2018 SKPC 047, 2018 SKPC 047

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 047 Date: June 22, 2018 Information: 24539675 Location: Meadow Lake _____________________________________________________________________________ Her Majesty the Queen - and - Karbino Mariak Deng Juach and Dawad Ayuel Dau Dawad Appearing: Gerald Perkins For the Crown George Combe For the Accused, Karbino Mariak Deng Juach Dawad Dawad On His Own Behalf DECISION M. MARTINEZ , J Introduction [ 1 ] The co-accused, Karbino Mariak Deng Juach [ Mr.

Deng ] and Dawad Ayuel Dau Dawad, are charged jointly with possessing cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , SC 1996, c 19 [ CDSA ]. [ 2 ] Potentially, there are two issues I must decide in this case:

1) whether the accused were denied their respective rights to be free from arbitrary detention – in other words: whether their arrest was unlawful – and if so, whether the evidence found subsequent to their arrest should be excluded from trial, and 2) If I decide that the evidence should not be excluded from trial, then I must decide whether the Crown has proven its case against each of the accused beyond a reasonable doubt. Facts [ 3 ] The charges before the court resulted from an investigation carried out on February 25, 2016, by the Prince Albert Combined Forces Special Enforcement Unit [ CFSEU ].

The CFSEU is specialized police unit comprised of RCMP and Prince Albert Police Service officer. It is responsible for investigating criminal organizations and drug trafficking, above street level dealers, in and around the City of Prince Albert, Saskatchewan. [ 4 ] The City of Prince Albert has another combined police forces unit whose responsibility it is to investigate street level drug trafficking.

The latter unit is known as the Integrated Street Enforcement Unit [ ISEU ]. [ 5 ] Members of both of these specialized police units rely on intelligence they receive from confidential informants who they are responsible for “handling”. For security reasons, the only person who knows the identity of a confidential informant is their police handler. [ 6 ] At about 8:30 in the morning of February 26, 2016, Sgt. Chester, of the CFSEU, received information from Cst.

Anderson, an ISEU member, that, according to one of his confidential informants (CI-1), a black male named “Karbino” was at a certain woman’s residence in Prince Albert, “reloading them” with methamphetamine and cocaine – meaning that the man named Karbino was supplying others with illicit drugs for distribution and sale. CI-1 also told Cst. Anderson that Karbino had access to a firearm and that “they” were driving in a newer white Dodge Ram. [ 7 ] A database search turned up a residential address for the woman identified by CI-1. Sgt. Chester ordered a CFSEU officer, Cst. Jordan, to check that residence. Cst.

Jordan drove by the residence and reported that a newer white Dodge Ram pickup truck, bearing an Alberta license plate, was parked in the driveway of the residence. For this reason, Sgt. Chester ordered the officer to surveil the residence. [ 8 ] Cst. Jordan took up a position where he could observe any comings and goings on the street side of the home. Cst. Anderson joined him and parked his vehicle in the back alley to watch the residence from that side. [ 9 ] Neither officer reported any movement in or out of the home for about 45 minutes. Then Cst.

Jordan saw three black males and an Indigenous female leave the residence, board the Dodge Ram, and drive away. [ 10 ] Constables Jordan and Anderson began following the pickup truck in separate vehicles. A third CFSEU officer, Cst. Ackerman, joined the surveillance team in his own vehicle. [ 11 ] The pickup truck went through a Tim Horton’s drive-through and then proceeded out of Prince Albert travelling west, in the direction of Shellbrook, Saskatchewan. [ 12 ] By this time, all three CFSEU officers had a photograph of the accused, Karbino Deng,

and had been informed that a man named Dawad Dawad was the registered owner of the pickup truck. [ 13 ] While on the road to Shellbrook, and beyond, Constables Jordan, Anderson, and Ackerman, took turns as the lead vehicle – or, as they described it in their testimony, the “eye” – of the surveillance team. Throughout their journey, they kept Sgt. Chester up-to-date about what they observed. [ 14 ] The Dodge truck stopped at a gas station in Shellbrook. A black male exited the truck from the driver’s side and went into the gas station. Cst.

Anderson had the “eye” at that time, and believed that the man he saw was Mr. Deng. [ 15 ] After the driver returned to the white pickup, it began travelling north on Highway 55 toward Big River, Saskatchewan. The truck stopped at an Esso station in Big River. At this time, Cst. Jordan was in the lead surveillance position. [ 16 ] Cst. Jordan saw Mr. Dawad exit the truck from the driver’s side, open the tailgate of his truck, remove a jerry can, and fill it with fuel.

He then placed the jerry can back in the truck box, returned to the driver’s seat of his truck, and continued driving on Highway 55 toward Green Lake, Saskatchewan. [ 17 ] While his surveillance team was on the way to Green Lake from Big River, Sgt. Chester spoke to his brother, a constable and a member of the CFSEU. Cst. Chester told Sgt.

Chester that he had received information from a confidential informant [CI-2] that three or four black males, one of whom was named “Karbino”, were on their way to Pinehouse or Beauval for the purpose of supplying cocaine to the community. [ 18 ] Secondary Highway 155 is the only route by which anyone can reach Beauval and Pinehouse by road. Secondary Highway 155 begins at Green Lake. Highway 55 is the only highway by which drivers can access Secondary Highway 155. [ 19 ] With this information, Sgt.

Chester believed he had the necessary grounds to direct police to intercept and stop the Dodge truck, and to arrest the truck’s occupants for possession of cocaine for the purpose of trafficking. For this reason, he contacted the Beauval RCMP detachment and asked the detachment’s sergeant to coordinate the high risk vehicle stop which ultimately took place a couple of kilometres east of Green Lake, before the Secondary Highway 155 turnoff. [ 20 ] During the post-arrest search of Mr. Dawad’s Dodge Ram, the RCMP located approximately 52 grams of crack cocaine in rock form, separated into three separate chunks.

One portion was found in a plastic bag, inside a knotted sock which was stuffed in a discarded Tim Horton’s bag on the floor in front of the back passenger seat where Mr. Deng had been seated. The other two chunks were placed in separate plastic bags hidden inside what appeared to be a discarded rubber boot. The officer who found the latter stash of drugs, did so after he opened the truck box’s tonneau cover and searched through the mess of tires, work clothing, and loose footwear strewn about inside the box. Voir Dire: Arbitrary Arrest and Evidence Exclusion [ 21 ]

Section 9 of the Canadian Charter of Rights and Freedoms [ Charter ], protects all of us from unreasonable search and seizure carried out by agents of the state.

Section 8 of the Charter protects us from being arbitrarily detained by state authorities. [ 22 ] A warrantless search following a lawful arrest is reasonable.

[23] A search resulting from an unlawful arrest almost always is not. Evidence found by authorities through an unlawful arrest may be excluded from trial under s. 24(2) of the Charter. [24] A police officer may arrest a person without a warrant if the officer believes, on reasonable grounds, that the person is about to commit, or has committed, an indictable offence [Criminal Code, RSC 1985, c C-46, s495(1)(a)].

Possession for the purpose of trafficking is an indictable offence. [25] Reasonable grounds to believe that a person has committed, or is about to commit, a crime means more than a mere suspicion but does not mean that the police officer must be certain.

Reasonable grounds means that,when viewed objectively, the officer’s grounds for arrest are sufficient to support his or her subjective belief that the person beingarrested probably committed, or probably was about to commit, a crime: R v Storrey, [1990] 1 SCR 241 at 250, (SCC);R v Mouland, 2007 SKCA 105 at para 22; R v Gunn, 2012 SKCA 80 at paras 7 and 8, [2013] 1 WWR 495. [26] In the case before me, the police officers who ultimately arrested Mr. Dawad, and his co- accused, were acting on orders from their superior officer, Sgt. Chester of the CFSEU. For this reason, it is Sgt.

Chester’s grounds fordirecting the arrest of the occupants of Mr. Dawad’s vehicle that I must assess for its objective reasonableness. [27] In a nutshell, Mr. Deng and Mr. Dawad, submit that Sgt. Chester’s grounds for ordering their arrest did not amount to more than a reasonable suspicion. [28] Further, Mr. Deng argues that because CI-2’s police handler did not testify at trial, I cannot assess whether CI-2 was a credible source of intelligence. Mr.

Deng relies on the three-factor analysis described in R v Debot,[1989] 2 SCR 1140 at 1143, (SCC) per Wilson J, which states that when part of the grounds for arresting an individualis information received from a confidential informant: a. the informant must be credible, b. the information provided by the informant must be compelling, and c. the police should corroborate the information by investigation before arresting the suspect. [29] However, each factor Madam Justice Wilson listed in Debot, does not stand alone; nor does one factor attract more weight than another in the required analysis: Debot at p 1143 In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search.

First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a"tip" originating from a source outside the police, was that source credible? Finally, was the information corroborated by policeinvestigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather,I concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness.

Weaknesses in onearea may, to some extent, be compensated by strengths in the other two. [30] One key difference between the case before me and the evidence heard at trial in Debot, is that in Debot, the police officers who carried out the investigation leading to Mr. Debot’s arrest testified, but the police sergeant whoordered his arrest, did not; whereas, in the case before me, the officer who directed the arrest of the accused did testify. Because of thiskey difference, I do not need to delve into the actual credibility or reliability of CI-1 and CI-2. What I must do is decide whether it wasreasonable for Sgt.

Chester to rely on CI-1 and CI-2 as being credible informants, based on the information he knew about them at the

time. [ 31 ] Sgt. Chester did not know anything about either CI-1 or CI-2, but he knew they were not anonymous tipsters. He asked both Cst. Anderson and Cst. Chester whether their respective informants had proven to be reliable in the past. Both officers responded affirmatively. He also asked the two constables whether their informants ever had been charged with lying to the police. Both officers replied “No”. Having received these answers to his questions, Sgt. Chester had no reason to question the credibility of CI-1 and CI-2. [ 32 ] I find that the information received from both CI-1 and CI-2 was compelling.

CI-1’s information included a general description and the first name of the person who was travelling in a white Dodge Ram, and who was “reloading” people with illicit drugs at a certain woman’s residence in Prince Albert. CI-2’s information identified the same suspect, and confirmed other information that the police already had gleaned through their surveillance of the Dodge pickup truck: for example, that at least three black males were in the truck and that the truck was travelling to Beauval and Pinehouse to provide cocaine to the community. [ 33 ] By the time Sgt.

Chester decided to order the arrest of the individuals in the Dodge truck, his officers had corroborated the following intelligence provided by the two confidential informants: • A black man named Karbino [Mr. Deng] was travelling in a white Dodge Ram which had been parked at the residence in Prince Albert where CI-1 said that Karbino had been reloading people with illicit drugs. • A total of three black males were in the truck [CI-2’s information was that the group consisted of three or four black males, one of whom was named Karbino]. • the Dodge truck, carrying Mr.

Deng, two other black males, and a woman, was travelling northwest on the only highway from which a motor vehicle operator could access the road to Beauval or Pinehouse, which is where CI-2 predicted they were going. [ 34 ] When Sgt. Chester ordered uniformed RCMP officers to intercept the white Dodge Ram and to arrest its occupants, the only confidential information that had not been corroborated was whether anyone in the white Dodge Ram possessed cocaine for the purpose of trafficking.

The only way to answer that question was to stop the truck, arrest its occupants, and conduct a post-arrest search. [ 35 ] While it might have been better to hold off on stopping Mr. Dawad’s truck until after it turned north onto Secondary Highway 155 at Green Lake, I find that Sgt. Chester’s subjective belief that he had reasonable grounds to order the immediate arrest of the occupants of Mr. Dawad’s truck was objectively reasonable. [ 36 ] For this reason, the arrest of Mr. Deng and Mr. Dawad was lawful, as was the subsequent search of Mr. Dawad’s pickup truck.

Consequently, all of the evidence I heard in the voir dire is applied to the trial. Trial Verdict: Possession for the Purpose of Trafficking Evidence and Arguments [ 37 ] As I noted earlier, the police search of Mr. Dawad’s truck turned up approximately 52 grams of cocaine:

1) a 10.4 gram lump in the knotted sock in the Tim Horton’s bag, and 2) 46.8 grams in two separate chunks weighing 21.7 and 25.1 grams in the rubber boot found in the box of Mr. Dawad’s truck. [ 38 ] The police also found four cellular telephones [ cell phone ] in the truck’s console. When Mr. Deng was searched at the roadside, he had a Samsung cell phone on him, a small amount of cash, a small quantity of cannabis, and a single sock stuffed in his back pocket. The officer who searched Mr. Deng could not remember whether he was wearing any socks at all. [ 39 ] Cpl.

Knodel, an RCMP officer and a member of the CFSEU, testified at trial as an expert witness capable of giving evidence related to the following: ➢ methods of packaging and pricing cocaine ➢ methods and patterns of distribution, distribution groups, and trafficking cocaine ➢ value, usage, and trafficking cocaine ➢ general usage, effects, and observable signs of cocaine use, as well as usage patterns ➢ language and paraphernalia associated with the possession, use, and distribution of cocaine ➢ use and possession of cell phones and currency to facilitate the trafficking of cocaine [ 40 ] In Cpl.

Knodel’s expert opinion, Mr. Deng, Mr. Dawad, and the two other individuals in Mr. Dawad’s vehicle, were involved in cocaine trafficking. Cpl. Knodel articulated a few reasons for his opinion. [ 41 ] The first, and foremost, reason for his opinion is the quantity of crack cocaine found in Mr. Dawad’s truck. [ 42 ] Cpl. Knodel estimated that the “bulk” value of the cocaine was about $4,000. He estimated its street value at between about $4,500 and $5,700.

The corporal was adamant that, in his experience dealing with drug traffickers and drug users – which experience spanned almost nine years at the time of the trial – crack cocaine users never spend that much money on their chosen drug, nor do they hold such a large quantity of the drug at any one time. He gave a few reasons why this is the case: ➢ The average drug user does not have that kind of money. ➢ Regular users generally buy only small quantities as a way to control the amount they use and the amount of money that they spend.

Users generally buy one-half to one gram at a time, and most users will not consume more than 1.5 grams in a day. Users know that if they purchase a large quantity of crack cocaine, they will binge on it until it’s gone. As the officer put it: “It’s not like, you know, buying meat at Costco, where you can buy a bulk pack and put some in the freezer and save it for later …It’s an addictive drug and, if you have it in your possession, you’re going to use it.”

➢ The drug world is dangerous and ruthless. Drug users do not want to hold a large quantity of drugs because of the very real risk they will be assaulted and robbed of their drugs. [ 43 ] Other factors Cpl. Knodel said supported his opinion were: • The cocaine was broken down into three separate plastic bags and the packages were found hidden in different locations in Mr. Dawad’s truck. Cpl.

Knodel testified that this is consistent with what drug traffickers do in order to make it more difficult for the authorities to prove that a particular person possessed the drug. • There was some, what the officer described as “drug talk”, in some of the text message strings extracted from the cell phone found on Mr. Deng. In cross-examination, Cpl. Knodel conceded that none of the messages directly mentioned cocaine or any other illicit drug. He testified that the so-called drug talk was his

interpretation of the cryptic language used in the relevant text message exchanges. He also conceded that there was no “drug talk” on the day of the arrest.

He agreed with defence counsel that he had no information about who may have used that telephone on the days when the drug talk occurred. • All of the text messages on the Samsung cell phone were to and from individuals identified only by their first name or by a nickname, which is how drug traffickers and drug users, generally, are known to each other. • Three men, with no apparent connection to northern Saskatchewan, or to each other, were travelling there with a woman who the officer understood hailed from Beauval, and they were carrying a large quantity of crack cocaine with them.

When defence counsel told the officer that there was no evidence before the court that the woman in the vehicle resided in Beauval, he said that if the woman’s place of residence was not Beauval, his opinion would not change. [ 44 ] Both of the co-accused submit that, despite Cst. Knodel’s expert opinion, the evidence does not prove beyond a reasonable doubt that they had the requisite knowledge and control of the cocaine for me to convict them of “possession for the purpose”.

Analysis [ 45 ] In R v April , 2017 SKPC 42 , at para. 38 , after thoroughly reviewing the relevant jurisprudence, Judge Anand succinctly describes what the Crown must prove in order to prove “possession” in the context of s. 5(2) of the CDSA : … The knowledge element of possession, which can be satisfied by virtue of the doctrine of wilful blindness, requires that the accused have knowledge of the nature of the substance or material in question, but the accused need not know the precise nature of the substance or material as long as knowledge of the substance or material’s illicit character is established.

In addition, the knowledge element of possession requires that the accused know, or be wilfully blind to, the general location of the substance or material in question within a building, receptacle, or place. The control element of possession, which requires that the accused must be able to exercise some measure of control over the substance or material, is satisfied if the accused has the ability to decide what will be done with the substance or material.

To have this ability, the accused or someone he or she has authority to direct would have to know precisely within a building, receptacle, or place where the items are located. … [ 46 ] Essentially, what must be proven is that the accused not only knew of the illicit substance and its general location, but that he or she had some measure of control over it. [ 47 ] The Crown bears the burden of proving its case beyond a reasonable doubt. In a case in which the only evidence tying an accused to a crime is circumstantial, the Crown’s evidence must lead to no rational conclusion other

than that the accused is guilty. If a reasonable inference can be drawn from the Crown’s evidence that is consistent with the accused’s innocence, whether or not there is evidence to support such an inference, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt: R v Villaroman , 2016 SCC 33 , [2016] 1 SCR 1000. [35] At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts”.

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] I agree with the respondent’s position that 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.

I agree with the appellant that 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. [38] Of course, the line between a “plausible theory” and “speculation” is not always easy to draw.

But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty. [citations in original deleted] [ 48 ] Mr. Deng submits that, on the evidence before me, one reasonable inference is that he knew nothing about the cocaine hidden in the box of the truck. He submits that Mr. Dawad, as the owner of the truck, controlled the truck and what was placed in it.

He submits that, at best, I might find him guilty of simple possession of the cocaine found on the floor of the back passenger seat where he was sitting – a quantity which Cpl. Knodel testified would not support a charge of possession for the purpose of trafficking. [ 49 ] For his part, Mr. Dawad, submitted that any one of the other people in his vehicle, or an unknown person for that matter, could have put the cocaine in the box of his truck without his knowledge.

He submitted that an equally reasonable inference is that he knew nothing about the cocaine inside the truck as he was driving and did not know what may have been going on in the back seat. [ 50 ] Mr. Deng and Mr. Dawad, and their companions, were the only individuals that police officers saw coming or going from the residence in Prince Albert where CI-1 said that a black male named Karbino was “reloading them” with illicit drugs. None of the officers, who surveilled the residence and Mr. Dawad’s truck, saw anyone else in or near his vehicle. [ 51 ] The four individuals in Mr.

Dawad’s truck were travelling in the direction of Beauval and Pinehouse, where CI-2 said that Karbino, and two or three other black males, were going to supply the community with cocaine. Mr. Deng, Mr. Dawad, and their male companion, are black males. None of them have any apparent connection to northwestern Saskatchewan. [ 52 ] Finally, this group was transporting 52 grams of crack cocaine – a quantity far exceeding

what might be expected for personal use, even for four heavy users. [ 53 ] The inferences these co-accused ask me to draw from the evidence before me would be flights of fancy on my part. The only rational and reasonable inference I can draw from the evidence is that Mr. Deng and Mr. Dawad, together with their fellow travellers, were involved in a common enterprise. That enterprise was to traffic cocaine. Conclusion [ 54 ] For these reasons, I find both accused, guilty of possessing cocaine for the purpose of trafficking. __________________________ M. Martinez, J.