R. v. Pilkington, 2012 MBPC 34

CITATION: R. v. Pilkington Citation No. 2012 MBPC 34 Dated: April 2, 2012 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Omar Siddiqui, ) ) for the Crown - and – ) ) Colleen Pilkington ) Mark Wasyliw, ) ) for the Accused ) Judgment delivered: ) April 2, 2012 KELLY MOAR, P.J.

INTRODUCTION [ 1 ] Having listened to the evidence put forth by Crown counsel and having heard the arguments of counsel, the following is my decision as it relates to the issue of committal. [ 2 ] By way of background, the accused in this matter is charged with three counts of possession for the purposes of trafficking and a sole count of possess proceeds of crime.

The Crown is seeking committal on all counts charged plus nine additional counts of possession for the purposes of trafficking relating to other types of pharmaceuticals that were located by the Winnipeg Police Service during the execution of a search warrant and subsequent arrest of the accused. [ 3 ] The accused has opposed committal and is seeking to be discharged of all counts.

FACTS [ 4 ] The facts of this matter are fairly straight forward, however before detailing those I note the following issues that were conceded by the accused for the purposes of the preliminary hearing: 1. the jurisdiction of this court; 2. the identity of the accused; 3. the nature of the drugs located; and 4. the continuity of those drugs [ 5 ] With those concessions, the matter comes before the court as a result of the Winnipeg Police Service being granted a Controlled and Drugs and Substance Act (“CDSA”) search warrant for a residence located at 696 College Avenue here in the City of Winnipeg. [ 6 ] On February 18, 2009 that warrant was executed and at the time of entrance to the residence, Winnipeg Police did not locate anyone within the residence.

A subsequent search of that residence resulted in the seizure of what can only be termed a vast quantity of pharmaceutical drugs. [ 7 ] Constable Antonio Bergagnini was assigned as the exhibit officer for this investigation and testified to a number of seizures that were made throughout the residence. For the sake of ease, those seizures were categorized by where they were located.

[ 8 ] A search of the kitchen area resulted in a beige-brown bag being located on top of a chair. Within that bag police located in excess of 400 pink round 20 milligram pills of OxyContin and 20 blue round Diazepam pills that were contained in several pill bottles.

Within the same bag police located $12,400.00 of Canadian currency that was bundled in $1,000.00 piles. [ 9 ] On the kitchen counter police located a Tylenol labelled bottle that was found to contain 50 round tablets of what was later found to be OxyContin. [ 10 ] In the refrigerator there were 33 plastic bottles located of which one was tested and found to be Methadone. [ 11 ] The dining room was searched and a search of a purse turned up a black cloth bag that contained 13 grey capsules of Hydromorphone and what are believed to be drug score sheets. [ 12 ] A blue and white vase was located in a china cabinet and inside of it police located 7 pill bottles that contained the following: 52 (4 milligram) yellow tablets of Hydromorphone in a pill bottle labelled Nytol; 63 pink 20 milligram tablets of Morphine in a pill bottle with no label; 37 orange 60 milligram tablets of Morphine in a pill bottle with no label; 43 purple tablets of Alprazolam in same bottle as above; 12 orange tablets of Alprazolam; 16 red and orange capsules of Temazepam with no label on bottle; 94 yellow 4 milligram tablets of Hydromorphone in a bottle with no label and 120 white 10 milligram tablets of OxyContin in a bottle with no label. [ 13 ] There were additional pharmaceutical drugs located as a result of a traffic stop and subsequent arrest of the accused by Constable Zaretski and her partner Constable Atwell. [ 14 ] Both of these officers were part of the unit that executed the search warrant and they were tasked with remaining outside of the residence and awaiting duties to be assigned.

While sitting in their cruiser car, they were radioed by Sergeant Nykoluk who advised them to arrest the occupants of a vehicle that had pulled up the street. [ 15 ] The officers attended to that vehicle and noted that it was being operated by the accused. Constable Zaretski notified the accused that she was under arrest and removed her from the vehicle. A search of the accused resulted in police locating $230.00 in her pocket that was folded in half and bound by an elastic band.

The jacket of the accused along with a purse were also seized by police and placed into the trunk of the cruiser car. [ 16 ] Constable Zaretski testified that upon looking into the vehicle she noted in plain view a large quantity of pills in the console between the front seats.

It was later determined there were a total of 680 pills of a similar type that were tested and found to be OxyContin. [ 17 ] A search of the accused`s jacket pocket revealed a large quantity of Canadian currency which brought the total located in the traffic stop to $3,125.00 in Canadian currency. [ 18 ] In a brown purse that the officers believed was located within the vehicle , there were 8 pill bottles located that were found to contain the following: 29 pink 20 milligram OxyContin in an Accu-Chek bottle; 4 grey 100 milligram Morphine in Accu-Chek bottle; 7 green 80 milligram OxyContin in a white pill bottle; 51 pink 29 milligram tablets of OxyContin with an one touch label; 18 orange 60 milligram Morphine in a bottle with no label; 45 purple 30 milligram tablets of Morphine in an one touch bottle; 10 grey 100 milligram tablets of Morphine in a clear bottle; 1 green 80 milligram tablet of Diazepam in a bottle with the label scratched off and finally a jewellery bag with an unknown white residue on it. [ 19 ] In addition to the tablets that were tested or visually compared, police located numerous other tablets that have yet to be tested.

These were located in various areas including the brown-beige bag in the kitchen, the purse located in the living room and the vase located in the china cabinet. Those same observations were made of seizures in the truck where not all of the items had been tested.

Many of these pills resembled in appearance those that have been tested and later found to be OxyContin, Hydromorphone and Morphine. [ 20 ] In the vast majority of instances, the tablets were being stored in pill bottles and those pill bottles were found not to have a label, had evidence that the labels had been removed or had the name scratched off the label. [ 21 ] Police also located various pieces of documentation in the home that had the names of Colleen Pilkington and Roger Desjardin at the address of 696 College Street, Winnipeg, Manitoba.

Those included: • a FIDO bill addressed to Colleen Pilkington at 696 College Street, Winnipeg, Manitoba • an Autopac Agreement and credit card statement in the name of Roger Desjardin of 696 College Avenue, Winnipeg, Manitoba [ 22 ] The Crown also tendered the promise to appear issued to the accused Pilkington, as an exhibit, which indicated her address as being 696 College Avenue. Winnipeg, Manitoba. [ 23 ] Sergeant Rodney Hourd was called as an expert on behalf of the Crown. By way of background, the officer is a 25 year veteran of the Winnipeg Police Service with about 15 of those years being in the drug

section and 3 years in the organized crime unit. [ 24 ] A voir dire was held as to Sergeant Hourd’s qualifications and at the conclusion of that hearing I held that the Crown had established a sufficient basis to have the Detective declared an expert. I found that he was qualified to give an opinion on the use, trafficking, distribution and packaging of pharmaceuticals which was in addition to his earlier qualification that had been conceded dealing with proceeds of crime. [ 25 ] Sergeant Hourd testified that the use of pharmaceuticals is on the increase, particularly as it relates to OxyContin.

The difficulty with these types of drugs is that unlike cocaine or the like, these types of drugs can be obtained by way of a prescription and therefore can legally be in the possession of an individual. That being the case, they are still narcotics and are sold on the street, much

like cocaine and crack cocaine. [26] It was the evidence of Sergeant Hourd that the pills are commonly sold through dial-a-dealer type operations where they arewrapped in foil or a plastic bag for sale.

The transportation of them is commonly through the use of pill bottles. [27] With respect to the seizure from the centre console of the vehicle, he noted there were 724 pills located by the officers inaddition to the large quantity that was located in the purse that was seized from the vehicle. [28] In the kitchen, a nylon bag was seized from a chair that contained $12,400.00 in currency and 486 OxyContin, 20 Diazepam, 13Hydromorphone, 94 Hydromorphone, 10 Alprazolem, 20 Morphine, 2 Diazepam, and a few what are commonly referenced as T3’s. Allof these were found within pill vials that had no labels.

This is in addition to the pill bottle on the kitchen counter. [29] Finally there were 12 empty pill bottles located that the officer suggested were to be used for the transportation of thepharmaceuticals. [30] Based on the totality of the seizure, the officer concluded that there were being possessed for the purpose of trafficking. [31] As for the living room, the officer noted the black cloth bag that was located under a table that contained various quantities ofOxyContin, Lorazepam and Diazepam and again concluded that they were being possessed for the purpose of trafficking. [32] The officer opined that the fact the pharmaceuticals were found in many locations throughout the house, there was an effortmade to hide them.

In fact it was his opinion that residence at 696 College Avenue, Winnipeg, Manitoba was what is termed a stashhouse. In essence the pills are being stored at that location and then are sold off site. Access to the home would be controlled so as toprevent the theft of the drugs or the notification to the police service. [33] In totality, the officer concluded that the pharmaceuticals seized were being possessed for the purpose of trafficking and themoney located, except for the American currency, was proceeds of crime. [34] The opinion of the expert officer was vigorously challenged by counsel for the accused.

The officer did acknowledge that he didnot know the medical background of this accused. He also confirmed that he was not medically trained and could not say or confirm forcertain that it was possible that the drugs located could have been prescribed. He further acknowledged that a major factor in theformulation of his opinion is the fact there were no labels found on the bottles along with the sheer quantity of pharmaceuticals locatedby Winnipeg Police Service. ANALYSIS [35] Section 548(1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 sets out the procedure to be followed for the preliminaryhearing.

It reads as following: “548.

(1) When all of the evidence has been taken by the justice, he shall (

a) If in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offencein respect of the same transaction, order the accused to stand trial; or (

b) Discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused ontrial for the offence charged or any other indictable offence in respect of the same transaction.

(2) Where the justice orders the accused to stand trial for an indictable offence, other than or in addition to the one with which theaccused was charged, the justice shall endorse on the information the charges on which he orders the accused to stand trial.” [36] The test for committal comes from the case of United States of America v. Shepard, (SCC), [1977] 2 S.C.R.1067 and directs a court that committal to stand trial is to occur where there is any admissible which could, if believed, result in aconviction.

This test thus imposes a minimal standard on the issue of committal which is consistent with the screening purpose of apreliminary hearing. It is from this perspective that the court has to consider the evidence adduced and before the court. [37] In the case at bar there is no direct evidence of trafficking in any type of narcotic by any one person or persons. This is a classiccircumstantial case in which the trier of fact is going to be asked to draw a number of inferences from the evidence. This court must lookat the case as a whole and determine if the evidence could reasonably support a guilty verdict.

That is to be contrasted with this courtconcluding that the accused is in fact guilty. [38] With that important distinction, the test for committal is the same be it a direct or circumstantial case. That task does becomesomewhat more difficult in circumstantial cases as was delineated by the Supreme Court of Canada in the case of R. v. Arcurri, [2001] 2S.C.R.

No. 52 at paragraph 23: “...with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established...that is,an inferential gap beyond the question of whether the evidence should be believed.” [39] The court quoted further in paragraph 23 from McCormick on Evidence: “circumstantial evidence...may be testimonial, but even if circumstances depicted are accepted as true, additional reasoning is required toreach the desired conclusion.” [40] In the case of R. v. Coke, [1996] O.J.

No. 808, Justice Hill, at paragraph 9, provided the following guidance to courtsconsidering the issue of committal:

“Judicial consideration of the committal authority reflects some consensus as to the existence of a subset of interpretative guidelines governing the exercise of the authority including the following:

(1) Credibility assessment and related factors affecting the weight are not to be resolved short of trial...

(2) Any reasonable

interpretation or permissible inference from the evidence, properly admissible against the accused, beyond conjecture or speculation, is to be resolved in favour of the prosecution...

(3) The justice is obliged to consider the cumulative effect of the evidence said to point toward guilt on the part of the accused...” [ 41 ] When looking at the evidence adduced the court must be careful not to usurp the function of a trier of fact and consider any other explanations for that which is before the court.

It is the entirety of the record that must be considered and any reasonable inference favourable to the Crown is to be considered by the preliminary hearing Judge. [ 42 ] In the case at bar, police executed a search warrant at 696 College Avenue, Winnipeg, Manitoba and located a vast array of pharmaceuticals. These pharmaceuticals were found in spots that one would not traditionally expect to find such items, including a brown-beige bag on a chair in the kitchen, on the kitchen counter, in a purse under a table and in a vase located in a china cabinet.

In addition to the pharmaceuticals, police also located a large amount of cash that was described as being bundled and a sheet of paper in the bag on the kitchen chair. That sheet of paper was later opined by Sergeant Hourd as being a score sheet, a term that is used in the drug world. [ 43 ] In addition police located a quantity of pharmaceuticals in the console of a vehicle that was being driven by this accused.

A further search of the vehicle revealed more pharmaceuticals in a purse that was seized along with a quantity of cash that was found in a jacket that was suggested to be that of the accused. [ 44 ] Much was made by counsel for the accused that there was no evidence showing that the accused was the owner of the vehicle she was operating when stopped and as a result there is nothing to support her as having any knowledge or control of anything found within.

Counsel also points to the lack of certainty from the arresting officers as to the location of the purse that was found to contain additional pharmaceuticals such that it cannot be tied to this accused. [ 45 ] I agree with counsel for the accused that the evidence of the arresting officers was devoid of certainty. However, having said that it is important to note: • The accused was the driver of the vehicle and a large quantity of pharmaceuticals was found in the console between the driver and passenger seats.

Those pharmaceuticals were described as being in plain view by the arresting officers. • The accused was found in possession of a quantity of money that was bound by an elastic band. • There was a purse found within the vehicle that contained no identification within it. • There was only one female located in the vehicle. • The purse contained a large quantity of pharmaceuticals that were similar in nature to those in the console and those seized from 696 College Avenue, Winnipeg, Manitoba. • The jacket being attributed to the accused had a large quantity of cash in one of the pockets. [ 46 ] Knowledge is a state of mind and is one element required in order to prove possession.

It may be found to exist on the basis of circumstantial evidence through the drawing of an inference. [ 47 ] Control is the second element required to be evident and can also be inferred by the circumstances that exist. In this regard I note that the large stash of pharmaceuticals in plain view was within reach of this accused, who was the driver. It was not concealed in any matter and the contents were consistent with those found within the home.

I concede that there are a number of inferences or suggestions that may be advanced to account for the pharmaceuticals and cash located in this traffic stop, including they were possessed by the registered owner of the vehicle. [ 48 ] Having said that, a trier of fact could conclude that given the fact there was only one female in the vehicle, the purse located in the vehicle could have belonged to her. They could also infer that given the close proximity of the pharmaceuticals in the console to her, she was aware of them and assumed control of them when she began to operate that vehicle.

Finally, a trier of fact could consider the similarity of the pharmaceuticals found in both locations and conclude they are from the same source and thereby conclude that they were possessed by this accused. [ 49 ] As for the residence searched, there was documentation located within that home in the name of this accused addressed to her at the address of 696 College Avenue, Winnipeg, Manitoba. That documentation was supplemented by the Promise to Appear that the accused was released on for these matters which showed an address of 696 College Avenue.

Winnipeg, Manitoba. [ 50 ] The expert testified and made a number of observations in relation to the pharmaceuticals found, the location where they were, the packaging they were found within, the lack of any actual prescriptions or prescription bottles bearing the name of this accused, the large sums of money located and the way they were bundled.

A final piece of evidence considered by the expert was what he described as a score sheet that was discovered during the execution of the search warrant. [ 51 ] Of importance to the expert was the totality of the circumstances before the court and on that basis he opined that this accused possessed the noted pharmaceuticals for the purpose of trafficking. He also added that the Canadian currency was derived from the

offence of trafficking and therefore qualified as proceeds of crime. [ 52 ] As I acknowledged at the outset, the Crown’s case is based entirely on circumstantial evidence. If one were to take each instance in isolation they may not seem anything buy innocuous and unassuming. [ 53 ] There may in fact be other reasons for the vast amount of pharmaceuticals located in the execution of the warrant and subsequent arrest of the accused. However, “any reasonable

interpretation or permissible inference from the evidence must be resolved in favour of the Crown”. ( R. v. Walcer [2011] S.J. No. 46 (C.A.) at paragraph 37 . [ 54 ] By doing so, we are not placing any onus on the accused to prove or disprove anything.

The simple question to be resolved is whether there is any evidence before the court upon which a reasonable jury properly instructed could return a verdict of guilt. [ 55 ] In this case I note the following: • The vast quantity of pharmaceuticals found in the home. • that the accused possessed the noted pharmaceuticals (found both in the home and the vehicle) for the purpose of trafficking. • The fact that the pharmaceuticals were located in a number of locations spread throughout the residence, often in areas not noted as traditional storage spots for medication. • The fact a large quantity of Canadian currency was located in a bag that contained a large quantity of pharmaceuticals, bundled in $1,000.00 allotments. • The presence of what has been described as a score sheet commonly used to keep track of the sale of drugs and the collection of corresponding proceeds. • The fact the pharmaceuticals were located in pill bottles that had no labels, labels pulled off or non-corresponding labelled bottles. • That a large additional quantity of pharmaceuticals of similar type to those located in the residence was found in a vehicle being driven by this accused. • Once again the pill bottles that contained the various pharmaceuticals bore many of the same characteristics of those in the residence. • The presence of a second large quantity of Canadian currency found in a jacket attributed to this accused. • The way the money was bound is of note. [ 56 ] Upon considering these facts noted, I am prepared to accept the opinion of Sergeant Hourd that on the totality of the circumstances, a trier of fact could infer that the accused possessed the noted pharmaceuticals for the purpose of trafficking.

Furthermore, based on his opinion, a trier of fact could also conclude that the Canadian currency was derived from proceeds of crime. [ 57 ] As a result the accused will be committed to stand trial on ten counts of possess for the purposes of trafficking as it relates to Morphine, Oxycodone, OxyContin, Hydromorphone, Codeine, Percocet, Alprazolam, Lorazepam, Diazepam and Temazepam.

There will also be a committal to a single count of possess proceeds of crime relating to the Canadian currency that was seized from the residence and from the traffic stop initiated by the Winnipeg Police Service. [ 58 ] I have declined to commit the accused to stand trial concerning the possession of Methadone given Sergeant Hourd`s testimony concerning that pharmaceutical. [ 59 ] I trust this concludes the matter. Original signed by: KELLY MOAR, P.J.