R. v. Young, 2022 BCPC 88

Citation: R. v. Young 2022 BCPC 88 Date: 20220125 File No: 6763-1 Registry: Queen Charlotte IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ROBERTA LYNN YOUNG REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D.T. REEVES Counsel for the Crown: A. Switzer Counsel for the Defendant: A.J. Turton, QC Place of Hearing: Masset , B.C. Date of Hearing: July 13, 14, 15; October 19, 20; November 30, and December 01, 2021 Date of Judgment: January 25, 2022 INTRODUCTION

[1] On September 13th, 2019, Roberta Lynn Young was jointly charged with Frank Jean Young, her husband, under Information6763-1 as follows: Count 1 Frank Jean YOUNG and Roberta Lynn YOUNG, on or about the 15th day of February 2019, at or near Skidegate, in the province ofBritish Columbia, did unlawfully possess a controlled substance, to wit: Cocaine, for the purpose of trafficking, contrary to Section 5(2)of the Controlled Drugs and Substances Act. [2] Roberta Young (hereinafter “Mrs.

Young”) was not present when the Queen Charlotte RCMP Crime Reduction Unit executed a search warrant on her Residence at 182, 3rd Avenue in Skidegate on February 15, 2019. Her husband, Frank Young (hereinafter“Mr. Young”), and their son Tyrone were present. The police located and seized various substances, along with cash, drug paraphernalia,packaging materials, scales, cell phones, and personal documentation. These items were recorded and photographed (Exhibit 1). [3] The various seized substances were subsequently analyzed and identified as cocaine and other controlled substances. [4] On July 17, 2020, Mr.

Young entered a guilty plea for his role in the matter. PRESUMPTION OF INNOCENCE [5] The obligation is upon the Crown to prove all elements of each offence beyond a reasonable doubt. The burden of proof restsupon the prosecution throughout the trial and never shifts to the accused person. [6] Reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice – it is a doubt based onreason and common sense and must logically be derived from the evidence or absence of evidence.

Probably guilty is not sufficient, norhowever is proof to absolute certainty required as that would impose an impossibly high standard. [7] The standard of reasonable doubt does however fall much closer to absolute certainty than to proof on a balance of probabilities.In short, if based upon the evidence before the court, I am sure the accused committed the offence or offences then I should convict,since this demonstrates that the court is satisfied of the accused's guilt beyond a reasonable doubt. (See R. v. Lifchus, (SCC), and R. v. Starr, 2000 SCC 40).

ASSESSING CREDIBILITY AND RELIABILITY OF WITNESSES [8] In this trial the Crown called the following witnesses:

a) RCMP Constables St. George, Waters, and Judd, all of whom were general duty members of the Haida Gwaii detachment andinvolved in the investigation of this matter; and,

b) Sargent MacIntyre, an expert witness qualified to provide opinion evidence on the consumption of cocaine, as well as methodsof packaging, distribution, storage, sale including prices, jargon and slang with respect to cocaine trafficking. [9] Although not required to do so, Mrs. Young called one witness for the defence, her now estranged husband Mr. Young. [10] From the Supreme Court of Canada in R. v. W.(D.), (SCC), this court is directed that when faced with conflictingaccounts involving credibility between Crown witnesses and the Accused, the following approach is to be taken:

a) First, if I believe the evidence of the accused, obviously I must acquit.

b) Second, if I do not believe the testimony of the accused but am left in reasonable doubt by it, I must acquit

c) Third, even if not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which Ido accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [11] In R. v. C.W.H., (BC CA), at page 16, the court further instructed that “if, after a careful consideration of all ofthe evidence I am unable to decide whom to believe, I must acquit”. Credibility is not judged solely on the witnesses’ appearance whengiving evidence.

Other factors that I must consider include “Opportunities for knowledge, powers of observation, judgment and memory,ability to describe clearly what he has seen and heard” (Faryna v.

Chorny (BC CA) pages 356-357). [12] To this I would add I must also be alive to the witnesses’ appearance or demeanour, ability to recall, motivations, probability orplausibility of their evidence, and the internal and external consistency of their testimony. [13] In assessing the credibility of witnesses, and in particular where their evidence is in conflict, I must also gauge that evidence withregards to “...its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize asreasonable in that place and in those conditions.” (Faryna page 357). [14] Even honest witnesses may make mistakes in their evidence, or have errors of recollection, or may present upon the stand in anervous or uncertain manner for reasons unrelated to the truthfulness of their testimony.

Where evidence is contradictory, it is an error tosimply weigh the evidence of one witness against the evidence of another. (R. v. Jackson, 2007 BCSC 636; R. v. Mann, 2010 ONCA342). [15] The Crown also tendered into evidence 13 exhibits with the consent of the defendant. [16] I found the Crown witnesses credible and reliable, noting that when confronted in cross examination with contrary observations

or a lack of observations as reflected in their notes they readily conceded such. [ 17 ] Regarding the evidence of Mr. Young, I must approach his testimony with more caution. At many points he spoke with apparent candour and made a number of unflattering admissions. He frankly admitted he wishes to resume his previous marital relationship demonstrating a bias in favour of the defence, yet he also made a number of admissions that on their face could appear to be contrary to Mrs. Young’s interests.

I therefore looked for both internal and external consistencies between his evidence and other evidence that I accepted, and weighed the totality of his evidence and the totality of the Crown’s evidence accordingly. ISSUE [ 18 ] Little direct evidence was called by the Crown aside from a number of Certificates of Analysis entered by consent as exhibits. At issue here is whether, based on the remaining circumstantial evidence, the Crown has proven beyond a reasonable doubt that Mrs.

Young was in possession of cocaine, and if so, whether this possession was for the purposes of trafficking. [ 19 ] While not originally argued by either Crown or the defendant, another issue raised in response to a query from the bench is, in the event that Mrs. Young is not found guilty of either constructive or joint possession, is she still criminally liable pursuant to s. 21 of the Criminal Code for aiding or abetting the commission of the offence by Mr. Young. BACKGROUND FACTS [ 20 ] On January 9, 2019, Queen Charlotte RCMP Constable Waters was tasked to lead an investigation into reports that Mrs. and Mr.

Young were trafficking cocaine out of their Residence. [ 21 ] The Young’s Residence is located in the First Nations community of Skidegate, a tight-knit community of about 800 people approximately ten minutes by car from Queen Charlotte City on the Haida Gwaii archipelago. Together the Youngs enjoyed possession of two neighbouring residences, living in the home numbered 182 (the “182 Residence”) with their daughter while their son appeared to live in the neighbouring home numbered 181 (the “181 Residence”).

It appeared to police however that all members of the family moved freely between the two properties (the “Residences”). As will be described further below, Mrs. Young is the only one of the couple that actually holds possessory rights to the Residences, which are located on Skidegate Band reserve land to which only she, as a member of the Haida First Nation, is entitled. Mr.

Young is neither “status” nor “non-status” First Nations as defined by the Government of Canada through the Indian Act and thus holds no lawful possessory right to either of the Residences. [ 22 ] All of the investigating constables were familiar with Mr. and Mrs. Young as Skidegate is a small community and the various members had participated with Mrs. Young in extra-curricular and community events. The RCMP Members also knew the Young family through regular police activities such as road checks and occasional police calls in the community. It was noted by Cst. Waters that Mrs.

Young normally drove a red Dodge Charger. [ 23 ] From the RCMP surveillance of the 182 Residence, police confirmed that their investigation targeted both Mr. and Mrs. Young, and that they focused their surveillance on both of the Residences. From the significant volume of evidence heard of the police surveillance, I find the following:

a) On January 9 th , 2019 from 1830 to 1934, Cst. Waters conducted persistent surveillance of the Residences. He noted a black “lifted” truck visit twice, the driver first attending at the front door of the 182 Residence for two minutes, and then returning shortly after and entering the home for six minutes. A grey truck and another white truck were also noted to make similar short visits, but police were unable to identify any of the vehicle occupants. No other vehicles were noted. Neither Mrs. Young’s red Dodge Charger nor Mrs. Young were observed.

b) On January 23 rd , 2019 from 0420 until 1040, police again conducted persistent surveillance of the Residences. Only Mr. Young’s vehicle was observed at either Residence. A male was observed to come to the 182 Residence at 0907 and remain for two minutes. Neither Mrs. Young’s vehicle, nor Mrs. Young herself, were observed.

c) On January 25 th , 2019 between 1647 and 1702, and again on January 26 th , 2019 between 1445 and 1635, police conducted “spot checks” focused on Mr. Young. The court was advised that spot checks involve police surveillance units driving by, rather than remaining in place as is done during persistent surveillance. Police noted Mr. Young at various local businesses and locations in and around Skidegate during these periods, but no observations of Mrs. Young or her vehicle were noted.

During this period, four visitors to the 181 Residence and three visitors to the 182 Residences attended for brief, under three minute, periods and Mr. Young was observed to depart and return from the 182 Residence twice.

d) On January 27 th , 2019, police observed the Residences for an unknown period, but only noted a vehicle associated with either Mr. Young or his son Tyrone. Neither Mrs. Young nor her red Dodge Charger were observed.

e) On February 1 st , 2019 at 1455, police conducted a spot check of the Residences. A white male was seen departing the 181 Residence and a white car was parked in front. From 1642 to 2010 police established a persistent surveillance of the Residences and noted Mrs. Young’s red Dodge Charger pull up and park at the 181 Residence. Mrs. Young and several of her children entered the 182 Residence carrying groceries. A short while later an unknown male exited the 181 Residence, placed a large duffle bag into the trunk of a white Dodge Avenger parked in front of the Residences and departed.

A truck then pulled up to the 182 Residence and departed shortly after, but no observation was made of Mrs. Young at this point and therefore police could not confirm her whereabouts at either Residence. At 1750 a black truck parked in front of the Residences and the driver entered the 182 Residence for three minutes before departing. The vehicle was stopped by RCMP Cst. Judd shortly after it left, in what is known as a “takeaway-buy arrest”, and the driver was arrested and searched. Cocaine in “dime baggies” was seized.

Subsequently a number of additional vehicles were seen to park at the 182 Residence and occupants of those vehicles briefly entered into the home and then left, during which time police lost continuity of Tyrone Young’s location either at or departing the Residences. Surveillance still was unable to confirm or deny the presence of

Mrs. Young, who was last seen entering the 182 Residence.

f) On February 3 rd , 2019 at 1122, police photos were taken of Mrs. Young’s red Dodge Charger but no notes were made regarding where the photos were taken or if police observed Mrs. Young on that date. No planned surveillance was conducted of the Residences.

g) On February 9 th , 2019, Mrs. Young was observed parked at the Queen Charlotte City BC Ferry terminal in the driver’s seat of her red Dodge Charger, with an unidentified passenger in the back seat. Mr. Young was seen disembarking the recently arrived Prince Rupert ferry on foot with a suitcase. He entered Mrs. Young’s car and together they drove to the 182 Residence.

h) On February 15 th , 2019 between 1453 and 1804, persistent surveillance was again conducted of the Residences. Again, a number of vehicles were seen to stop and occupants make quick visits into the 182 Residence. Police again conducted a takeaway-buy arrest against one of these vehicles resulting in the seizure of a small quantity of cocaine. At no point on this date was Mrs. Young observed, although her red Dodge Charger was parked at the 182 Residence. On one occasion, Mr. Young was seen to briefly enter Mrs. Young’s vehicle.

At this time, the police completed their Information to Obtain and Warrant to Search the 182 Residence, which was authorized and executed that same day at 2330. [ 24 ] When police executed the Warrant to Search on February 15, 2019, Mr. Young answered the door. His son Tyrone was on the couch. Mr. Young and Tyrone were both taken into custody and transported to the RCMP detachment. No one else was located in the residence. [ 25 ] Cst. St. George noted that, upon arrest, Mr. Young reached for his mobile phone, but Cst. St. George was able to quickly take it from him. Cst.

Waters stated that shortly after entering the home Mr. Young’s phone appeared to ring and to display the face and name of Mrs. Young. Cst. St. George also noted that Mr. Young’s phone appeared to display that several missed calls had been made to Mrs. Young. Shortly after these observations, the phone entered into a “factory reset” mode. While Cst. St. George advised she has seen this before and acknowledged that phones can be remotely “wiped”, no other evidence was heard regarding this. Mr.

Young’s son Tyrone was present in the main floor living room upon police entry, sitting on the couch and holding his own cell phone. Photos were taken documenting the search of the 182 Residence, and entered as Exhibit 1. [ 26 ] The 182 Residence is a two level dwelling-house, with the master bedroom, a kitchen, a living room and a dining room in the living area upstairs, and a partially finished basement with a large unfinished area adjoined by two bedrooms.

A number of items associated with dog ownership including food dishes were noted throughout the 182 Residence, however no dog was found during the search nor was one observed during police surveillance. [ 27 ] While searching the upper floor living room police located and seized:

a) A large bag containing many empty baggies and similar packaging materials located within the center console of the living room sofa (Exhibit 3);

b) A baggie consistent with the baggies at Exhibit 3 containing 17 white pills, found in plain view on a living room side table. The pills weighed 3.7 grams, were subsequently tested and the Certificate of Analysis at Exhibit 4 confirmed they were phenobarbital.

c) A home surveillance system with cameras directed at the front door and mudroom entrance, and other cameras directed at the front exterior of the residence. The system was on when police entered but a recording capability was not confirmed, and the viewing screen was prominently located in the living room and visible throughout the living room and from the entrance to the master bedroom (Exhibit 1, pp. 9 and 13);

d) A digital scale was located on the living room coffee table in plain view. Police confirmed it worked, and a field test strip tested positive for traces of cocaine;

e) Three orange syringes were found on the living room coffee table in plain view. They containing liquid later confirmed to be tetrahydrocannabinol and phytocannabinoid by Certificate of Analysis (Exhibit 5);

f) Inside a men’s jacket located in the living room, police located Mr. Young’s wallet containing his ID and $460 in cash. [ 28 ] By the front door, a woman’s purse was found in plain view. A small baggie was located inside the purse containing .9 grams of a brown substance that was later confirmed to be a cannabis solid by Certificate of Analysis (Exhibit 6). [ 29 ] The master bedroom of the residence is located immediately adjacent to and opens onto the living room. Beside either side of and at the head of the bed were located two bedside tables.

Inside bedside table #1 police found a significant quantity of empty baggies similar to those also found throughout the home as well a large quantity of female undergarments. Two of what appeared to be Continuous Positive Airway Pressure or “CPAP” machines can also be observed in the photos at Ex. 1, located beside either side of the head of the bed.

No forensic testing was conducted on these devices and, as neither Crown nor counsel spoke to these devices and what, if any, inference the court can make, nothing beyond noting their obvious presence is inferred. [ 30 ] Located on top of bedside table #2 was a locked personal safe beneath a large pile of female undergarments. Police forced the safe open and discovered:

a) three clear baggies knotted closed and weighing 27.8, 27.8 and 27.3 grams respectively, containing a white substance that was later confirmed by Certificate of Analysis at Exhibits 8, 9, and 10 as cocaine mixed with phenacetin;

b) A syringe containing a brown substance that was later confirmed by Certificate of Analysis as Cannabix solid concentrates (Exhibit 11);

c) Canadian cash totalling $1,150; and

d) Documents including an opened QTrade letter to Frank Young, an undated and sealed vehicle recall notice (not for the red Dodge Charger) addressed to Roberta Young at 182, 3 rd Avenue (Exhibit 12), and a document addressed to Mrs. Young titled “Document of Possession” from Indian and Northern Affairs Canada dated December 27, 2013. [ 31 ] Cst. St. Georges testified that the master bedroom and its closet had “primarily women’s clothing” and “a lot of women’s clothing, also some men’s clothes”. Inside the master bedroom closet police also found:

a) In plain view a plastic Tupperware-style container with lid, with the word “Soft” written on it;

b) A heart shaped Turtles chocolate tin was located in plain view. Inside the tin were a number of baggies similar to those found throughout the house, some of which contained a white powder; a 10-dollar bill and a small digital scale; a test weight, a knife and spoon. The $10 bill and digital scale tested positive for cocaine using a field test strip, and the small baggie with white residue was later confirmed to test positive for cocaine by Certificate of Analysis (Exhibit 7); and

c) A stainless steel mixing bowl was located in plain view, with visible white powder inside it. [ 32 ] Police witnesses confirmed that no fingerprints or other forensic evidence were gathered from any of the items seized aside from the submission of the substances for analysis. It was also confirmed that neither a wallet nor a cell phone apparently belonging to Mrs. Young were found while searching the 182 Residence.

Spread throughout the residence, both upstairs and downstairs, were hundreds of empty small plastic baggies, and many other packaging materials. [ 33 ] In the basement of the 182 Residence police noted two bedrooms, one containing personal materials belonging to Tyrone Young, and the other containing personal materials belonging to one of the Young’s daughters, Elizabeth. Aside of more small baggies consistent with those found throughout the Residence, nothing else of significant investigative value was located there.

EXPERT DRUG OPINION [ 34 ] Sergeant MacIntyre was qualified as an expert with regards to the packaging, distribution, sale, and use of cocaine and related drugs. He advised the court that the digital scales, calibration weight, generic and “designer image” marked baggies, mixing bowls, and other utensils seized and observed were all common to small scale drug distribution. The term “soft” written on a Tupperware container is a common drug trafficking term for bulk quantities of loose cocaine which can be cut with other substances into smaller, marketable quantities suitable for street sale.

He stated that the small baggies seen throughout the 182 Residence were commonly used to distribute small-scale street level drugs, normally in 0.1 gram amounts, and are frequently found where drugs including cocaine, fentanyl, and crack cocaine are sold. Likewise, the use of personal safes is common in such small-scale drug distribution to safeguard cash and larger quantities of drugs. Further, while dealers are commonly also users of drugs, the quantity of cocaine seized in this case is indicative of possession for the purpose of trafficking. [ 35 ] Sgt.

MacIntyre also testified that the surveillance system found in the 182 Residence is routinely found in homes where drugs are being sold. Exterior cameras, with and without a recording capability, are commonly used to notify home residents of customers, potential drug rip-offs or those intent on violence, and for early warning of police presence. He also told the court that traffickers of drugs frequently use cellular phones to arrange for the sale of their drugs, particularly when cocaine is involved. [ 36 ] Sgt.

MacIntyre explained that small digital scales similar to those seized are commonly used to measure larger quantities of drugs into smaller amounts suitable for street level distribution or sale, and that the test weight found with the scale in the master bedroom was normally seen in such operations as it is used to ensure scales were accurately calibrated. [ 37 ] Sgt. MacIntyre opined that it was normal for small- and mid-level dealers to purchase drugs in 1oz. quantities, which matched the three knotted baggies of powdery substance found in the main bedroom safe weighing approximately 1 oz. each.

These drugs would then be cut down by mixing them with other substances and packaging them into smaller amounts for further re-sale. As a result, the re-sale value of the seized cocaine is fluid however the effects of the Covid pandemic and the sale of these drugs in a remote community like the Haida Gwaii would inflate what would normally be the street price.

He opined that, conservatively, the value for 1oz is between $2,000 and $3,000; thus, the street value for the total amount seized would be between $6,000 and $9,000, resulting in a likely profit to the drug trafficker of several thousand dollars. [ 38 ] Sgt. MacIntyre further told the court that the abundance of unused packaging seen throughout the 182 Residence was commonly used to re-sell in street quantities cocaine and crack cocaine, and was not consistent with simple use.

When viewing the images of the three knotted baggies found within the main bedroom safe, he stated that one appeared to be powder cocaine, one appeared to be crack cocaine, and the third was either of these, but regardless the quantities were consistent with possession for the purpose of trafficking. [ 39 ] Sgt. MacIntyre also advised that it was common for low- and mid-level home drug trafficking operations dealing in smaller weights to experience frequent short duration visits to the home, as the sale of larger quantities would commonly involve less frequent but longer duration visits.

As a result, in his opinion, given:

a) The observed frequent short duration visits by multiple people;

b) The quantity of bulk cocaine which was not indicative of personal use;

c) The abundance of used and unused packaging;

d) The active home surveillance system set up and prominently displayed in a main area of the Residence; and

e) The other items used to cut, measure, mix, and package larger drug quantities into smaller “street level” quantities,

the drugs found here were possessed for the purpose of trafficking. [ 40 ] The executed Warrant to Search, Continuity of Exhibits and Certificates of Analysis were not challenged and all were accepted by the Court. Likewise, Sgt. MacIntyre’s opinion and conclusion were not challenged and are accepted. DEFENCE EVIDENCE [ 41 ] Although not required to do so, counsel for Mrs. Young called a single witness for the defence, Mr. Young. Mr. Young was originally co-accused along with the accused in this matter, his wife Mrs. Young.

He pled guilty to the charge of possession for the purpose of trafficking on January 14, 2021, and was released from custody in September later that same year. Mr. Young told the court that he had known Mrs. Young since she was a teen, that they married in 2000, remained together until a few years ago, and ended their relationship due to his drug problems. He advised that Mrs. Young kicked him out of the Residence in the fall of 2019 when he returned from jail and “resumed his bad habits”. Mr.

Young also told the court that he had been using drugs for years prior to this arrest and that he eventually resorted to selling drugs in order to support his habit. [ 42 ] Mr. Young testified that in January and February of 2019 he was living in the 182 Residence with his son Tyrone only, and that Mrs. Young was not residing there due to a breakdown in their marital situation. Moreover, his evidence was that during the police surveillance period between January 9 and February 15, 2019, Mrs.

Young was actually in mainland BC at Terrace staying with their son-in-law who was attending a 6-week carpentry course there. Mr. Young’s evidence was that Mrs. Young departed Haida Gwaii on the first ferry after Boxing Day, December 26, 2018, and that she only returned around the end of January for approximately one-week in order to swap out her car for Mr. Young’s truck. While Mrs. Young was on Haida Gwaii, Mr. Young testified that he left the 182 Residence to travel to the mainland to assist family with winter related issues, and when he returned Mrs. Young then left.

They never lived in the same location throughout this period. [ 43 ] Mr. Young testified that Mrs. Young stayed with her new boyfriend while on Haida Gwaii for this approximately one week period in early 2019, although he did concede that, as he was not on Haida Gwaii at that time, he could not be sure. Mr. Young told the court that by February 2019, Mrs. Young had been having an extra-marital affair with her boyfriend “Stephen” for about 2 years. He told the court that Mrs.

Young was unaware of the drugs in the home while she was in Haida Gwaii, and, further, she had no access to the drugs as they remained locked in the safe and only he had the combination. [ 44 ] Under vigorous cross-examination by the Crown, Mr. Young agreed that he pled guilty to possessing the drugs for the purpose of trafficking. He agreed that he and Mrs. Young remain married and that some time ago he became aware of her affair and threatened Stephen about the relationship. Mr.

Young later clarified that he believed the affair began about 2 years previously and he became aware of it only in the fall of 2018 or early 2019. He initially told the court that Mrs. Young and he never lived together while he was aware of her relationship with Stephen, but then later in his cross-examination said he was aware that Mrs. Young and Stephen were dating for a period while he and Mrs. Young lived together. [ 45 ] Mr.

Young maintained that only their son Tyrone was living with him in the 182 Residence at the time of the police search, and that he had never seen Tyrone use drugs, and had never given or sold Tyrone drugs. He was adamant that at the time of the search Mrs. Young was living with Stephen and no longer living at the residence. Mr. Young agreed that although Mrs. Young remains currently in a relationship with Stephen, Mr. Young is working to get back together with her and resume their marriage. [ 46 ] Mr. Young further told the court he has not lived at the 182 Residence since his release, but Mrs.

Young does occasionally. Mr. Young also told the court that because, both the 181 Residence and the 182 Residence are located on Skidegate reserve land and only Mrs. Young belongs to the Haida first nation, only Mrs. Young’s name is on the property and she alone has the right to live in and possess the properties. Mr. Young also told the court that he never gave directions to Mrs. Young regarding the Residences, emphasising that “it was her house, she could do whatever” and in fact she had evicted him as described above. [ 47 ] Mr. Young advised the court that Mrs.

Young had been aware for a long time that he had a problem with drugs, a habit he developed in his late 20s, and by the time he was 35 or 40 he was using $450 in drugs every few days. As a result of his drug habit, Mr. Young told the court he suffered a heart attack in 2000 and further medical complications 7-8 years ago. [ 48 ] When pressed in cross-examination, Mr. Young agreed he has been dealing for approximately the last 10 years. Mr. Young related to the court that when he first began dealing he would have Mrs.

Young drive him into town where he would leave her in the parked truck while he left on foot to make sales, and that he would tell her he was going to the bank. [ 49 ] Mr. Young told the court that he initially began sharing or giving away drugs from the home he and Mrs. Young occupied prior to moving to the 182 Residence. Upon residing in the 182 and 181 Residences, about 4 or 5 years before his arrest for this matter, Mr. Young began regularly selling drugs from their Residence. He would normally purchase bulk cocaine 1oz at a time, although he acknowledged he had 3oz when the police searched his home.

Customers would phone and occasionally text asking if “anything was happening” which was his code for a transaction. He owned two phones, one of which Mrs. Young would normally possess and use. Mr. Young testified that when Mrs. Young received a text or call for him on the phone she used, she would simply pass him the phone without knowing the purpose of the call or text. Mr. Young told the court he only kept drugs for sale in the safe beside the main bed or perhaps in his pocket, never anywhere else in the residence. Throughout his evidence, Mr. Young remained adamant that Mrs.

Young was never aware of his trafficking. [ 50 ] Once he began dealing from his home directly, Mr. Young described conducting 5-10 transactions per day from the 182 Residence by departing those areas subject to his surveillance cameras and moving into a “dead zone” outside of the porch, where he could carry out his sale without being viewed by anyone in the home. This was done to prevent anyone in the Residence from knowing what he was doing. He agreed this would occur multiple times a day, at all hours, and that the sales would normally take only a few minutes.

He likewise told the court that he didn’t mix or cut his drugs in the 182 Residence, rather he would go into the bedroom safe, remove a small quantity of drugs and place them in his pocket, and then go to someone else’s home to cut the drugs. He would also sell marijuana in addition to cocaine.

[ 51 ] Mr. Young was asked about previous discussions he had with Mrs. Young, or her knowledge or involvement in his drug trafficking. Spousal privilege, either as a form of class privilege or as codified in s. 4(3) of the Canada Evidence Act , R.S.C., 1985, c. C-5 , was not claimed, and Mr. Young chose to answer these questions. In answering however Mr. Young become evasive and argumentative. Mr. Young denied knowing what Mrs. Young does for a living although he admitted being aware that she had purchased a pressure washer 1½ - 2 years ago, probably for business reasons. He conceded that it was likely Mrs.

Young would have slept in the master bedroom whenever she was in the residence and probably knew “something was up”. At this point in the cross-examination Mr. Young admitted that he assumed Mrs. Young knew he was dealing, but they didn’t speak of it. When Mrs. Young asked about his activities, Mr. Young would tell her simply that he was going out to see someone. [ 52 ] I accepted and reviewed Mr. Young’s evidence with a great deal of caution as previously outlined. Given his evasive answers to many questions in cross-examination, and his stated desire to resume a familial relationship with Mrs.

Young, the likelihood of bias in his evidence was present and I find this affected his credibility to the court. I therefore found that his denial of Mrs. Young’s knowledge of his drug dealing activity lacked credibility, particularly given the number of years he testified this took place, his description of having her drive him downtown without credible explanation while he would leave the vehicle to sell drugs to customers, frequency of customers to the Residence and illogical practice of leaving the home to a surveillance “dead zone” to make the sales.

I therefore gave this evidence minimal weight. [ 53 ] Likewise, I do not believe Mr.

Young’s evidence that he would mix and cut drugs for re-sale in another location outside of the residence, given the surveillance system which was prominently displayed and served to protect his trafficking operation, and the amount of drug paraphernalia in the Residence, including syringes filled with cannabinoid solids, the cocaine contaminated digital scales, baggies found throughout the Residence, the mixing bowl, the Tupperware container labelled “soft”, test weight, the other trafficking related items, and the baggies found in the main bedroom closet. [ 54 ] Lastly, in reviewing the evidence seized from the master bedroom which included a significant quantity of women’s clothing and, in particular, undergarments, that were both in bedside table #1 and heaped on top of the locked safe that contained 3oz of cocaine on bedside table #2, as well as the significant amount of cash and documents in Mrs.

Young’s name; I do not believe Mr. Young’s evidence that Mrs. Young was unaware that he cut his drugs in the home or that she had no access to the safe or at least some knowledge of its contents. [ 55 ] While examining Mr. Young’s testimony on other matters however, I found external consistencies that supported his evidence. His testimony that Mrs. Young was likely aware of his long-term drug problem which resulted in two significant medical emergencies had the ring of truth given their long term married relationship at that time. She would have been aware of his medical emergencies as his spouse.

I also placed some weight on his evidence regarding Mrs. Young’s absence from Haida Gwaii starting in late December 2018 or early January 2019, given that police surveillance also failed to observe her for much of this period. [ 56 ] As well, his testimony that Mrs. Young returned for approximately a week around the end of January and during which time he departed is also supported by police observations. Only Mrs. Young and several of her children were seen entering the 182 Residence on February 1, 2019.

The police also reported seeing the red Dodge Charger associated with her on February 3, 2019, and then seeing her picking Mr. Young up at the ferry terminal on February 9, 2019, but do not report seeing Mr. Young in the community over this same period. This supports Mr. Young’s testimony that he departed Haida Gwaii to assist family on the mainland while she remained. His evidence in this regard was further supported by police observations of Mr. Young, and Mrs. Young’s car, after February 9, , 2019, but not Mrs. Young. [ 57 ] Lastly, Mr.

Young’s candid admission that he had no control over the residence, as it was in Mrs. Young’s name and “it was her house, she could do whatever she wanted”, is also supported by the fact that Mr. Young was ejected from the residence by Mrs. Young when he resumed his drug habit following release from custody. Mr. Young’s evidence was thus externally consistent with these police observations and his current living situation, and I found reliable in these regards.

THE LAW Elements of the Offence of Possession for the Purposes of Trafficking – Cocaine [ 58 ] I heard no dispute with respect to the date, time and jurisdiction of the offence charged. Mrs. Young was arrested following the conclusion of the investigation and was known to the investigating officers, thus identification of the accused is also not at issue. The drugs seized from the safe were tested, and this court has accepted the Certificates of Analysis at Exhibits 8, 9, and 10 that the substance was cocaine mixed with phenacetin.

There was no challenge to any of the other Certificates of Analysis or the analyst’s conclusions, thus I find the Crown has proven beyond a reasonable doubt the substance found within the safe was cocaine. Likewise, I find that the substances found throughout the 182 Residence that were analyzed and Certificates of Analysis entered into evidence were prohibited substances as indicated in the applicable Certificates. [ 59 ] Subsection 5(2) of the CDSA makes it an offence to possess a controlled substance for the purpose of trafficking. [ 60 ] When police entered the 182 Residence, Mrs.

Young was not present and no evidence has been led with regards to her having any controlled substances on her person. The Crown’s position then is that Mrs. Young was in constructive and/or joint possession of the 82.9 grams of cocaine found in the master bedroom safe, and that the cocaine was possessed for the purpose of trafficking. [ 61 ] Before the Court can find Mrs. Young guilty of possession of cocaine for the purposes of trafficking, the Crown must prove each of the remaining essential elements beyond a reasonable doubt: a. Mrs.

Young was in possession of a controlled substance – here either jointly or constructively; b. Mrs. Young knew or was willfully blind to the fact that the substance was cocaine; and c. Mrs. Young had joint or constructive possession of the substance for the purpose of trafficking.

Possession [62]

Section 2 of the CDSA adopts the definition of possession found at s. 4(3) of the Criminal Code, which states: 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 anotherperson; 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. [63] Culpable possession may therefore may be personal (or actual), joint, or constructive (See R. v. Pham, (ONCA), at para. 14, affirmed 2006 SCC 26 at para 15; and R. v. Morelli, 2010 SCC 8 at para 15.).

Personal or actual possession was notargued here, and my analysis will focus on constructive and joint possession. [64] Constructive possession occurs where the substances are found in a location over which the accused has some element of control.Unlike personal possession, the Crown is not required to prove the accused manually handled the drugs (See R. v. Strickland, 2011BCPC 103, at para. 36 citing R. v. Fisher, 2005 BCCA 444 para. 24). Although the drugs are not actually on the accused, the law deemsthe accused to be in possession by virtue of s. 4(3)(a)(

i) and (ii) of the Code. [65] The requirements to find constructive possession were set out by Justice Fish at para 17 of Morelli: [17] Constructive possession is established where the accused did not have physical custody of the object in question, but did have it“in the actual possession or custody of another person” or “in any place, whether or not that place belongs to or is occupied by him, forthe use or benefit of himself or of another person” (Criminal Code, s. 4(3)(a)).

Constructive possession is thus complete where theaccused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not thatplace belongs to him, and (3) intends to have the object in the particular place for his “use or benefit” or that of another person. [66] To prove joint possession, the Crown must show that someone other than the accused had possession of the prohibited substancewith the accused’s knowledge and consent, and that the accused had some measure of control over it (Fisher at para 24). [67] The last element of possession requires proof of control over the object in the place (Pham, at para 15).

Knowledge [68] In Aiello v. R, (SCC), the Supreme Court of Canada affirmed Martin, J.A., (Regina v. Aiello, (ON CA)), where he defined “knowingly” to mean the accused was aware of, or reckless, or wilfully blind to, the possession or custodyof the substance in the place and did not act through ignorance, mistake, or accident. This may be inferred from the surroundingcircumstances. [69] Wilful blindness is further explained in R. v. Briscoe, 2010 SCC 13: [21] Wilful blindness does not define the mens rea required for particular offences.

Rather, it can substitute for actual knowledgewhenever knowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicionis aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. SeeSansregret v. The Queen, (SCC), [1985] 1 S.C.R. 570, and R. v.

Jorgensen, (SCC), [1995] 4 S.C.R. 55.As Sopinka J. succinctly put it in Jorgensen (at para. 103), “[a] finding of wilful blindness involves an affirmative answer to the question:Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?” (emphasis added) Knowledge of the Nature of Drug Possessed [70] In trafficking, importing, and possession cases the Crown is not required to demonstrate that the accused knew he or shepossessed (or was importing or trafficking in) the very prescribed drug identified in the indictment; provided the accused knew the drugwas a narcotic - for example, the actual drug involved is cocaine whereas the accused believed it to be hashish (See R. v.

Burgess, (ON CA); R. v. Blondin, (BC CA); R. v. Kundeus, (SCC)). J.A.

Brooke in Burgessstated at para. 2: [We] are all of the opinion that in these circumstances where the evidence is clear and consistent only with the conclusion that theaccused knew the substance that he had in his possession was indeed a drug the possession of which was contrary to the statute, the factthat he mistakenly believed the drug to be hashish rather than opium is of no moment… [71] The Crown must prove using either direct or circumstantial evidence, or a combination of both, that the drugs were jointly orconstructively possessed, knowledge of the prohibited nature of the drugs and that it was possessed for the purpose of trafficking beyonda reasonable doubt.

Here, the court has heard only circumstantial evidence as was pointed out by counsel for the accused. [72] The defence called a single witness, Mr. Young. The Crown adduced no out-of-court statement or acknowledgement by

Mrs. Young that she stored, or directed to be stored, the cocaine in the master bedroom safe, or knew of its existence. No witness testified to having observed Mrs. Young store or deal with the cocaine. The Crown relies on circumstantial evidence to prove the knowledge element of constructive or joint possession. Accordingly, I must be satisfied beyond a reasonable doubt that Mrs. Young’s guilt is the only reasonable conclusion that can be drawn from the totality of the evidence (See R. v.

Villaroman , 2016 SCC 33 , para.55). [ 73 ] The evidence does not have to exclude entirely other conceivable inferences, but such alternatives must not raise a reasonable doubt. In Villaroman , Cromwell J., referenced the rule in Hodge’s Case ( R. v. Hodge 1838 CanLII 1 (FOREP) , 2 Lewin 227 , 168 E.R. 1136 (Eng. C.C.R.) ), stating in part: [35] . . . In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts...

Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it.

If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt... [36] . . . a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus , a reasonable doubt “is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence ”: para. 30 (emphasis added). A certain gap in the evidence may 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. [37] When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt ... the Crown thus may need to negative these reasonable 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”… “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. . . . [41] ...— that to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative — a helpful way of describing the line between plausible theories and speculation. [42] . . .the trier of fact should not act on alternative

interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible. [Citations Omitted] CROWN POSITION [ 74 ] The Crown submits the circumstantial evidence in this case establishes beyond a reasonable doubt that Mrs. Young had the necessary knowledge and control to establish her constructive or joint possession of the cocaine for the purpose of trafficking. [ 75 ] The Crown highlights the following evidence regarding knowledge or wilful blindness:

a) The residence entrances and perimeter were under video surveillance with the display prominently featured in the main floor living room, visible throughout that room and from the main bedroom;

b) Drug paraphernalia was scattered throughout that living room, including an operational scale with cocaine residue on it and syringes containing phytocannabinoid and tetrahydrocannabinol in plain view on the living room table;

c) A very large quantity of new or clean “dime bag” baggies were found in the living room couch center console; d) 17 small white phenobarbital pills were found in a small baggie on a living room table;

e) A small quantity of cannabis solid concentrates were found in a baggie in a purse in front entrance/living room area;

f) The master bedroom was located immediately adjacent to the living room, to enter one would have to pass along and in full view of the living room and its contents;

g) Within the master bedroom was primarily women’s clothing, including in the bedroom closet where a mixing bowl with white residue was plainly visible, plus a tin containing another digital scale contaminated with cocaine residue, a test weight, more baggies and drug residue, and other items used in the cutting of drugs, plus a Tupperware container with “Soft” written upon it - a term used in the drug trade to describe powdered cocaine;

h) On either side of the master bedroom bed were bedside tables. In table #1 was a significant quantity of empty baggies similar to those also found throughout the home as well a large quantity of female undergarments. On top of table #2 was a telephone and a locked personal safe beneath a large pile of female undergarments. Within the safe were three bags of cocaine phenytoin totaling 82.9 grams; a plastic syringe holding cannabis solid concentrates; documents in the name of Mrs. Young, one dated and another undated, and $1,150 cash; and

i) The evidence of Mr. Young, if accepted, includes his admission that when Mrs. Young would live in the residence she would sleep in the living room or master bedroom. [ 76 ] The Crown submits that, given the significant quantity of drugs and drug paraphernalia found throughout the residence, in particular in the master bedroom and in plain view within the living room, and the home surveillance system, if Mrs. Young did not have

actual knowledge of the drugs located within the safe, she was wilfully blind and sufficient knowledge is made out. [77] With regards to finding the necessary element of control, the Crown points to the following:

a) Only Mrs. Young had the legal right to occupy the residence as she alone is of First Nation decent and a member of theSkidegate First Nations;

b) If accepted, Mr. Young testified that Mrs. Young had the power to expel him from the residence, which she in fact didfollowing his release from his custodial sentence; and

c) The drugs in question were located in a safe, on a bedside table under women’s undergarments within the main bedroom, itselfcontaining a very significant quantity of women’s clothing. DEFENCE POSITION [78] In reply, Mrs. Young points out that this court has no direct evidence that she knew of the presence of drugs in the residence northat she gave permission for drugs to be sold from the home. The Crown was unable to provide evidence that Mrs.

Young had accessinto the safe where drugs were located, or made out that she ever handled the drugs or was even aware of their presence there and, thus,wilful blindness is not made out. [79] With regards to the evidence from the defence witness Mr. Young, it is argued that his testimony regarding his sale of drugswhile Mrs. Young was in residence be discounted and not be considered as relevant to the charge before this court. The Court is alsourged find that Mr. Young’s evidence that the cell phone used by Mrs.

Young was in his name and that she would hand it to him whencustomers would call or text without becoming aware of the nature of those calls and texts is insufficient to attribute knowledge toMrs. Young in this matter. CONSTRUCTIVE OR JOINT POSSESSION [80] In Pham, Ms. Pham and Mr. Nguyen were jointly charged with possession of cocaine for the purpose of trafficking following apolice search of an apartment. Ms. Pham occupied the apartment briefly before Mr. Nguyen moved in and there was no evidence thatMs. Pham ever personally possessed the cocaine.

She was not present when the police searched the apartment and found the cocaine andtherefore the Crown’s case rested on constructive or joint possession. [81] Counsel for Ms. Pham suggested it was Mr. Nguyen who was trafficking and that all the drugs and money found in the apartmentbelonged to him alone. The court received evidence from a neighbour demonstrating people regularly came to the apartment for shortvisits and cash was exchanged. Ms. Pham was present and opened the door admitting the short duration visitors on two occasions.

Thisevidence was also supported by police surveillance. [82] While searching the apartment police found two pouches together beside the bathroom sink. One black pouch, in full view butclosed, contained individually wrapped cocaine. The second pouch, pink in colour and also in full view, was open and contained makeupand $165.00 in $20 bills. [83] The trial judge held that the only reasonable inference from this evidence was that Ms. Pham was aware of and participated indrug trafficking.

The evidence showed she had more than a quiescent or passive knowledge of the drugs and demonstrated she had anelement of control over them. The conviction was upheld on appeal. [84] In Strickland, Judge Dhillon convicted the accused after a trial for trafficking in seven different illicit drugs with a cumulativestreet value of $43,000. The drugs were found in a plastic organizer within a plastic storage container in a Vancouver hotel suite.

Policeseized the drugs and a significant amount of cash and drug paraphernalia, including weigh scales, score sheets, packaging materials, anelectronic paper money counter and a vacuum heat sealer. [85] The hotel suite was unoccupied when police executed the search warrant. The suite was rented for two people for four nights;however, Mr. Strickland’s name was not on the hotel register. Police found within the suite a number of personal documents bothhistorical and current linked to Mr.

Strickland, including bank cards, business records, correspondence, court documents, a recentlyexpired Driver’s licence, a Costco membership card, sex recordings, and a Christmas card. [86] Judge Dhillon found the hotel suite was been utilized by a drug trafficker involved in a sophisticated drug trafficking operation.The principal issue left to decide was whether the Crown had proven Mr. Strickland had knowledge of and/or control over the drugs.

Mr.Strickland argued there was no evidence that he was ever in the suite, much less connecting him to the suite. [87] Judge Dhillon cited the following passage from R. v. Montgomery, 2007 BCSC 664 in her analysis, where at para. 30 the Courtnoted: [30] The Crown in this case relies partly upon the documents located at the two residences to assist in establishing access and controlto these locations. It is well settled that the Crown is right to do this.

Documents such as income tax forms, invoices, cancelled cheques,leases, insurance papers and the like in a residential premises have been found in certain circumstances to provide fair inference that theperson identified in the documents is an occupant with a significant measure of control or the premises… [Citations omitted] [88] At paragraph 58 in Strickland, Judge Dhillon cites the following passage from R. v. Emes, (ON CA): [8] . . . Personal papers are, as a general rule, maintained in a location to which a person has access and control. When documents such as

income tax forms, invoices, cancelled cheques, leases, insurance papers and the like are located in a residential premise it is surely a fairinference that the person identified in the documents is an occupant with a significant measure of control. This is a matter of logic andcommon sense.

While the existence of the papers at the location in question could be as a result of the documents being stolen, or simplystored there, or abandoned, such explanations do not, in my view, accord with the factual probabilities of the circumstances here… [89] Judge Dhillon concluded the number of recently dated documents sent to the accused at his mailing address could only have beenobtained by the accused or someone acting under his authority. It was highly unlikely the documents would have any value to someoneother than the accused.

Based on the presence of his personal documents in the hotel suite, Judge Dhillon was satisfied beyond areasonable doubt Mr. Strickland had personally occupied the suite on the offence date. [90] Judge Dhillon also found Mr. Strickland had knowledge of the existence of the drugs, even though they would not beimmediately apparent to a causal visitor. She found Mr. Strickland knew about the presence of the drugs in the suite based on theamount, variety and value of the unsecured drugs in the hotel room, their physical proximity to the accused’s personal papers,confidential recordings and other items. [91] In R. v.

Liu, 2011 BCSC 1269, Victoria City Police searched a suite occupied by a Mr. Shusterman. Immediately after policeentered the premises, an officer outside witnessed a bag of what turned out to be 29 grams of cocaine fall from a bedroom window.Officers entering the premises found Mr. Shusterman alone with his hands on the blinds of an open window in the same bedroom fromwhich the bag of cocaine fell. [92] Mr. Shusterman and another person named N.H. occupied the suite at the time of the search. The tenancy agreement was in thename of N.H., as was the hydro bill. Mr.

Shusterman argued that as the tenancy agreement and hydro bill were in the name of someoneelse, his presence at the time of the search was in the nature of a “found in” and that the Crown failed to prove he had the requisiteknowledge and control to establish possession of the drugs seized. [93] At paragraph 24 in his decision Justice Romilly cited Frankel J.A., writing for the BC Court of Appeal in R. v. Webster, 2008BCCA 458 paras. 7 and 9: [7] Control for the purpose of constructive possession does not require that the accused did in fact exercise control over the object inquestion.

In…the Supreme Court accepted that control means power or authority over the object in question. Similarly,…, the court heldthat the right to grant or withhold consent to drugs being stored in a bedroom was sufficient to constitute control. Again, control isestablished if there is the right to grant or withhold consent. It is not necessary that the consent in fact be granted or withheld. . . . [9] The trial judge’s recharge on control was consistent with the above authority.

She correctly asked the jury to determine whetherthe appellant was able to exercise a directing, guiding or restraining power over the drugs. It was not necessary for the jury to find thatthe appellant did in fact exercise a directing, guiding or restraining power over the drugs. [emphasis added] [94] Justice Romilly outlined at paragraphs 29–36 that while presence alone is not necessarily proof of guilt, equally however, othercircumstantial evidence may combine to permit a conviction of possessing a controlled substance for the purpose of trafficking, such as:

a) the quantity of the controlled substance in the accused’s possession, (para. 30 citing R. v. Yung Chan , (ONCA); para. 32 citing R. v. Peters and Peters, 2005 MBQB 146; para. 35 citing R. v. Wiliams, 2010 ONSC 184);

b) the nature of the packaging, (para. 32 citing Peters and Peters);

c) the presence of money on the accused’s person, (para 36);

d) a large amount of cash seized from the accused’s residence (para. 36); and,

e) the price of the drug on the illegal market, (para. 36 citing R. v. Cripps, (BC CA)). Defence position and authorities [95] As indicated, the defendant simply submitted that there is no direct evidence of Mrs. Young’s knowledge or control of thecocaine. The Defence provided no case law in support of this argument other than to emphasise the rule in Hodges’ Case, found inR. v. Hodge, 1838 CanLII 1 (FOREP). This rule may be briefly summarized as a guilty finding against Mrs.

Young can only be foundwhere it is the only reasonable conclusion that can be drawn from the totality of the circumstantial evidence. [96] In reviewing the evidence and position advanced by Mrs. Young, I considered as well the following authorities. [97] In R. v. Janchevsky, 2012 ABPC 90, Mr. Janchevsky was charged with possession for the purposes of trafficking in a number ofcontrolled substances. Police executed a search warrant on a residence and found three people including Mr. Janchevsky there, alongwith various street drugs valued at $15,000. These occupants neither owned nor leased the residence, and Mr.

Janchevsky was not thetarget of the investigation but was an unemployed drug addict sleeping on a mattress in the living room. Mr. Janchevsky’s passport, birthcertificate and record of employment were on the night table in the bedroom where the bulk of the drugs were also found.Mr. Janchevsky testified that he was aware drugs were being trafficked from the bedroom and, while a consumer, he was not involved intrafficking the drugs and had no control over them. No other evidence connecting him to the bedroom was found, and Mr.

Janchevsky’scell phone, gym card, and an electric alarm clock plugged in near his mattress were with him in the living room. [98] The trial judge set out that if Mr. Janchevsky was proven to be in possession of the drugs found in the bedroom, then hispossession was for the purpose of trafficking.

[99] The trial judge considered the following:

a) the drugs were not in plain view;

b) the Crown had not proven Mr. Janchevsky occupied or even accessed the bedroom, to the contrary the evidence suggested thathe didn’t occupy the bedroom;

c) Mr. Janchevsky had been staying at the residence for a few weeks and did pay rent, but many people came and went, andconsumed drugs at the residence; and,

d) Mr. Janchevsky was not the lessor of the residence and there was no evidence he had the power to prevent others from comingin. The judge concluded the papers in the bedroom was insufficient to infer the necessary knowledge and control over the drugs, and asMr. Janchevsky’s denial was not refuted by the evidence, thus a reasonable doubt existed. [100] In R. v. Grey, , police found 21.03 grams of crack cocaine hidden in a cassette player on a dresser in the bedroomof the accused’s girlfriend. There was no direct evidence of Mr. Grey’s knowledge of their existence. The trial judge found Mr.

Grey inpossession of the drugs based on his regular occupancy of the apartment and the presence of his clothing and other belongings in thebedroom where the cocaine was found. The Ontario Court of Appeal reversed the trial decision, finding this circumstantial evidence wasinsufficient to establish Mr. Grey’s knowledge because the drugs were not in plain view. Mr. Grey did not rent or live in the apartmentwhich was frequented by other people. The court held that occupancy alone was insufficient to infer knowledge of the drugs. [101] In R. v.

Polukoshko, (BC SC), the accused was charged with possession for the purpose of trafficking andcultivation of marijuana. Ms. Polukoshko resided with Mr. Ziegler in a house on one-half acre of land. Marijuana was cultivated in adetached and padlocked garage about 100 feet behind the residence and Ms. Polukoshko had no access to the grow operation. Marijuanawas found in the house along with electronic scales and other paraphernalia consistent with marijuana use but not trafficking. [102] Judge Macaulay examined whether Ms.

Polukoshko, as a co-tenant and occupant of the property at the time of the search, had therequisite knowledge and control to be found in possession of the marijuana. The judge determined that while it was reasonable to inferMs. Polukoshko had knowledge of some of the marijuana inside the house, and possible to infer she had knowledge of the marijuanainside the garage, other rational inferences existed. Finding nothing in the evidence to satisfy the required control over the marijuanagrow operation in the garage, Ms. Polukoshko was acquitted. APPLICATION OF THE LAW TO THE FACTS Did Mrs.

Young live in the Residence? [103] I find that Mrs. Young had significant control over and occupied the 182 Residence on February 15, 2019, even if she was notresiding there exclusively at the time of the search, based on the following evidence: a. The Residence was only in Mrs. Young’s name and she alone had the right to live there, as a member of the Haida First Nation; b. Mrs. Young exercised control over the 182 Residence as was admitted by Mr. Young in his evidence. This is supported also byMr. Young’s evidence that upon his second arrest Mrs.

Young evicted him from the 182 Residence and since then he has lived at anotherlocation; c. The majority of clothing found in the home, in particular within the master bedroom and closet, was female clothing includingundergarments; and d. The female clothing located in the residence was both in piles around the master bedroom and hung up in the master bedroomcloset, with some in the main floor hall closet, suggesting that Mrs. Young was not an occasional visitor but rather a habitual resident. Did Mrs. Young occupy the Master Bedroom? [104] For the following reasons I also find that Mrs.

Young occupied the master bedroom of the 182 Residence where the policelocated the 82.9 grams of cocaine:

a) Mr. Young’s evidence that while living at the 182 Residence Mrs. Young would sleep in the main bedroom or the living room.I accept his evidence in this regard due to the external consistencies present, in particular the previously noted presence of women’sclothing, and undergarments, particularly in the master bedroom;

b) Only the master bedroom contained women’s clothing and in particular a significant quantity of women’s undergarments; and

c) While not persuasive on its own, the presence of documents in the name of Mrs. Young found within the locked safe supportsthe conclusion that she occupied the master bedroom. [105] In concluding Mrs. Young was living at the Residence and occupying the master bedroom, I do not exclude that Mr. Young alsooccupied this room. Given the Crown’s theory of constructive or joint possession, this does not detract from my finding here. Did Mrs. Young Jointly or Constructively Possess the Cocaine? [106] Having found that Mrs. Young occupied the master bedroom of the 182 Residence, is this sufficient to imbue her with joint orconstructive possession of the cocaine?

[ 107 ] In answering yes to this question I found the evidence showed that Mrs. Young was not merely wilfully blind to, but aware of the drugs, and that she exercised control over them. In reaching this conclusion I considered the following in addition to my findings above:

a) The 182 Residence entrances and perimeter were under video surveillance and the video display was prominently located in the main floor living room, visible throughout that room and from the master bedroom door. As the person lawfully occupying the residence, Mrs. Young’s permission would be required to install and operate such a system;

b) Drug paraphernalia was located throughout the 182 Residence, notably in the living room and master bedroom. This paraphernalia included trafficking-related items such as several working scales contaminated with cocaine; syringes containing phytocannabinoid and tetrahydrocannabinol; a mixing bowl; a Tupperware container labelled “soft”; a test weight used to calibrate digital scales; cash contaminated with cocaine; and, large quantities of new or clean “dime bags” along with other bags that were either contaminated with a powdery substance or contained narcotics in pill form. Sgt. MacIntyre opined, and I accept, that these are all consistent with trafficking in narcotics;

c) A baggie with a small quantity of cannabis solid concentrates was found in a purse in front entrance/living room area. Given that Mrs. Young’s daughter may have been recently visited the residence, as evidenced by Mr. Young’s testimony and police observations, this was however given less weight;

d) Inside bedside table #1 within the master bedroom were a large quantity of women’s underwear and a quantity of small baggies, and on top of bedside table #2 was a telephone and a safe located under still more women’s clothes and undergarments. While locked when discovered by police, within the safe were 3 bags of cocaine phenytoin totaling 82.9 grams; a plastic syringe holding cannabis solid concentrates;; and, $1,150 cash. Sgt. MacIntyre opined and I accept these are all consistent with trafficking in narcotics. Also found in the safe were documents in the name of Mrs. Young, one dated and another undated;

e) Despite Mr. Young’s testimony, which I do not accept in this regard due to the lack of external consistency, it is not reasonable that Mrs. Young would remain oblivious to the nature of multiple daily texts and calls on the cell phone in the name of Mr. Young that she used but did not pay for, particularly as he admitted to have been dealing for 10 years;

f) During the police investigation, numerous short duration visitors to the 182 and 181 Residence were observed, consistent with street level drug purchases. Again, despite Mr. Young’s testimony which is also not accepted given the lack of external consistency, police only observed on one or two occasions where a visitor did not apparently enter the residence during these short visits. I therefore do not accept Mr. Young’s evidence that he conducted the sale of drugs in a surveillance “dead zone” outside of the 182 Residence, but rather the sales were conducted inside. It is not conceivable that Mrs.

Young was therefore unaware of the drug trafficking taking place from the 182 Residence which occurred 5-10 times a day throughout the 4-5 years they occupied the home; and

g) Of particular note my attention was drawn to the evidence of Mr. Young, which I do accept given external consistencies, that when Mrs. Young returned to the Haida Gwaii in late January 2019 Mr. Young departed, and only returned when police observed him disembarking the ferry on February 9 th . During this period where only Mrs. Young was present, on February 1, 2019, police observed multiple short duration visitors to the 182 Residence after Mrs. Young was seen to enter. While police admitted they did not note Mrs.

Young then depart, I acknowledge that it is almost impossible to “prove a negative”, and, while police didn’t take fulsome notes of those attending the Residence, as one of the “targets” of the investigation I do not find the police would overlook seeing Mrs. Young outside the residence again. Noting this, I also find it compelling that one of the short duration visitors was subsequently stopped by police in a “takeaway buy” arrest and a small quantity of cocaine was seized. Did Mrs.

Young know that the substance was cocaine? [ 108 ] Given my foregoing analysis, in particular the surveillance system, short duration visitors, and location of the “stash” of cocaine in a locked safe which Sgt. MacIntyre opined is normal practice for small level dealers, I find Mrs. Young was aware that narcotics or other prohibited substances were being trafficked from the 182 Residence. [ 109 ] Based on the totality of the evidence I am satisfied beyond a reasonable doubt that the only reasonable inference to be drawn from the evidence heard is that Mrs.

Young knew of cocaine in the master bedroom and exercised a significant measure of control over it. I find she had the ability to consent or withhold consent for it to be there, or anywhere in the 182 Residence. Her knowledge was not mere acquiescence, and the fact that Mr. Young also had access to the master bedroom does not raise a reasonable doubt that Mrs. Young had knowledge and control of the cocaine found in the master bedroom safe. Was the cocaine possessed for the purposes of trafficking? [ 110 ] I find the 82.9 grams of cocaine was possessed for the purposes of trafficking.

In reaching this conclusion, I rely on the totality of the evidence, including:

a) The admission of Mr. Young, who previously pled guilty to possessing the cocaine for the purpose of trafficking;

b) The expert opinion evidence of Sgt.

MacIntyre, specifically: i. the quantity of the cocaine the police found and seized from the master bedroom save, namely 82.9 grams, and the manner in which the cocaine was packaged at the time it was located; ii. the street value of the cocaine was between $6,000 and $9,000 depending on how it was bought and sold; iii. the quantity and nature of the unused packaging materials found about the residence, including in the master bedroom; and iv. the fact the cocaine was found in close proximity to paraphernalia associated with drug trafficking, in particular two cocaine contaminated digital scales, a test weight, a mixing container use and another labeled “soft”.

c) The $1,150 cash also found in the safe and located in the master bedroom; [111] Therefore based upon the evidence that I accept, I find that Mrs. Young had knowledge and constructive or joint control of thecocaine, that she was aware it was cocaine or another prohibited substance, and that it was held for the purpose of trafficking. I find theCrown has proven beyond a reasonable doubt that Mrs.

Young either constructively or jointly possessed the cocaine found in the safelocated in the Master bedroom for the purposes of trafficking. [112] In coming to this assessment I am mindful of the words of Chief Justice McEachern in R. v. To, : 41. It must be remembered that we are not expected to treat real life cases as a completely intellectual exercise where no conclusioncan be reached if there is the slightest competing possibility.

The criminal law requires a very high degree of proof, especially forinferences consistent with guilt, but it does not demand certainty… PARTIES TO OFFENCES [113] Having heard closing submissions of counsel and Crown, I subsequently invited them to consider whether, in the eventMrs. Young was not found beyond a reasonable doubt to have constructively or jointly possessed the cocaine for the purpose oftrafficking as charged, this court should consider s. 21 of the Criminal Code.

Written submissions were received on this point which Iwill touch upon now, in the event that I am incorrect in my finding above that she did constructively or jointly possess the cocaine. [114]

Section 21 of the Criminal Code states as follows: Parties to offence 21

(1) Every one is a party to an offence who (

a) actually commits it; (

b) does or omits to do anything for the purpose of aiding any person to commit it; or (

c) abets any person in committing it. Common intention

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and anyone of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that thecommission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. [115] Justice MacFarlane writing for the unanimous court in R. v.

Barreau, (BC CA) stated that, unlike the offence ofpossession, one may be a party pursuant to s. 21 of the Code to a possession offence without being in possession, as defined in s. 4(3) ofthe Code. Two things however must still be proven before a conviction can be entered for being a party by aiding and abetting: It mustfirst be proved that the accused had knowledge that the principal intended to commit the offence, and secondly proven that the accusedaided and abetted him or her. [116] In R. v.

Pavalaki, 2013 BCSC 990, a case involving the illegal cultivation of marijuana, the court summarised the test todetermine party liability regarding aiding and abetting: [41] “Aiding” and “abetting” are often referred to collectively but these acts are independent of each other. “Aiding” in s. 21(1)(b)involves assisting or helping a principal to commit an offence whereas “abet” in s. 21(1)(

c) includes encouraging, instigating, promotingor procuring the commission of a crime: see R. v. Greyeyes, (SCC), [1997] 2 S.C.R. 825 at para. 26; and R. v. Briscoe,[2010] S.C.R. 411 at para. 14. [43] Abetting in the commission of the offence requires at least encouragement; there must be, at minimum

an act to facilitate thecommission of the offence, not passive acquiescence or mere presence. The fact of the accused’s presence at the property must bebolstered by circumstances which show that the only rational inference to be drawn is that the accused was aiding or abetting in theproduction of the marihuana. [46] In addition to the act of aiding, section 21(1)(

b) requires proof that the accused has performed the act “for the purpose of” aidingthe principal to commit the offence. [117] In determining the requisite mens rea to satisfy s. 21(

b) aiding, the Crown is required to prove only that the accused intended the consequences that flowed from his or her aid to the principal offender,and need not show that he or she desired or approved of the consequences.” (Greyeyes at para 37). The necessary mens rea to find s. 21(

c) abetting requires that . . . the Crown must prove not only that the accused encouraged the principal with his or her words or acts, but also that the accusedintended to do so: R. v. Curran (1977), 1977 ALTASCAD 284 , 38 C.C.C. (2d) 151 (Alta. C.A.); R. v. Jones (1977), 65 Cr.App. R. 250 (C.A.). It is the establishment by the Crown of that intention which satisfies the mens rea or guilty mind requirement ofs. 21(1)(c).” (Greyeyes, para 38). [118] Accidentally aiding and abetting does not attract criminal liability, as explained by the court in R. v. Ngo, 2009 BCCA 301 (againregarding illegal marijuana cultivation):

[52] . . . an individual may be found guilty of production as either a principal, or as a party who aids or abets the principal:Hubble [2002 BCCA 561], at paras. 10, 15; Criminal Code s. 21. In a grow op case, an accused may be found to have aided or abetted inthe production of marijuana by maintaining the environment in which the marijuana is produced, with the purpose or intent to assist inthe crime. . . . [87] The appellant relies upon R. v. F.W. Woolworth Co.

Ltd. (1974), (ON CA), 3 O.R. (2d) 629, 18 C.C.C. (2d) 23(C.A.), for the proposition that an individual who “incidentally and innocently” assists in the commission of a crime cannot be guilty as aparty to the offence. The respondent takes no issue with the proposition that in order to find the appellant guilty as a party to the offenceof marijuana production, the trial judge had to find that the appellant had the necessary mens rea: R. v. Greyeyes, (SCC), [1997] 2 S.C.R. 825 at paras. 37-38, 116 C.C.C. (3d) 334.

In the case at bar, it was open to the trial judge to infer knowledge andan intention to aid or abet from all the circumstances and he did so. [119] Here I found significant evidence that Mrs. Young maintained the 182 Residence with full knowledge of, and was not merelywilfully blind, that Mr. Young was actively trafficking from the home. She knew Mr. Young was a significant user of drugs such that ontwo prior occasions he suffered medical emergencies as a result. She was aware of the nature of Mr.

Young’s trafficking activities asevidenced by the presence throughout the home, and in particular within the master bedroom, of drugs and related traffickingparaphernalia. She was aware of the frequent (5-10 times per day) short duration visitors to the home. Given my findings above, shepermitted Mr. Young to store and cut his drugs into street sale quantities in the 182 Residence – actions consistent with maintaining astash house. She maintained control over the 182 Residence and could have demanded Mr. Young stop. Not only did she fail to do this,she permitted the installation of

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