Her Majesty the Queen - v. -, 2014 SKPC 166

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 166 Date: August 25, 2014 Information: 24497173 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Devon Douglas Lavallee Appearing: Ms. Sylvia Verkerk For the Crown Mr. Pab Chetty For the Accused DECISION F. M.

DAUNT , J [ 1 ] Devon Douglas Lavallee stands charged that he did, on or about the 29 th day of August, 2013, at or near Weldon, Saskatchewan, unlawfully have in his possession a controlled substance for the purpose of trafficking, to wit: cannabis marihuana in an amount not exceeding three kilograms, contrary to section 5(2) of the Controlled Drugs and Substances Act . [ 2 ] Mr. Lavallee was driving eastbound on Highway 3 toward Weldon, Saskatchewan, where he lives, when he was pulled over by the RCMP for erratic driving. He was clearly intoxicated.

The police arrested him for impaired operation of a motor vehicle. Incident to this arrest, police searched the cab of the truck.

[ 3 ] Both officers testified that there was a large sealed package of what appeared to be marihuana in plain view on the bench seat of the truck. Upon further search of the truck, police found another large package of marihuana under the seat, as well as a margarine container with a smaller amount of marihuana and a grinder in it. The total amount of marihuana was about one pound. The ½ lb. package on the seat was sealed very tightly, “almost vacuum sealed,” so that there was very little smell. Neither officer was asked specifically whether the second package was also sealed.

The next day, the police executed a search warrant at Mr. Lavallee’s residence in Weldon. There they found a “Food Saver” food sealer, a smaller amount of marihuana, and numerous items of paraphernalia consistent with personal use. They also found three rifles and a cross-bow. [ 4 ] In the garage, police found a Ziploc bag containing other Ziploc bags containing marihuana, as well as more personal use paraphernalia.

Constable Hand testified that this Ziploc bag, marked Exhibit P10 in this trial, contained 18 grams of marihuana packaged in three separate baggies containing 6 grams each. [ 5 ] Constable Drabinasty, qualified by consent as an expert in pricing, packaging, trafficking and consumption of marihuana, testified that in his opinion, Mr. Lavallee possessed the two ½ lb. bags of marihuana for the purpose of trafficking. In his report, Constable Drabinasty also opines that the three 6 gram bags were meant to be resold, based on the packaging.

Also in his report, he believes that a bag containing 28 grams of marihuana was for resale, based on the “totality of the circumstances.” The latter items were not explored in his testimony. Mr. Lavallee possessed the other amounts, in his opinion, for personal use. The primary basis for his opinion is the sheer quantity found in the truck, and the method of packaging the 18 grams found in the garage. Regarding the pound found in the truck, he says this would amount to a 443 day supply for the “typical” user, who smokes 1 gram a day.

In his report, he says that a “heavy” user would consume 2 grams a day, which I presume would result in a 221 day supply. He acknowledged that this estimated range of usage is not based on any scientific survey of marihuana users, but on his general experience as a police officer investigating drug offences. As marihuana loses its potency within six months to a year, he says the “typical user” will not keep such large quantities on hand. [ 6 ] Constable Drabinasty believes that the “Food Saver” sealer is also related to trafficking activity.

He says that it is the most common way of transporting large amounts of marihuana as it prevents the overwhelming odour. [ 7 ] The weapons found in the home bolstered Constable Drabinasty’s opinion, as he says many drug traffickers keep weapons in their homes for protection and also as a result of the paranoia accompanying excessive marihuana use. [ 8 ] The expert was not troubled by the absence of other indicia of trafficking, such as scales, score sheets, cell phones, and a large quantity of cash. He says they don’t always locate score sheets because traffickers try to get rid of evidence like that.

He says scales are quite important. In his report, he says “The regular user of marihuana does not need a scale to weigh the product out before using.” However, he says that the police don’t always find scales, because the trafficker might use someone else’s residence for the weighing of the product. Although he reluctantly agreed with Crown counsel’s suggestion that a trafficker might simply “eyeball” the amount, he also said that traffickers tend to short their clients by giving them an amount less than they are paying for. Most traffickers use a scale for this purpose.

Regarding cell phones, he says the bulk of trafficking activity these days is conducted through text messages on cell phones. However, sometimes they find cell phones and sometimes they don’t. As far as the absence of a quantity of cash, he says that obviously Mr. Lavallee had just made a big buy and so it is not surprising that he would not be found with cash on him. [ 9 ] Similarly, Constable Drabinasty was not troubled by the absence of packaging materials suitable for smaller quantities, such as tin foil, pill containers, smaller baggies and the like.

He testified that the vacuum seal method is typically used to package larger quantities. Fundamentally, his opinion is based on the quantity of marihuana found in the truck. The absence of other indicia of trafficking does not sway that opinion. [ 10 ] Devon Lavallee testified that he is not a “typical user” of marihuana. He says others have told him that he smokes a lot of pot. In other words, he is a heavy user of marihuana. He smokes it recreationally and also to relieve chronic back pain from an unfortunate incident with a horse when he was 13 years old.

He refuses to take more mainstream painkillers, because he says he lost his mom to T3s and morphine. He says he has been smoking between 5 and 13 grams per day for 13 years. He says ¼ lb. will last him about 14 days. On the day in question, he says he bought a pound of marihuana for $1,600.00 because it was available and he could afford it. He was having some personal troubles, so he opened one of the packages and put some of the pot in a margarine container with a grinder. He tied the package and put it under the seat of the truck, beside the sealed package.

He bought some beer and went to visit his mother’s and his sister’s graves. He drank and also smoked several joints. He was driving home to Weldon when he got pulled over by the police. [ 11 ] Mr. Lavallee testified that none of the marihuana was in plain view, but that both packages were out of sight under the seat.

[ 12 ] Mr. Lavallee also disputes Constable Hand’s description of Exhibit P10. Constable Hand described it as three 6-gram bags of marihuana, all contained within another Ziploc bag. Although Mr. Lavallee didn’t remember that he had that marihuana, he says that from reviewing a picture of it, Constable Hand’s description is inaccurate. He said one of the bags was empty. Two of the bags contained marihuana, but were inside another bag which contained those two bags and the empty bag. He points out that it was found in a Rubbermaid box with old shoes and stuff in it.

He says he did not intend to distribute this marihuana to anyone else. [ 13 ] Regarding the firearms and crossbow found in his residence, he says he is a Métis man living in rural Saskatchewan. He loves to hunt, and has been hunting since he was 12 years old. There is a mounted deer in his house, lending credence to this assertion. He says the Food Saver belongs to his wife, although he uses it, mostly to wrap fish and meat. He hunts and fishes. He did admit that sometimes he would use the Food Saver to re-seal his marihuana to keep it fresh, as he tends to buy in bulk.

He would then keep the re- sealed marihuana in his freezer, again to keep it fresh. He says he doesn’t own a cell phone. He says he has never sold marihuana, but he is a very heavy user. ISSUES: [ 14 ] Defence argues that the initial search of the truck was unlawful, being without warrant and without consent. Failing that, Defence counsel acknowledges that Mr. Lavallee is guilty of possession of marihuana, but argues that the Crown has not proven beyond a reasonable doubt that his purpose was to traffic in the drug.

He says the lack of many common indicia of trafficking, such as scales, cell phones, score sheets and packaging materials, coupled with the testimony of the accused, should raise a reasonable doubt about the purpose for which Mr. Lavallee possessed the drugs. [ 15 ] Crown argues that I should disbelieve the accused because both packages were vacuum sealed when found, therefore the accused could not have ripped one open as he said. Crown also argues that I should disbelieve the accused because he offers no documentary evidence to support many of his assertions, such as his chronic back pain.

Crown counsel submits that the expert opinion based on the amount of marihuana in the vehicle, as well as the weapons and the food sealer found in the house, proves her case beyond a reasonable doubt. She submits that the accused is a middle man, who buys his marihuana in ½ lb. blocks, and then re-seals these ½ lb. blocks for resale to another middle man, who then breaks it down into smaller quantities for further resale. This would explain why he had no packaging materials suitable for breaking down the product into smaller quantities. [ 16 ] If that fails, Crown submits that Mr.

Lavallee is guilty of trafficking because he was “transporting” marihuana in a vehicle, even if it was for his own use. She submits that the Crown has without question proven the transportation of marihuana beyond a reasonable doubt. FACTUAL FINDINGS: [ 17 ] Most of the facts were not controversial. However, regarding the facts that are in dispute, I find as follows. [ 18 ] Both officers testified that there was a large sealed package of what appeared to be marihuana in plain view on the bench seat of the truck. Mr. Lavallee testified that both packages were under the seat.

On this point, I accept the evidence of the two officers where it conflicts with the evidence of the accused. They were sober, while Mr. Lavallee was intoxicated and, by his own admission, stoned. Their evidence was internally consistent, and consistent with each other’s testimony. Mr. Lavallee has a memory of concealing both packages under the seat. Given that he had opened one package and smoked a quantity of the drug, he must have put that package under the seat and simply forgot about the one sitting in plain view on the seat of the truck. [ 19 ] Regarding Mr.

Lavallee’s assertion that he opened one of the bags to transfer some marihuana to the margarine container, Crown says that both bags were vacuum sealed, and so I should disbelieve Mr. Lavallee’s evidence. However, the evidence is far from clear on this point. The expert, who received his information from the arresting officers, described one package as sealed, and the other as “tied”. In the presence of the Court Clerk, I examined Exhibit P11 to observe the state of the packaging. The marihuana had been removed from both bags so that samples could be sent away for testing.

One bag was clearly cut open with scissors or a knife, with a straight cut near the top of the bag. The second bag had clearly been ripped open, with the plastic bent and jagged, consistent with Mr. Lavallee’s evidence. While it is possible that both bags were sealed, and then the police cut one open and ripped open the other that is not very likely. I find that Mr. Lavallee did open one bag to reallocate some marihuana to the margarine container for his immediate use. [ 20 ] Constable Hand testified that the Ziploc bag found in the garage, marked Exhibit P10 in this trial, contained 18 grams of

marihuana packaged in three separate baggies containing 6 grams each. Mr. Lavallee disputed this. The distinction is important becausethe style of packaging informed the expert’s opinion -- outlined in his report -- that this particular batch of marihuana was meant to besold. Once again, in the presence of the Court Clerk, I opened Exhibit P10 and discovered that Mr. Lavallee’s description was the moreaccurate. P10 consists of a Ziploc bag containing four other bags. One bag is completely empty. A second bag has some marihuanadust in it. The other two bags contained unequal amounts of marihuana.

It does not contain three equally weighted bags of marihuana. Ido not accept Constable Hand’s evidence on this point. ANALYSIS: [21] Although in argument, Defence counsel argued that the search of the truck was unlawful, there was no Charter applicationbefore me on which to make a ruling. However, it appears the arrest for impaired operation of a motor vehicle was made with amplegrounds. Incident to a lawful arrest, the police are allowed to search a vehicle involved in the offence for evidence of that offence. [22] Regarding trafficking by “transport,”

section 2 of the Controlled Drugs and Substances Act defines “traffic” as “to sell,administer, give, transfer, transport, send or deliver the substance.” Crown argues that the facts of this case establish that the accusedtransported marihuana within the meaning of this section. On that issue, Defence counsel says he is “stumped”. I refer both counsel tothe SKCA decision in R. v. Binkley, [1982] S.J. No. 406, which adopts R. v.

Harrington and Scosky, (BC CA), [1964]1 CCC 189 (BCCA): The word “transport” in the definition of “traffic”... is not meant in the sense of mere conveying or carrying or moving from one place toanother, but in the sense of doing so to promote the distribution of the narcotic to another.

In my opinion, there must be something moreextensive than mere conveying, or carrying or moving incidental to one’s own use of the drug to warrant a conviction... for trafficking. [23] Although that case was decided under the Narcotic Control Act, the context of the wording is not substantially changed underthe Controlled Drugs and Substances Act, and I adopt the

interpretation in Binkley. [24] That leaves us with the Crown theory that Mr. Lavallee possessed this marihuana for the purpose of resale. [25] The burden of proof is on the Crown to prove each element of the offence beyond a reasonable doubt. Where the accusedtestifies and his credibility is in issue, I am bound by the Supreme Court of Canada decision in R. v. W.(D) (1991), (SCC), 63 CCC (3d) 397 (S.C.C.) as adopted in R. v. McKenzie, (P.N.)(1996) (SK CA), 141 SaskR. 221 (SKCA) andmany subsequent cases. First, if I believe the accused, I must acquit.

Second, if I do not believe the evidence of the accused but am leftin a reasonable doubt by it, I must acquit. Third, even if not left in doubt by the evidence of the accused, I must ask myself whether, onthe basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [26] Generally, I found Mr. Lavallee to be truthful, but prone to exaggeration. His version of events is corroborated by thephysical evidence, such as the ripped Food Saver bag.

Although he didn’t bring any documentary evidence to back up his claim ofchronic back pain, I have no reason to disbelieve him. He says he smokes a lot of pot. This assertion is bolstered by all the indicia ofpersonal use found in his truck, in his home and in his garage. He smokes so much that he forgot he had pot left when he went to buysome more. I have to compare that to the evidence of the expert, who is basing his opinion, not on any knowledge of Mr.

Lavalleepersonally, but on his general experience with drug users and traffickers, as well as on courses he has taken in the course of his work as apolice officer. This is not a scientific opinion, but is there to assist the Court by giving general information not in the usual experience ofthe layman. [27] In assessing Mr. Lavallee’s credibility, I am taking into account the sheer quantity of marihuana, which is large, as well as theweapons found in the home.

I’m also taking into account the many indicia of personal use found, as well as the lack of many indicia oftrafficking one usually finds in these cases. [28] This is not the usual credibility situation where two witnesses to the same event attest to different versions. The fact that mustbe proven in this case is the purpose for which the accused possessed the marihuana. Here, we have the opinion of an expert, based on areport from other officers, contrasted with the direct evidence of the accused regarding his purpose. Constable Drabinasty is obviously acredible witness; he is not lying about anything.

But he has no direct knowledge of the fact to be proven. I must therefore weigh hisopinion in light of Mr. Lavallee’s testimony of matters within Mr. Lavallee’s direct knowledge. The fact that Constable Drabinasty isnot an “expert” in the sense of being learned in any science also affects the weight to be given his opinion. He acknowledged that hisopinion on typical usage of marihuana, for example, is not based on any scientific survey of marihuana users, but on his generalexperience in dealing with drug investigations, as well as information he was told in training courses. There is thus no way to

statistically confirm or refute his factual assertions. [29] On the question of how much marihuana one might keep in one’s possession for personal use, I accept that the range of 1-2grams per day is generally true of the people Constable Drabinasty has encountered. But is it specifically true for Devon Lavallee? Asfar as I know, there is no physical or medical reason a person would be unable to consume more than 2 grams of marihuana per day. Ihave never heard of someone overdosing on marihuana, for example. Mr. Lavallee says he smokes between 5 and 13 grams per day.

At5 grams per day, 1 lb. would be an 88 day supply. At 13 grams per day, 1 lb. would last about 35 days. Although Mr. Lavallee is proneto exaggeration, I accept the lower end of his range, that he smokes 5 or more grams per day of marihuana, giving him a supply forslightly less than three months. Given the expert’s assertion that marihuana loses its potency after six months to a year, a three-monthsupply is well within the range of usability. [30] Constable Drabinasty offers the opinion that Mr. Lavallee possessed marihuana for the purpose of trafficking.

That is, ofcourse, the ultimate issue in this case, and I am mindful of the limits on the use of expert testimony in that regard. Expert opinion is notto be used to usurp the role of the trier of fact. (R. v. Mohan, (SCC), [1994] 2 SCR 9) [31] There was no scale found. If the theory is that the accused uses the food sealer in his house to repackage marihuana, onewould expect to find a scale in the same location as the packaging material. A typical user, however, has no need of a scale.

It could bethat he had a scale somewhere else, or that he did his packaging somewhere else, or it could be that he is telling the truth and does notsell marihuana. [32] There was no cell phone. Mr. Lavallee says he does not own a cell phone, which would explain why none was found. In theexpert report, a cell phone itself is not an indication of drug trafficking. However, if accompanied by other indicia, can be evidence oftrafficking. Although some drug dealers stick to one location, text messaging has become the most common way of communication. IfMr.

Lavallee was the type to deal out of his own home, again, one would expect evidence of that activity, such as score sheets and small-quantity packaging materials, to be found at that home. [33] The absence of packaging material suitable for distribution in smaller quantities troubles me the most. The Crown theory thatthe accused buys in ½ lb. quantity and then turns around and sells in ½ lb. quantity is pure speculation, and unsupported by any evidencethat this is a business model anyone has encountered before. [34] For all of the above reasons, I do not accept Constable Drabinasty’s opinion that Mr.

Lavallee possessed the marihuana for thepurpose of trafficking. [35] It is difficult to believe that anyone could smoke a pound of marihuana in a reasonable amount of time, even if packaged forfreshness. However, it is not up to Mr. Lavallee to prove his innocence. Keeping in mind the burden of proof, there is enough about theCrown’s case that troubles me that I find that Mr.

Lavallee’s evidence leaves me with a reasonable doubt as to his purpose in possessingthe marihuana. [36] I therefore find him not guilty of possession for the purpose of trafficking, but guilty of the offence of simple possession,contrary to s. 4(1) of the Controlled Drugs and Substances Act. [37] Dated this 25th day of August, A.D. 2014, at the City of Prince Albert, in the Province of Saskatchewan. ___________________ F. M. Daunt, J