R. v. Giroux Date:, 2013 BCPC 275

Citation: R. v. Giroux Date: 20130829 2013 BCPC 0275 File No: 77057 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JANIS ROSALIE GIROUX REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G.J. BROWN Counsel for the Crown: F. Lepine Counsel for the Defendant: D. Petrie Place of Hearing: Abbotsford , B.C. Dates of Hearing: June 6, 7, and August 19, 2013 Date of Judgment: August 29, 2013

[1] THE COURT: These are my reasons for judgment in the case of R. v. Janis Rosalie Giroux, file number 77057. Ms. Girouxstands charged in a four count Information, proceeded by indictment, with unlawfully possessing cocaine, heroin, marihuana andmethamphetamine for the purposes of trafficking, contrary to s. 5(2) and 4(1) of the Controlled Drugs and Substances Act. The chargesrelate to events on September 29th, 2011, in Mission, British Columbia, when the RCMP executed a warrant at a dwelling on 1stAvenue. The case for the Crown is a circumstantial one.

The accused did not testify and there is no obligation for her to do so. Theonus is on the Federal Crown to prove these charges beyond a reasonable doubt and that high evidentiary burden never shifts to theaccused. I - Issues [2] There are essentially two major issues in this case: 1. Cpl. Scott received a phone call on a cell phone located in the 1st Avenue premises wherein an initially unknown female wasrequesting drugs. The caller also said she was looking for 'Janis'. Cpl.

Scott ultimately arranges a meet with the caller to carry out a drugtransaction and the caller's identity is established at the time she is arrested. The issue is whether or not the cell phone call evidence canbe admissible at trial. Both Crown counsel and defence counsel gave submissions on this issue, together with their closing submissionsand it was agreed that I would rule on this evidentiary issue at the beginning of my reasons for judgment.

I had earlier ruled that suchcell phone evidence was admissible without a voir dire but since making that decision, the law had changed when the Supreme Court ofCanada came down with the decision of R. v. Baldree, 2013 SCC 35 , [2013] S.C.J. No. 35 on June 19th, 2013. When this trialreconvened, I revoked my earlier ruling so as to consider the admissibility of the cell phone evidence under the new law. 2. As this case is a circumstantial case, I must be satisfied beyond a reasonable doubt that the guilt of Ms. Giroux is the onlyreasonable inference to be drawn from the proven facts.

In brief, the Crown must establish beyond a reasonable doubt that Ms. Girouxknew of the presence of the drugs and had some measure of control over the drugs. The Crown must also establish that any possessionof drugs was for the purpose of trafficking. II - Background [3] Cpl. Scott first gave evidence for the Federal Crown and he was the head of the Drug Squad when two search warrants werebeing executed on September 29th, 2011. The search warrant relevant to this case concerned 209 - 33076 First Avenue, Mission, BritishColumbia, where the accused, Ms. Giroux, was ultimately found. Cpl.

Scott testified that he instructed his Emergency Response Teamfor a dynamic entry and that any persons taken into custody were to be left exactly where they were found in the premises. Cpl. Scott didnot enter the subject premises until they were secured. When he entered the premises, he saw Ms. Giroux in custody in a back bedroombetween the bed, the wall and a dresser. Ms. Giroux was right beside a nightstand shown on picture 14 of Exhibit 2. Another individual,Jason Stittle, was lying on the ground with an injury to his leg. Cpl.

Scott noted that a black LG cell phone was ringing and he seized thecell phone on the nightstand in the bedroom. [4] As Cpl. Scott was returning to the RCMP detachment, he answered a phone call on that cell phone at 2253 hours. An unknownfemale was on the cell phone and Cpl. Scott asked, "Who is this?" The female answered that she was Crystal and she was looking for"40 hard". Cpl. Scott asked who the caller was looking for and she answered, "Janis." Cpl. Scott asked the caller to call back andultimately a meet was arranged whereby the caller would trade ecstasy for crack cocaine. Cpl.

Scott carried out the meeting with thecaller, the caller tendered ecstasy pills and Cpl. Scott ultimately arrested this caller who turned out to be Crystal Boos. [5] The admission of the cell phone call evidence is in dispute and my ruling is set out later. Cpl. Scott was also able to confirmthat Ms. Boos' cell phone was calling the LG cell phone seized from the 1st Avenue residence. To be clear, there was no evidence ofMs. Giroux ever holding the LG cell phone found on the night table of the 1st Avenue residence and there are no documents or invoicesconnecting Ms. Giroux to the LG cell phone.

There were also other cell phone devices in the premises. [6] Cst. Harnett next testified and he was present when the search warrant of the 1st Avenue premises was being executed. Thefront door to the premises was unlocked. Cst. Harnett's job was to secure the residence, prevent destruction of any evidence and arrestany occupants. Cst. Harnett arrested one Christopher Green in a living room/kitchen area and Ms. Giroux in the back bedroom near thenightstand. Mr. Stittle had a leg wound and he was provided medical assistance. [7] Cst.

Harnett also gave evidence about the LG cell phone referred to above and he said he had retrieved the exhibit to ensure thecell phone was charged up. That cell phone contained the following text messages (not necessarily verbatim): From 778-344-4812: "You only owe for 120 Sheena dropped off right? Now plus that 1,000." Next entry from the LG cell phone: "Yes and I will bring it up in a bit 'kay, and some speed for you." Next entry from 778-344-4812: "I'm sleeping K cool hun just call me first and if I don't answer I'll come get it from you in the morning." Final message, "Ok, ttyl." [8] I also ruled that Cst.

Harnett could not be questioned about his absolute discharge for an assault conviction given that thedischarge was not relevant to the issues before me and, moreover, a witness cannot be cross-examined under s. 12 of the CanadaEvidence Act on a conditional or absolute discharge. [9] Cst. Caughy was the exhibit officer and he testified as to the layout of the First Avenue premises. He noted there were femaleitems in the back bedroom, including perfume and women's clothing. Cst. Caughy also testified as to the presence of the following

exhibits, most of which were in the back bedroom: 1. A black pouch on the nightstand contained a bag of 3.8 grams of meth and 27 flaps (2.7 grams) of heroin; 2. Score sheets were found under the bedroom mattress closest to the night table; 3. A baggie under the bedroom nightstand contained two flaps of heroin weighting .2 grams; 4. Canadian cash of $125, $15 and $11 was found under the bed, nightstand and bedroom mattress, respectively; 5. 31.5 grams of marihuana was found in seven baggies under the bed; 6. Ten empty flaps were found under the bed; 7.

A plastic clear container located under the bed containing four flaps of meth weighing .4 grams; 8. 1.1 grams of crack cocaine were found in a baggie under the bed; 9. One baggie of meth weighing 0.6 grams was under the bed; 10. 13.5 grams of marihuana was found in a brown bag in the bedroom closet; 11. A blueline ledger book on the bed; 12.

A notice of assessment dated October 4th, 2010, letter from Canada Revenue Agency dated September 28th, 2010, Community Services envelope, Government of Canada slips, deposit form, notice of assessment dated August 23rd, 2010 and TD Canada Trust letter were found in the bedroom. All these documents contained the name Janis Giroux but they do not refer to the 1st Avenue address; 13. One flap of heroin weighing 0.1 grams on the bedroom nightstand; 14. Scales found on the patio; 15. $400.51 Canadian; 16. The LG cell phone referred to earlier by Cpl. Scott is marked an exhibit.

Although the exhibit bag was previously opened, this does not detract from the principle of continuity. Cst. Harnett had opened the exhibit bag to charge it and the cell phone is identified through Cpl. Scott's notes, the photo taken and Cst. Harnett's evidence. [ 10 ] Cst. Caughy also testified as to the photographs in Exhibit 2. Photograph 15 of Exhibit 2 shows two knives located under the bedroom mattress.

Photograph 25 shows a red score sheet found beside the bedroom bed and there were other score sheets located under the mattress. [ 11 ] Defence counsel did point out that some of the photos in Exhibit 2 were cropped and he tendered an uncropped photograph as Exhibit 1. In my view, the photographs in Exhibit 2 were not altered in any deliberate or misleading matter; however, it is clear that the police records were in error when they said that the LG cell phone was found on Ms. Giroux. As well, it is clear there were other cell devices within the subject premises.

Defence counsel has also pointed out that certain exhibits were moved for photographic purposes. [ 12 ] Cst. Dilote testified that he was part of the Emergency Response Team on September 29th, 2011, when the warrant was executed on the 1st Avenue property. He found Ms. Giroux in the bedroom on the left side of the bed. He confirmed that no drugs or cell phones were found on the accused person. [ 13 ] Sgt. Sheppard was the Federal Crown's final witness and he was qualified as an expert in street-level drug trafficking techniques, drug jargon and the weighing and packaging of drugs.

With respect to the cell phone call from Crystal Boos, Sgt. Sheppard gave evidence in a voir dire that the reference to "40 hard" meant $40 of crack cocaine. He also explained the drug jargon on various score sheets and ledgers. In his view, the entries were indicative of a dial-a-dope operation. Sgt. Sheppard also explained the jargon used in the text messages referred to above. [ 14 ] Sgt. Sheppard also reviewed the evidence found in this case, including the combination of drugs found, the form of packaging, the street values for the drugs located, and the weapons and scales found. It was Sgt.

Sheppard's opinion that the drugs seized were for the purposes of trafficking. He based this opinion upon the four different types of drugs seized, the quantities, the packaging, the scales, the score sheets and other indicia. Sgt. Sheppard acknowledged that some of the quantities of drugs found could be for heavy personal use but this would be unlikely when viewing the evidence in totality. III - Admissibility of Cell Phone Call Evidence [ 15 ] When this trial began on June 6 and 7, 2013, I admitted the evidence of Cpl. Scott regarding the cell phone call he received from Crystal Boos. I was relying on the B.C.

Court of Appeal case of R. v. Graham , [2013] B.C.J. No. 284 . That decision established that cell phone calls on cell phones are admissible as a principled exception to the hearsay rule. They are admissible to prove the nature of activities of the intended recipient. The calls have been used as evidence of an accused's intention to traffic. Indeed, such evidence was properly admissible as circumstantial evidence without the necessity of a voir dire. [ 16 ] However, on June 19th, 2013, the Supreme Court of Canada came down with the decision of R. v. Baldree , cited above.

In my view, the law had changed on this evidentiary issue so I revoked my earlier ruling. Counsel agreed that the evidence of Cpl. Scott, which related to the cellular telephone call, would form part of the voir dire on this issue and, as well, Sgt. Sheppard's evidence relating to the cell phone call would simply be part of the voir dire. The subpoena to the cell caller, Ms. Boos, was also part of the voir dire.

[17] Before ruling on the substantive change in this matter, I must decide whether I am to admit the cellular call evidence. In R. v.Baldree, the Supreme Court of Canada reminds us that any out-of-court statement by a person not called as a witness is hearsay where itis tendered for the proof of its contents. Hearsay evidence is presumptively inadmissible. It is presumptively inadmissible because ofdifficulties inherent in testing the reliability of the defence assertion (see paragraphs 31 and 32).

That all being said, hearsay is stillbeing admitted if indicia of reliability and necessity are established on a voir dire (see paragraph 34). The test of necessity and reliabilityapplies whether the hearsay is expressed or implied. [18] In Baldree, the Supreme Court of Canada ultimately disallowed cell phone call evidence on several grounds. First, the hearsaythere did not meet the necessity requirement. The Crown made no effort to secure the evidence of the declarant (paragraph 68). Secondly, the single phone call was found to be unreliable (see paragraph 69).

The Supreme Court of Canada did view that the quantityof calls may well suffice in some circumstances to establish reliability and even necessity (paragraphs 71 and 72). [19] Notwithstanding the comments above, I do take some heed of Mr. Justice Moldaver's remarks in the minority at paragraph 102of the Baldree decision. Even if the police are able to find a declarant who is a drug user, there is no reason to believe he or she wouldbe forthcoming and cooperative.

In fact, I would be stunned if a drug user testified candidly about his or her drug dealer. [20] In the case at bar, the Crown wants to admit the cell phone call wherein a Ms. Boos requests "40 hard" and later she says shewas looking for "Janis". Ultimately, Cpl. Scott arranges a meet with Ms. Boos wherein she tenders ecstasy for crack cocaine. She isthen arrested. There are also text messages on the cell phone. [21] In my view, the Crown has satisfied the necessity requirement under the principled hearsay exception. The RCMP didsubpoena Ms. Boos for trial. Ms.

Boos failed to attend court pursuant to the subpoena but I do not lay that problem at the feet of theCrown. I do not believe the Crown has to go so far as to seek a material witness warrant in this case. I am impressed that the RCMPwere even able to serve Ms. Boos, a drug user, on the streets of Mission, British Columbia. Best efforts were made to have Ms. Boosattend court. The Crown has done everything reasonably necessary to secure the witness. [22] I am also of the view that the necessity requirement dovetails with the reliability requirement.

As elaborated below, the hearsayhere is reliable because the police officer actually meets the caller and he arrests her for the drug transaction first discussed by phone. As an aside, I do not see any value in having the officer who served the subpoena available for cross-examination. The affidavit ofservice filed in the voir dire sufficiently proves service upon the caller/declarant. [23] The hearsay of Ms. Boos' phone call is also very reliable evidence. She asked for drugs by phone and then actually meets withthe police officer to carry through with a drug transaction. Part of Cpl.

Scott's evidence is not hearsay in any event. He actually sees Ms.Boos engage in a drug transaction, which corroborates the contents of the earlier phone call. As well, the most reliable witness in thisscenario is Cpl. Scott. He is trained to record events with precision. While he may have an interest in securing a conviction, he is,nevertheless, a good recorder of events and statements. I appreciate that defence counsel is denied the right to cross-examine Ms. Boosbut the danger there is offset by the defence's ability to cross-examine Cpl. Scott who actually met Ms. Boos following the call.

Cpl.Scott, of course, was cross-examined at length. [24] In conclusion, I am prepared to admit all the cell phone call evidence provided by Cpl. Scott and Sgt. Sheppard in this trial. Although that evidence includes a reference to the word "Janis", I am not deciding at this juncture if that reference is to the accused. IV - Knowledge and Control [25] As stated earlier, this case is a circumstantial one. I must be satisfied beyond a reasonable doubt that the guilt of Ms. Giroux isthe only reasonable inference to be drawn from the facts. The Crown must prove beyond a reasonable doubt that Ms.

Giroux knew of thepresence of the drugs and had some measure of control for there to be constructive possession. See R. v. Fisher, [2005] B.C.C.A. 444. [26] In the case at bar, virtually all the drugs and drug-related exhibits are found in the back bedroom of the 1st Avenue, Mission,property. The following evidence connects Ms. Giroux to that bedroom: 1. Two notices of assessment, a letter from Revenue Canada Agency, Government of Canada slips, a Community Servicesenvelope, a deposit form and a TD Canada Trust letter are all located in the bedroom and they are all in the name of Janis Giroux. Therewere also B.C.

Identification cards in the name of Janis Giroux on the bedroom bed; 2. When the search warrant is executed, Ms. Giroux is found in the back bedroom within easy reach of virtually all the drugsfound, as well score sheets, knives and other drug-related exhibits; 3. Items used by a woman are evident in the bedroom. For example, there is perfume on the bedroom night table. [27] As indicated in the case of R. v. Emes, (ON CA), [2001] O.J. No. 2469, personal papers are, as a generalrule, maintained in a location where a person has access and control.

As stated by Hill J. in paragraph 8 of that case: Personal papers are, as a general rule, maintained in a location to which a person has access and control. When documents such asincome 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. [28] It is true that the personal papers of Ms. Giroux do not contain the 1st Avenue address. It is also true that the Crown was notable to tender a tenancy agreement showing Ms. Giroux as a tenant of these premises. Nevertheless, the only reasonable inference is thatMs.

Giroux is storing her personal papers in this bedroom such that she exercises significant control over the bedroom. One does not

indiscriminately leave these very personal papers lying around. Again, Ms. Giroux was also arrested in the very room surrounded by her documents. [ 29 ] Following through with this analysis, the location of the drug score sheets, cell phone, knives and other drug-related exhibits in the bedroom leads to only one reasonable inference: Janis Giroux had significant control and knowledge of those items. As to the knowledge component itself, the notion that Ms. Giroux did not know about the drugs and other exhibits is simply not reasonable.

To begin with, some items were actually in plain view: the pouch on the nightstand, the score sheet near the bed, the flap of heroin on the nightstand and the scales on the patio. The other drugs and drug-related exhibits were readily accessible to Ms. Giroux, as they were either under the bed, under the nightstand or in other areas in close proximity to her. [ 30 ] I also rely on the cell phone call evidence, although it is not the lynchpin to a conviction in this case.

A caller requesting drugs asked for "Janis" without referring to a last name but when looking at the totality of the evidence, the only reasonable inference is that the caller was referring to Janis Giroux. Again, Ms. Giroux was arrested within a few feet of the cell phone in a bedroom where her personal papers are located. [ 31 ] The failure of the Crown to prove ownership of the cell phone does not alter my conclusion in this regard. It is true that there were two other male persons in the subject premises when the warrant was executed and there were other documents in the premises not seized by the police.

Those facts do not detract from my above conclusions about Ms. Giroux's knowledge and control of the drugs and other exhibits. At best, one could only say that there is a possibility that there were others besides the accused who would also have some knowledge of the drugs. [ 32 ] Based on all the above factors, I conclude that the only reasonable inference is that Ms. Giroux had knowledge and significant control over the drugs found in the 1st Avenue premises. Possession has been proven beyond a reasonable doubt.

V - Trafficking [ 33 ] I rely not only on the expert but also on common sense in concluding that the drugs seized in this case were for the purposes of trafficking. There were four different types of drugs seized, they were packaged in a manner for resale and there were scales, score sheets and plenty of other indicia of a drug-dealing operation. For example, 27 flaps of heroin suggest drug trafficking. The drug operation may not have been large but the drugs were not simply for personal use. VI - Conclusion [ 34 ] Ms. Giroux, I would ask that you please stand up.

Based on the above analysis, I am satisfied beyond a reasonable doubt that the Crown has proven its case. I find you guilty of all four counts under Information 77057. __________________________ G.J. Brown Provincial Court Judge