R. v. Stevovic & Stevovic Date:, 2011 BCPC 51

Citation: R. v. Stevovic & Stevovic Date: 20110303 2011 BCPC 0051 File No: 81011-6C Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DUSAN STEVOVIC and MARKO STEVOVIC REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T. S. WOODS Counsel for the Crown: C. Clouston and A. Smith Counsel for the Accused Dusan Stevovic: E. Cooper Counsel for the Accused Marko Stevovic: D. Markovitz Place of Hearing: Port Coquitlam , B.C.

Dates of Hearing: December 15-18, 2009; July 12-13 and September 8-9, 2010; and January 20, 2011 Date of Judgment: March 3, 2011 INTRODUCTION [ 1 ] The accused, Dusan Stevovic (“Dusan”) and Marko Stevovic (“Marko”), are charged under counts 1-3 of Information 81011-6C with possession, for the purposes of trafficking, of three substances scheduled to the Controlled Drugs and Substances Act , R.S.C. 1996, c. 19, namely: (

a) marijuana;

(

b) cocaine; and (

c) heroin. [ 2 ] They are additionally charged, under counts 4 and 5, with simple possession of two other controlled substances, namely: (

a) novcaine [ sic ]; and (

b) oxycodone. [ 3 ] I pause here to say, parenthetically, that the subject of the novocaine referred to in count 4 did not arise at all throughout the trial, nor was it mentioned in any of the oral or written submissions of counsel. Accordingly, I have concluded that the Crown has abandoned its prosecution of the accused for simple possession of that drug. [ 4 ] Other accused persons, including defence witness Jason Kirupakaran (“Mr.

Kirupakaran”), are named in Information 81011-6C but the charges against them have been dealt with separately. [ 5 ] Meaning the accused no disrespect, I have chosen to refer to them in these reasons for judgment by their first names given that, as brothers, they share the same surname. [ 6 ] As was their right, Dusan and Marko did not testify at the trial of the charges against them. They did, however, call defence evidence. Two defence witnesses gave testimony: Mr. Kirupakaran—a co-accused, good friend and workmate of Dusan and Marko— and Tracy Reierson (“Ms.

Reierson”), their mother. [ 7 ] The evidence tendered in support of the charges preferred against Dusan and Marko flow principally out of a police investigation, involving extensive surveillance during late November/early December 2008, of an apartment located at #202 – 511 Rochester Avenue, Coquitlam, B.C. (the “Subject Apartment”). Testimony about the surveillance chronicled the various comings and goings of Dusan and Marko, as well as others, from that apartment and the high rise tower on whose second floor it is located.

Similarly, the real evidence that was adduced by the Crown in this case was seized in the course of a search of the Subject Apartment that was conducted pursuant to a warrant following the surveillance. Neither the warrant, nor the search, was challenged. [ 8 ] The Subject Apartment belongs to Ms.

Reierson. [ 9 ] The Crown contends that the Subject Apartment was a base or hub or “stash house” for storing, packaging and trafficking in illicit drugs and that Dusan and Marko were participants in the operations carried on from it. [ 10 ] Dusan and Marko do not dispute that they spent time at the Subject Apartment, or even that they periodically consumed marijuana and cocaine there.

Moreover, they admit that the marijuana, cocaine and heroin found at the Subject Apartment on December 8, 2008 upon execution of the search warrant were present in substantial quantities and that those drugs were there for the purpose of trafficking. [ 11 ] However, Dusan and Marko defend the charges brought against them by saying that they were only periodic visitors to the Subject Apartment. They deny that they had the knowledge of and control over the illicit drugs referred to in Information 81011-6C necessary to fix them with legal possession of those drugs. In their defence they rely upon, inter alia , Mr.

Kirupakaran’s testimony that it was he and another co-accused, Jared Glab (“Mr. Glab”), who resided at the Subject Apartment and that it was they, together with others, not including Dusan and Marko , who were involved in the trafficking activities that Mr. Kirupakaran testified were carried out in and from the Subject Apartment. [ 12 ] The Crown’s possession case against Dusan and Marko is a circumstantial one.

There is no evidence of “manual handling” by either accused of the marijuana, cocaine, heroin and oxycodone that was seized, in quantities admitted to be probative of trafficking, from the Subject Apartment.

Rather, the Crown invites the court to survey the evidence led against Dusan and Marko, find the facts established by that evidence and then draw from those proven facts an inference of constructive possession of the subject drugs by Dusan and Marko as being the only reasonable inference that can be drawn from those facts. [ 13 ] Many court days were consumed by the trial of the present charges and much has been said in argument in this matter, including written submissions that run to 30 pages (27 pages for the Crown and three for the accused).

However, at the end of the day, and after taking the above-noted admissions into account, what remains in controversy can be distilled to one main issue. [ 14 ] It is this: After finding the relevant facts following a consideration of all of the evidence placed before the court at the trial of this matter—including the evidence led on behalf of the accused—can I reasonably infer from the facts admitted and proven, to the exclusion of all other reasonable inferences, that Dusan and/or Marko had sufficient knowledge of and control over the “cache” of illicit drugs seized from the Subject Apartment to place them in: (

a) constructive possession of marijuana, cocaine and heroin for the purposes of trafficking; and/or (

b) constructive possession simpliciter of oxycodone? WHAT THE CROWN MUST PROVE TO ESTABLISH POSSESSION [ 15 ] Prosecutions under ss. 4(1) and 5(2) of the Controlled Drugs and Substances Act for possession of controlled substances simpliciter and for the purposes of trafficking require proof of "possession" in accordance with the definition of that term prescribed in s. 2(1) of the Controlled Drugs and Substances Act . That definition, in turn, incorporates by reference the definition of “possession” found in s. 4(3) of the Criminal Code . [ 16 ] As I have noted, it is common ground that there is no evidence in the case at bar of actual, physical possession or "manual

handling", by Dusan or Marko, of quantities of marijuana, cocaine and heroin large enough to be probative of trafficking. Neither isthere any evidence of actual, physical possession on their part of oxycodone. Rather, the Crown seeks a conviction of both accused ofconstructive possession all of those illicit drugs as contemplated by s. 4(3)(

a) of the Criminal Code which provides as follows: "[4]

(3) For the purposes of this Act, (

a) a person has anything in possession when he has it in his personal possession or knowingly i. has it in the actual possession or custody of another person, or ii. has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of anotherperson ..." (emphasis added) [17] R. v. Fisher, 2005 BCCA 444 , [2005] B.C.J. No. 1955 (C.A.) was a prosecution in which the Crown sought to prove,inter alia, constructive possession by the accused of cocaine for the purposes of trafficking.

As is the case with the present prosecution,the Crown's case for constructive possession in Fisher was based on circumstantial evidence. Smith J.A. (Rowles and Donald JJ.A.,concurring) conducted a thorough assessment of the modern authorities on point and then offered this often-cited, clear and concisesummary of what the Crown must prove beyond a reasonable doubt in order to establish constructive possession: "As is evident from my

summary of the law, neither constructive possession nor joint possession requires proof of manual handling. Toestablish constructive possession, it was incumbent upon the Crown to prove beyond a reasonable doubt that the appellant knew of thepresence of the cocaine and that he had some measure of control over its location." (at para. 24, emphasis added) [18] I have already acknowledged that the Crown’s case against the accused for possession of marijuana, cocaine and heroin for thepurposes of trafficking, and for possession simpliciter of oxycodone, is a circumstantial one.

If I find constructive possession of thosedrugs, I must do so by a process of inductive reasoning by which I assess the circumstantial evidence and then determine whether itsupports the inferences of knowledge and control that are essential to a finding of constructive possession: R. v. Chualna, 2003 BCCA650 , [2003] B.C.J.

No. 2693 at paras 25 et seq. (C.A.) (QL). [19] In a circumstantial case, each of the individual facts from which an inference of guilt may be drawn need only be proven to the standard of a balance of probabilities: see The Law of Evidence in Canada, 2nd. ed. (Markham: Lexis/Nexis, 1999) at p. 41. An inferenceof guilt drawn from those facts, however, must be established to the criminal standard of “beyond a reasonable doubt” and to theexclusion of all other reasonable inferences: see, inter alia, R. v. Cooper, (SCC), [1978] 1 S.C.R. 860 at 881and R. v.Butler, 2007 BCCA 526 at para. 13.

THE ADMITTED FACTS The Accused were Present and Consumed Illicit Drugs at the Subject Apartment [20] Dusan and Marko admit that they spent time at the Subject Apartment and that they used illicit drugs, including marijuana andcocaine, while there. “... Marko and Dusan visited the [Subject Apartment] and used drugs ...” Written Submission of the Accused,para. II-1 “... drugs were being sold at the [Subject Apartment] and used by the Accused ...” Written Submission of the Accused,para.

II-2 “... it appears that both Accused partook in the use of some of the drugs, including marijuana and cocaine ...” Written Submission of the Accused,para. II-2 “... Inclusive to the residence was drug use by many different people, extending but not limited to the two Accused.” Written Submission of the Accused,para.

II-2 There was an Extensive “Cache” of Illicit Drugs at the Subject Apartment [21] Dusan and Marko also admit that there was a “cache” of drugs at the Subject Apartment, including significant quantities ofmarijuana, cocaine, heroin and oxycodone. “... the drugs found during a search of [the Subject Apartment] by police on December 4, 2008 ... consisted of the following: one smallblock/solid crack cocaine; small clear baggie containing crack cocaine; clear plastic baggie containing crack cocaine; ... cannabismarijuana; black dinner plate with cocaine residue; four baggies of old marijuana; two flaps containing cocaine; two baggies containingheroin; rock of heroin; baggie of oxycodone pills; baggie containing white powder; mint container with white oxycodone pills; Ziplocbag containing cannabis marijuana ... sandwich bag containing marijuana ... plastic bag with duct tape and cocaine residue; Ziploc bagcontaining marijuana.” Written Submission of the Accused,

para. I-4 (see also, paras. II-1 and II-2) The Drugs at the Subject Apartment were there for the Purpose of Trafficking [ 22 ] Dusan and Marko further admit that the illicit drug “cache” at the Subject Apartment was present there for the purpose of trafficking in those drugs. “... the drugs found in the [Subject Apartment] ... were clearly there for the purpose of trafficking ...” (emphasis added) Written Submission of the Accused , para. II-1 “... drugs were being sold at the [Subject Apartment] ...” Written Submission of the Accused , para.

II-1 THE FACTS FOUND, BASED ON THE CROWN’S EVIDENCE [ 23 ] Most of the evidence tendered by the Crown in respect of the facts relevant to the charges against Dusan and Marko was gathered during police surveillance during late November/early December, 2008, of the Subject Apartment, the tower in which it is located and the surrounding area. That surveillance led ultimately to the execution of the search warrant on December 4, 2008, the seizure of numerous items of real evidence found within the apartment and the subsequent arrests of the accused.

I have reviewed all of the evidence adduced at trial and, as regards the testimonial evidence, I have carefully considered what was said by the witnesses about their observations both during examination-in-chief and cross-examination.

In assessing that testimony I have evaluated, inter alia , the conditions for making accurate observations, the consistency of reports across observers, the quality of notes and logs, and other factors germane to the reliability of the reported observations. [ 24 ] I will say that in reviewing the surveillance evidence the Crown tendered at trial I have found that not every fact that the Crown sought to prove has been proven, even to the civil standard.

For example, the Crown called the evidence of one constable who referred in his testimony to seeing Dusan hand a pistol wrapped in a black plastic garbage bag to the driver of a truck that had drawn up outside the tower where the Subject Apartment is located.

Based on the officer’s testimony about what he could and could not see, and based as well upon gaps in his notes, I could not conclude with confidence that, in the unique circumstances then prevailing, the officer had made a sufficiently reliable observation to enable me to find, as a fact, that it was a handgun that Dusan passed, wrapped in a black garbage bag, to the driver through the driver’s side window of his truck. [ 25 ] In the paragraphs that follow I have summarised the un-admitted, material facts that I consider have been proven on a balance of probabilities, by the Crown’s evidence, at trial.

The Accused were Periodically Present Inside the Subject Apartment [ 26 ] Surveillance evidence placed both Dusan and Marko inside the Subject Apartment, which belonged to their mother Ms. Reierson, on a number of occasions during the surveillance period leading up to execution of the search warrant on December 4, 2008. They were observed inside the Subject Apartment through its windows and, at times, standing on the balcony.

From time to time they were also observed leaving the high rise tower and returning to it. [ 27 ] Beyond that, various items of property specific and personal to Dusan and Marko were located in the Subject Apartment and seized at the time of execution of the search warrant. That property included: (

a) a driver’s licence, two traffic violation notices, a 24-hour driving prohibition notice, a personal injury lawyer’s letter and a physiotherapy receipt all issued or addressed to Dusan; (

b) a New Creations Mobile Restorations receipt issued to Marko; and (

c) a rental application completed by both Dusan and Marko. (

d) As is discussed in greater detail below, Dusan and Marko were both observed to control physical and visual access to the Subject Apartment and to take steps in the nature of securing it. The Accused Controlled Access by Others to the Tower Where the Subject Apartment is Located [29] Access to the interior of the high rise tower in which the Subject Apartment is located is gained through the use of electronic key fobs. Persons unrelated to the investigation used such key fobs to enter the tower through its main entrance door. I infer that they did so in order to get inside the building and to their own suites.

On a number of occasions Dusan and Marko gained entry to the tower in the same manner and were thereafter seen inside the Subject Apartment. [30] Significantly, twice during the period of surveillance Mr. Kirupakaran arrived at the tower, apparently unequipped with such a key fob but desiring to gain entry. On those occasions, Dusan dropped a key fob down from the balcony of the Subject Apartment to Mr. Kirupakaran which he then employed to let himself in through the tower’s front door.

The Accused Took Steps to Secure the Interior of the Subject Apartment Against Detection and Intrusion [31] During surveillance, Dusan was observed to secure the Subject Apartment by closing and locking its patio door and by lowering its blinds (thereby preventing, at that time, visual access to it). Marko, for his part, was observed while under surveillance putting in place a barricade-like device across the door that controls entry to the Subject Apartment from the hallway on the second floor of the

tower. [32] Cst. Shahin Mehdizadeh—whose qualifications to give opinion evidence concerning the “use, distribution, price and packaging of cocaine, heroin and marijuana” were admitted—testified that it is typical of drug trafficking operations that access to the premises that serve as the hub for those operations will be strictly controlled and limited to a trusted few, and that measures will be taken to secure the operations against detection or interference by law enforcement personnel or unfriendly criminal elements.

Various Unidentified Persons Made Periodic, Short Visits to the Subject Apartment Tower and had Dealings with the Accused [33] During the period of surveillance a number of persons, some unidentified, made visits to the Subject Apartment tower and held brief meetings with the accused outside it in the area adjacent to the entry doors, either out in the open or inside vehicles. Some of the visitors appeared more than once and on certain of those occasions, exchanges or hand-offs of some kind took place.

The Illicit Drugs Kept at the Subject Apartment had Substantial Street Value and were Packaged for Sale [34] Substantial quantities of marijuana, cocaine (in both crack and powdered form) and heroin were seized from the Subject Apartment, some of it in bulk form and some of it in individually wrapped packages. Expert evidence tendered by the Crown at trial through Cst. Mehdizadeh established that the street value for those substances numbered in the tens of thousands of dollars. No evidence was given as to the value of the oxycodone.

It was present at the Subject Apartment in a lesser quantity. [35] Some of the illicit drugs seized from the Subject Apartment were found in large, bulk quantities and some were found in pre- measured, individually-wrapped packages containing small quantities. Cst. Mehdizadeh’s evidence was that the presence of illicit substances in such quantities—some in bulk form and some packaged as they were here—is what he would expect to find at premises serving as a stash house or hub for a mid-level trafficking operation.

A Substantial Quantity of Cash was Kept in the Subject Apartment [36] Over $7,000 in Canadian cash, plus another $100 in U.S. cash, was seized from various locations within the Subject Apartment upon execution of the search warrant. Some of the cash was located in closets and cupboards; a comparatively small amount was found in a locked safe; and over $4,000 was wrapped in underwear that had been stuffed behind the toilet tank in the apartment’s ensuite bathroom. [37] Cst.

Mehdizadeh opined that, in his experience, drug trafficking is a cash business and that the quantities of cash found on the premises of the Subject Apartment were probative of that apartment being associated with a mid-level trafficking operation. A Number of Weapons and Associated Items were Kept in the Subject Apartment [38] When executing the search warrant at the Subject Apartment, investigating officers located and seized: (

a) a sword and sheath; (

b) a pair of “weighted” leather gloves; (

c) body armour; (

d) a 6 mm. pellet gun; (

e) a leather handgun case with a magazine; (

f) a banana clip for an assault rifle loaded with ammunition; and (

g) numerous rounds of ammunition, some boxed and some loose, in .22, .38, .45, .357 magnum and 9 mm. calibres. [39] These items were seized from various locations, and some—such as (for example) the loaded banana clip for an assault rifle that was found in the middle of the floor of one of the bedrooms and the sword that was found lying on the floor outside the other one—sat out in plain view. [40] The Crown’s expert witness, Cst.

Mehdizadeh, testified that the presence of weapons and weapons-related items at a location like the Subject Apartment is probative of drug trafficking and of the ways in which those involved seek to secure, protect and defend their illegal operations. A Number of Items of Drug Trafficking Paraphernalia Was Kept in the Subject Apartment [41] The following items, suggestive of drug trafficking, were seized from various locations within the Subject Apartment upon execution of the search warrant: (

a) scales, both larger sized and pocket sized, some covered in a powdery residue; (

b) multiple cell phones; (

c) documents bearing the characteristics of “score sheets”; (

d) quantities of small zip lock bags and baggies, some empty and some containing illicit drugs; and (

e) plastic wrapping and duct-tape bearing traces of cocaine consistent with that which could be employed to package a larger block of

bulk cocaine. [42] The Crown’s expert, Cst. Mehdizadeh, testified that evidence of this kind found at a location like the Subject Apartment has operational significance and is probative of the existence of a mid-level drug trafficking operation being carried out from those premises.

Items Probative of Drug Trafficking Found in the Subject Apartment were Readily Accessible to the Accused and Located in Close Physical Proximity to their Personal Effects [43] The illicit drugs and other items probative of the existence of a mid-level drug-trafficking operation that were seized from the Subject Apartment were readily accessible to both Dusan and Marko when they were present there. [44] While there was a locked safe found in a kitchen closet that contained a small quantity of cash and some illicit drugs, the key to that safe was found on the top shelf of an unlocked bedroom closet, without difficulty, by one of the investigating officers. [45] Beyond that, other illicit drugs and cash, along with weapons, ammunition and various items of drug paraphernalia were liberally distributed throughout the Subject Apartment. [46] Dusan’s driver’s licence was located on the night table in what was identified as Bedroom No. 2.

Crack cocaine was found in a drawer of that night table. The closet in that bedroom contained, inter alia , ammunition, zip lock baggies, a pocket scale covered in a powdery residue and over $1,000 in cash. The toilet behind which a wad of approximately $4,000 in cash was stashed, wrapped in a pair of underwear, is situated in the ensuite bathroom for Bedroom No. 2. [47] The New Creations Mobile Restorations receipt made out to Marko was in a kitchen cupboard that contained boxes of baggies, ammunition and the previously mentioned personal injury lawyer’s letter addressed to Dusan.

Immediately beneath that cupboard, on the counter, were more ammunition and a cell phone being charged. Sitting on the kitchen island nearby there were two further cell phones as well as plastic wrapping and duct tape consistent with that which could be employed to package a larger block of bulk cocaine. Traces of cocaine were found on that packaging material. [48] Dusan and Marko’s joint rental application was located on the kitchen counter beneath a corner cupboard from which almost 40 grams of marijuana, a leather handgun case, a magazine and ammunition were seized.

Ammunition was also seized from the cupboard below. [49] A very large number of Crown exhibits—including packaged and unpackaged drugs, scales, cell phones, score sheets, a gun case, ammunition, cash, plastic baggies and some of the noted items personal to Dusan and Marko—were seized from locations in the kitchen. Some of that real evidence was, as noted, out in plain view on the counter; others items were in cupboards and drawers. The evidence established that none of the kitchen cupboard doors or drawers was locked.

The same can be said of the closets, nightstands and the like in the bedrooms where, as I have noted, many other Crown exhibits (including Dusan’s driver’s licence) were found and seized. THE FACTS FOUND BASED ON THE DEFENCE EVIDENCE OF MR. KIRUPAKARAN [50] As I have mentioned earlier in these reasons, Mr. Kirupakaran—a co-accused whose charges under Information 81011-6C have been dealt with separately—was one of two witnesses who gave testimony on behalf of the accused that, if believed, could be exculpatory. [51] The main thrust of Mr.

Kirupakaran’s testimony was that he resided at the Subject Apartment along with Mr. Glab and that it was they, together with others including a cousin of the accused but not including Dusan and Marko , who were involved in the trafficking activities that he testified were carried out in and from the Subject Apartment. [52] It seems to be beyond controversy that Mr. Kirupakaran was a periodic presence there.

However, for the reasons given below, I find that his evidence that he was the apartment’s principal occupant and that he exerted virtually exclusive rights and powers of occupancy over it does not withstand scrutiny. Indeed, I will put it more pointedly and say that I wholly reject Mr. Kirupakaran’s testimony that the trafficking activities that he admitted were carried out from the Subject Apartment and involved himself and others occurred wholly outside the knowledge and control of Dusan and Marko. [53] In summarising the reasons why I have found myself unable to accept the testimony of Mr.

Kirupakaran, I have chosen a framework for analysis that borrows from two helpful cases. [54] The first is R. v. Parent , [2000] B.C.J. No. 2772 (Prov. Ct.) (QL) . In that decision Rounthwaite P.C.J. set out, at para. 5, the following helpful listing of factors that courts consider when assessing credibility: “1. the witness' ability to observe the events, record them in memory, recall and describe them accurately, 2. the external consistency of the evidence. Is the testimony consistent with other, independent evidence, which is accepted? 3. its internal consistency.

Does the witness' evidence change during direct examination and cross-examination? 4. the existence of prior inconsistent statements or previous occasions on which the witness has been untruthful. 5. the "sense" of the evidence. When weighed with common sense, does it seem impossible or unlikely? Or does it "make sense"? 6. motives to lie or mislead the court: bias, prejudice, or advantage. To consider the obvious possible motive of every accused person to avoid conviction would place an accused at an unfair disadvantage. As a result, I do not consider that possible motive when assessing an accused's testimony.

7. the attitude and demeanour of the witness. Are they evasive or forthcoming, belligerent, co-operative, defensive or neutral? Inassessing demeanour a judge should consider all possible explanations for the witness' attitude, and be sensitive to individual andcultural factors, which may affect demeanour. Because of the danger of misinterpreting demeanour, I would not rely on this factoralone.” [55] The second helpful case is Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.).

In that decisionthere is a passage that amplifies the reasoning found in Judge Rounthwaite’s numbered paragraph 5 about the “sense” of the evidenceand how it measures up according to a common sense standard.

In Faryna, O’Halloran J.A. said this at p. 357: "[T]he real test of the truth of the story of a witness ... must be its harmony with the preponderance of the probabilities which a practicaland informed person would readily recognize as reasonable." [56] Though a civil decision, Faryna has been considered a useful authority in criminal cases in this province (bearing in mind ofcourse that the standard of proof is higher in a criminal case): see, for example, H.M.T.Q. v. R.J.E., [1999] B.C.J.

No. 322 (S.C.) (QL) atparas. 34-35. [57] Not all of the Parent factors have application to the case at bar and, given the circumstances that are unique to this case, I havenot addressed the factors I have considered in the same order as did Rounthwaite P.C.J. in Parent. Motives to Lie or Mislead the Court [58] It is trite to say that the mere fact that a witness whose credibility has been questioned has a motive to lie or mislead the courtdoes not compel an inference that that witness has in fact yielded to that unworthy motive.

But whenever such a motive can be discernedin circumstances where the veracity of a witness’ evidence is questioned, it is incumbent upon the court to consider that motive alongsideall other relevant considerations going to credibility. [59] Clearly, in the present case Mr. Kirupakaran had a motive to do what he could, if not to exonerate Dusan and Marko then at leastto raise a reasonable doubt regarding their guilt on the charges they face.

They are his good friends, they “hung out” and took illicitdrugs with him, and their father is his employer. [60] For the reasons I have given below in this decision, I found that the evidence given by Mr. Kirupakaran that had exculpatorypotential for Dusan and Marko was unreliable, untrustworthy and not credible. In the result, after long and careful thought I havereached the conclusion that, having a clear motive to dissemble and mislead the court in order to benefit the accused, Mr. Kirupakarandid indeed act on that motive and give untruthful evidence. Lack of Consistency [61] Mr.

Kirupakaran’s testimony was not consistent with other independent evidence that I do accept. The inconsistencies I notedare material. The most compelling instance of internal inconsistency in Mr. Kirupakaran’s evidence occurred when he sought topersuade the court that, as its primary tenant and primary authorised occupant, he enjoyed dominion over the Subject Apartment andover access to it. He insisted that to the extent it was shared at all, that control was shared only with Mr. Glab and, importantly, not withDusan and Marko. This evidence fit into the larger picture that Mr.

Kirupakaran sought to portray in which the accused were occasionalvisitors only to the Subject Apartment and that they did not have independent rights of access to or control over it. [62] On Mr. Kirupakaran’s testimony, there was only one set of keys to the Subject Apartment (that is, an electronic fob for theentrance door to the tower and key to the apartment proper). His evidence was that if he didn’t have them in his possession, then hisroom-mate Mr. Glab did: Transcript, September 9, 2010, p. 25. [63] This evidence is irreconcilable with the surveillance evidence that confirmed that Mr.

Kirupakaran twice arrived at the towerwithout any means of gaining entry and had to rely upon Dusan to drop the key fob down to him. It is also irreconcilable with thesurveillance observations made by police of Dusan and Marko coming and going from the tower using electronic key fobs and withouthaving to rely upon Mr. Kirupakaran’s (or anyone’

s) assistance. [64] When pressed in cross-examination about instances of his having to rely upon Dusan to drop the electronic fob and keys to him,Mr. Kirupakaran did not answer the questions squarely but, rather, obfuscated by describing occasions when unspecified persons wouldwant into the Subject Apartment and he would drop the fob and keys to them to save himself the trouble of going down to the lobby toopen the door: Transcript, September 9, 2010, p. 25. I note here, parenthetically, that beyond being unresponsive to the questions posedto him on this crucial point, Mr.

Kirupakaran’s answers also cut directly against his contention, elsewhere in his testimony, that helimited access to the fob and keys exclusively to himself and Mr. Glab. [65] In several respects Mr. Kirupakaran’s evidence changed over the course of his testimony and, thus, it lacked internalconsistency. I will give a few examples only. [66] Mr. Kirupakaran testified that neither Dusan nor Marko was ever in the apartment without him also being present: Transcript,September 9, 2010, pp. 25-26.

However, he also testified, when pressed, that “a lot of times” he forgot his keys in the Subject Apartmentand that on some of those occasions Dusan, at least, was in the apartment for a period without him (Mr. Kirupakaran) being present:Transcript, September 9, 2010, pp. 27-28 [67] Mr. Kirupakaran sought in his direct testimony to impugn the integrity of the police search conducted of the Subject Apartmentby saying that many of the objects that were depicted in exhibited photographs had been moved from what he recalled were their originallocations: Transcript, September 9, 2010, pp. 10-11.

To begin, I will say that I perceive an inherent problem with the credibility of Mr.Kirupakaran’s contention that he could recall with precision the locations of most objects in what the photographic exhibits clearly showwas a chaotically untidy household. I am especially sceptical about his claim that he could recall where those objects were located priorto a warrant-authorised search conducted of the Subject Apartment when he wasn’t present. And, indeed, when he was pressed during

his cross-examination as to whether he had a reliable memory of where things had been left lying prior to the execution of the search warrant, his confidence in his memory of the locations weakened substantially: Transcript , September 9, 2010, p. 37. For example, he couldn’t recall where in the apartment Mr. Glab’s computer was located or, indeed, how many computers there were in the apartment: Transcript , September 9, 2010, pp. 50-51. [68] Another example illustrates this point. In the course of cross-examination Mr.

Kirupakaran raised the spectre of a $100 bill that was found on a garbage bag containing his clothes having been put there by police (a third hypothesis that came quickly after his first having said that he didn’t know how it got there and then that it might have fallen into that position). When questioned closely by Crown counsel about that surmise, however, he retreated quickly and went so far as to say that he often came home drunk and didn’t know where he put things when he was in that state: “Q Your -- okay. And why was the $100 bill on top of your clothes in a garbage bag?

A I remember keeping the $100 bill on the -- on the dresser. It might have fell in there. I don't think I put it in there. Somebody put it in there . THE COURT: You're saying somebody put it in there? A Yeah, somebody like the cops moving things around, because I don't remember putting that $100 bill in the bag of clothes. MS. SMITH: Q Somebody put that -- A Maybe it fell down there, but... MR. COOPER: He had an earlier part to his answer. I don't know, Your Honour asked if somebody put it in there, but he had an earlier part. There was two parts to how it could have been in there. I think they were both guesses.

MS. SMITH: Q Okay. Sorry, then, I might have missed something. Did you -- did you say, and correct me if I'm wrong, did you say that it could have fallen in there? A It could have fallen in there or somebody could have put in there. I don't know. Q Or someone could have put it in there. So were other people coming and going -- A So if you want me to be clear about someone, it's the cops. Because a lot of the other pictures clearly tell me things have been moved around in place , so nobody goes in my bedroom anyways, except Jared, and I don't think Jared would go into my dirty clothes. Q Okay. THE COURT: Mr.

Kirupakaran, you often say "if you want me to be really clear". I want you to be really clear in all of your answers. A Yeah. MS. SMITH: Q Okay. So you believe that a police officer put that $100 bill in there or else it fell in. A Yeah, I said maybe. Q Do you know if that's your $100 bill? A It could have been one of my $100 bills. Q It could have been one of your $100 bills. And where were you keeping your $100 bills? A I can't remember. I don't know, I'd come home a lot of times drunk from being outside at a club or something, and then I would empty my pockets wherever I can, and then I'd go to bed.

So it could have came from anywhere. Q Okay. So your $100 bills, this one of many, could have really been anywhere because you come home drunk sometimes. That's what you're saying? A Well, yeah, a lot of times. Yeah. Q Okay. Did you come home drunk a lot of the time? A Yeah. Q That's because you lived really close to a bar? A Yeah. There's other reasons, too, but, yeah. Q And that's why you can't remember where you're leaving your money; is that right?

A Well, yeah. Yeah. Q Okay. So if you're coming home drunk all the time, then that's another incident where you wouldn't really know if something got moved; isn't that right? A Like what? Q Anything. How would you know, you're drunk, and you can't remember. A Well, what are you asking? Q I'm asking you that since you come home drunk all the time, those times when you're coming home drunk -- A Well, if I'm coming home -- if I'm coming home drunk, I'm coming home most of the time alone. But, yeah, what do you mean about something, that anything could get moved around at any time. Q Right.

Anything could get moved around at any time. I'll get you to look at photograph 15. Actually, first, could we go to photograph 13. A Yeah. Q 13. Are these pillowcases, is that what you said? A Yeah. Q And you said these pillowcases were everywhere in your apartment? A Yeah, not this kind. We had similar kinds. Yeah. Q Okay. And, sorry, and where again was photograph 13 taken? A I'm not sure. I can't tell. This colour carpet's everywhere in the bedrooms, so it could have been in Jared's bedroom, it could have been -- I don't know, it could have been in the living room.

I'm not sure.” (emphasis added) Transcript , September 9, 2010, pp. 38-40 [69] While generally attempting throughout his testimony to create distance between the two accused and the Subject Apartment, Mr. Kirupakaran also sometimes gave evidence under cross-examination that, in my estimation, belied a close connection. He testified, for example, that a user account/login on his computer at the Subject Apartment had been created for visitors in the name of “Duke”, and that that account was used by, among others, Mr. Glab.

In parts of his testimony he avoided making mention of who had opened the Duke account: Transcript , September 9, 2010, p. 12. Then in other parts of his testimony, when pressed, he said that he “assumed” that the Duke account had been opened by Dusan: Transcript , September 9, 2010, pp. 50-51.

But in still other parts of his testimony, he admitted under cross-examination—after twice referring generically to the creator of the account as “just one of the friends that were there”—that it was Dusan who had created the Duke account. “Q Now, you said that when you looked at photograph number 38 on Exhibit number 4, and it's a -- well, yeah, that's the one, it's the photograph that shows the computer screen. A Yeah. Q And you said that -- that your friend set it up and it was his name Puceduke (phonetic). A Just one of the friends that were there. Q Who? A One of my friends that were there at the house.

Q Okay. Yeah. Is it -- is it Dusan? A Yeah.” (emphasis added) Transcript , September 30, 2010, p. 20 The Lack of Sense of the Evidence [70] In my view, Mr. Kirupakaran’s testimony often lacked what is sometimes called an “air of reality”. In many respects it did not make sense and was not, in my view, in harmony with “the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable”. [71] I will give only a few examples. [72] A major thrust in Mr.

Kirupakaran’s testimony was that others controlled the drug trafficking that was conducted out of the Subject Apartment and that prominent among them was the younger cousin of Dusan and Marko, Vaso Stevovic. He testified that Vaso in particular was anxious to ensure that Dusan and Marko not become caught up in any way in the trafficking operations:

“Q Now, Marko and Dusan, would they -- they would come by the residence? A Well, they would come by after work, I mean, after me and Dusan and Marko have work, we'd come by have some drinks there, yeah. Q Did they partake in drug use? A Yeah, they used drugs, yeah. Q Did they ever get involved in the sale, distribution or packaging or -- A No, not at all. They -- they mainly after work they never actually -- no, they never had any partake in like any of that, no. Q Now, just I know the question's going to arise, but it almost begs the question that why are they not involved?

A Well, I was told by Vaso a lot of numerous of times that he didn't want their cousins involved in anything with drugs and stuff like that. And just didn't -- he didn't -- Vaso never wanted his cousins to be in part with any of the drugs being sold or anything like that. Yeah. Q Would you even have authority to have them work with you if -- if you wanted to? A No . Q Why is that?

A Well, it was just a strong -- Vaso just made it pretty clear he didn't want any of his cousins being involved in any of the drug trade, right?” (emphasis added) Transcript , September 9, 2010, p. 14 [73] This evidence does not survive scrutiny. The state of the Subject Apartment at the time of execution of the search warrant— which was close in time to occasions when Dusan and Marko had been present there—reveals that large quantities of illicit drugs and drug paraphernalia were scattered about it, some in plain view. Even that which was in cupboards and closets was not locked away.

Anyone entering the Subject Apartment could not help but quickly recognise that a drug trafficking operation was ongoing from within it. If, as Mr. Kirupakaran testified, “Vaso … didn’t want any of his cousins being involved in any of the drug trade, right?”, Vaso would surely have excluded Dusan and Marko from the Subject Apartment altogether or he would at the very least have confined the drugs and drug paraphernalia in it to secure locations where they could neither be seen or nor easily found.

The evidence is clear that neither Vaso nor any of the others who frequented it took such steps. [74] The evidence regarding Dusan and Marko’s periodic presence at the Subject Apartment, and the activities they were seen engaging in there—including controlling access to it via the electronic key fob and securing it against visual and physical intrusions— also cannot be reconciled with Mr.

Kirupakaran’s testimony that the real operators of the trafficking hub were active and diligent in their efforts to isolate Dusan and Marko from the drug trafficking operation. [75] A telling exchange occurred between counsel and Mr. Kirupakaran during his direct examination on the subject of the habits of Vaso and the other alleged principals of the trafficking operation. In that exchange Mr. Kirupakaran referred to the tendency of those individuals to carelessly leave items like guns and ammunition and other “stuff” related to drug dealing lying about in the kitchen on the counter and table. Mr.

Kirupakaran also described his own manifestly inadequate efforts to conceal such paraphernalia from visitors by putting it on shelves in unlocked kitchen cupboards. “Q Did you take

part in packaging the -- A I wasn't packaging. Jared Glab was mostly the packager, the guy that was packaging most of the drugs. Q Why are there -- why is there ammunition found in the -- A Well, Vaso and Dylan, they sell drugs. And then they use guns and they always leave stuff behind, bullets all the time, and they always leave it on the kitchen counter table, and then when my -- some of my friends come over, I don't want them seeing stuff, so I just threw it in the shelf. But, yeah, and Jared brought some guns in there.

They all like guns.” Transcript , September 9, 2010, p. 13. [76] For anyone to suggest, in the face of such evidence, that Vaso and the other principals were making meaningful efforts to keep Dusan and Marko (or any of the others who were admitted into the interior of the Subject Apartment) from knowing about or being in any way involved in the drug trafficking being carried on from the apartment is simply not credible. To the contrary, this evidence is entirely consistent with Cst.

Mehdizadeh’s expert opinion that access to the Subject Apartment would be limited to a restricted inner circle of trusted persons who had both knowledge of and likely some involvement in what was going on there and who could be depended upon, as a matter of self interest, not to put the illegal enterprise in jeopardy. [77] It is of interest to note in this connection that, elsewhere in his testimony, Mr.

Kirupakaran effectively conceded that the only persons permitted in the Subject Apartment were, indeed, those who could be trusted: “Q You will agree with me that none of the drawers or cupboards in this apartment -- in the apartment were secured by a lock; is that right?

A Except the safe, yeah, none of the drawers or cupboards. Yeah. Q Okay. Except the safe. A Yeah. Q And this -- the key to the safe was in a closet that was also not locked; is that correct? A Yeah. Q Okay. And none of the bedroom doors were lockable; is that correct? A Yeah. Q Okay. So really when you left the apartment, anyone who was there could go into any of the bedrooms or closets or drawers because they're not locked; is that correct? A Yeah, but I trust them, and I don't think they would be going through my things.” Transcript , September 9, 2010, p. 33 [78] Mr.

Kirupakaran sought to establish in his testimony that a parade of friends, girlfriends and acquaintances passed through the Subject Apartment on a regular basis: see, for example, Transcript , September 9, 2010, p. 16. That proposition flies in the face of the evidence just quoted above and the tight security requirements that one would reasonably expect (and Cst. Mehdizadeh confirmed) would strictly regulate access to an illegal operation that had illicit drug inventory on hand valued in the tens of thousands of dollars along with thousands of dollars in cash, much of it not hidden and none of it well secured.

Nothing that was revealed in counsel’s lengthy cross-examinations of the officers charged with responsibility for conducting surveillance of the Subject Apartment—which focused in part on the observations of persons visible inside it—supports Mr. Kirupakaran’s evidence that the Subject Apartment was a largely unrestricted party house. Indeed, Mr.

Kirupakaran’s contentions in this regard were contradicted by his evidence about the control he sought to maintain over the keys and by the evidence of the encounters and exchanges that were observed to occur between the accused and visitors that took place outside the tower in the parking area or in vehicles that pulled up to the tower for brief periods and then left. [79] On numerous occasions Mr.

Kirupakaran gave testimony with potential to exculpate the accused in which he professed to have a surviving memory of events and situations that are not inherently memorable and whose importance lies only in their exculpatory potential. This diminished his credibility. [80] I have already mentioned the evidence Mr. Kirupakaran gave concerning his professed recollection of where everything was situated in the Subject Apartment prior to the execution of the search warrant—a professed recollection that was revealed during cross- examination to be both overstated and unreliable.

For another example of the same tendency, I refer to the part of the trial where Mr. Kirupakaran gave remarkably detailed testimony about violation notices prepared in Dusan’s name, a lawyer’s letter to Dusan, a rental application jointly completed by Dusan and Marko and other documents that were located in kitchen cupboards in close proximity to drugs, ammunition, scales, baggies and score sheets. The Crown’s case against both accused rests somewhat heavily upon such evidence establishing a more than trifling connection between the accused and the Subject Apartment. Mr.

Kirupakaran wove an elaborate description of how some of those documents came to be there that, I believe, was calculated to raise a doubt in the court’s mind about the strength of that connection. [81] Mr. Kirupakaran emphasised in particular that Dusan had brought his violation notices to the apartment during a mere visit. The violation notices plainly had no personal significance for Mr. Kirupakaran himself and in the course of his narrative about them he also said that they were a matter of indifference to Dusan.

He added that even Dusan himself probably didn’t have any continuing use for them (see Transcript , September 9, 2010, pp. 22, 43-47 and 49-50). One cannot help but question why, then, Dusan’s traffic violation notices would have been at all memorable to Mr. Kirupakaran—a man who was so little concerned with documents generally that he hadn’t seen it necessary to bring any of his own documents with him from his mother’s when he moved into the Subject Apartment: Transcript , September 9, 2010, p. 24. The answer I am driven to is that Mr.

Kirupakaran wished to explain them away and diminish the value to the Crown of those documents in its prosecution of his friends. [82] The latter-mentioned testimony was reminiscent of that which Mr. Kirupakaran gave concerning the presence of Dusan’s driver’s licence in the Subject Apartment when the search warrant was executed—a discovery that, unalloyed or unqualified, is another quite compelling fact associating Dusan with the apartment. Mr.

Kirupakaran claimed to have a very specific recollection of the presence of that licence—something that, once again, one would not expect, in the ordinary course, to be particularly memorable or significant to him. However, his evidence in this regard, if accepted, could weaken the inferences about Dusan’s involvement with the Subject Apartment that can be drawn from its presence there. Mr. Kirupakaran said that Dusan had left the licence behind on a visit and that he recalled the licence being there because he had used it to “cut lines” of cocaine for snorting.

However, the story differed in its details on successive tellings. In one version of the account, Mr. Kirupakaran did the cutting and drug taking in the company of one or more others: Transcript , September 9, 2010, pp. 5 and 20. In another, the burden of his testimony was that he had used Dusan’s driver’s licence to “cut lines” of cocaine for use on his own and without even getting Dusan’s permission to do so: Transcript, September 9, 2010, pp. 43-44). [83] I can only conclude that the detailed, though not always consistent, evidence Mr.

Kirupakaran gave regarding unmemorable trivialities in these instances—evidence whose significance lies only in its exculpatory potential for the accused—springs not from honest memory but, rather, from a dishonest motive to neutralise damning evidence led against his friends Dusan and Marko by the Crown in the present prosecution. No Facts Found

[84] Facts are proven by credible evidence that is believed. Evidence that is not believed is "no evidence": see R. v. Proudlock(1978), (SCC), 5 C.R. (3d) 21 (S.C.C.). For the reasons I have given above, to the extent that Mr. Kirupakaran’sevidence has exculpatory potential for Dusan and Marko it does not register in the scale I employ to weigh the evidence in this casebecause I do not believe it. It follows that I find no facts material to this case based upon Mr. Kirupakaran’s testimony. [85] Because I cannot believe the testimony with exculpatory potential for Dusan and Marko that Mr.

Kirupakaran gave, thattestimony also cannot—for the purposes of the formulation flowing out of R. v. W.D., (SCC), [1991] 1 S.C.R. 742—raise in my mind a reasonable doubt concerning the charges that they face. With regard to determining the question of the guilt, then, ofDusan and Marko, I must move on past Mr. Kirupakaran’s discredited evidence, assess the testimony of the second and last defencewitness (Ms. Reierson) and then proceed to consider whether the evidence that I do accept persuades me of their guilt beyond areasonable doubt (as the Crown argues it should).

THE FACTS FOUND BASED ON THE DEFENCE EVIDENCE OF MS. REIERSON [86] Tracy Reierson—Dusan and Marko’s mother—was a defence witness who was called to give exculpatory testimony on behalf ofthe accused. Ms. Reierson’s direct and cross-examinations were comparatively brief and almost nothing of significance arose fromeither. [87] Ms. Reierson confirmed Mr. Kirupakaran’s testimony that she had leased the Subject Apartment to him—evidence that can beaccepted but that does not go to the real issue concerning the extent of Dusan and Marko’s involvement in the activities at the SubjectApartment. [88] Ms.

Reierson’s testimony did not provide any basis from which it could be argued that Dusan and Marko generally resided athome at the Stevovic family home on Manor Street in Burnaby and thus could not have had the significant involvement in the goings onat the Subject Apartment that the Crown alleges. To the contrary, she acknowledged that Dusan for a time lived at a location other thanthe family home on Manor Street (although she couldn’t recall when). Ms.

Reierson also acknowledged that while they were living ather house, she did not monitor what either Dusan or Marko did on a day-to-day basis and that, until a curfew condition was imposed as arelease term in connection with bail on their current charges, both were “out with their friends frequently” and “sometimes would sleepover at a friend’s”: Transcript, September 9, 2010, pp. 55-58. Facts Found [89] Accordingly, based upon the uncontradicted evidence of Ms.

Reierson, I find as a fact that Dusan and Marko’s livingarrangements at the material time did not preclude their spending substantial amounts of time, including overnights, away from theStevovic family home at 4790 Manor Street in Burnaby, B.C.

INFERENCES DRAWN FROM THE FACTS ADMITTED AND FOUND [90] Before embarking upon the inductive reasoning process from which permissible inferences based on circumstantial evidence inthe case at bar may arise, I find it helpful, at this point, to enumerate and summarise the facts that have been established by admission ofthe accused and by my findings as recorded above. [91] At the material time (that is, during the days leading up to the execution of the search warrant at the Subject Apartment and theseizure of the Crown evidence there on December 4, 2008): (

a) Dusan and Marko were periodically present at the Subject Apartment and their living arrangements allowed for them to spendsubstantial amounts of time, including overnights, away from the Stevovic family home; (

b) They themselves consumed illicit drugs at the Subject Apartment periodically; (

c) They exercised a measure of control over access by others to the tower where the Subject Apartment was located via an electric keyfob; (

d) They personally took steps to secure the Subject Apartment through the use of locks and blinds (Dusan) and a barricade (Marko); (

e) There was an extensive “cache” of illicit drugs at the Subject Apartment, including marijuana, cocaine, heroin and oxycodone; (

f) The marijuana, cocaine and heroin comprising most of the “cache” of illicit drugs present at the Subject Apartment was presentthere for the purpose of trafficking; (

g) Those illicit drugs had a street value in the tens of thousands of dollars and some were individually packaged for sale; (

h) Over $7,000 in cash was kept in the Subject Apartment, along with weapons and associated items such as ammunition, ammunitionclips and body armour; (

i) Numerous items of drug trafficking paraphernalia were kept in the Subject Apartment, including scales, multiple cell phones, scoresheets and packaging material, some bearing trace amounts of illicit substances; (

j) Illicit drugs, weapons, weapons-related items and drug paraphernalia were found in multiple locations throughout the SubjectApartment, some of it in plain view, and some of it in cupboards, closets, drawers and the like, none of which were locked; (

k) Some cash and illicit drugs were located in a safe in the kitchen of the Subject Apartment but the key to that safe was easily locatedon a shelf in a bedroom closet; and (

l) Possessions personal to Dusan and Marko were kept in locations within the Subject Apartment that were in close proximity to illicit

drugs, drug paraphernalia, weapons and weapons-related items. [92] I must analyse these facts in the aggregate. As de Grandpré J. stated in R. v. Warkentin, Hanson & Brown, (SCC), [1977] 2 S.C.R. 355 (albeit in a somewhat different circumstances): “… It is the entire picture that must be looked at, not a portion thereof. When that supporting evidence, as in the case at bar, iscircumstantial, it is the whole that must be examined and not each piece individually.” (at 379. See, also, R. v.

Robinson, 2003 BCCA353 at para. 40) [93] I am bound to say that, taken together, the facts as admitted and found strongly compel an inference that both Dusan and Markohad the knowledge and the control necessary to fix them with possession of the marijuana, cocaine, heroin and oxycodone seized fromthe Subject Apartment, and with possession for the purpose of trafficking of the first three of those illicit drugs.

In Fisher terms, theinference from those facts that Dusan and Marko “knew of the presence of the [drugs in question] and that [they] had some measure ofcontrol over [their] location” is irresistible. [94] Everything about the Subject Apartment that is revealed in the material facts cried out that it was a base or hub or “stash house”for a drug trafficking. As periodic presences there, it is inconceivable that Dusan and Marko would not have seen what was there to beseen.

Some of the large inventory of drugs and associated paraphernalia that are probative of an active drug trafficking operation was outin plain view; apart from what was stored in the safe, none of the remainder of that material was locked away and anyone in the SubjectApartment wanting to gain entry to the safe would not have had to go to great lengths to find its key, sitting as it was on a shelf in anunlocked bedroom closet. Crucial incriminating evidence was found in very close proximity to Dusan and Marko’s personal property.

The inference that they had knowledge of the presence of the illicit substances and the fact that a drug trafficking operation was beingcarried on from the Subject Apartment is simply irresistible. [95] Before commenting on the evidence of control, I wish to be clear that I do not find, nor is it necessary that I find, that Dusan andMarko had exclusive control over the contents of the Subject Apartment. Undoubtedly other members of the inner circle involved in theoperations there, including Mr. Kirupakaran, shared that control with them.

But that takes nothing away from the fact that there iscompelling evidence that Dusan and Marko had a substantial measure of control over the contents of Subject Apartment. Indeed, theinference of control on the part of the accused over the marijuana, cocaine, heroin and oxycodone in the Subject Apartment is ascompelling as is the inference of their knowledge of its presence there.

The inference stems, in part, from the free access to thosesubstances that it is plain Dusan and Marko enjoyed. [96] In my view, where illicit drugs in a dwelling are both out in plain view and readily accessible in unlocked cupboards, drawersand closets, access to them by persons who are periodically present there by right is essentially unrestricted. The trial judge in Fisherconvicted the accused in that case on circumstantial evidence that included evidence of unrestricted access on his part to cocaine in akitchen drawer.

That conviction was upheld on appeal: see Fisher at paras. 24-25 and 32-35. [97] The evidence of control does not stop there. Dusan and Marko were both observed to gain access to the tower in which theSubject Apartment was located using the electronic key fob that opened the front door. Indeed, Dusan was observed twice dropping thatkey fob down from the apartment’s balcony to Mr. Kirupakaran—a witness that the accused called to testify that he was involved in drugtrafficking from the Subject Apartment—so that he could get in.

The fact that Dusan and Marko had the keys they needed to come andgo from the Subject Apartment as they pleased—and the freedom to extend that right of entry to others (including a defence witness whogave sworn evidence that he was involved in trafficking there)—is powerful evidence of control over the apartment and its contents. Such evidence figured prominently in the conviction of the accused that was upheld in R. v. Munif, [2009] B.C.J.

No. 2173 (C.A.) (QL). [98] Dusan was seen by police on surveillance detail locking a patio door and closing blinds and Marko was observed securing thedoor by which one enters the Subject Apartment from the second floor hallway with a barricade device. Both accused, through theseactions, demonstrated a degree of dominion over an environment that the expert evidence called by the Crown at trial has persuaded mecould only have been open to a trusted few who were familiar with the trafficking operation and involved to some degree in it.

The factthat unidentified visitors were, on the surveillance evidence, met outside the tower, and that exchanges took place there, fortifies me inmy belief that the Subject Apartment was only open to an inner circle of persons involved in trafficking operations that did not includemere customers. [99] Cases will always differ on their facts to some degree, one from the next, but the trial decision in Munif — reproduced in largepart in the reasons of the B.C.

Court of Appeal that upheld it—reveals inferential reasoning on similar facts that I find instructive andsupportive of the approach I have taken overall to the case at bar. “The totality of the evidence implicating MUNIF in the dial-a-dope operation located in the HAZEL St. residence can be summarized asfollows. MUNIF was in possession of a key that allowed him free access to this residence. This is a clear indication that he had ameasure of control over the residence.

It would have been impossible for him not to have knowledge of the large quantities of drugs anddrug paraphernalia scattered about the kitchen, the living room and dining room. Given the quantity of drugs and cash in the residence,the common sense inference is that only a trusted member of the illegal operation would be given such free access to the residence.Finally, upon his arrival at the residence, MUNIF was found in possession of items typically found on street level dial-a-dopers: smallpackaged quantities of heroin and rock cocaine, $455 in a pocket separate from his wallet and two cell phones.

I am satisfied that the only reasonable inference to be drawn from the above evidence is that MUNIF was a party to the illegal drugenterprise that was being run out of the HAZEL St. residence. He had access to and control over the residence and its contents; he hadknowledge of the drugs in the residence, the drugs were clearly possessed for the purpose of trafficking, and he was an active participantin that operation. In the present case, the strength of these inferences is not diminished by the fact that others may also have hadknowledge of and control over the illegal operation.

With respect to the shotgun in the living room, the only reasonable inference to be drawn is that this shotgun, minus its filed-off serialnumber, was in the residence for the purpose of protecting the illegal operation. I am satisfied beyond a reasonable doubt that MUNIFmust have known of the presence of this readily visible weapon and its importance to the illegal operation to which he was a party. No

other reasonable inference arises on the evidence. On behalf of MUNIF, defence counsel has urged upon me another inference, which he asserts is equally plausible. Perhaps MUNIF wasjust an innocent visitor who had been given a key so that he could come and go during his temporary residency. He may have hadknowledge of the drugs and the shotgun that were in the residence, but he would not have had any control over them. In my view, this isnot a plausible inference when one considers the totality of the evidence before me.

Drugs worth in excess of $10,000 were spreadthroughout the kitchen, dining room, and living room. Considerable quantities of cash were stuffed in shoeboxes, one a shelf in thekitchen, another in the spare bedroom. Given the quantity of drugs and cash in the residence, it is unlikely that a mere visitor who wasnot a trusted member of the illegal operation would be given free access to this residence.” (at para. 7, emphasis added, paragraphnumbering in quoted trial judgment removed. See also, to a similar effect, R. v. To, (BC CA), [1992] B.C.J.

No. 1700(C.A.) (QL).) [100] I have earlier described the inferences of knowledge and control on the part of Dusan and Marko that arise from the admittedand found facts to be “irresistible” and “compelling”. I also find them to be the only reasonable inferences that can be drawn, beyond areasonable doubt, from the array of facts before me. Nothing less, on the authority of cases like Cooper and Butler, would suffice tofound a conviction.

CONCLUSIONS AND DISPOSITION [101] Based upon all of the foregoing I find both Dusan Stevovic and Marko Stevovic to have been, at the material time, inconstructive possession of marijuana, cocaine and heroin for the purposes of trafficking, and in possession simpliciter of oxycodone. Accordingly, they both stand convicted under counts 1, 2, 3 and 5 of Information 81011-C6. [102] I acquit both accused of the charge of simple possession of novcaine [sic] set out in count 4 of that Information, the prosecutionof which the Crown has abandoned. [103] Order accordingly. ________________________Thomas S. Woods, P.C.J.