R. v. Lee Date:, 2012 BCPC 139

Citation: R. v. Lee Date: 20120201 2012 BCPC 0139 File Nos: 172952-3-C, 172952-4-A Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SAEKWAN LEE ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.W. JARDINE Counsel for the Crown: P. Beirne Counsel for the Defendant: T. Anderson Place of Hearing: Surrey , B.C. Dates of Hearing: February 2, March 3, 2011; January 16, 2012 Date of Judgment: February 1, 2012 [ 1 ] THE COURT : These are my reasons for judgment in the case of R. v. Saekwan Lee . This matter commenced on February

[ 1 ] THE COURT : These are my reasons for judgment in the case of R. v. Saekwan Lee . This matter commenced on February the 2nd, 2011, with a joint trial involving Mr. Phovixayboulom and Mr. Lee. Evidence and argument concluded January the 16th, 2012. Mr. Phovixayboulom, following the Crown's concession during the course of argument, was acquitted by me on the basis that the Crown's evidence did not afford proof beyond a reasonable doubt, it being based solely on circumstantial evidence and there being nothing in the evidence which linked Mr. Phovixayboulom directly to the firearms. Mr.

Lee was adjourned; my decision was reserved to today, February the 1st, 2012. I am indebted to both counsel for Mr. Lee, Mr. Anderson, and Crown counsel, Mr. Beirne, for their narrowing the issues in this case. THE FACTS [ 2 ] On January 22nd, 2009, RCMP Cst. Torudag was dispatched to 16th Avenue and 128th Street in the Ocean Park area of South Surrey to respond to a complaint about a loud thundering noise and two vehicles in the area of the strip mall at that intersection. The strip mall is to the northwest corner. As Cst.

Torudag drove his marked police vehicle westbound through the intersection, he observed two vehicles turning right from the strip mall onto 16th Avenue and proceed westbound towards Ocean Park Drive. As he drove across the intersection of 16th Avenue and 128th Street, Cst. Torudag was able to see that the businesses of the strip mall were closed, it being 11:30 p.m., and he then turned his attention to the vehicles. [ 3 ] The first vehicle out of the lot had been a black SUV similar to a Lincoln Navigator. It was the lead vehicle of the three vehicles proceeding westbound on 16th.

The second vehicle was a red Ford Explorer with a rear hatch door that was severely dented and damaged. The big dent was to the area surrounding the rear licence plate of the red Explorer. [ 4 ] Due to the nature of the complaint and the sudden exit of the two vehicles, Cst. Torudag continued to follow the two vehicles westbound on 16th Avenue. The vehicles then each made a right-hand turn at Ocean Park Drive, going northbound on that residential street. At about the 1800 block of Ocean Park Drive, Cst. Torudag engaged his emergency equipment and a traffic stop was made on the second vehicle, the red Explorer.

The black vehicle slowed, and then took off rapidly away from the traffic stop. The red Explorer stopped, pulled to the side of the road and then stopped again in response to the emergency equipment. [ 5 ] Cst. Torudag went to the driver's side of the red Explorer. As he had exited his vehicle and proceeded up the side of the vehicle, he could not see into the rear of the vehicle due to the tinted windows, which did not afford him any view into the truck.

He instructed the driver to lower the window so he could see into the window, as he was alone and wanted to make sure that no one was in the backseat who could surprise him. [ 6 ] Mr. Phovixayboulom was the driver, Mr. Lee was the passenger. As Cst. Torudag reached the driver's-side pillar, he noticed the strong odour of fresh marihuana coming from the driver's side area of the vehicle. I am satisfied that he, at that time, formed a reasonable suspicion of a controlled substance being possessed by Mr. Phovixayboulom and Mr. Lee, or by both of them. Mr. Phovixayboulom was detained by Cst.

Torudag for possession of a controlled substance. [ 7 ] The vehicle door was opened and Mr. Phovixayboulom was directed out of the vehicle by the constable and placed in handcuffs. He was then taken to the rear of the Ford Explorer. At the rear of the vehicle he was searched for weapons. He was patted down and there was a strong smell of fresh marihuana coming from his clothing and his person as the officer conducted the cursory search. The officer then instructed Mr. Phovixayboulom to stay where he was standing. [ 8 ] The officer at that point became very concerned, because as he was leaving the position of Mr.

Phovixayboulom, he observed the black SUV come southbound on Ocean Park Drive and go past the stopped police vehicle and the red Explorer. He called for backup. [ 9 ] Cst. Torudag then went to the passenger's side of the vehicle and asked Mr. Lee to exit. Mr. Lee was placed in handcuffs at the side of the vehicle. He was told he was detained for possession of a controlled substance, and he as well was searched for weapons. The black SUV went past a second time. [ 10 ] Cst. Torudag, who had called for backup, then went to the red Explorer, the two men being left standing in an area behind the red Explorer.

The windows were down and the doors were open and he looked into the vehicle. As he looked into the vehicle, he observed, in the centre console, a marihuana crusher, a tool used to break up marihuana pieces at marihuana grow operations or marihuana cultivation places. This marihuana crusher is a tin and it contained fresh marihuana residue. [ 11 ] Two other officers arrived, providing backup, and Cst. Torudag then continued to search the vehicle.

As he searched the rear of the vehicle, he found a plastic bag partially under the rear seat of the red Explorer towards the centre of the vehicle, but on the passenger's side behind the front seat. The bag was twisted and rolled up and near a backseat support which was grey in colour. Cst. Torudag opened the top of the bag, which was twisted and folded, in order to see into it, and he found two firearms. He photographed the open bag without moving it from its position. Exhibit 2, photographs 4, 5, 7, 8 and 9 are photographs of the bag in the position where Torudag said he found it.

It should be noted that he opened the top of the bag before he photographed it, so we do not have a photograph of it in exactly the position it was in when found. [ 12 ] The two firearms which were in the bag were seized by Cst. Torudag. He searched each of them and he examined them, and he cleared the magazines from the firearms. One was a Norinco, model 1911AIC semi-automatic pistol, .45 calibre, with the serial number ground off. The other firearm was a Ruger, model T89 semi-automatic pistol, a .9mm Luger with also the serial number removed. Both firearms were loaded and operable.

The Norinco had five unfired .45 ACT calibre cartridges and the Ruger contained six unfired Luger .9mm cartridges. [ 13 ] The firearms, the magazines, the cartridges, the Shoppers Drug Mart bag, Exhibit 3, in which the firearms were found, were all sent for forensic examination.

Other exhibits seized from the vehicle, including the marihuana crusher, two pairs of white cloth gloves, a white hockey goalie mask, two sets of car keys and a BlackBerry cell phone were also examined forensically. [ 14 ] During the forensic examinations, seven identifiable fingerprint ridge impressions were found on the Shoppers Drug Mart

bag. There were no identifiable fingerprint ridge impressions found on the handguns or on the cellular telephone. There were no DNAfindings from the swabs taken from any of the exhibits. [15] The known fingerprints of Mr. Lee, Exhibit 11, were compared to the preserved fingerprint ridge formations on the ShoppersDrug Mart bag which were observed during the course of the forensic examination. Two of the fingerprints, FR4 and FR5, were from aperson or persons other than Mr. Phovixayboulom and other than Mr. Lee. FR6 and FR7 were both impressions made by the rightthumb of Mr. Lee.

They are approximately five centimetres apart on the same side of Exhibit 3 towards the middle of the bag. FR1 is afingerprint impression from the left little finger of Mr. Lee. It is on the opposite side of the Shoppers Drug Mart bag, Exhibit 3, fromFR6 and FR7. FR2, also the left little finger of Mr. Lee, is approximately 25 centimetres from the FR1 impression and towards thebottom of the same side of the Shoppers Drug Mart bag, Exhibit 3, as FR1. FR3, the fifth fingerprint impression, which is, on theevidence, the left thumb of Mr.

Lee, is on the same side of the bag as FR1 and FR2 and it is approximately two to three centimetres fromFR2 and towards the bottom of the Shoppers Drug Mart bag. [16] Based on those facts, the positions of the parties are as follows:

a) THE DEFENCE [17] Mr. Anderson, for Mr. Lee, called no evidence. He called no witnesses, he called no experts and he, in a forceful submission,submitted that the case for the Crown is insufficient in law to justify a conviction. He submitted that inferences other than the guilt ofhis client, Mr. Lee, were reasonably available on the admissible evidence. [18] Mr. Anderson submitted that the two unknown fingerprints, FR4 and FR5, were found by Mr. Ralston and that the onlyreasonable inference was that someone other than Mr. Lee was grasping the Shoppers Drug Mart bag.

Since this was a well-worn bag,which, by its condition when found, was also well handled, the evidence, in the submission of the defence, fell short of establishing Mr.Lee's guilt beyond a reasonable doubt. There were other rational conclusions or inferences to be drawn due to the other two fingerprintsbeing present, in the submission of the defence. [19] Moreover, Mr. Anderson cited three cases for the court. He referred to R. v. Ive (2011), BCJ 74;

(2011) BCPC 18, a decisionof the Honourable Judge Rideout, and particularly paragraph 127 in that decision, as stating the proper analytical test. [20] He submitted that the court must also have regard to R. v. Khan (1998), (BC CA), BCJ 2009, 111 BCAC221, a decision of Madam Justice Ryan, written for the court and concurred with by Chief Justice McEachern and Mr. Justice Colby. Inparticular, Mr. Anderson emphasized Madam Justice Ryan's statements in paragraph 72 of the decision. He argued that based on theanalysis by McKenzie J. in R. v. Tran (2006), BCJ 2684;

(2006) BCSC 1504, at paragraph 54, that in the absence of evidence directlytying Mr. Lee to the firearms, the evidence falls far short of proof beyond a reasonable doubt. If there were other rational conclusionsthat may be drawn on the evidence, he submitted the only fit and proper decision was an acquittal. [21] Mr. Anderson concluded his submissions asking the court to find his client not guilty and to find that the Crown has notproven the case beyond a reasonable doubt.

b) THE CROWN [22] Crown counsel submitted that the guilt of the accused has been established beyond a reasonable doubt. He, relying on thewhole of the evidence, argued that due to the time, the place, the opportunity, the nature of the items and Mr. Lee's proximity to them, aswell as the five fingerprint impressions from both hands of Mr. Lee being left on the bag containing the two loaded firearms, had to leadinexorably to the only rational and reasonable conclusion being that Mr. Lee was in possession at law of the two loaded handguns. [23] The Crown conceded the case was not on the same footing for Mr.

Phovixayboulom and as I said in my introduction, Mr.Phovixayboulom was acquitted by me on January the 16th, 2012. [24] Mr. Beirne also provided to the court the decision of the Supreme Court of Canada in R. v. LePage (1995), (SCC), 95 CCC (3d) 385, and quoted paragraphs 25 and 29 of that decision. Since it was the basis of the Crown's submission, I will, forease of reference, quote those two paragraphs. Paragraph 25: In my view, whether or not the inference of possession in the presence of fingerprints can be drawn is not subject to a hard and fast rule.

Rather, as Morden J.A. noted, it is a question of fact which depends on all the circumstances of the case and all of the evidence adduced. In this regard, I agree with the following statement of Fairgrieve, Provincial Divisional Judge, from R. v. Mehrabnia (1993), (ON CJ), 26 C.R. (4th) 98, Ontario Provincial Court, at page 106. Contrary to Mr. Dolhai's submission concerning the effect of O'Keefe, I think that the principle that emerges from all of these cases isthat whether an accused's fingerprint on an

article will support an inference that he was in possession of the

article will depend on theparticular circumstances of the case. Paragraph 29 of LePage: Although I have concluded above that Pardu J. did not draw any adverse inference from the respondent's failure to offer an explanationfor the presence of his fingerprints, I note that once the Crown had proved a prima facie case, the trial judge would be entitled to drawsuch an inference in any event. The following passage from R. v. Johnson (1993), (ON CA), 79 CCC (3d) 42, atpages 49 to 50, 21 CCC (4d) 336, 12 OR (3d) 340, Ontario Court of Appeal, is on point:

No adverse inference can be drawn if there is no case to answer. A weak prosecution's case cannot be strengthened by the failure of theaccused to testify. But there seems to come a time, where, in the words of Irving J.A. in R. v. Jenkins (1908), (BCSC), 14 CCC, 221 at page 230, 9 WLR, 405, 14 BCR 61 (C.A.): Circumstantial evidence having enveloped a man in a strong and cogent network of inculpatory facts, that man is bound to make someexplanation, or stand condemned.

That point, it seems to me, can only be the point where the prosecution's evidence, standing alone, is such that it would support aconclusion of guilt beyond a reasonable doubt. Viewed that way, it would be better said that the absence of defence evidence, includingthe failure of the accused to testify, justifies the conclusion that no foundation for a reasonable doubt could be found on the evidence. Itis not so much that the failure to testify justifies an inference of guilt; it is rather that it fails to provide any basis to concludeotherwise.

When linked in that fashion to the strength of the Crown's case, the failure to testify is no different than the failure to callother defence evidence. [25] There is then another paragraph in Johnson which continued to be quoted by Justice Sopinka, at

b) at page 397: If the Crown's case cries out for an explanation, an accused must be prepared to accept the adverse consequences of his decision toremain silent (R. v. Boss (1988), (ON CA), 46 CCC (3d) 523 at page 524, 68 CR (3d) 123, 42 CR 166, Ontario Courtof Appeal), but the failure to testify cannot be used as simply one of the circumstances from which the guilt of the accused can beinferred. (R. v. Armstrong (1989), (NB CA), 52 CCC (3d) 190). He then continued: ... as Doherty J. pointed out in R. v.

Manchev, an unreported judgment of the Ontario High Court, August 23, 1990 [summarized 11WCB (2d) 307], the accused's failure to testify is not an independent piece of evidence to be placed on the evidentiary scale. It is, rather,a feature of the trial which may assist in deciding what inferences should be drawn from the evidence adduced. The evidence was discussed by Sopinka J. in the Supreme Court of Canada. He then continued: I note that the Johnson decision was cited with approval by this court in R. v.

Francois (1994), (SCC), 91 CCC (3d)289, 116, DLR (4d) 69, (1994) [2 SCR] 827. [26] It is on that basis that Mr. Beirne argued that due to the failure of the defence to offer any innocent explanation for thefingerprints of Mr. Lee on the Shoppers Drug Mart bag which contained the two loaded firearms, that the Crown's case had to beconsidered by the court to have been proved beyond a reasonable doubt. [27] For ease of reference, I will refer to paragraph 127 of Ive, submitted by Mr. Anderson, to be applicable as being the fit andproper test as argued by both counsel.

Paragraph 127 in Ive is as follows: It is also established, from cases cited by Mr. Geller, in particular, by reference to R. v. LePage, that the mere presence of fingerprints ona bag or a bottle containing drugs may not be sufficient evidence to find a conviction for possession. Rather, it requires that a trial courtmust weigh the totality of the surrounding circumstances of the case and all of the evidence adduced to determine whether or not theinference of possession has been established by the Crown. [28] In R. v.

Khan, Madam Justice Ryan articulated the issue on the particular facts in that case in this way at paragraph 72: When examined as a whole, the evidence supports the conclusion that Mrs. Khan knew her husband had killed their daughter-in-law, wasnot unhappy he had, and tried to protect him from being caught. It is not reasonable to go farther than that. In my view, the evidence ofMrs. Khan's complicity in the murder itself is of such an equivocal nature that it cannot sustain more than a strong suspicion of her guilt.

The reason for that was that there had been a number of innocent explanations offered in the evidence in that there were problems withthe fingerprint evidence as depicted in paragraphs 57 through 61 of the Reasons of Madam Justice Ryan. ANALYSIS AND LAW [29] The definition of "possession" is set out in s. 34(3) of the Criminal Code. Section 4(3) of the Criminal Code provides: For the purposes of this Act,

a) a person has anything in possession when he has it in his personal possession or knowingly, 1) has it inthe actual possession or custody of another person, or 2) has it in any place, whether or not that place belongs to or is occupied by him,for the benefit or use of himself or of another person.

The other portions of s. 4(3) are not applicable. [30] In R. v. Beaver (1957), (SCC), SCR 531, Cartwright, J., as he then was, stated at 541: The essence of the crime is the possession of the forbidden substance and in the criminal case, there is in law no possession withoutknowledge of the character of the forbidden substance. Beaver is a drug case, a seminal case that has provided the test for possession in law through a number of appellant decisions. [31] In Hess (No.1) (1949), (BC CA), 1 WWR 577 at 579, the British Columbia Court of Appeal, particularly inthe ruling of Mr.

Justice O'Halloran, as he then was, at paragraph 6, provided the following: To constitute "possession" within the meaning of the criminal law, it is my judgement that where, as here, there is a manual handling ofthe thing, it must be coexistent with knowledge of what the thing is, and both these elements must be coexistent with some act of control(outside public duty). [32] With respect to these firearms and their state at the time that they were found in the case at bar, there are a number of casesthat I find particularly significant to the analysis. In R. v.

To (1992), (BC CA), 16 BCAC 223, at paragraph 38, JusticeMcEachern wrote: ... it is legitimate to infer knowledge from mere physical possession in proper circumstances, which inference will be displaced if anexplanation is offered which raises a reasonable doubt, or if, as in Askov, other inferences consistent with innocence may be drawn fromall of the proven circumstances. It is this rational process which distinguishes inference from speculation or conjecture. I will come back to To when I deal with how I should analyze the circumstantial evidence in the case at bar. [33] In R. v.

Anderson (1995), (BC CA), 67 BCAC 311, Madam Justice Rowles, as she then was, writing forthe court, affirmed succinctly at paragraphs 15 and 16 that knowledge can be inferred from circumstantial facts: Knowledge need not be proved by direct evidence, but may be inferred from surrounding circumstances. In this case, there was no directevidence of knowledge. Paragraph 16: Knowledge, being a state of mind, may be found to exist in the same way as intent; by proper inferences from the facts proved.

CIRCUMSTANTIAL EVIDENCE [34] In a case which is built wholly on circumstantial evidence, guilt must be founded on the conclusion that "there was no otherrational explanation for the circumstantial evidence than that the accused committed the crime." (R. v. Charemski (1998), (SCC), 1 SCR, 679 at paragraph 13). This principle is a restatement from an earlier articulation of the same proposition by Mr.Justice Ritchie, as he then was, in R. v. Cooper (1978), [1] SCR 860, at paragraph 33, which was relied upon in R. v. Chambers (2004),BCSC 1139.

Madam Justice Ross in Chambers said, at paragraphs 18 and 19, the following. 18: ... the test to be applied in such circumstances is as articulated in R. v. Cooper (1977), (SCC), 34 CCC (2d), 18, adecision of the Supreme Court of Canada; namely, before basing a verdict of guilty on circumstantial evidence, the trier of fact must besatisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts. Paragraph 19: In approaching this task, the court is to bring what Justice Hall described as "a measure of realism" in the case of R. v.

Bauer (2003),[BCJ 505];

(2003) BCCA 138 at paragraph 21, and to bear in mind that the criminal law does not demand proof to the level of certainty. [35] It is here that I return to R. v. To where Chief Justice McEachern wrote: It must be remembered that we are not expected to treat real-life cases as a completely intellectual exercise where no conclusion can bereached if there is the slightest competing possibility. The criminal law requires a very high degree of proof, especially for inferencesconsistent with guilt, but it does not demand certainty.

In my view, I must determine whether the evidence permits a conclusion beyonda reasonable doubt that knowledge and control on the part of the accused is the only reasonable inference to be drawn from the provenfacts. That is the test as to possession, having regard to circumstantial evidence, which I must apply in this case.

[36] I turn now to the analysis of the evidence admitted at trial. I restate it in this way; the test to be applied in analyzing theevidence admitted at trial is whether the facts prove, having regard to the whole of the evidence, that Mr. Lee was in possession of thefirearms in law. Given that all of the evidence tending to prove guilt in this case is circumstantial, the Crown must prove beyond areasonable doubt that that is the only reasonable inference to be drawn from those proven facts.

I am mindful that there is no requirementthat all of the circumstantial evidence upon which the Crown relies for a finding of guilt must be proven beyond a reasonable doubt, noris there a requirement that each of the pieces of circumstantial evidence be established beyond a reasonable doubt. The question to bedetermined at the end of deliberations is whether the whole of the evidence is such that the guilt of Mr. Lee is established beyond areasonable doubt. Some of the circumstantial evidence may be proven only circumstantially or on the balance of probabilities. Thisapproach is in accord with the analysis of Mr.

Justice Tysoe in R. v. Collin (2008), BCCA 431, at paragraphs 16 to 18. I quote them. 16: The error of law alleged to have been made by the trial judge is that he placed too much weight on the facts found by the judge to havebeen proven on a balance of probabilities. The evidence against Mr. Collin was entirely circumstantial in nature. There is nodisagreement between the parties that a finding of guilt based on circumstantial evidence may only be properly made if such a finding isthe only rational or reasonable conclusion to be reached from the evidence as a whole: see R. v.

Cooper (1978), (SCC), 1SCR, 860 at 880. Paragraph 17: There is no requirement, however, that all of the circumstantial evidence relied upon for a finding of guilt must be proven beyond areasonable doubt, nor is there a requirement that a certain amount of the circumstantial evidence must be proved beyond a reasonabledoubt. The requirement is that all elements of the alleged offence, including the element of identity of the offender, must be provedbeyond a reasonable doubt: see R. v. Moran (1988), (SCC), 2 SCR 345, at 360-362. The applicable standard was articulated in R. v.

Khan (1998), (BC CA), 129 CCC (3d) 45, (BCCA) as follows. 9: The Crown need not prove beyond a reasonable doubt each fact which is said to support the inference of guilt. Each fact may be a link inthe chain of ultimate proof. Sopinka, J., made it clear in R. v. Moran... that it is the jury's duty to consider the evidence as a whole anddetermine whether guilt has been established by the prosecution beyond a reasonable doubt.

Paragraph 18: Hence, it was not an error of law by the trial judge to consider circumstantial evidence proved on a balance of probabilities in reachinghis conclusion that the whole of the evidence established the guilt of Mr. Collin beyond a reasonable doubt. This does not derogate fromthe principle that guilt must be proved beyond a reasonable doubt. [37] The issues, therefore, as part of my analysis on this question as to the treatment of the evidence, must be framed in these twoquestions. Question 1: Is there evidence in the case at bar from which Mr. Lee's knowledge of the firearms could be inferred?

Question2: Is there evidence from which the court could infer he had physical possession and control? THE SUFFICIENCY OF PROOF [38] The sufficiency of proof issue is one which was addressed by Mr. Beirne and referred to in short by Mr. Anderson, havingregard to the test articulated in R. v. LePage referred to above. The Supreme Court of Canada, in R. v. Noble (1997), (SCC), 1 SCR 874 (SCC) at paragraph 89, addressed the issue in a follow-up decision by Justice Sopinka. He said, in paragraph 89: As set out above, silence is not inculpatory evidence, but nor is it exculpatory evidence.

Thus, as in LePage, if the trier of fact reaches abelief in guilt beyond a reasonable doubt, silence may be treated by the trier of fact as confirmatory of guilt. Silence may indicate, forexample, that there is no evidence to support speculative explanations of the Crown's evidence offered by defence counsel, or it mayindicate that the accused has not put forward any evidence that would require that the Crown negative an affirmative defence. In thislimited sense, silence may be used by the trier of fact.

If, however, there is a rational explanation which is consistent withinnocence, and which may raise a reasonable doubt, the silence of the accused cannot be used to remove that doubt. [39] The analysis of that portion of Noble was referred to in particular in the analysis of Mr. Justice Lambert, as he then was, in R.v. Baynham (2003), BCCA 103, at pages 6 and 7 in paragraphs 13 through 16. In particular, at paragraph 16, Justice Lambertsummarized it this way: In short, the reference to R. v.

Jenkins was used only to conclude that there was no need to consider hypothetical or speculativeexplanations of the circumstantial evidence which were not raised by and inherent in that evidence itself. [40] It is interesting to note that in addition to Noble at 89, and Justice Lambert's, as he then was, analysis in Baynham, Justice Hallreturned to the question again in the later decision of R. v. Bauer (2003), BCCA, 138, referred to earlier by Madam Justice Ross, and the

operative part of that case is at pages 6 and 7, paragraphs 22 and 23. I am not going to restate the question; I am going to frame it this way. The question must be looked upon and analyzed by me having those principles in mind as I turn to an analysis of the evidence in this case. Is there anything in the evidence which affords, to the benefit of Mr. Lee, an innocent explanation, and having regard to the whole of the evidence, which would go to weaken the Crown's case which has been totally given on a circumstantial basis? [ 41 ] In particular, I have considered the language of Chief Justice Finch in R. v.

Foy (2012), BCCA, page 11, at paragraph 5. There is no question, on the facts in Foy , that the finding of fact is different from the case at bar. At paragraph 32, the judge in the trial decision made this finding: However, I find otherwise with respect to Mr. Foy. He was the driver of the vehicle. He had control of it. He had possession of the truck and what was within the truck. There is, of course, no direct evidence that Mr.

Foy knew of the cocaine under the hood, nor that he handled it or that he placed it there, but the totality of the evidence points to his knowledge of its being there and his possession of it as the only reasonable explanation. I am satisfied beyond a reasonable doubt that Mr. Foy had possession of the cocaine and that, given its quantity, that possession was for the purpose of trafficking. [ 42 ] Chief Justice Finch, making reference following the concession by Mr.

Eccles for the Crown that the Crown had not made the case, said this: As the Crown very properly concedes, there was no admissible evidence, direct or circumstantial, from which the appellant's knowledge of the drugs could be inferred. The cocaine was not visible to anyone in the vehicle. It produced no noticeable smell. There were no fingerprints found on the bag containing the cocaine. It was not in close proximity to the driver. There was a passenger in the vehicle and the vehicle was registered to a third party. There was no evidence as to how long the appellant had been in possession of the pickup.

As the Crown concedes, inferences other than the guilt of the appellant were reasonably available on the admissible evidence. I will also keep that statement of the principles in mind as I turn to an analysis of the evidence in this case. [ 43 ] I have outlined the facts that I have found. The place was a small strip mall, it was 11:30 p.m. at night in the Ocean Park, South Surrey area. There was a loud noise, and two vehicles, one with damage to the rear, were subsequently observed by the police and stopped in a residential area. [ 44 ] Mr.

Lee was, during the course of the detentions and the subsequent arrests of Mr. Phovixayboulom and himself, left in the vehicle, seated in the passenger's seat, with proximity to the centre console and the location of the Shoppers Drug Mart bag which was subsequently found. In particular, photograph 5 depicts the location adjacent to the strut of the rear bench seat, and as described by Cst. Torudag, I am satisfied that the bag was twisted and folded over at the top. The bag was partially under the seat.

The bag, in that location, was within arm's length of a passenger who could turn, twist and lean towards the floor of the backseat. The location of the fingerprint impressions on the bag, as described in my findings of fact, are such that they are in different areas of the bag, depicting the fact that Mr. Lee had handled the bag and the fingerprint impressions were placed on the bag with some force. There is no question from FR4 and FR5 that the bag was handled by others.

There is no evidence of who they may have been. [ 45 ] I am also of the view, when looking at the evidence, that the nature of the firearms is of particular significance. They were both loaded. The .45 calibre Norinco is a powerful handgun. The serial number has been ground off. It is rusty. Its origin cannot be determined because of the serial numbers having been ground off it. There was no DNA found on it, there were no fingerprints found on it. It is of some significance that it is not capable of being registered because it has its serial number removed. It is therefore an illegal firearm to possess.

It is a valuable commodity in the criminal milieu because it is untraceable. [ 46 ] Similarly, the Ruger .9mm, which is in better condition, smaller and more easily concealed and has its serial number also ground off, is also not traceable. It is a valuable commodity to anyone who wants to possess such a firearm for illegal purposes. Both of those items were found in the same place as the marihuana grinder in circumstances where Mr.

Phovixayboulom smelled that he had been in close proximity to fresh marihuana a short time earlier. [ 47 ] In the context of the whole of the case, therefore, I have come to the following conclusion. In my view, the evidence in this case, when viewed with a measure of realism, leads to the irresistible inference that Mr. Lee was in physical possession of the two firearms.

The evidence as a whole leads me to the inference that the only rational conclusion is that he exercised control and had knowledge of these firearms, as is reasonably inferred from the places of his fingerprints on the bag which contained the firearms.

Moreover, the nature of these items, valuable commodities in the criminal milieu, combined with their location within arm's length, the clumsy attempt at concealment and the location of the fingerprint impressions at different positions on both sides of the Shoppers Drug Mart bag, provides a body of evidence probative of guilt in that he handled it in the vehicle in which they were found. [ 48 ] Absent some evidence supportive of an innocent explanation such as was the case in Khan referred to by counsel for Mr.

Lee, it is my view that the Crown has proven his guilt beyond a reasonable doubt on Count 3 and Count 4. [ 49 ] Would you please stand, Mr. Lee? [ 50 ] Sir, I find you guilty of Count 3 on the basis of the evidence adduced before me in this trial. I also find you guilty of Count 4. [ 51 ] Those are my reasons. For those reasons, the guilt of the accused has been established beyond a reasonable doubt, in my view. (REASONS FOR JUDGMENT CONCLUDED)