Her Majesty the Queen - v. -, 2017 SKPC 32

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 032 Date: March 31, 2017 Information: 45443265 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Christopher Montague-Mitchell Appearing: K. Janis For the Crown B. Pfefferle For the Accused JUDGMENT R.D. JACKSON , J I INTRODUCTION [ 1 ] At the outset, the Court would like to thank both counsel for the excellent briefs provided which were of great assistance to the Court.

[ 2 ] The accused is charged on a four count Information that, on April 1, 2016: 1) he unlawfully trafficked in methamphetamine and/or cocaine, contrary to s. 5(1) CDSA ; 2) he possessed proceeds of crime not exceeding $5,000.00 contrary to ss. 354(1) and 355(

B) of the Criminal Code ; and that on April 2, 2016: 3) he possessed methamphetamine for the purpose of trafficking contrary to s. 5(2) CDSA ; 4) he possessed proceeds of crime exceeding $5,000.00 contrary to ss. 354(1) and 355(

A) of the Criminal Code . [ 3 ] Counts 1 and 2 of the Information relate to a surveilled meet between the accused and Wayne Mills, a suspected drug trafficker wherein the Crown alleges the accused sold quantities of methamphetamine and/or cocaine to Mills and was thereafter immediately arrested with $2,770.00 Canadian on his person, and $100.00 American funds. [ 4 ] Counts 3 and 4 involve a search and seizure at an apartment the next day which the police accessed through keys found on the accused at the time of his arrest.

There, 55.2 grams of methamphetamine and $26,650.00 cash were seized. [ 5 ] The Crown called the two surveillance officers, Constables Adam Blades and Cameron Graves, RCMP Corporal Dalton Marciniuk, and Constable Ian Ferguson who provided expert opinion evidence concerning criminal drug possession and trafficking. The defence called the accused as its sole witness. II ISSUES [ 6 ] The Crown and defence filed a formal document of Admissions narrowing the issues to be determined to whether:

a) the accused conducted a drug sale to Mills in the parking lot and is therefore guilty of trafficking and possessing the proceeds of the crime; and

b) the accused, in law, had possession of the drugs and cash found in the apartment the day following his arrest. III CROWN EVIDENCE Constable Adam Blades [ 7 ] Constable Blades is a member of the Saskatoon Police Service currently assigned to SIDEST - Saskatoon Integrated Drug Enforcement Unit. [ 8 ] On April 1, 2016, he and his partner, Constable Graves were conducting surveillance in an unmarked vehicle on the residence of Wayne Mills, a suspected drug trafficker, located at 1730 Avenue C North in Saskatoon.

[ 9 ] At 8:51 p.m., Mills was observed to leave his residence as a passenger in a black truck. An unidentified male was the driver. [ 10 ] The truck was followed to a parking lot in downtown Saskatoon located behind 525 - 24 th Street East, arriving at 9:06 p.m. [ 11 ] The surveillance vehicle was located roughly 100 to 150 feet from the truck. From this vantage point, the driver’s side and back of the truck could be seen.

The view was unobstructed and the lighting sufficient for observation. [ 12 ] About a minute to 1 ​ minutes later, a lone black male was observed to enter the alleyway walking southbound from the 500 block of 24 th Street. He was not seen to be carrying anything or having anything that appeared baggy or bulky on his person. [ 13 ] This individual proceeded into the parking lot where the truck was situated and attended to the passenger side where Mills sat. [ 14 ] He remained there for approximately three minutes.

What he was doing could not be ascertained as he was on the side opposite from the surveillance vehicle. [ 15 ] The truck backed out and left the parking lot. The male then walked back up the alley the same way he had entered towards 24 th Street. [ 16 ] At this point, owing to the remote location, time of day, and the manner in which this meet had occurred, the officers were satisfied that a drug trafficking transaction had just taken place.

Further, they had information that Mills was being supplied by unknown black males in the downtown area. [ 17 ] They accordingly made an immediate take-down arrest of this person, subsequently identified as the accused, Christopher Montague-Mitchell. He was not a target of any drug investigation, being previously unknown to them. [ 18 ] The following was located on his person:

a) Blackberry cell phone in his hands;

b) three bundles of cash held by elastics in right pant pocket;

c) wallet in left back pocket containing Ontario driver’s licence as identification;

d) e-cigarette; and

e) various keys. [ 19 ] From the keys found on the accused, a search was conducted the next day, April 2, of an apartment and mailbox located at 405, 311 - 6 th Avenue North, Saskatoon. [ 20 ] Found in the mailbox were letters addressed to one Brandon Lincoln. A postal receipt was found in the apartment matching this name together with an Apple notebook computer and power cord on a coffee table. Drugs and cash were found in the lone bedroom. [ 21 ] Apart from the keys, no physical items or forensic evidence was found connecting the accused to this apartment.

Constable Cameron Graves [ 22 ] Constable Graves is currently a member of SIDEST and is well experienced in drug investigations. By his estimate, he has been involved in excess of 100 files which includes 30 to 40 major operations.

He also served in the capacity of an undercover agent for 3​ years and has provided expert evidence on nine to ten different drug trafficking matters. [ 23 ] On April 1, 2016 he and his partner, Constable Blades, were conducting surveillance of the Mills residence and followed the Mills vehicle to a back parking lot common to the Star Phoenix building bearing civic address 525 - 24 th Street East, a church and an apartment block. [ 24 ] His estimate of where they parked was 100 feet away broadside from the driver’s side of the truck which was nosed in to a rail in the middle of the lot, facing north. [ 25 ] A minute or two after the truck arrived, a black male was seen walking from the area of 24 th Street.

As he got closer, the driver of the truck exited and went to the front, lifted the hood momentarily, and closed it. What he did exactly could not be ascertained. Mills remained in the passenger seat. [ 26 ] The black male walked southbound in the alley and then angled through the parking lot directly to the truck. When he got to the truck, he went around to the passenger side. [ 27 ] He stayed there the better part of two to three minutes. Nothing could be seen as to what he was doing. He then left and walked back north up the alley, the same direction from which he had come.

At this point the truck left as well. [ 28 ] The two to three minute meet was, in Graves’ view, longer than a typical low level street deal involving small quantities of drugs. Generally, longer drug transactions involve the sale of higher levels of drugs which need to be examined and the larger amount of cash counted. [ 29 ] It was decided at this point to arrest this individual and the balance of the operational team involved was dispatched to effect an arrest on Mills. [ 30 ] From keys found on the accused, the officers attended to the apartment complex at 311 - 6 th Avenue North.

This address was familiar to Constable Graves through another drug investigation of a person named Brandon Lincoln who had provided the address of 403, 311 - 6 th Avenue North as his residence when questioned at the time. [ 31 ] On April 1, a Canada Post notice was found stuck to mailbox 403 to the attention of Brandon Lincoln. The mail key found on the accused would not open this box but it did work on the adjacent box 405. When opened, a letter could be seen on top addressed to Brandon Lincoln.

This was left undisturbed until a warrant could be obtained. [ 32 ] Similarly, the suite key opened unit 405 which was briefly cleared by the officers. A formal search occurred the next day, April 2, after a search warrant was procured. [ 33 ] The search warrant uncovered the drugs and cash in the bedroom and computer and paraphernalia in the living room. As noted by Constable Blades, nothing was found in the apartment itself that could be linked to the accused. Corporal Dalton Marciniuk

[ 34 ] Corporal Marciniuk is a member of the RCMP with over 16 years experience, currently posted to SIDEST. He was part of the present matters before the court involved in the arrest of Wayne Mills and subsequent search of the apartment. [ 35 ] Tasked as the exhibit officer, it was Corporal Marciniuk’s job to catalogue all of the items seized from the accused, Wayne Mills, and suite 405, 311 - 6 th Avenue North. [ 36 ] Specifics of the evidence seized in connection with the entire operation included:

a) the accused: - two cell phones - one Blackberry and one iphone; - $2,770 cash in total packaged in three bundles held by elastics; - $100 American bills; - 2 sets of keys on a ring; - vehicle key fob; - wallet with Ontario driver’s licence; and - e-cigarette.

b) Wayne Mills vehicle: - 1 ounce of cocaine; - 2 and 1/2 ounces methamphetamine; - can of bear spray; - backpack containing Inositol powder, sandwich bag, scissors, extra collection of baggies, $60.00 cash; and - keys to truck.

c) suite 405: - duffel bag containing $26,650.00 cash packed in four different bundles (bedroom); - brown satchel with two 1 ounce bags of methamphetamine and one bag of “buff” (adulterant); - phone (living room); - Apple computer (living room); - two Sim cards; and - receipt referencing Brandon Lincoln (living room). [ 37 ] The baggies holding the drugs found in the satchel appeared to be cut in the same fashion as baggies seized from Wayne Mills.

[ 38 ] While the accused was being arrested, the other officers followed the Mills truck to the Parktown Hotel where it parked in the breezeway next to the bar. Mills left the truck and returned approximately 22 minutes later at which point the arrest took place. No charges were laid against the driver.

Constable William Ferguson [ 39 ] Constable Ferguson is a member of the Saskatoon Police Service, who authored the Expert Opinion Report, tendered by consent as Exhibit P-3. [ 40 ] As his report and expert credentials were admitted by consent, only the salient portions of his evidence pertaining to this matter will follow. [ 41 ] The supply chain of drugs includes four levels of traffickers from supplier to high level to mid-level to street traffickers. [ 42 ] A street level trafficker sells to the bottom or ultimate user in smaller amounts for personal use, ranging typically from .1 gram (point) to 3.5 grams (eight ball).

Sales are quick and involve smaller amounts of cash ranging from $40.00 to $80.00. [ 43 ] A mid-level dealer supplies street level traffickers. Generally, they sell by the ounce and purchase multiple ounces from the next level, the high level trafficker. They sell to known customers including dial-a-dope operations. [ 44 ] Suppliers sell only to high level dealers. [ 45 ] High level traffickers sell at the multiple ounce and kilogram level.

They do not sell to strangers and supply only mid-level dealers. [ 46 ] Both the mid-level and high level traffickers use techniques to distance or insulate themselves from jeopardy including the use of third party stash houses for drugs and offence-related contraband, third party couriers and vehicles, and use of multiple phones with encrypted messaging systems. [ 47 ] A stash house can be an apartment, house or any type of storage container.

Those whose names are connected with the stash location generally derive some ancillary benefit. [ 48 ] Only trusted associates of the trafficker would have unrestricted access to a stash location. In a case like the present involving $30,000.00 worth of cash and drugs, a person who knew nothing about the contents or what is going on would not have such access. Further, if cash or product were to go missing, the trafficker would have only to look to those limited number of people who did have access. [ 49 ] Not in every instance does the value of drugs sold and the cash exchanged match exactly.

Fronting of drugs can occur with trusted persons which involves the balance of cash coming later. [ 50 ] Drug traffickers quite often will have more than one cell phone - one for business and one for personal use. The business phone number is given to drug dealers so that the only calls and texts coming in would be concerning drug transactions. These phones can be passed around amongst associates much like a business running shifts. Phones like a Blackberry and iphone would be a more secure phone, meaning difficult to access.

[ 51 ] Often drug traffickers will employ the use of weapons for personal protection such as guns, knives and bear spray. The lower you go to the street level, the more weapons you will find on a person because they are meeting people they don’t know.

They’re always worried about users who may be impaired or who might rob or assault them. [ 52 ] Subject to certain variables including availability, quality, quantity, location of purchases and location of parties, 1 ounce of methamphetamine would cost between $1,300.00 to $2,200.00 in Saskatchewan. [1] [ 53 ] From the evidence seized from Mills, Constable Ferguson would consider him a street-level trafficker. The accused, by contrast, in his opinion would be a mid-level trafficker based upon what was found on his person.

IV EVIDENCE OF THE ACCUSED [ 54 ] The accused testified that he was a student enrolled in a Power Engineering course in Kindersley. He was on spring break week at the beginning of April so travelled by bus to Saskatoon to visit with his girlfriend and to prepare for an upcoming family wedding in Ontario. [ 55 ] He stated that he shared accommodation in Kindersley with two others for $500.00 per month.

He came to Saskatoon regularly enough that he also decided to secure a place for weekends which he found on Kijiji, with two students located at 1324 Edward Avenue for $400.00 a month. [ 56 ] He was also in the process of arranging his own apartment at 1208, 311 6 th Avenue North, the same building where his friend Brandon Lincoln lived and where the drugs and cash were found, the subject matter of these charges.

He had no lease for this apartment, just a month to month tenancy for $1,200.00. [ 57 ] He required this accommodation full-time because he was going to be in Saskatoon the next few months doing his practicum for his engineering course. The new address was about a 15 minute walk from 1324 Edward Avenue, along Spadina Crescent, he testified. [ 58 ] On April 1, he shared the evening meal with his weekend roommates on Edward Avenue. He then caught a cab to his new apartment and prepared to go out to a movie with his girlfriend.

The plan was to meet her at 10:00 p.m. at the Galaxy Theatre, which he acknowledged was located at the corner of 2 nd Avenue and 20 th Street in downtown Saskatoon. [ 59 ] He left the apartment for this purpose around 9:00 p.m. walking down 6 th Avenue and then turning east on 24 th Street toward Spadina Crescent. He was going this direction because, he stated, he was only in Saskatoon on weekends so was unfamiliar with the direction to the theatre. [ 60 ] He stopped to ask directions from an elderly gentleman in front of Knox United Church on the corner of 24 th Street and Spadina Crescent.

The man pointed him back west, he said. [ 61 ] He then walked around the church and entered the alleyway in what he acknowledged was “U-pattern” heading north up the alley where he encountered the Mills truck. Although challenged in cross-examination that both officers had witnessed him simply enter the alleyway off 24 th Street and walk southbound down the alley to the truck, he was adamant that he took this circuitous route. [ 62 ] As he walked by the truck, he could hear loud music playing. The passenger lowered his window and beckoned him over and asked for a cigarette.

Although he was transitioning to “vaping” at this time, fortuitously, the accused had a loose cigarette on him which he shared with this individual.

[ 63 ] He then walked away in a northerly direction back toward 24 th Street. He noticed the truck drive away as he was leaving.

When he reached the end of the alley he was intercepted by police officers and arrested. [ 64 ] He recalled no one else being in the truck besides Mills and further stated that Mills was in fact driving the truck when it left the parking lot “. . . yeah he was driving, I remember him passing me”. [2] [ 65 ] He denied that any drug transaction had occurred and provided explanations in his evidence regarding the various items found on him when arrested. [ 66 ] He explained that he carried a lot of cash because he was in considerable student loan and credit card debt, for which an automatic debit had been set up to withdraw an $800.00 payment each month.

To avoid the consequence of this automatic withdrawal, he would take cash out of his bank account before the withdrawal occurred. [ 67 ] In examination-in-chief, he testified that every 1 st of the month, money was withdrawn out of his bank account for this purpose. [3] In cross-examination he changed this to after the 1 st of the month, and then finally to the 5 th of the month. [4] He conceded this would mean his payments would then bounce each month as a result [5] . [ 68 ] When asked about what time he had gone to the bank that day, April 1, to withdraw the cash, he stated that he hadn’t actually been to the bank that day at all. [ 69 ] He was then asked when, in fact, had he withdrawn cash, to which he replied: Q Okay.

So where did the - but the $2,700 you told my friend came from taking it out of the bank right;? A Well, it wouldn’t have been on that date, no. Q Okay. So when did you take the cash out? A At that time, I don’t remember about what - when I took that cash out, no. Q - had you been carrying the cash around in your pocket? A few days? I mean I’m not asking for - you don’t remember specifics, but was this kind of, you know, a couple of days, a week?

A I don’t remember specifics of that, no. [6] [ 70 ] According to the accused, the loose keys found on him represented one key for 1324 Edward, two for 1208, 311 - 6 th Avenue North and, one for his place in Kindersley. The key ring contained five keys belonging to Lincoln Brandon which included the front door, mailbox and suite key for his residence at 405, 311 - 6 th Avenue North, where the drugs and cash were found. Additionally, there was a black automotive key fob belonging to Mr. Brandon.

[ 71 ] The accused came into possession of Mr. Brandon’s keys following a chance meeting at the Keg in Saskatoon. He explained that he and Mr. Brandon were childhood friends going back to elementary school and that this was the first time he had seen him since high school. By the Court’s estimate, this would be roughly seven to eight years, the accused stating he was 26 years of age. [ 72 ] Following a brief visit at the Keg, they parted and they did not see each other again. The accused then received a text from Mr.

Brandon informing that he was going back to Ontario for Easter and inquiring whether he could drop off his keys to the accused. [ 73 ] The purpose for this, according to Lincoln, was that in case anyone wanted to access his apartment they could simply contact the accused and he would let them in. The accused professed to think nothing of this and didn’t ascertain when Mr. Lincoln was returning. Mr. Brandon then subsequently dropped these keys off for him in the mailbox at 1324 Edward Avenue. [ 74 ] The accused denied ever accessing the suite himself or knowing what was there.

After being arrested, he never contacted Mr. Lincoln to discuss these turn of events because, he said, he didn’t have a phone. He then admitted he did have contact awhile later through Facebook. [ 75 ] The only evidence from the accused concerning the Blackberry he had in his hand when arrested and the iphone in his pocket, was that the iphone had a cracked screen. Beyond that, no questions were asked either in chief or cross-examination. [ 76 ] The accused testified he was transitioning from smoking to “vaping” which explained the e-cigarette found.

The loose cigarette was in case he required one although it is noteworthy that no lighter or matches were on his person. [ 77 ] His wallet contained an Ontario driver’s licence. He had not taken out a Saskatchewan driver’s licence and was not in need of a vehicle at this time, the accused testified. IV PROOF OF THE OFFENCES [ 78 ] Certain aspects of the Crown’s case have been conceded by the Defence.

Specifically, this included that, the drugs seized are methamphetamine and cocaine and the drugs and cash found in the apartment would be for the purpose of trafficking, and proceeds of crime, respectively. [ 79 ] What is left for the Crown to prove beyond a reasonable doubt for both the trafficking and proceeds of crime charges on April 1 and the possession for the purposes of trafficking on April 2, is based upon circumstantial evidence. [ 80 ] From this, certain legal principles emerge:

a) the definition of trafficking;

b) the definition of possession including actual, constructive and joint possession;

c) the definition of circumstantial evidence and how it is applied to prove the Crown ’s case; and

d) the application of R v (W)D [7] as the accused testified on his own behalf in these proceedings.

a) Trafficking [ 81 ]

Section 2 of the Controlled Drugs and Substances Act ( CDSA ) defines “traffic”: to sell, administer, give, or transfer, transport, send or deliver the substance. [ 82 ] The Crown alleges that a sale of the drugs took place on April 1, between the accused as a mid-level dealer and Mills, as a street level seller. If the evidence establishes same, obviously no issue would arise that the transaction constitutes trafficking.

b) Possession [ 83 ] Possession of drugs is also a defined term found in s. 2 of the CDSA which incorporates the definition of possession from s. 4(3) of the Criminal Code : Possession

(3) For the purposes of this Act, (

a) a person has anything in possession when he has it in his personal possession or knowingly (

i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of 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 be deemed to be in the custody and possession of each and all of them. [ 84 ] The theory of the Crown is that the accused was in constructive or joint possession of the drugs and cash found in the apartment on April 2, there being no evidence that he was in actual possession. [ 85 ] The Supreme Court in R v Pham [8] endorsed constructive possession as “knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item” and joint possession as “knowledge, consent, and a measure of control over the item to be possessed”.

c) Circumstantial evidence [ 86 ] Although much maligned in lay parlance as some form of inferior second cousin to direct evidence - “the evidence is only circumstantial”, this mode of proof is perfectly acceptable given appropriate safeguards in its implementation. As the Crown points out, the issue of possession in drug cases is seldom determined by direct evidence, particularly as it pertains to knowledge.

[ 87 ] Simply put, as articulated by the Supreme Court in R v Cinous [9] , circumstantial evidence is “. . . evidence that tends to prove a factual matter by proving other events or circumstances from which, either alone or in combination with other evidence, the occurrence of the matter in issue can be reasonably inferred”. [ 88 ] If the Court is to determine proof beyond a reasonable doubt based upon circumstantial evidence, the finding so made must be the only rational or reasonable conclusion to be reached from the evidence that is accepted. [10] [ 89 ] Further, the Court is to assess and consider the evidence “logically and in light of human experience and common sense”. [11] Mr.

Justice Bayda of our Court of Appeal in R v Franks [12] stated the following in this vein: [29] That inference-drawing process is lucidly described by Professor Alan Mewett, in a very useful

article “Secondary Facts, Prejudices and Stereotyping,” Vol. 42, Criminal Law Quarterly at pp. 319-20: What the trier of fact is asked to do is to bring to bear upon the exercise all those facts that he or she has accumulated over the years and which result in what we call common sense and experience in deciding whether a proposition has or has not been “proved.” This process is well known in the case of the expert witness, where a distinction is drawn between “primary facts” (which have to be proved) and “secondary facts” (which do not have to be proved).

The whole point of the expert witness is, of course, that the expert is permitted to state an opinion on some matter calling for particular expertise beyond the ability of the ordinary fact-finder in cases where that opinion would be of appreciable assistance to the lay fact-finder.

Expertise consists of the accumulation of some particular knowledge and the application of that knowledge to some particular fact situation. and later at p. 320: There is no difference in the process between the expert witness forming an opinion (which is merely drawing an inference) and the fact-finder coming to a conclusion. [Emphasis in Original] and at p. 322: The plain fact of the matter is that all inference drawing, not just expert inference drawing, must involve the same process, save that in the case of the ordinary trier of fact, we are not concerned with “expertise” but with “common sense” and “experience”.

But what are common sense and experience but an accumulation of facts or perceived facts? When the fact-finder applies his common sense and experience in order to draw an inference, he or she brings those facts to bear upon the process and comes to a conclusion. [Emphasis in Original] [30] Professor Mewett equates the common sense and experience of the reasonable juror (whom he describes at p. 331 as “the reasonable, informed, practical and realistic person who has considered the matter in detail”) with what he calls “secondary facts” that a juror brings into the jury box with him/her.

Those secondary facts do not need to be proved. Professor Mewett’s equation appeals to me. [31] For the purposes of the present case it is fair to say that the common sense and experience of the reasonable juror – the secondary facts – could well tell him/her that in this day and age of bank accounts, cheques, credit cards, bank cards, debit cards and ready access to automated bank tellers, people simply do not carry large sums of money with them.

And, if one should encounter such a person, it is virtually axiomatic that that person finds himself/herself in some out-of-the ordinary or exceptional situation, or is a person closely connected to some sort of enterprise that deals in large amounts of cash.

[32] That same common sense and experience could well tell the reasonable juror that a person who is found transporting huge quantities of vacuum-packed marihuana in packages containing consistent quantities suitable for resale is likely a person who occasionally or habitually traffics in or deals with marihuana, or is a person acting as an agent for someone who occasionally or habitually traffics in or deals in marihuana. [33] That same common sense and experience could also well tell the juror that illegal sales of marihuana are cash transactions, rather than easily traceable credit card, bank card, debit card or cheque transactions, and if they involve large amounts of marihuana those transactions will necessarily lead to an accumulation of a large amount of cash. [34] Accordingly, the common sense explanation for the out-of-the-ordinary or exceptional situation of a large amount of cash found in the possession of a likely trafficker in marihuana or one who is acting as an agent for a likely trafficker could well be that the accumulation of cash is as a result of previous sales of marihuana by that likely trafficker, barring, of course, some other credible explanation for that accumulation of cash. (And, as I noted, in the present case, there is no evidence of such other credible explanation).

d) R v W(D) [ 90 ] When an accused has testified in his or her own defence, the Court must assess the testimony within the framework of the Supreme Court decision of R v W(D) . The template set down in this case requires the following analysis: (

a) if the accused is believed then an acquittal must enter; (

b) if the accused is not believed but the Court nonetheless is left in reasonable doubt by such evidence, then the Court must acquit; (

c) if neither of the foregoing apply, the Court must then consider whether, on the evidence as a whole that the Court does accept, the Court is left in reasonable doubt as to the guilt of the accused. [ 91 ] Accepting or rejecting the testimony of any witness, the accused included, requires assessments of credibility. Such exercise requires application of various factors, including, but not limited to, demeanour, recall, inconsistencies, motive to prevaricate, corroborating evidence, contradictions within the evidence and rational connection to common sense and reality.

All in all - certainly an art rather than a science. [ 92 ] In making findings of fact, the Court may accept all, none, or a portion of a witnesses’ evidence. [13] VI DETERMINATION [ 93 ] In assessing the credibility of the accused and applying the principles of R v W(D) , the Court can state unequivocally that his evidence is not believed and the Court is not left in any reasonable doubt by it. The Meeting [ 94 ] The accused testified that he left around 9:00 p.m. to meet his girlfriend at 10:00 p.m. at the Galaxy Theatre.

He conceded in cross-examination that the theatre was at the corner of 2 nd Avenue South and 20 th Street. His apartment building was located at 311 - 6 th Avenue North, one-half block from 24 th Street. This would make the theatre four blocks over to 2 nd Avenue and four blocks down for a

total of 8 ​ blocks, which would certainly not take an hour to walk. [ 95 ] He also said that he could walk from his former place at 1324 Edward Avenue, just north of 33 rd Street, to his apartment on 6 th Avenue (​ block from 24 th Street) in 15 minutes. Comparing the two, the one hour to get to the theatre cannot be reconciled. [ 96 ] Additionally, the accused stated he walked east on 24 th Street toward Spadina Crescent i.e. away from the direction of the theatre, because he was “unfamiliar with the area”. Yet, he stated he lived in Saskatoon previously for 2 ​ years.

Further, he had no difficulty explaining how he would walk “along Spadina” from Edward Avenue to his downtown apartment on 6 th Avenue. Finally, he said he spoke to an elderly gentleman for direction who “pointed him back west”. If he was truly lost and unfamiliar with the area, it is hard to believe such vague and uncertain directions would be any use to him. [ 97 ] As far as the meeting itself is concerned, the two officers testified that the accused walked southbound down the alley off 24 th Street.

This is a fairly innocuous detail and would not have had much significance at the time. [ 98 ] By comparison, the accused stated he came into the alley in a “U-pattern” and was walking northbound when he saw the truck. Why would he be doing this if the gentleman giving him directions had pointed him west? [ 99 ] The accused also testified that he was walking by the truck and was motioned over by Mills who requested a cigarette (the fact that he would have one without carrying any means to light it is curious itself). According to the officers however, the truck was nosed into the parking stall facing north.

This would mean that, Mills, who was in the passenger seat, would have been on the opposite side of the truck, as testified to by the officers. Constable Graves, in fact, testified that the accused came to the truck, and walked around to the other side, where Mills was located. Accordingly, the version of the accused that Mills waved him over does not accord with the evidence. [ 100 ] The accused also testified that Mills was alone in the truck which was clearly wrong. Further, that he remembered it was Mills who drove by him when he left, again, was obviously in error.

Even if Mills had been alone, it would be odd he would be sitting in the passenger seat to conduct the transaction. The Cash [ 101 ] The convoluted explanation concerning the cash being carried by the accused in the amount of $2,770.00 (plus $100 American) appeared confusing, even to the accused. He was unable to explain when he even withdrew this money out. According to his evidence, it was not that day April 1, even though this was the day he received his student loan payment.

Nor could he keep straight when his automatic withdrawal came out - the 1 st , after the 1 st , or finally the 5 th . [ 102 ] The scheme of withdrawing cash in the first place to defeat his automatic debit withdrawal for his consolidated debt payments, he conceded, would mean he was bouncing his payments each month, a portion which was for his prior student loan.

This is a strange arrangement indeed when he was relying on the “thousand and some” he got on the 1 st of each month from yet another student loan. [ 103 ] As well, the fact that he had $2,770.00 on him did not match the $800.00 withdrawal amount, even if one were to accept this explanation. Further, the cash was in three bundles wrapped in elastic which is hardly how a bank would dispense it. Rather, it is more like the cash bundles found in the duffel bag in the apartment. The Keys

[ 104 ] The accused testified that he came into possession of the keys in relation to suite 405 through a chance meeting with his old friend Brandon Lincoln. It strains credibility however that Lincoln, out of the blue, not having had any contact with him for seven or eight years, would suddenly decide to leave keys to an obvious stash house in case “someone” wanted to gain entry.

It is even more odd when considering the accused’s evidence that he didn’t question this in any fashion, especially since he didn’t know when Lincoln would return. [ 105 ] This yarn stretches further when one considers that nearly $30,000.00 worth of drugs and cash were sitting in the apartment. Obviously, this is not something Lincoln would have left laying around, so anyone could access it.

Nor would Lincoln have likely left the keys sitting in a strange mailbox where any other person, including tenants, could have picked them up. [ 106 ] Having rejected the accused’s evidence, the Court must now turn to the balance of the evidence to determine whether the Crown has proven all elements of the offences beyond a reasonable doubt. Trafficking, April 1 [ 107 ] The following is accepted by the Court:

a) Mills, a suspected drug trafficker was followed to a remote location in downtown Saskatoon later in the evening;

b) within 1 to 1​ minutes the accused walked down the alley directly to the Mills vehicle;

c) he attended to where Mills was situate and interacted with him for approximately three minutes;

d) both parties immediately left the area thereafter;

e) the manner and duration of the meet was consistent with a drug transaction;

f) the accused was arrested immediately carrying two different cell phones consistent with what a drug trafficker would possess;

g) the accused possessed $2,770.00 Canadian cash and $100.00 American, sums which he could not reasonably explain;

h) the money was bundled in a manner consistent with a drug transaction;

i) the accused could not reasonably explain his presence in this location at ths time, other than for an arranged meet; and

j) Mills was followed from the meet and found to be in possession of methamphetamine and cocaine, consistent with values attributed to the cash found on the accused, according to the Expert Opinion Report. [ 108 ] In all the circumstances, the evidence leads to no rational conclusion but that the accused trafficked in methamphetamine and cocaine and that the monies found in his possession were proceeds of this crime. Cash and drugs found in apartment

[ 109 ] The suite at 405, 311 - 6 th Avenue North was an obvious stash house according to the criteria explained by the expert, Constable Ferguson. [ 110 ] How the accused came into possession of the keys relating to this suite has not been accepted by the Court. The only logical inference then to be drawn, according to the expert evidence, is that the accused would be a trusted associate of the occupant. [ 111 ] The only evidence of the identity of the occupant relates to Brandon Lincoln, a long time friend of the accused. [ 112 ] The accused took no steps to contact Lincoln when the arrest went down.

If the accused were no more than an unwitting dupe, he surely would have raised a great hue and cry upon being charged for a crime of such significance, particularly, when, by his own admission, he had previously served jail time for drug offences. [ 113 ] The only rational inference to be drawn from all of this evidence is that the accused had the keys in relation to the apartment knowing full well that Lincoln used it as a stash house. [ 114 ] In order to convict him for possessing the drugs and cash therein, the Court must be satisfied beyond a reasonable doubt that he had control and knowledge of this contraband.

The Supreme Court in Pham , supra , quoted: 18 The onus is on the Crown to prove beyond a reasonable doubt, all of the essential elements of the offence of possession. This can be accomplished by direct evidence or may be inferred from circumstantial evidence.

In Re: Chamber v The Queen , Martin J.A., stated that a court may draw “. . . appropriate inferences from evidence that a prohibited drug is found in a room under the control of an accused and where there is also evidence from which an inference may properly be drawn that the accused was aware of the presence of the drug .” [Emphasis added] [ 115 ] In R v Switucka [14] , Chief Justice Popescul drew the necessary inferences of control and knowledge of drugs found in a safe, to which the accused had the key attached to his key ring. [ 116 ] In the present case, control of the apartment is established by reason of the keys found on the accused.

Knowledge of the manner is which the apartment was used has also been proven. [ 117 ] In the Court’s view however, knowledge of the presence of the drugs and cash therein has not been proven beyond a reasonable doubt, for the following reasons:

a) there was no physical or forensic evidence found proving that the accused had ever been inside the apartment;

b) he testified he had a suite in the building. The police never checked with the landlord or tried any other suites with the keys found on the accused to establish whether or not this could be true;

c) the keys connected to the building were for suite 405 - not a confined space such as the safe in Switucka where access would equate logically to knowledge;

d) the drugs and cash were not in plain view able to be seen by simply opening the front door and looking in, but rather were in aseparate bedroom;

e) the drugs and cash were not seen until the search warrant was executed the next day. Even if they had been seen on April 1, thereis no evidence or inference that could be drawn that the accused was in the suite that day, or ever;

f) there is no evidence that the keys found relating to suite 405 were unique such that they could not have been duplicates. Indeed,the letter in 405's mailbox was addressed to Lincoln suggesting, logically, that he would have keys and continued access to the suite; and

g) although the baggies found on Mills appeared to match the cut pattern and colour strip of the baggies found in the brown satchel inthe apartment, this is not a sufficient nexus to draw the necessary inferences. Baggies are commonly used for packaging by all drugtraffickers according to Constable Ferguson. How they may be cut was not dealt with in the evidence.

The accused, as a mid-leveltrafficker may well employ similar packaging independent to what appeared to be in the satchel. [118] In short, there is nothing in the evidence against the accused that can reasonably elevate the requirement of knowledge of thedrugs and cash beyond suspicion and speculation. Mere knowledge that the apartment was a stash house is not enough to equate toknowledge that these drugs and cash were present at the time of seizure, with nothing more. Thus, he cannot be said to have been inconstructive or joint possession of same.

IV CONCLUSION [119] The accused is found guilty of counts 1 and 2 of the Information of trafficking in methamphetamine and/or cocaine andpossessing proceeds of crime not exceeding $5,000.00, respectively. [120] The accused is found not guilty of counts 3 and 4 of the Information that he possessed methamphetamine for the purpose oftrafficking and proceeds of crime exceeding $5,000.00, respectively. ________________________ R.D.

Jackson, J [1] Exhibit P-3, paras 29 - 30 [2] Transcript p 130, lines 8 - 9 [3] Transcript, p 107, lines 26 - 28 [4] Transcript, p 135, lines 1 - 2 [5] Transcript, p 136, lines 28 - 29 [6] Transcript, p 137, lines 14 - 27 [7] (SCC), [1991] 1 SCR 742 (SCC)

[8] 2006 SCC 26 , [2006] 1 SCR 940 at paras 15 and 16 [9] 2002 SCC 29 at para 89. [10] See R v Banovic, 2012 BCCA 471; R v Ganna Abdella, 2016 ONSC 6548 at paras 10 - 11. [11] R v Villaroman, 2016 SCC 33 at para 30. [12] 2003 SKCA 70 at paras 29 - 34. [13] R v Francois (SCC), [1994] 2 SCR 827 (SCC) [14] 2009 SKQB 260 (QB)