the integrity of items seized. [ 31 ] On entering, Cst. Bulman noted the immediate odour of cocaine within the unit. Items seized during the search of the kitchen included:

a) Two bricks of cocaine weighing 992.2 grams and 942.2 grams respectively, located on a countertop. Beside the bricks was a Foodsaver vacuum sealer, together with a used vacuum sealer bag.

b) A shopping bag containing boxes of unused vacuum sealer bags on the floor beside the counter, as well as unused bags located in a drawer beneath an island countertop.

c) Seven vacuum or Ziploc bags located in a drawer underneath the countertop where the bricks were located. All but one of the bags smelled of cocaine and had notations consistent with being used for cocaine packaging.

d) A plastic bag containing several rolls of tape on the floor beside the bag of unused vacuum sealer bags. A used roll of tape was located in a drawer in the island countertop.

e) A Gucci backpack, similar to one observed by police, carried by Mr. Thiessen on November the 24, 2014 while he entered the Brett Avenue building on the floor beside the plastic bags.

f) Two cell phones, one charging on the kitchen countertop and the second one on the countertop island.

g) A Tupperware bin containing 787.7 grams of cocaine resting on top of a digital scale; a second digital scale on the countertop; a measuring cup containing 486. 2 grams of Phenacetin; Ziploc bags containing 103.7 grams of cocaine labelled "Give out 700"; and an empty Ziploc bag labelled "Give out." These were all located on the island countertop.

h) A keychain covered with white powder which tested as cocaine. One of the keys on the keychain operated the lock on the front door to unit 401. A fob labelled 00189 opened the electronic locks to the lobby doors at the Brett Avenue building. The keychain also had attached a brown leather tag with blue print on it; a white tab with a barcode on one side and a "I heart you baby" on the other; a large car key; and a key that opened a safe in room 3 that contained several kilograms of powder cocaine located on the island countertop. (Note - still photographs of fob 00189 being used depict either Mr. Eheler or Mr.

Thiessen reaching out towards the access panel. Items depicted on the keychain appear to be similar to those attached to the keychain when it was seized).

i) A second vacuum sealer and five measuring cups, one of which was coated in Phenacetin located in a drawer to the island countertop.

j) A tin of acetone on the floor. (Note - the expert evidence of S/Sgt Sheppard indicated that acetone can be used in the process of purifying cocaine).

k) A variety of documents in the name of Mr. Morrissey were located on shelves within the kitchen. [ 32 ] Items seized during the search of the room immediately to the left off the hallway (room 3) included:

a) A hydraulic press with wood and metal moulds for pressing kilogram size bricks of cocaine.

b) A yellow gift bag containing seven used cocaine wrappers for kilograms bricks bearing the label of "Smoking Deals Auto". Each wrapper had the odour of cocaine on them and numerical notations on them consistent with weights.

c) Two safes. One safe was open with a key in the keyhole. It contained 1,071.9 grams of crack cocaine divided into four Ziploc bags. The second safe was locked. It contained three bricks of cocaine weighing 994.4 grams, 998.3 grams and 993.9 grams respectively. Also located within this safe were three Ziploc bags containing 102.4, 194.7 and 205.5 grams of cocaine respectively. A key attached to the keychain located on the kitchen island unlocked the safe.

d) Two vacuum sealed bags of cocaine weighing 417.8 and 834.6 grams respectively were located on top of the locked safe.

e) Bags containing 271.4 grams powder cocaine and 179.2 grams of crack cocaine were located on a shelf in the closet of room 3.

f) A Rubbermaid bin containing 3,936.8 grams of Phenacetin and a Pyrex mixing cup with 409.7 grams of cocaine.

g) A second Rubbermaid bin containing 22,281.4 grams of an unknown white powder. (Note - S/Sgt. Sheppard testified that white powders can be used for the purpose of cutting cocaine to reduce its purity and increase profits). [ 33 ] Items seized during the search of a pantry (room 9) included:

a) A box of latex gloves.

b) Five boxes of baking soda. (Note - baking soda mixed with cocaine and water and heated converts powder cocaine to crack cocaine). [ 34 ] Items seized from a hall closet (room 10) included:

a) A money counter located on a shelf

b) Further documents in Mr. Morrissey's name located on the same shelf. [ 35 ] Certain items seized during the search were examined for fingerprint s. One clean Pyrex measuring cup located in a drawer under the island countertop was found to have two fingerprint s identified to Mr. Morrissey, located near the spout of the cup. 3. Surveillance Evidence [ 36 ] Between October 16, 2014 and November 26, 2014, Mr. Eheler, Mr. Thiessen, and Mr. Morrissey were observed attending and entering 45614 Brett Avenue, using fobs associated to unit 401. In particular, fob 00189 was used by both Mr. Eheler and Mr.

Thiessen. [ 37 ] Fob 00187 was also shared within the group, however, it appears to have been used more so by Mr. Morrissey. [ 38 ] Over this period of time, the accused were observed to enter and exit the building alone or with each other. In addition, the accused were observed, at times, admitting access to the building to one another of the accused by hand. [ 39 ] Observations made within the Brett Avenue building were made, in large part, through the review of CCTV video.

This video captured activities in the underground parking garage, in the stairwells of the building, and in the lobby elevator area on the first floor of the building. The CCTV did not capture activities in the residential areas of the building, including hallways to the units. [ 40 ] There were two exceptions to this. November 18, 2014 [ 41 ] On November 18, 2014, Cst. Rattai set up a surveillance position in the east stairwell on the fourth floor of the Brett Avenue residence. [ 42 ] At 2:48 p.m., Mr.

Thiessen and an unidentified male exited the elevator on the fourth floor and attended upon unit 401. [ 43 ] Mr. Thiessen unlocked the door to the unit and the two men entered. [ 44 ] At 3:16 p.m., Mr. Thiessen was observed to exit the building through the west door of the building, enter a motor vehicle and leave the area of the Brett Avenue building. [ 45 ] At 3:54 p.m., Mr. Thiessen was observed to attend a store called Diamond Vapes where he exited the vehicle and entered that store. [ 46 ] At 4:34 p.m., Mr. Eheler was observed to enter Diamond Vapes. At 4:45 p.m., Mr.

Eheler exits Diamond Vapes and drives to 45614 Brett Avenue. [ 47 ] At 4:38 p.m., Cst. Rattai and Cst. Ermolaev were live monitoring the video feed within the Brett Avenue residence. At that time, they observed Mr. Morrissey arrive in the parking garage driving his Honda motor vehicle. [ 48 ] Cst. Rattai made observations of Mr. Morrissey through a vent between a utility closet he was situated and the parking garage where Mr. Morrissey was located.

[ 49 ] Mr. Morrissey was observed to engage in conversation with an unknown male in the parkade for a few minutes. [ 50 ] Cst. Rattai observed Mr. Morrissey say to the unknown male, "Oh, I missed a phone call." [ 51 ] The unknown male leaves, and Mr. Morrissey is observed to place a phone call. Cst. Rattai overheard Mr. Morrissey say on the phone, "Where are you? Okay. I'll come and get you and you can help me with the stuff." [ 52 ] At 4:48 p.m., Mr. Morrissey exits the parking garage and is observed on CCTV letting Mr. Eheler into the building through the front door. The two men return to Mr.

Morrissey's Honda motor vehicle in the parking garage. [ 53 ] Through the vent, Cst. Rattai observes Mr. Eheler remove a Ziploc bag containing a shrink-wrapped package from the trunk of the motor vehicle. Cst. Rattai believed the bag contained bulk marihuana. [ 54 ] Cst. Rattai observed Mr. Eheler reach back into the trunk and remove an object he described as being slightly flatter and wider than a building brick. It was tightly wrapped in electrical or duct tape and was black or dark green in colour. [ 55 ] Cst.

Rattai described the object as being similar to the appearance of bricks of cocaine being seen in photographs on information bulletins distributed to officers for intelligence purposes. [ 56 ] Cst. Rattai testified that the object closely resembled the bricks of cocaine located on the kitchen counter he observed during the execution of the search warrant. They were similar in size and shape but had lighter coloured packaging. [ 57 ] Cst. Rattai observed Mr. Eheler place the object into a blue suitcase-type duffel bag in the trunk. Cst. Rattai observed Mr. Eheler place two more similar objects into the duffel bag.

Mr. Eheler then shifted positions, and while he continued to put items into the bag, Cst. Rattai could not see those additional items. Mr. Eheler was observed by Cst. Rattai to remove the duffel bag from the trunk, place it on the ground and start to wheel it towards the lobby. [ 58 ] Cst. Rattai observed Mr. Morrissey remove a comforter and pillow from the trunk, and together with Mr. Eheler enter the lobby. Both men entered the elevator to the residential floors. [ 59 ] At 5:15 p.m., Mr. Eheler and Mr. Morrissey were observed walking down the west stairwell and entering the garage. Mr.

Morrissey is observed carrying a small black duffel bag. The men attended at Mr. Morrissey's vehicle. Mr. Eheler gets into the passenger side of the vehicle. Mr. Morrissey places the duffel bag into the trunk, and removes what Cst. Rattai described as a "half brick" shaped object that he believes to be cocaine. Mr. Morrissey enters the driver's seat of the vehicle, and he and Mr. Eheler depart the garage in the Honda. November 19, 2015 [ 60 ] While engaging in surveillance of Mr. Thiessen, officers follow him to the Brett Avenue building. [ 61 ] Mr.

Thiessen is observed entering the building and captured on video using fob 00189 at 12:45 p.m. He enters the elevators to the residential floors of the residence. [ 62 ] Prior to Mr. Thiessen's arrival, Sgt. Baruzzi set up a surveillance position in the east stairwell on the fourth floor of the building. [ 63 ] At 12:51 p.m., Mr. Thiessen is observed exiting the elevator on the 4th floor, walking down the hallway and using a key to enter unit 401. [ 64 ] A few minutes later, Mr. Morrissey is observed exiting unit 401 and locking the door behind him.

He is observed leaving the building through the garage in his vehicle. [ 65 ] At 1:10 p.m., a black male is observed exiting the elevator on the fourth floor, knocking on the door to unit 401, and is let into the unit by an unknown person. [ 66 ] At 1:16 p.m., Mr. Morrissey returns to the building in his vehicle. Using the west stairs he returns to unit 401 and enters by unlocking the door. [ 67 ] At 1:29 p.m., Mr. Morrissey and an unknown female exit unit 401 and walk out of the building. [ 68 ] At 1:35, p.m., the unknown black male exits unit 401 and leaves the building. Mr.

Morrissey is observed to return and enter unit 401. Mr. Thiessen remains in the unit until 12:19 p.m., when he is observed by a second surveillance officer exiting unit 401 and leaving the building by way of the west stairwell. [ 69 ] It is of note that that these two exceptions arise as a result of surveillance being conducted on one or other of the accused who were considered suspects at the time. The building was never under full-time surveillance, nor was the entirety of the CCTV video ever reviewed.

Rather, the periods of time reviewed by the police were identified by the corresponding use of fobs associated to unit 401. [ 70 ] Through admissions, Mr. Morrissey was employed by Yukon Zinc Corporation at the Yukon Zinc Wolverine Mine in the Yukon Territory from October 23, 2014 to January 29, 2015. The work

schedule is comprised of periods of 14 days on and 14 days off. [ 71 ] Employment records indicate that Mr. Morrissey departed Vancouver by charter flight, arriving at the Wolverine Mine on November 20, 2014. Records further indicate that Mr. Morrissey departed Wolverine Mine, arriving in Vancouver on December 4, 2014. THE LAW

1. Possession [72] Section 4(3) of the Criminal Code incorporated into the Controlled Drugs and Substances Act defines possession as follow: 4(3) Possession For the purposes of this Act (

a) a person is in “possession” when he has in his personal possession or knowingly (

i) has it in his actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him for the use of benefit of himself or for another person,and (

b) where one of two or more persons with the knowledge and consent of the rest has anything in his custody or possession it shall bedeemed to be in the custody and possession of each and all of them. [73] The

section establishes three types of possession: personal, constructive and joint possession. [74] In this case, the Crown relies on the constructive or joint possession. [75] In order to establish constructive possession there must be knowledge extending beyond quiescent knowledge, disclosing somemeasure of control over the item to be possessed. [76] To constitute joint possession, there must be knowledge, consent and some measure of control on the part of the person deemedto be in possession (see R. v. Pham, 77 O.R. (3d) at 401 and R. v.

Barreau, (BC CA), [1991] BCJ No. 3878). [77] The burden is on the Crown to prove all of the essential elements of the offence beyond a reasonable doubt. This can be done bydirect evidence or can be inferred from circumstantial evidence. 2. Circumstantial Evidence [78] In R. v.

Villaroman, 2016 SCC 33 , [2016] SCJ No. 33, the Supreme Court of Canada discussed the relationshipbetween circumstantial evidence and the requirement of proof beyond a reasonable doubt. [79] After noting the rule in Hodge's Case has generally been described as an elaboration of the reasonable doubt standard, Mr.Justice Cromwell stated at paragraph 26: …There is a special concern inherent in the inferential reasoning from circumstantial evidence. The concern is that the jury mayunconsciously “fill in the blanks” or bridge gaps in the evidence to support the inference that the Crown invites it to draw.

BaronAlderson referred to this risk in Hodge’s Case. He noted the jury may “look for — and often slightly . . . distort the facts” to make themfit the inference that they are invited to draw: ... Or, as his remarks are recorded in another report, the danger is that the mind may “takea pleasure in adapting circumstances to one another, and even straining them a little, if need be, to force them to form parts of oneconnected whole"…. [80] Mr.

Justice Cromwell continued at paragraph 30: It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence,it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt.

No particular language is required.Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidencepermits will often be a succinct and accurate way of helping the jury to guard against the risk of “filling in the blanks” by too quicklyoverlooking reasonable alternative inferences…. [81] The trier of fact must be cautious when considering circumstantial evidence as a basis of proof of one or more of the essentialelements of the offence in filling in the blanks, and thus overlooking reasonable alternative inferences. [82] Those alternative inferences may arise from an absence of evidence. [83] At paragraphs 35 through 38 Mr.

Justice Cromwell stated: In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC4, [2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614,14 C.R. (7th) 149, at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accusedto prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence.

I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by the mere factthat it arises from a lack of evidence. As stated by this Court in Lifchus, a reasonable doubt “is a doubt based on reason and commonsense which must be logically based upon the evidence or lack of evidence”: para. 30 (emphasis added). A certain gap in the evidencemay result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence,assessed logically, and in light of human experience and common sense.

When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities”which are inconsistent with guilt: [citations omitted]. I agree with the appellant that the Crown thus may need to negative thesereasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which

might be consistent with the innocence of the accused”: R. v. Bagshaw, (SCC), [1972] S.C.R. 2, at p. 8. "Other plausibletheories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence,not on speculation. Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether thecircumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other thanthat the accused is guilty.

DISCUSSION [84] Each of the accused is charged with the same offence; however, the evidence against each of the accused is somewhat different,requiring a different analysis. [85] In considering the case against each accused, I have considered all of the evidence, the submissions made, and the authoritiescited. [86] I will discuss Mr. Morrissey separately from Mr. Eheler and Mr. Thiessen. Raymond Morrissey [87] Counsel on behalf of the Crown submits that Mr.

Morrissey is in constructive or joint possession of the cocaine located duringthe execution of the search warrant on November 26, 2014. [88] The Crown argues that in the case against Mr. Morrissey there is not any question that the Crown has proven beyond areasonable doubt control by Mr. Morrissey. The Crown submits that the sole issue is whether or not it has proven beyond a reasonabledoubt knowledge on the part of Mr. Morrissey. [89] Counsel on behalf of Mr. Morrissey submits that the Crown has failed to prove beyond a reasonable doubt both knowledge andcontrol of the cocaine on the part of Mr.

Morrissey and, therefore, he must be acquitted of the charge. [90] For the purpose of my analysis, I will address the element of knowledge first. [91] Counsel for the Crown submits a number of pieces of circumstantial evidence compel the court to draw the inference that Mr.Morrissey had the requisite knowledge to establish (assuming the other elements of possession are also established) that Mr. Morrisseypossessed the cocaine. [92] The Crown argues that Mr. Morrissey was the sole tenant of unit 401, and had been so since May 15, 2014. Further, theresidence was relatively small in size, making Mr.

Morrissey aware of the goings on within the apartment which was Mr. Morrissey'sresidence. [93] Crown points to a number of further pieces of circumstantial evidence:

a) The main storage room, room number 3, for the cocaine, which also contained the hydraulic press, was unlocked and open.

b) That the items consistent with drug possession were found in areas of the unit used or accessible by Mr. Morrissey (forexample, vacuum sealers, used wrappers, boxes with powder, rolls of tape, vacuum sealer bags, measuring cups with traces ofPhenacetin, a money counter, latex gloves and baking soda). [94] The Crown submits that whoever used these items was not concerned with keeping them hidden from Mr. Morrissey. TheCrown further submits that the inference asked to be drawn is strengthened by the proximity of some of the items to personal belongingsof Mr.

Morrissey. [95] The Crown points to November 18, 2014, where Mr. Morrissey was observed handling a "half brick shaped object" as evidencethe court can look to in drawing the inference of knowledge. [96] Finally, the Crown points to the value of the cocaine within the residence and argues that no one would leave something of thisvalue without Mr. Morrissey's knowledge. [97] Counsel on behalf of Mr. Morrissey submits that the Crown has failed to prove beyond a reasonable doubt that Mr.

Morrisseyhad the requisite knowledge to be in possession of the cocaine. [98] Counsel submits that the evidence establishes that Mr. Morrissey was in the Yukon from November the 20th, 2014 toDecember 4th, 2014. Further, counsel submits that given the absence of evidence as to when the cocaine and other items located onNovember the 26th, 2014 found their way into unit 401, there is a reasonable doubt that Mr. Morrissey had knowledge of the drugs priorto leaving for the Yukon. [99] Mr. Beatch, counsel on behalf of Mr.

Morrissey, points out that all the items located in the residence, which were said to beconsistent with drug processing and the drugs, were portable and it is plausible that these items were moved in the absence and withoutthe knowledge of Mr. Morrissey. [100] Mr. Beatch points to the evidence of S/Sgt. Sheppard, the drug expert, who testified that occasionally the contents of a stashhouse will be moved from one suite of an apartment to another suite in the same apartment. [101] Finally, Mr. Beatch submits that the observations made by Cst.

Rattai on November the 18th, 2014, are limited in the inferencesthat can be drawn because:

1. Cst. Rattai testified that he believed the objects were cocaine from pictures he had seen previously; 2. simply because the officer believed the objects to be cocaine does not assist in attributing any knowledge to Mr. Morrissey at the time; and 3. there is no evidence that the objects removed from the vehicle were taken to unit 401. [ 102 ] I remind myself that the Crown is not required to prove its case to an absolute certainty. However, it is not enough to believe that the accused is probably or likely guilty. [ 103 ] Further, I bear in mind the comments of Mr.

Justice Cromwell that, when a case involves the use of circumstantial evidence, the trier of fact must be cautious in filling in the gaps when drawing inferences to prove essential elements of the offence. [ 104 ] For the following reasons, consideration of all the evidence leads me to conclude that while I am suspicious that Mr.

Morrissey had knowledge sufficient to find him in possession, I cannot say that I find this to be beyond a reasonable doubt. [ 105 ] In this case, I find there is an absence of evidence that, without filling in the gaps, the inference of knowledge sought by the Crown cannot be safely drawn. [ 106 ] The absence of evidence arises as to how and when the cocaine and drug processing items are present in 401 prior to November the 26th, 2014. [ 107 ] The Crown argues that the court can look to all of the items seized, together with the observations of Cst. Rattai to infer knowledge by Mr.

Morrissey, even in his absence, when the warrant is executed. [ 108 ] In this sense, the Crown argues it is similar to the case of R. v. Pham . [ 109 ] However, in my view, to draw the inference of knowledge by Mr. Morrissey there would have to be either some evidence from which a clear inference of knowledge could be drawn as of November the 18th, 2014, or some evidence as to the presence of drugs in unit 401 prior to November the 20th from which to draw the inference of knowledge by Mr.

Morrissey. [ 110 ] In Pham , there were observations prior to the search and seizure of the drugs of activities consistent with drug-related activity. [ 111 ] In R. v. Falahatchian , the accused was observed to enter and leave the co-accused's apartment carrying a package. [ 112 ] This is not present in the case at bar. [ 113 ] The Crown suggests that the observations of Cst. Rattai on November the 18th, 2014, are compelling and add to the body of circumstantial evidence from which the court can draw the inference of knowledge.

That, from these observations, together with the evidence of November the 26th, the inference of knowledge can be drawn. [ 114 ] However, there is no evidence of where the objects came from or how they were placed in Mr. Morrissey's vehicle. There is no evidence that Mr. Morrissey was involved in handling the objects prior to them being placed in the travel bag by Mr. Eheler. There is no evidence of where these objects go after being removed from Mr. Morrissey's vehicle. [ 115 ] In addition, although Cst.

Rattai was a trained police officer, the most he could say is that he believed they were bricks of cocaine based on photos he had previously observed. I do not fault the officer for expressing his belief; however, if a trained police officer cannot say more than that, in my mind, it speaks to the lack of identifiability of the objects from simply the outward appearance, and there is no evidence from which to infer that Mr. Morrissey knew what the objects were. [ 116 ] The Crown argues that the court can look to Cst.

Rattai's evidence that the objects were similar to bricks of cocaine he observed on November the 26th, 2014 during the search of unit 401, perhaps leading to the inference that the objects were transported directly to unit 401, and that the inference of knowledge should be drawn. [ 117 ] However, in my view, to draw that inference would require the court to "fill in the gap" that the objects observed by Cst. Rattai were transported to unit 401. That is, the court would have to infer the objects were transported to unit 401 and then infer Mr. Morrissey's knowledge. [ 118 ] The observation by Cst.

Rattai of what he described as a "half brick" handled by Mr. Morrissey does not, in my view, further the Crown's position unless the court were to infer on the evidence that the object was, in fact, cocaine and that Mr. Morrissey knew it was cocaine. In my view, this is the kind of inference that R. v. Villaroman cautions the court to avoid. [ 119 ] Finally, the Crown argues that the value of the cocaine seized on November the 26th is such that no one would leave that amount of drugs in the residence without Mr. Morrissey's knowledge. That, in my view, belies the relationship that exists between Mr.

Morrissey and Mr. Eheler, and an alternative reasonable scenario exists. [ 120 ] While I am suspicious that Mr. Morrissey knew of the cocaine located on November the 26th, 2014, I am left with a doubt. [ 121 ] Given this doubt, I cannot find that Mr. Morrissey was in possession of the cocaine, and I find Mr. Morrissey not guilty of the offence. Clayton Eheler and Mathew Thiessen [ 122 ] In considering the case against Mr. Eheler, I must first make a finding of fact concerning whether or not Mr. Eheler was within unit 401 when the warrant was executed.

[ 123 ] The evidence is that Mr. Eheler was observed in the company of Mr. Thiessen entering 45615 Brett Avenue, minutes prior to the execution of the search warrant on unit 401. [ 124 ] When the front door to unit 401 was breached, Cst. Brault heard what he described as a loud banging noise from the kitchen/living room area, as if something heavy had dropped to the floor. [ 125 ] Later, Cst. Brault observed the blinds to the door leading to the balcony pushed through the doorway and shaking.

He observed the balcony door to be open and the screen to the balcony to be pushed from the frame lying on the balcony. [ 126 ] A surveillance officer observed a male drop from the fourth floor balcony to the third floor balcony. That male was later observed in the custody of police on the third floor balcony. [ 127 ] A second surveillance officer observed Mr. Eheler on the third floor balcony speaking on a cell phone. He was eventually taken into custody by the police. [ 128 ] I find on all of the evidence that Mr. Eheler was within unit 401 with Mr.

Thiessen when the police executed the search warrant on November the 26th, 2014. [ 129 ] As with Mr. Morrissey, the Crown's case against Mr. Eheler and Mr. Thiessen is based on circumstantial evidence. [ 130 ] As with Mr. Morrissey, I bear in mind both the burden of proof and the caution in the use of circumstantial evidence. [ 131 ] The Crown must prove beyond a reasonable doubt that the accused possessed the cocaine within the unit. That is, the Crown must prove both knowledge and control of the cocaine. [ 132 ] Both Mr. Eheler and Mr. Thiessen were within the residence when the warrant was executed. Mr.

Thiessen was arrested in the kitchen between the fridge and the kitchen island. Mr.

Eheler had exited through the sliding glass door from the kitchen/living room area, and swung down onto the third floor balcony where he was arrested. [ 133 ] In the kitchen, in plain view, were located two open bricks of cocaine on the counter, Pyrex measuring bowls containing cocaine and Phenacetin, scales, and packaging on the kitchen island. [ 134 ] In the bedroom, designated room 3, which was readily accessible, was located a hydraulic press, moulds for making bricks, white powder, Phenacetin, two safes, one open and one locked, both safes containing powder and crack cocaine. [ 135 ] Mr.

Thiessen was arrested in the area of the two bricks of cocaine and the cocaine apparently being processed on the island. Mr. Eheler, prior to taking flight from the unit, could only have been located in the kitchen/living room area. In both cases, I find on the evidence that both accused had the requisite knowledge to establish possession. [ 136 ] On the evidence, I find the Crown has proven knowledge of the cocaine. [ 137 ] The presence of the drugs, as earlier described, in both the kitchen and room 3, together with the presence of the accused, is evidence of the ability to control the substance.

In the case of R. v. Wu , 2010 BCCA 589 , Mr. Justice Frankel noted at paragraph 20: The law with respect to control in the context of constructive possession is well known. What the Crown must prove is that an accused had the ability to exercise some power (i.e., some measure of control) over the item in issue. It is not necessary for the Crown to prove that such power was in fact exercised. R. v. Morelli , 2010 SCC 8 , [2010] 1 S.C.R. 253 at 15-17, 137, 138; R. v. Webster , 2008 BCCA 458 , 238 C.C.C. (3d) 270 at paras. 42-44 . [ 138 ] Both Mr. Eheler and Mr.

Thiessen were observed keying into the building prior to the warrant execution. I find that the keys used were those located on the island. Those keys were described as being covered in white powder. This suggests that active processing of cocaine was ongoing by one or other of the accused in the presence of both of the accused and before the warrant was executed. This is further evidence of either actual control or the ability to control. [ 139 ] I find that both Mr. Eheler and Mr.

Thiessen were in control or had the ability to exercise control over the cocaine. [ 140 ] Therefore, I find that the Crown has proven beyond a reasonable doubt both the knowledge and the control necessary to establish possession. [ 141 ] With the admission that possession, if proven, was for the purpose of trafficking, I find both Mr. Eheler and Mr. Thiessen guilty of the offence as charged. (REASONS FOR JUDGMENT CONCLUDED)