R. v. Schepannek Date:, 2011 BCPC 118

Citation: R. v. Schepannek Date: 20110408 2011 BCPC 0118 File No: 82758-2C Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BRIGITTE INGRID SCHEPANNEK ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE DYER Counsel for the Crown: S. Hamade Counsel for the Accused: P. McMurray Place of Hearing: Port Coquitlam , B.C.

Date of Hearing: December 20, 21, 23, 2010; March 3 and April 8, 2011 Date of Judgment: April 8, 2011 [ 1 ] THE COURT : The accused is charged with two counts, both pursuant to the Controlled Drugs and Substances Act , s. 5(1), firstly count 2 that on or about March 29th, 2009, at or near Maple Ridge, in the Province of British Columbia, she did unlawfully traffic in a controlled substance, namely, cannabis resin; and secondly, Count 4, on the same date in the same place she did unlawfully traffic in a controlled substance, namely, cannabis marihuana.

At trial, she pleaded not guilty to both counts. [ 2 ] Simply put, the Crown alleges the accused on March 29th, 2009, at about 1:00 p.m., took a plastic-wrapped package containing the following: 1. 2.3 grams of a leafy plant substance analyzed to be marihuana; 2. 28.1 grams of a black tar-like substance analyzed to be hashish; and 3. white and brown rolling papers and certain loose tobacco into the Fraser Regional Correctional Centre (hereinafter referred to as the "Centre") and delivered the same to her common law partner then being held there, one Jimmy Benoit.

[ 3 ] There is no dispute that the accused attended at this institution on the date in question and had a visit in an open visiting area with Mr. Benoit starting at about 1:05 p.m. [ 4 ] She was seen by an unnamed lady, also visiting an inmate, apparently passing something to another inmate. This lady then complained to an officer in the Centre of this perceived conduct.

In the result, while the visit of the accused was ongoing, a surveillance tape of the visiting area was reviewed and this delivery was then observed for the first time by the Centre staff. [ 5 ] This surveillance tape was played at the trial, at least the portion showing the delivery of the package. It shows the accused seated at a long table which is divided in the middle with a glass wall about three feet high across from Mr. Benoit who is also seated at the same long table. One witness said this was about waist high if one was standing.

This table is such that a number of visitors can sit in a row, however, spaced out, and across from various inmates for purposes of visiting. The same above witness said it was not hard for a visitor to reach over this glass divider and touch an inmate or exchange something with an inmate. [ 6 ] The tape shows the accused appears to pass an object over the glass barrier to Mr. Benoit with her left hand. She is seated alone and appears to partly stand to do this. He takes it with his right hand and immediately stuffs it in his pants.

The accused is seen to immediately get up and go and retrieve a baby and toy and return quite quickly to her seat across from Mr. Benoit. [ 7 ] From my observation of the body language of both the accused and Mr. Benoit, they clearly seem to show they were doing something wrong, something that they were not supposed to be doing.

Clearly, the accused's conduct seconds before the handoff appears very suspicious. [ 8 ] I should state that the evidence at trial established that on March 29th, 2009, at visits an institutional rule existed that visitors were not to touch inmates or pass objects to inmates during visits at any time. [ 9 ] After the above delivery was observed to have occurred, the accused's visit with Mr. Benoit was terminated. The accused was escorted by Officer Crocker to the Centre lobby with her children who were with her. He told her what they suspected had occurred and advised her she could not visit anymore.

Crocker observed a colleague, one Mr. Guenter, ask the accused what she had passed over the barrier and her response was, "Tobacco". [ 10 ] Mr. Benoit was taken into a holding area just outside the visitors' area and shortly met by a Centre supervisor, Mr. Parent. He there refused a strip search and was thence taken to a segregation cell area. There, after some discussion, Mr. Parent testified that after Mr.

Benoit took off his pants and underwear, Benoit took out an object -- Parent did not see from where -- which was cylinder shaped and wrapped in plastic or cellophane and gave it to an officer on hand who in turn passed it to Mr. Parent who then and there sealed it, unopened, in an evidence bag which he took to his office in the Centre between 1:30 and 2:00 p.m. [ 11 ] Supervisor Steve Rae was present with Mr. Parent and saw Mr. Benoit reach into the rear side of his pants and produce a plastic- wrapped package of contraband. [ 12 ] Mr.

Parent said he later cut open the package in his office with a knife and could smell what appeared to be marihuana. The package contained the above three substances. Parent gave the opened package to Officer Alexander before he left shift at 3:00 p.m. to do what is called an ion scan of the items in the package. [ 13 ] Corrections Officer Alexander did a scan of the contents and said the black substance tested positive for hashish.

After scanning the contents, Alexander gave the package and contents in an exhibits bag to Supervisor Steve Rae who took it and secured it after putting his name on the exhibit bag in the Assistant Deputy Warden's office. [ 14 ] Supervisor Rae agreed that tobacco was encountered from time to time inside the Centre and was a commodity that inmates traded and was used as a form of currency therein. [ 15 ] The next day, on March 30th, 2009, Officer Alexander learned that RCMP Constable Boechler was in the Centre reception area wanting the package.

He attended at Assistant Deputy Warden Jullison's office and retrieved the package and contents and personally delivered them to Constable Boechler in an evidence bag at about 8:45 p.m. together with a copy of the surveillance tape I have referred to above. [ 16 ] She took the package to her Ridge Meadows Detachment and photographed for the first time the front and back of it as it was given to her in the clear exhibit bag by Officer Alexander. [ 17 ] These photos, Exhibit 2, numbers 1 and 2, show the contents of the package taken from Jimmy Benoit after Supervisor Parent had cut the package open with a knife.

No photo of the package was taken immediately on it being taken from Mr. Benoit in the segregation cell area or indeed at any time at the Centre. It is not clear why this is so, for example, there is no evidence of any internal directive on point recommending that this not be done. [ 18 ] In any event, after Constable Boechler photographed the exhibit envelope, she opened it and separated the contents and each substance and took further photos. [ 19 ] She testified that the exhibit bag when she opened it contained plastic wrapping and marihuana in its own bag.

She weighed each suspected drug separately and then put each in an H envelope to forward for analysis. [ 20 ] It is clear from her evidence that the loose tobacco seen in photos 1 and 2 was not a focus for her and this was apparently not put in a separate bag or envelope. [ 21 ] Photos 15 and 16 show four cylindrical-shaped round objects, three wrapped in what appears to be plastic and one unwrapped, together with some loose tobacco, apparently outside the plastic wrapping over the objects according to Boechler, but not in a significant quantity to cover the three brown cylindrical objects and a very tiny bit of loose tobacco outside the plastic coverings on the surface on

which the four objects lay when photographed by her. [ 22 ] It seems clear Boechler did not open up the plastic coverings of the three black objects shown. She certainly did not testify that she had done so or that the sample taken for analysis came from each of the four pieces shown in photos numbered 17 and 18. Photos 1 and 2 also show loose tobacco inside the exhibit bag and not in anything according to Constable Boechler.

She agreed generally there was a lot of loose tobacco stuck to the items she photographed but did not believe it was in the marihuana. [ 23 ] The two suspected drugs were later analysed and certificates filed at trial disclosing the results which I have referred to above. [ 24 ] The accused testified before me. She is age 40 and the mother of four children now aged two to 12 years. She now resides in Deep Cove, North Vancouver and has sole custody of and is the sole provider for the four children.

At the trial she said she was receiving income or social assistance of $1,074 per month and in addition a Child Tax Credit or benefit of some $1,100 per month for a total monthly income from these two sources of $2,174 in March 2009 when the alleged offences were said to have been committed. She was not then receiving any financial help from friends or relatives or apparently any child support. [ 25 ] In March 2009, she had been in a common law relationship with Jimmy Benoit since 2003. He was the father of her youngest two children, aged two and five. He was then an inmate at the Centre.

He was not asked by either counsel for how long or why he had been incarcerated. She then visited him approximately once a week and usually took the two children with her. She also maintained regular contact with him by telephone. She said he would call her three times a day. [ 26 ] I find on all the evidence in this case that the March 29th visit between the accused and Mr. Benoit was not their first visit, but rather one of an unknown number of visits between the accused and Mr. Benoit. [ 27 ] The accused testified that on March 26th, 2009, Mr.

Benoit called her and said he was in trouble and needed help because some guys (being other inmates) were after him, but did not say why. She apparently did not ask. He asked her if she could please, please, please do a favour for him. He wanted her to bring some tobacco into the Centre for him on a future visit. She said she did not want to do this as she knew it was illegal. I took this to mean she felt or knew it was contrary to the Centre's rules for visitors. Nonetheless, she testified she did agree to do it. They talked about how she would get the tobacco. [ 28 ] Mr.

Benoit told her, according to her testimony, in this telephone call that she would receive a telephone call later about this and that she was to meet a guy. No name was provided.

This was her direct evidence. [ 29 ] I note all this evidence of what Jimmy Benoit said to her is really hearsay evidence and cannot be accepted by the Court for the truth of the contents, but I do accept that it is offered as part of the accused's narrative and to explain why she acted as she did, and I think it can also be the basis for any belief that she reasonably held. [ 30 ] In answer to either a question put to her from the Court or possibly counsel, the accused augmented her evidence as to the content of this telephone call with Mr. Benoit on March 26th.

She was asked why she had not gone to the store to buy some tobacco herself following his request that she bring some in for him. She testified that in this call, Jimmy had said to her it was just going to be sent to her, that she did not have to pay for anything or buy anything; it was all paid for. She did not testify that in her call with Jimmy Benoit she expressed any thought that she might buy it or could not buy it due to the expense. [ 31 ] In any event, the accused testified further in her direct evidence that she received a telephone call from a male person she did not know on Friday, March 28th.

He directed her to meet him across the street from where she then lived in east Burnaby in the Community School on Second Street and said he would be in the parking lot. He apparently (according to her evidence at least) gave her no name, nor did he tell her how she would know him, either by his appearance, clothing, or the car he would or would not be in, or when to meet her. [ 32 ] She testified she went across the street and met him in the school parking lot. He was in the driver's seat of a silver Chrysler vehicle parked in the lot when she first saw him. He had dark hair.

He appeared to be in his mid-thirties and she described him as a Latino. He looked like this. She recalled nothing else about him. [ 33 ] She approached the car and jumped in the back seat. He passed her a sock and said, "Give this to Jimmy". He said nothing else. She got out and went home. This meeting took less than a minute. [ 34 ] In cross-examination, she said she did not know the man she met. She had never met or seen him before, did not know who he was, and was not aware he was a drug dealer. [ 35 ] At home, she took the package out of the sock and threw the sock away.

She did so as it did not look right having a sock on her fridge. She then threw the plastic package on top of her fridge unopened. It was a cylinder-shaped object about three inches long having the thickness of a small cigar.

When she first saw this package in her home before she put it on her fridge, she said it looked like tobacco to her. [ 36 ] On cross-examination she said she decided not to open the package and look inside and did not do so, even though she received it from a man she had never met before, and even though she knew she could get into big trouble if she brought drugs inside the Centre. [ 37 ] The next day, Saturday, March 29th, she went to the Centre, was let in, and commenced her visit with Mr. Benoit. The package was concealed in her underwear on entry. She knew it was contraband.

She said she was also aware if she was caught bringing it in, her current form of visits with Mr. Benoit would be stopped and she would only have closed visits. [ 38 ] She was not searched prior to this visit but did undergo apparently an ion scan on both lower arms. She said her two children, aged five and two, went and played with the box of toys in the visiting area. She sat opposite Mr. Benoit. She told him she did not want to do it, she did not feel right about it, and he insisted she had to do it for him, that he needed her help, and to just do it now, referring to passing the package to him.

[39] She said she got the package out of her underwear and threw it over the glass partition to Mr. Benoit. She said she was feelingnervous at the time. This is not entirely correct. The surveillance tape in my view shows more of a hand-off than a toss. In any event,the accused also testified she was aware that there were surveillance cameras in the visitors' area where she had obviously been beforeand that she was under surveillance when she passed the package over.

She however did not expect to be caught. [40] In 20 minutes her visit was terminated and she was escorted to the entry area by a couple of guards and was told that she hadbeen observed on video passing something to Jimmy. While she admitted to passing the package to Jimmy in her evidence, she also saidwhen she did so she was not aware the package contained marihuana or hashish. She said had she been aware of this she would not havepassed it to him. [41] On cross-examination she said she was even reluctant to bring tobacco into the Centre knowing that it was illegal to do so.

Sheonly did it to help out her boyfriend. She would not have brought the package if she knew it contained marihuana as this she knew wasillegal and could result in a big charge and "It would be big time" and she knew before March 29th it was more serious in terms ofpotential consequences if caught to bring drugs into the Centre as compared to tobacco. She also seemed to agree that Jimmy could getinto trouble if, for example, coke was inside the package. She agreed it was possible cocaine could have been inside the package.

Sheagreed in not inspecting the package more closely before taking it in she had really trusted a complete stranger. [42] When asked why not go to a corner store to buy some tobacco, she said first in cross-examination she could not afford to do soand then later on point offered the further above evidence as to what Jimmy had said to her on the telephone. [43] The accused said the first time she found out that she had delivered drugs to Jimmy on March 29th was when she was arrested onDecember 28th, 2009. She then sent an apology letter to the Warden, I believe three times. Her visits with Mr.

Benoit were terminatedfor approximately eight months and in November 2009 contained marihuana or hashish. She said had she been aware of this she wouldnot have passed it to him. [44] On cross-examination she said she was even reluctant to bring tobacco into the Centre knowing that it was illegal to do so. Sheonly did it to help out her boyfriend.

She would not have brought the package if she knew it contained marihuana as this she knew wasillegal and could result in a big charge and "It would be big time" and she knew before March 29th it was more serious in terms ofpotential consequences if caught to bring drugs into the Centre as compared to tobacco. She also seemed to agree that Jimmy could getinto trouble if, for example, coke was inside the package. She agreed it was possible cocaine could have been inside the package.

Sheagreed in not inspecting the package more closely before taking it in she had really trusted a complete stranger. [45] When asked why not go to a corner store to buy some tobacco, she said first in cross-examination she could not afford to do soand then later on point offered the further above evidence as to what Jimmy had said to her on the telephone. [46] The accused said the first time she found out that she had delivered drugs to Jimmy on March 29th was when she was arrested onDecember 28th, 2009. She then sent an apology letter to the Warden, I believe three times. Her visits with Mr.

Benoit were terminatedfor approximately eight months and in November 2009 as compared to tobacco. She did not agree when she held the package in questionit smelled of marihuana. THE LAW [47] Section 5(1) of the Controlled Drugs and Substances Act states: 5.

(1) No person shall traffic in a substance included in

Schedule I, II, III or IV or in any substance represented or held out by thatperson to be such a substance. [48] It is not disputed that marihuana and hashish are scheduled substances under this legislation. [49] There is no issue in this case that the two drugs set out above found in the package the accused handed to Mr. Benoit are bothscheduled and unlawful substances under the Act. The term "traffic" used in s. 5(1) of the Act is defined in the Act as follows: "traffic" means, in respect of a substance included in any of Schedules I to IV, (

a) to sell, administer, give, transfer, transport, send or deliver the substance …. I will not refer to subsections (

b) and (c). [50] There is no dispute in this case that the drugs in question were delivered by the accused to Mr. Benoit as this term is used in thelegislation and I find the Crown has proven this beyond a reasonable doubt. [51] However, as I shall come to shortly, defence strenuously argues that the accused lacked the requisite legal knowledge that illicitdrugs were in the package in question thinking instead she was delivering tobacco.

Her credibility hence is a substantial issue in this caseas is the question of her knowledge of what she was delivering which she has said in her testimony was tobacco. [52] Crown relies on four cases in this case, namely: 1. R. v. Blondin (1971), (BC CA), 2 W.W.R. 1, a judgment of our Court of Appeal. 2. R. v. Couture (1976), (ON CA), 33 C.C.C. (2d) 74, a judgment of the Ontario Court of Appeal apparently notyet followed in this Province. 3. R. v. Aiello (1978), (ON CA), 38 C.C.C. (2d) 485 (Ont. C.A.). and 4. R. v. Gautreau 2008 NBQB 59, a judgment of the New Brunswick Queen's Bench.

[53] In Blondin, supra, the accused travelled from Japan to Canada and on his arrival, went to the CP Air Richmond terminal tocollect a scuba diving outfit he had earlier shipped from Japan. His air tank was suspiciously heavy. The RCMP wanted to examine itand apparently with the accused's consent, took the tank to a local dive shop to have the valve removed. In the process it was noted thatthe tank had been cut in half and then re-welded. The tank was in due course cut open and 23 pounds of hashish was discovered therein. On the way to the RCMP Detachment Mr.

Blondin was asked if he knew what was inside the tank and said, "He did not know". Thepolice in response to a question from the accused told him the tank contained hashish. Blondin said he did not know what this was. Later the accused told the police that he had been paid to bring it over and he knew something was in the tank and that it was illegal. [54] At a jury trial at which the accused did not testify, he was acquitted.

The trial judge charged the jury that to obtain a convictionon a charge of unlawfully importing a drug into Canada, the Crown must prove beyond a reasonable doubt that the accused knew that thesubstance in question was a drug. [55] The Crown appealed from the acquittal alleging that this above direction was in error. The British Columbia Court of Appealallowed the appeal and ordered a new trial, finding that the trial judge's charge to the jury was in error. Mr.

Justice Robertson said thisat para. 46 of his reasons: [46] These reasons will, I fear, dispose of this case inadequately if I do not indicate how I think the jury could properly have foundmens rea in the circumstances of this case. They could have done so if they had found that Blondin had been paid to smuggle asubstance illegally into Canada and either was reckless about what it was or wilfully shut his eyes to what it was, inferring therefrom thathe suspected that it might be a narcotic.

It follows that the learned Judge ought to have told the jury that they might convict if they foundthat Blondin brought the substance into Canada from Japan and knew that it was a narcotic. He should also have instructed the jury thatthey might convict if they found that he had brought the substance into Canada illegally and had either been reckless about what it was orwilfully shut his eyes to what it was, and then drew the inference that he suspected that it might be a narcotic. [56] McFarlane J.A. agreed with Roberson J.A.'s reasons, stating in

part in paras. 9 to 11 of his reasons as follows: [9] I think that on a fair

interpretation I must treat this decision as being applicable to a case of importing a narcotic. It follows thatknowledge that the substance being imported is a narcotic is an essential ingredient of that offence. [10] As to proof of knowledge, I think the following extract from the speech of Lord Reid in Warner v. Metropolitan PoliceCommissioner, [1969] 2 A.C. 256 at 279-80, 52 Cr. App. R. 373, [1968] 2 All E.R. 356 (a possession case) is apt and I respectfullyadopt it: The object of this legislation is to penalise possession of certain drugs.

So if mens rea has not been excluded what would be requiredwould be the knowledge of the accused that he had prohibited drugs in his possession: it would be no defence, though it would be amitigation, that he did not intend that they should be used improperly. And it is commonplace that, if the accused had a suspicion butdeliberately shut his eyes, the court or jury is well entitled to hold him guilty. Further it would be pedantic to hold that it must be shownthat the accused knew precisely which drug he had in his possession.

Ignorance of the law is no defence and in fact virtually everyoneknows that there are prohibited drugs.

So it would be quite sufficient to prove facts from which it could properly be inferred that theaccused knew that he had a prohibited drug in his possession. … [11] I accordingly agree that it would be correct to instruct a jury that the existence of that knowledge may be inferred as a fact, withdue regard to all the circumstances, if the jury finds that the accused has recklessly or wilfully shut his eyes or refrained from inquiry asto the nature of the substance he imports. [57] Chief Justice Davey also agreed with Robertson J.A.'s reasons in essence stating in para. 1: [1] In the circumstances of this case I think the learned trial Judge ought to have instructed the jury that they should convict if theyfound beyond a reasonable doubt that Blondin brought the substance into Canada knowing that it was a narcotic, or being reckless aboutits nature, or wilfully shutting his eyes to what it was. [58] Based on this case, the existence of requisite knowledge can be established or proven and may be inferred as a fact if the Crownproves beyond a reasonable doubt that the accused was reckless about what it was he was for example delivering or wilfully shut hiseyes as to what it was he was delivering (see paras. 1 and 46 of R. v.

Blondin, supra). Only one of the three judges in Blondin madereference to "refraining from inquiry". [59] In R. v. Couture, supra, the accused was observed by the police sitting on a park bench at a rock concert in Toronto surroundedby a group of five persons, one of whom gave him $5.00 in exchange for a silver-coloured object. The accused then stuffed a plastic bagdown his pants front and walked away. The police stopped him. When asked what he had, he gave them the bag and said it contained40 hits of mescaline.

It was accepted at trial as a fact that at all times he believed this to be so. [60] On analysis, the drugs were found to be phencyclidine, a different drug. Both substances, one a drug and one a narcotic, wereprohibited under the then Narcotic Control Act. The accused was charged with possession of a narcotic for the purposes of traffickingunder this legislation which in s. 8 contained a provision not found under the current legislation setting out how an accused so chargedwas to be tried apparently in two stages. [61] As in Blondin, supra, the well-known case of R. v.

Beaver, (SCC), [1957] S.C.R. 531 was quoted by the Courtwith approval although it was explained in Blondin and for the proposition that mens rea is an essential ingredient in a charge ofpossession of a narcotic and that the essence of the crime of possession (and in law there is none without) is knowledge of the characterof the forbidden substance.

Where there is manual handling of the drug, it must co-exist with knowledge of what the thing is which mustbe co-existent with some active control. [62] Couture was convicted at trial of possession of phencyclidine for purposes of trafficking and appealed, the issue on appeal beingcould he be convicted of possession of this narcotic when he believed he possessed a drug, not a narcotic, but one the sale of which was

prohibited without a prescription. [ 63 ] Howland J.A. delivered the judgment of the Court and said it was quite clear the accused had physical control of the bag containing the drugs and that he had knowledge that he possessed a drug, albeit he was mistaken as to the particular drug. He noted possession of mescaline was not in itself an offence. He seemed to classify the accused's offence as one of mistake (see para. 21) and he said this in paras. 26 to 27: [26] In my opinion the requirement that the appellant's belief be an honest one does not mean any more than it be a real or genuine belief.

The statement in the agreed statement of facts that the appellant throughout believed the drugs to be mescaline should have been accepted as constituting an honest belief. [27] However even conceding that the appellant honestly believed that the drugs were mescaline, there is still the question whether his possession of mescaline was an innocent act.

In view of the definition of "sell" in s. 2 of the Food and Drugs Act having mescaline in possession for sale would be a prohibited act, whereas possession of mescaline by itself is not a prohibited act. [ 64 ] The Court's reasons conclude as follows in paras. 34 and 36 to 37: [34] In considering whether the appellant has discharged the evidential burden of raising a reasonable doubt that his possession was not tainted by criminality of a relevant kind, s. 8 could not in my opinion reasonably be interpreted as precluding the admission of evidence as to the purpose of his possession.

In considering whether his possession was innocent, it is necessary to look at the evidence as a whole. If in fact on looking at the evidence as a whole it is established that the appellant had mescaline in his possession for sale, then his possession would, in my opinion, be tainted.

In such circumstances he should not be permitted artificially to sever his belief that he was in possession of mescaline - an innocent act - from the circumstances surrounding his possession and the inference which may reasonably be drawn from those circumstances as to the purpose of such possession. [36] It has been proved that the appellant was in possession of a bag containing drugs which he believed to be mescaline.

The facts that five other persons were standing around him, his acceptance of a five-dollar bill in exchange for a silver-coloured object, and his statement that the bag contained forty hits of mescaline are so inculpatory that in the absence of any explanation on his part they lead inexorably to the conclusion that his possession of the mescaline was not innocent, but was for the purpose of sale.

The appellant has accordingly failed to discharge the evidential burden of raising a reasonable doubt as to the nonexistence of a guilty intent on his part. [37] There only remains the question whether the mens rea to commit a lesser drug offence involving the same kind of social harm, namely possession of mescaline for sale, will support a conviction for a more serious drug offence, namely, possession of phencyclidine, where the actus reus of that offence is proved. The decision of the majority of the Supreme Court in the Kundeus case is authority that it will.

In this appeal, as in the Kundeus case, upon proof of the actus reus , a rebuttable presumption arose that the appellant had the required mens rea .

The appellant failed to rebut this presumption by raising a reasonable doubt that his mistaken belief that he was in possession of mescaline was innocent. [ 65 ] It is clear that much of this case deals with matters of proof at a criminal trial the procedures of which were mandated under the then s. 8 of the then Narcotic Control Act which apparently involved two stages in the prosecution which are not found in the current Act under which the accused before me is charged. [ 66 ] That said, this case may be said to support the legal proposition that the accused's honest belief he or she did not possess for example an unlawful drug must be a real or genuine belief and that mistaken possession of the substance be as well an innocent act and not a legally prohibited act.

In assessing whether the possession is innocent, one is to look at the evidence in the case as a whole. Couture , supra , appears not to have been followed in British Columbia and while highly persuasive authority, it is therefore not binding on me. [ 67 ] Crown in its closing argument filed a copy of ss. 1 and 17 of the Corrections Act , S.B.C. 2004, c. 46 . This legislation does not make it an offence to possess at a correctional centre or to deliver to an inmate therein tobacco leaves or any other products produced from tobacco in any form.

Copies of rules and regulations that would apply in the Centre to visitors such as the accused in March 2009 where not filed at the trial before me but this case did proceed at trial nonetheless on the common ground that inmates could not smoke or possess tobacco which was contraband as defined in the above Act and that it was unlawful pursuant to such rules for a visitor to transport tobacco inside on a visit.

The accused admitted she knew this. [ 68 ] This noun "contraband" means "smuggled goods" (see Oxford Dictionary , 1997) or "anything prohibited by law from being imported or exported" or "illegal or prohibited trade" (see

definitions, for example, in the Random House Dictionary , 1973 edition). [ 69 ] In R. v. Aiello , supra , a jury acquitted the accused of possession of heroin. The accused testified that for $50.00 he agreed to pick up an item for an acquaintance, one Jim, secured in a restaurant washroom in a hidden cigarette package which he did. He was not told what it was but felt it might be jewellery. When he first got it, he knew it was not, and figured it had to be some kind of drug. He said he really did not know what it was.

He was arrested by the police and the drugs found in his pants. [ 70 ] The Crown alleged on appeal that the trial judge had erred in charging the jury, that they could only convict the accused if they found the Crown had proven beyond a reasonable doubt that the accused knew he possessed heroin, and that he did not instruct the jury that the required knowledge could be inferred from the surrounding circumstances and need not be proven by direct evidence. [ 71 ] The Court of Appeal agreed that these two errors had been committed by the trial judge and said this in para. 8 of its reasons: [8] In our view the trial judge should have directed the jury that if they were satisfied beyond a reasonable doubt that the respondent assumed control of the package, knowing that it contained a drug, the trafficking in which was prohibited, or was wilfully blind to it being such a drug or was reckless as to whether it was such a prohibited drug, then the knowledge necessary to constitute the offence was established.

The trial judge in our view should have further directed the jury that it was not necessary for the prosecution to prove the required knowledge by direct evidence, but that it could be inferred from the surrounding circumstances, such as, for example, the

finding of the drug on the accused's person in his trouser pant leg, his evidence that he figured that it must be a drug, the circumstancesin which, and the place where he had picked up the package. [72] The Supreme Court of Canada upheld this decision at [1970] S.C.J. No. 23 without reasons. Aiello, supra, has been widelymentioned in various judgments of all levels of court in British Columbia since it was decided including most recently in R. v. Laronde,[2010] B.C.J. No. 2367, a judgment of our Court of Appeal. [73] In R. v.

Gautreau, supra, the accused was charged with trafficking in four separate scheduled drugs under s. 5(1) of the Act. Theaccused testified that he first threw a package over the wall of the Moncton Detention Centre because he had been threatened two daysearlier (a threat which he took seriously) in the midst of a telephone call he was having with his uncle, by an inmate at the facility. Hetestified that in this call, another unknown male who interjected himself into the call made the threat.

The threat was to deliver a packageor someone would come to his house and kill him, his wife, and daughter. [74] He testified (as in the case at bar) that he did not know the package contained drugs and thought it contained tobacco.

Theaccused said he went to his uncle's house and picked up the package sent there by this unknown man and later threw it over the wall onDecember 24th and deliberately onto the roof of a building inside so it would not be picked up by inmates in the yard area as had beenthe plan of the unknown man. [75] The accused said he was called later that evening by the unknown man who accused him of keeping the package and said to him,"You took my dope" and who then said he would send a second package to be likewise delivered. The second package was thrown bythe accused over the wall onto the roof on Christmas Day.

This act was recorded on a surveillance camera. The accused's girlfriend atthe time was in the car and the accused said she was then on her cell phone with the unknown man inside. The Corrections staff andpolice recovered this package and it was found to contain drugs. [76] The police attended the accused's home and he said to them during the course of their investigation, "It was a pretty stupid thingto do, I know. You know how it is when people threaten you, you do it.

There must be recordings on the telephones in there". [77] The trial judge did not accept the evidence of the accused as it contained too many inconsistencies and was also inconsistent withhis actions. Nor did he find that this evidence gave rise to a reasonable doubt. He said this on point in paras. 20 and 21 of his reasons inGautreau, supra: [20] I do not accept the evidence of Pierre Gautreau as, in and of itself, giving rise to a finding that (

i) he did not have the intention totraffic; (ii) he did not know what it was that he threw over the wall of the Detention Centre; or (iii) he committed the offences chargedbecause of the threats. However, this does not mean that the Crown has proven the opposite of each of these - it simply means that atthis stage, I do not accept the submission of defence counsel that consistent with the principles set out in R. v. W.(D.), that PierreGautreau's evidence requires that I find that he did not commit the offences with which he stands charged.

The evidence of PierreGautreau contains too many inconsistencies and is also inconsistent with his actions to be either accepted or give rise to a reasonabledoubt. [21] I will now consider whether the Crown has met the onus on it to prove each of the elements of the offences beyond a reasonabledoubt. If the offences are proven, I will address the defence of duress. [78] To similar effect is the statement of McEachern C.J. in R. v. To, (BC CA), [1992] B.C.J.

No. 1700, a caseinvolving possession of heroin for purposes of trafficking at p. 4 of 8 to the effect that it is not jurisprudentially correct to infer guiltmerely from disbelieving the evidence of the accused. Such rejection does not become positive evidence of the accused's guilt. [79] I am alive to this principle as I think French J. was as well in Gautreau, supra.

French J. considered the evidence relating to theaccused's knowledge, that is to say, he knew what he was delivering and said this in paras. 25 to 27 of his reasons: [25] The Crown may prove Pierre Gautreau's knowledge of the nature of the substances in the package in either of the two followingways: firstly, by satisfying me beyond a reasonable doubt that Pierre Gautreau's knowledge was actual knowledge of the substances orthat he knew that the package contained something in which trafficking is not allowed, or secondly, by satisfying me beyond areasonable doubt that Pierre Gautreau was aware of the need to make an inquiry about the nature of the substance in which he traffickedbut failed to do so because he did not want to know the truth. [26] Although Pierre Gautreau said that he thought the package contained tobacco, he also said that after he threw the first packageonto the roof of the building in the Detention Centre, he was called that evening by the unknown person from within the DetentionCentre who accused him of keeping "my package; you took all my dope".

I conclude that Pierre Gautreau knew, at least, that thereplacement package which he delivered on December 25, 2006 contained drugs. [27] Based on the reasons set out in R. v. Whynott, (1978) 16 Nfld. & P.E.I.R. 14, of the Newfoundland Court of Appeal and R. v.Couture, [1976] O.J. No. 842, of the Ontario Court of Appeal, this knowledge is sufficient knowledge of the substances that he deliveredto constitute the element of knowledge for the purposes of the offences charged.

Further, knowing that the package was to contain"dope" should have been sufficient for Pierre Gautreau to inquire and the failure to do so, in these circumstances, is also sufficientknowledge for the purposes of the offence charged. [80] The accused was found guilty of all four counts with respect to all four drugs. [81] It is clear that in Gautreau, supra, notwithstanding his above finding on credibility, French J. believed some of the accused'sevidence, for example, that an unknown person had called him and accused him of stealing his dope. [82] Defence relies on the following five cases: 1. R. v.

Risby (1976) (BC CA), 32 C.C.C. (2d) 242, a judgment of our Court of Appeal, affirmed in the Supreme

Court of Canada (1978), (SCC), 39 C.C.C. (2d) 567. 2. R. v. Edgar (2010), 2010 ONCA 529 , 260 C.C.C. (3d) 1, a judgment of the Ontario Court of Appeal. 3. R. v. Williams (2009), 2009 ONCA 342 , 244 C.C.C. (3d) 138, a judgment of the Ontario Court of Appeal. 4. R. v. Laronde, 2010 BCCA 430, a judgment of our Court of Appeal. 5. R. v.

Vu, 2004 BCCA 381, also a judgment of our Court of Appeal. [83] In Risby, supra, both the Ontario Court of Appeal and Supreme Court of Canada agreed that a statement given by an accused to apolice officer immediately connected with the initial discovery of illicit drugs (in Risby: marihuana) constitutes part of res gestae and isadmissible in any description of the circumstances under which the crime was committed. [84] In Risby, supra, the accused sat on the package of marihuana in question and was asked to get out of a vehicle which he did andtold the police officer he did not know what was in the package immediately after he got out, notwithstanding he was sitting on it.

Thisbrief statement was made contemporaneously by the accused upon discovery of the package. The statement in Risby was elicited bydefence in cross-examination of a police officer but not admitted at trial by the trial judge. A new trial was ordered because the OntarioCourt of Appeal said had the trial judge believed the statement, the accused would be acquitted.

If not, only then would a convictionfollow. [85] I will deal with defence's remaining four cases in the order the reasons came down therein. [86] In Vu, supra, the accused was convicted by a trial judge of among other things one count of possession of marihuana forpurposes of trafficking following a grow op bust. One argument advanced on appeal was that the Crown had not proven possession, forexample, the elements of knowledge and control at trial beyond a reasonable doubt. [87] Our Court of Appeal accepted as the seminal case on possession R. v.

Hess (No. 1) (1948), (BC CA), 94C.C.C. 48 (B.C.C.A.) quoted at para. 29 as follows: [29] Perhaps the seminal case on the definition of possession is Rex v. Hess (No. 1) (1948), (BC CA), 94 C.C.C. 48(B.C.C.A.). O'Halloran J.A. defined the constituent elements of the offence as follows, at 50-51: To constitute "possession" within the meaning of the criminal law it is my judgment, that where as here there is manual handling of athing, it must be co-existent with knowledge of what the thing is, and both these elements must be co-existent with some act of control(outside public duty).

When those three elements exist together, I think it must be conceded that under s. 4(1)(d) [of the Opium andNarcotic Drug Act, S.C. 1929, c. 49] it does not then matter if the thing is retained for an innocent purpose. See also Beaver v. The Queen (1957), (SCC), 118 C.C.C. 129 (S.C.C.). [88] After noting that the case turned entirely on circumstantial evidence and not direct evidence of knowledge and control, Mr.Justice Oppal held as follows in para. 33: [33] In this case the trial judge drew the logical inference that by being one of two occupants of the residence, Mrs.

Vu had thenecessary knowledge and control over the prohibited substance found there. In that regard, R. v. Blondin (1970), (BCCA), 2 C.C.C. (2d) 118 (B.C.C.A.), aff'd (SCC), [1971] S.C.J. No. 42 (S.C.C.), is of some assistance.

In that caseMcFarlane J.A. made the following comments at 122-23: I accordingly agree that it would be correct to instruct a jury that the existence of that knowledge may be inferred as a fact, with dueregard to all the circumstances, if the jury finds that the accused has recklessly or wilfully shut his eyes or refrained from inquiry as tothe nature of the substance he imports. [Emphasis added.] The appeal was dismissed. [89] In R. v. Williams, supra, the accused was arrested on exiting a car with a loaded handgun in the waistband of his pants having abarrel that measured 102.07 millimetres in length.

He was charged and acquitted with a count of possession of a loaded prohibitedfirearm. The then Code defined such a firearm as having a barrel equal to or less than 105 millimetres in length. The accused said hewas unaware that the barrel of his gun was less than 105 millimetres in length and therefore did not know that his firearm wasprohibited. It was however a restricted weapon but the accused was not so charged. The accused admitted he was not allowed to haveany kind of gun.

He said he had possessed this gun for some two weeks prior to his arrest but had never measured the barrel and had noreason to believe it was in fact 102.07 millimetres in length. [90] The Court of Appeal found that mens rea was required for the offence in issue and found this requirement was satisfied when theCrown proved the accused possessed a loaded firearm. His knowledge of the length of the barrel was not part of the required criminalintent. This, the Court of Appeal felt, gave the charging

section a common sense meaning and I have reviewed and considered paras. 19and 21 in particular of this decision which I will not refer to expressly now. [91] R. v. Edgar, supra, was not argued by either counsel and I therefore do not propose to deal with it in these reasons. [92] Finally, in R. v. Laronde, supra, the accused was charged with two others with numerous fraud related offences with respect toautomobiles used in the television industry. He was convicted of seven counts at trial.

The fraud involved the accused being involved inthe sale of various Chrysler-made cars without title or authority which cars were earlier used in a movie. These cars were supposed tohave been destroyed after use therein, but they were not.

[93] The accused, a lawyer, was alleged to have facilitated the fraudulent scheme by incorporating a number of companies andopening certain bank accounts. He was often the sole shareholder and director of the companies. Mr. Laronde testified in his owndefence at trial that he had no knowledge of any wrongdoing, believing that the two people that he dealt with had proper authority to sellthe vehicles in question. He was paid $30,000 for his

part in the transaction. The Court of Appeal said the sole issue on appeal waswhether Mr. Laronde had the intent to commit the offences in issue. The Court accepted that the correct test for mens rea or criminalintent for fraud was a subjective one as referred to in R. v. Theroux, (SCC), [1993] 2 S.C.R. 5 referred to in paras. 19and 18 of Theroux set out in Laronde at paras. 25 and 26 as follows: [25] In Théroux, McLaughlin J.

For the majority said the following at 19: … The mens rea would then consist in the subjective awareness that one was undertaking a prohibited act (the deceit, falsehood or otherdishonest act) which could cause deprivation in the sense of depriving another of property or putting that property at risk.

If this isshown, the crime is complete. [26] The test for mens rea is a subjective test, not objective and again, quoting from Théroux at 18: … The test is not whether a reasonable person would have foreseen the consequences of the prohibited act, but whether the accusedsubjectively appreciated those consequences at least as a possibility. In applying the subjective test, the court looks to the accused'sintention and the facts as the accused believed them to be: ... [94] The trial judge found that the accused had actual knowledge or alternatively that the accused was wilfully blind.

The Court ofAppeal said this on the latter point in paras. 30-32. I will quote from them only in part: [30] Wilful blindness is defined in R. v. Sansregret, (SCC), [1985] 1 S.C.R. 570 at 584-586: Wilful blindness is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and persistence in acourse of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become awareof the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remainignorant.

The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilfulblindness it is justified by the accused's fault in deliberately failing to inquire when he knows there is reason for inquiry. … [31] Wilful blindness is not based on an objective standard. As was stated by the Quebec Court of Appeal in R. v.

Comtois Barbeau(1996), (QC CA), 50 C.R. (4th) 357 at para. 85: The test was not whether the appellant "should" have known or should "normally" have known from the suspicious circumstances thather husband was probably involved in a conspiracy to import cocaine.

The question was whether the circumstances were such that she,herself, was, in fact suspicious that this was the case but deliberately refrained from making inquiries so that she could remain inignorance as to the truth. [32] The question is not whether the accused should have been suspicious but whether the accused was in fact suspicious. (R. v.Malfara, (ON CA), [2006] O.J. No. 2069). As Doherty J.A. said in R. v. Duong, (1998), (ONCA), 39 O.R. (3d) 161 at 169: Liability turns on the decision not to inquire once real suspicions arise and not on the hypothetical result of inquiries which were nevermade.

Where an accused chooses to make no inquiries preferring to remain deliberately ignorant speculation as to what the accusedwould have learned had he chosen to make the necessary inquiries is irrelevant to the determination of the blameworthiness of theaccused's state of mind. [33] The trial judge here applied an objective test to his analysis of whether Mr. Laronde was wilfully blind. This was clearly anerror. [95] In the result, our Court of Appeal ordered a new trial in Laronde, supra. [96] I note that in R. v.

Sansregret, supra, the Supreme Court of Canada had this to say in para. 16 of its reasons as to the concept ofrecklessness: [16] The concept of recklessness as a basis for criminal liability has been the subject of much discussion. Negligence, the failure totake reasonable care, is a creature of the civil law and is not generally a concept having a place in determining criminal liability. Nevertheless, it is frequently confused with recklessness in the criminal sense and care should be taken to separate the two concepts. Negligence is tested by the objective standard of the reasonable man.

A departure from his accustomed sober behaviour by

an act oromission which reveals less than reasonable care will involve liability at civil law but forms no basis for the imposition of criminalpenalties. In accordance with well-established principles for the determination of criminal liability, recklessness, to form a part of thecriminal mens rea, must have an element of the subjective. It is found in the attitude of one who, aware that there is danger that hisconduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, theconduct of one who sees the risk and who takes the chance.

It is in this sense that the term"recklessness" is used in the criminal law andit is clearly distinct from the concept of civil negligence. [Emphasis added] POSITION OF THE PARTIES [97] Both counsel before me seem to agree in their own way that the only live issues in this case that I need to decide are: 1. whether or not the accused possessed the drugs in question with the requisite knowledge required by the law on point, and

2. I think fundamental to issue 1, whether the accused is a credible witness and whether if not I should at least have a reasonabledoubt concerning her guilt based on all the evidence I have heard including hers. [98] Both seem to agree that as in Gautreau, supra, R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742 has application in thecase at bar. Position of the Crown [99] Insofar as the credibility of the accused is concerned, Crown argues that she is not a credible witness.

Even if I did believe her,Crown argues she still has a duty to inspect the package and when she did not, she was at least wilfully blind as to its contents. Crownappeared to accept in his argument that wilful blindness was different from recklessness as recklessness as R. Sansregret, supra, and R.v. Laronde, supra, appear to make abundantly clear. [100] Initially, Crown counsel submitted the accused was wilfully blind in acting as she did and if I accepted that this was so said Ineed not consider whether she was reckless in how she acted.

Later, he seemed to suggest I ought to consider both whether the accusedwas either wilfully blind or reckless as per the above authorities. (I note that this submission seemed to be based on an acceptance thatCrown had not proven the accused had actual knowledge that the package contained drugs and that Crown was therefore of the view thatif knowledge on the part of the accused were to be established, it could be done by my finding including by inference from allsurrounding circumstances that the accused was either wilfully blind to the package containing a drug or reckless that it did). [101] I understood Mr.

Hamade to argue that the accused's answer to the question put to her by the Officer in the Corrections Centreentrance area "tobacco", should be excluded from evidence but if I admitted it, and he seemed to somehow miss a step in that he made nosubmission that if I admitted it, that I did not necessarily have to believe it, that possession of tobacco in the circumstances relying onCouture, supra, was not an innocent act nor was passing it to an inmate such as Mr. Benoit which was contrary to Correctional Centrerules. In fact it was clearly contraband as defined by s. 1(

e) of the Corrections Act. [102] Crown submitted that the accused had a duty in the circumstances of this case to look inside the package to see what it was shewas to deliver to Mr. Benoit inside. This she failed to do. I should in essence therefore find Crown had proven the requisite knowledgebeyond a reasonable doubt by inferring based on all the circumstances that she was wilfully blind to what was in the package or recklessas to its contents. Position of Defence [103] Mr.

McMurray says the sole issue before me is whether Crown has proven beyond a reasonable doubt that the accusedunlawfully possessed marihuana and hashish, possession requiring contemporaneous control and knowledge. He asserts that theknowledge element is unproven in the case at bar. He argues that the accused is a credible witness. If I believe her story, or have areasonable doubt about possession and the knowledge component thereof, in particular based on her evidence and all the other evidencein this case that I accept, I should acquit. He of course refers to R. v.

W.(D.), supra. [104] He submits the other evidence aside from the accused's testimony shows the following: 1. The drugs were enclosed in sealed plastic. I repeat that no Corrections Officer took a photo of the package as it looked when Mr.Benoit first handed it over to Officer Swanton in the segregation area on March 29th, 2009. Officer Alexander, who received thepackage from Supervisor Parent, said he did not take a photo as he was not asked to do so. He opened it and scanned its contents.

Itherefore do not know whether it really looked like tobacco or not nor did Crown really examine Corrections Officer Alexander andSupervisor Parent on this point. These witnesses described the shape and size of the package but did not comment on what colour it wasor perhaps importantly whether the two drugs they found were essentially secreted inside an exterior layer of tobacco or not. 2. Mr. McMurray argues the package was such that loose tobacco obscured the drugs in whole or in part from the view of someonehandling it.

I do not agree this is shown to be so or not shown to be so on the evidence including the photos marked as an exhibit. Allphotos were taken by the RCMP after the Corrections Officers opened the package and disturbed the contents to some extent thereby. Icannot find loose tobacco did or did not obscure the drugs found within when this package was admittedly in the possession of theaccused. 3. No fingerprints from the accused were found on the package or contents. 4.

Corrections Officer Alexander only smelled marihuana after he opened the package, not before, hence there was not tell-talesmell to make the accused suspicious of what was found therein before it was opened and put her on inquiry. 5. The negative ion scan done on the accused's arms on entry was consistent with her not handling the package. I do not accept thissubmission. She did handle the package several times and said so in her testimony. I also found the scant evidence on ion scan unclearand hence unhelpful.

It was given as if I understood how the entire procedure worked before hearing the evidence and I did not. 6. The package was secreted on the accused's person, was handed to Mr. Benoit and then he secreted it in his pants. This evidenceis of course clearly derived from the surveillance film played at the trial. This film clearly shows the accused in I think an obviouslynervous and agitated state before passing the package and then once having done so, immediately going off camera to get one of herchildren to return to the visit table, clearly I find as a form of distraction.

Nonetheless, I expect the accused would have acted the wayshe did regardless of the nature of the contraband she was attempting to deliver. Mr. McMurray argues and I agree with him that whatthe accused did with the package is consistent with its contents being tobacco. It is however I find also consistent with it being anunlawful drug. 7. When escorted out of the Centre the accused was asked by staff what was in the package and replied "tobacco". Crown submittedI should not admit this evidence however Mr.

McMurray said this statement should be admitted based on Risby, supra, arguing that whenshe is confronted and says "tobacco", this is in essence a statement corroborating and consistent with her belief that what she was

delivering was tobacco and not something unlawful by which I think he meant pursuant to a federal drug law. Crown says if thestatement is admitted then in any event possession of tobacco is not an innocent act and was in the circumstances of this case admitted bythe accused to be unlawful. I find the statement is admissible. I will deal with its accuracy below. [105] Mr. McMurray admits that the evidence in this case supports an inference that the accused knew the package containedcontraband, that is to say, something not permitted within the Centre. I agree with this submission. [106] Mr.

McMurray argues the accused is a credible witness and he further argued that when I apply the principles in R. v. W.(D.),supra, that I should make such a finding and acquit the accused on this basis alone, that is to say, that I accept that she believed she wastransporting tobacco inside the Centre or that I should at least have a reasonable doubt on this point. [107] He made the following points in his submission as to the accused's credibility: 1. She testified in an honest and forthright manner and was responsive to questions and not evasive.

I have some concerns about herdemeanour which I shall come to below. 2. She has no criminal record or prior involvement with drugs and is therefore not the sort of person who would engage in this sortof conduct. She is nonetheless the sort of person who would, if I believed her, do something she knew to be illegal to help her partner,Mr. Benoit. 3. She conceded matters not helpful to her position, for example, acknowledging she knew that taking tobacco, a form ofcontraband, into jail was illegal.

I think had she not admitted this truly an obvious fact, her failure to have done so would have greatlynegatively affected my sense of her honesty as a witness. In my view to admit the obvious does not really support one's credibility in atrial. 4. Her testimony that she did not purchase tobacco and elected to obtain and deliver the package from the unknown stranger isreasonable as she testified her income is limited and required to support herself and four children. I do not agree with this submission.

Ifind that on March29th, 2009 the accused's financial resources were such that she could have readily afforded to buy in a store thequantity of tobacco either by weight or volume she attempted to take into the Centre. 5. Her testimony that she was willing to run the risk of delivering tobacco, being banned from open visits as opposed to deliveringdrugs, at the risk of serious criminal charge is reasonable. 6. She knew the visitors' area was under surveillance but overtly handed the package to Jimmy Benoit. Mr.

McMurray argues shecould have had no illusion when she delivered the package she could do so without detection so why would she do it if she knew itcontained drugs? This point is not really an accurate reflection of her evidence. I note she said in her direct testimony that while sheknew on March 29th she was at all material times under surveillance, she did not however expect to be caught. I disagree that thesurveillance film shows an overt delivery. I find exactly the opposite is true. The handoff was made quickly and within seconds ofdoing so the accused got up and used her small child as a distraction.

I find the handoff was clearly done in a way so as to avoiddetection. This submission also lacks logic. If the accused knew or reasonably believed on March 29th that her delivery of a package toJimmy Benoit would be detected(and again she testified she did not believe that it would be) she must have known or believed that oncethe delivery was detected the package would be seized just as occurred. There is no room in this analysis in my view for the propositionthat she knew she would be detected in the delivery but that Benoit would somehow get to keep the package.

Such a proposition is bothillogical and not sensible. I find the fact that she attempted to deliver the package at all, and regardless of its actual contents, leads to thelogical inference that she thought there was a chance and a good one that she would not be detected in making the delivery just as shesaid. Otherwise, why as Crown argues, would she attempt to deliver it at all if she knew she would be caught? 7. The fact that she delivered the package to Benoit while accompanied with her children is said to be consistent with her belief thatit contained only tobacco.

If she knew it contained drugs and there was a high risk of detection, then it is likely she would (I thinkMr. McMurray left out the word "not" in his written submission). I repeat: then it is likely she would not have put her children at risk bydoing it. First of all, there is no evidence that on March 29th the accused believed or knew there was a risk -- a high risk -- that shewould be detected. The evidence is to the contrary.

On the contrary, I find in doing what she did she must have felt there was amanageable risk of being caught so to speak, one worth taking and which she clearly took in attempting the delivery at all. The accused Ihave found did use her child as a distraction. There is no evidence that she knew or believed that if she attempted to deliver unlawfuldrugs in the presence of her children that if caught they would somehow be at risk. She did not so testify. I am not prepared to guess orspeculate as to what the accused thought on this point.

Certainly, the surveillance film in my view does show she was prepared in thefurtherance of what she knew was an unlawful activity not only to have her two children with her as usual at her visits with Mr. Benoitbut to use one as a form of distraction immediately after the delivery was made and while Mr. Benoit was securing the packagesomewhere on or in his person. Mr.

McMurray invites me to find based I think substantially on my believing the accused that she didnot have actual knowledge of the contents of the package that it contained unlawful drugs. [108] I think it would now be appropriate to deal with the issue of the accused's credibility and the credibility of Crown witnesses. [109] The credibility of all these witnesses can be assessed having regard to certain well-known principles set out in among otherplaces the decision of this Court in R. v.

Parent, 2000 BCPC 11 and the decision of our Court of Appeal in a civil matter in Faryna v.Chorny (1952), (BC CA), 2 D.L.R. 354 which cases I shall shortly come to. [110] As to the evidence of the police and Corrections Officers, no attack is made on their credibility. They gave their evidence in astraightforward manner and I think it is fair to say little or none of it is in dispute.

Based on the above legal principles relating tocredibility, I believe the evidence of these officers, all of them, and find them to be truthful, credible witnesses. [111] With respect to legal authorities bearing on the issue of credibility, one helpful decision on point is that of R. v. Parent, supra, adecision of Her Honour Judge Ann Rounthwaite of this Court where she dealt with the credibility of witnesses generally and how a trialjudge can assess it at paras. 4 to 5 of her reasons where she stated in part as follows:

[4] In assessing credibility, courts have recognized a number of factors as helpful. [5] These include: 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. [And importantly in this case] 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? In assessing demeanour a judge should consider all possible explanations for the witness' attitude, and be sensitive to individual and cultural factors, which may affect demeanour.

Because of the danger of misinterpreting demeanour, I would not rely on this factor alone. [ 112 ] In para. 9 of her reasons, Her Honour Judge Rounthwaite used the term "ring of truth" as a different way of expressing the point she makes above in para. 5 about the sense of the witness' evidence. [ 113 ] On this same point, our British Columbia Court of Appeal in Faryna v. Chorny , supra , commented albeit in the context of credibility in civil actions.

In such cases there is a lower and different burden of proof as compared to criminal cases, nonetheless Faryna is often referred to as containing a guiding principle for judges to use in assessing credibility in criminal cases. [ 114 ] This well-known case from our Court of Appeal encourages trial judges not to rely too strongly on the demeanour of a witness or the fact that his or her evidence remains uncontradicted but rather we should be concerned with whether the evidence of a witness is consistent with the probabilities affecting the case as a whole.

The test, if you will, is repeated at para. 4 of the Quicklaw report of the reasons in this case as follows: The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. [ 115 ] Faryna , supra , encourages trial judges not to rely only on the demeanour of witnesses as referred to by Rounthwaite P.C.J. in item 7 above in her reasons. [ 116 ] I rarely comment on the demeanour of a witness.

Demeanour is defined among other places in Black's Law Dictionary as follows: As respects a witness or other person, demeanour relates to physical appearance and embraces such facts as the tone of voice in which a witness' statement is made, the hesitation or readiness with which his answers are given, the look of the witness, his carriage, his evidences of surprise, his gestures, his zeal, his bearing, his expression, his yawns, the use of his eyes, his furtive or meeting glances, or his shrugs, the pitch of his voice, his self-possession or embarrassment, his air or candour or seeming levity.

I have omitted the American authorities from this definition. [ 117 ] I am aware that it is dangerous to give undue weight to such evidence and that a trial judge ought not to disbelieve a witness only because he or she has concerns about his or her demeanour. [ 118 ] I have carefully reviewed the useful discussion of demeanour set out at s. 27(30)(10) under the heading "Particular concerns in assessing credibility" in McWilliams: Canadian Criminal Evidence which states in part at p. 27-7 as follows: As a majority of the Supreme Court observed in R. v.

S.R.D. , credibility assessments are often dependent on intangibles such as demeanour and the manner of testifying and the judge is obviously permitted to use common sense and wisdom gained from personal experience in observing and judging the trustworthiness of a particular witness on the basis of factors such as testimony and demeanour. In R. v. Boyce (phonetic) the Ontario Court of Appeal held that trial judges are not required to ignore demeanour in their assessment of a witness. They can use it in conjunction with their assessment of all the evidence and in the full context of the trial. In R. v.

Hall the same Court held that the trial judge erred when she observed that it is dangerous to draw conclusions or inferences from demeanour. [ 119 ] In the case before me, I found that the accused appeared to testify in an almost mechanical way, almost completely devoid of any demonstrated emotion in telling me her story. Very noticeably as I have said above, not once did she appear to show or state in her evidence having any form of anger, upset, or even disappointment with her partner of some five years, Mr.

Benoit, also the father of two of her four children for what he had done to her with respect to the package in question. [ 120 ] The demeanour of the accused when testifying gave no hint at all that the accused was ever upset with Mr. Benoit for what he did to her resulting in her now being before this Court facing some serious charges. If her story is truthful that she believed she was delivering tobacco, I would have expected to see this. If her story was true, she was then seriously victimized by him.

[ 121 ] If her story is not true as to what she felt she was delivering, then her demeanour is exactly what I would have expected including from someone potentially caught in a joint transaction or a conspiracy involving the delivery of drugs inside the Centre. [ 122 ] However, because I am aware that there is perhaps a slim prospect that Mr.

Benoit did not know that the package contained drugs and because on the authorities care must be taken with respect to demeanour considerations, I give this above demeanour factor only very modest weight in my assessment of the accused's credibility in this case and on the important issue what did she believe was in the package she took inside the Centre? [ 123 ] There are other aspects of her story that do not make a lot of sense to me and do not have an air of reality to them. As I have already alluded to, she said in March her income was some $2,174 per month from social assistance and Child Tax Benefits.

When asked in cross-examination and by the Court in essence when Jimmy had asked her to do him a favour and bring in some tobacco, why not just go to the corner store and buy some -- she answered that she could not afford to do so.

As well, when Jimmy talked to her on the phone he told her she did not have to pay for anything or buy anything, it was all paid for. [ 124 ] I have found that this accused could easily have afforded with her then monthly financial resources to have gone to a store and bought the quantity of tobacco found in the package which in the grand scheme of things was not a very significant amount.

I find the cost would have been minimal probably not more than the cost of say several packages of cigarettes. [ 125 ] I also note that the above content in the alleged conversation was not offered by the accused in her direct evidence. It was only when the prospect of why she had not made a lawful acquisition of the tobacco was put to her, that she came up with this explanation. It is therefore on this basis as well an internal inconsistency within her own evidence and if not certainly an excuse or afterthought. It also in my view has no air of reality to it.

I do not accept this evidence as truthful that she could not afford to buy tobacco herself. [ 126 ] I do accept as truthful the accused's evidence that she knew at all material times before and on March 29th that: (

a) delivering tobacco inside the Centre was unlawful and that the risk that she ran if caught was that she would as a penalty get closed or no visits, and importantly (

b) that she also knew that if she delivered marihuana inside, the risk that she ran if caught was that she could face a big charge and big time, a far more serious risk and one that exceeded in consequences that for smuggling in tobacco. This evidence is not in dispute. [ 127 ] I am also suspicious about her story that she met an unknown man she had never met before in a car in a school parking lot and obtained a package from him. This evidence offered by the accused is vague in the extreme.

For example, the accused did not testify how it was she would know which man to meet in the school parking lot or how he would know to meet her. This aspect of her story however certainly offers a convenient excuse as to how she came to possess the package without knowing the true contents. [ 128 ] I accept when the accused was escorted out of the Centre and when she was asked what she thought the package contained, she said "tobacco". I have found based on Risby , supra, that this statement is admissible but I disagree with Mr.

McMurray's submission that I must accept it as the truth meaning that I must accept that the accused honestly believed this is what the package contained. That is not what Risby says on my reading of this authority. I find she said the word "tobacco" but not that she then believed it was in fact tobacco. [ 129 ] Applying the above principles in Parent , supra , and Faryna v.

Chorny , supra , I find that while I am very suspicious of aspects of the accused's evidence, I am however as was French J. in Gautreau , supra , prepared to accept parts of her story as accurate including the manner in which she learned of and obtained the package from the unknown nameless stranger, and as well those parts of her evidence not in dispute and really those corroborated by Crown witnesses. [ 130 ] I am not however prepared to accept and do not find that her story that she believed she possessed and was delivering only tobacco is true.

I do not find her to be a credible witness on this important point.

Nor do I find I have a reasonable doubt on this point. [ 131 ] Dealing with her above response, "tobacco", I repeat I do not accept when she spoke this word or at any material time the accused in fact believed the package contained only tobacco. [ 132 ] In the event a person intended to deliver a prohibited drug inside a correctional institution and appreciated there was some risk of being caught, I would certainly expect based only on my common sense that such a person would have an innocent explanation ready at hand to explain his or her conduct and actions if caught. [ 133 ] Based on all the evidence in this case, that is what I find this brief exchange to be: nothing but an excuse or explanation for her conduct but not one that I can find the accused believed to be true or was true at any time including when spoken. [ 134 ] The above cases, especially Blondin, supra , and Aiello , supra , make it clear that Crown can establish the knowledge aspect of possession with proof beyond a reasonable doubt that the accused had actual knowledge of the drug.

Likely this could be done as a result of some admission being made by the accused as to his or her belief as in Gautreau , supra , stating that he was told that a package contained drugs and the Court concluding that he believed that this was so. [ 135 ] However, in the case at bar and in any case absent such evidence, the fact that I do not believe the accused's story as it relates to her knowledge of the contents of the package does not mean that the Crown has therefore proven actual knowledge being an important element of the two charges before the Court beyond a reasonable doubt.

See, for example, the statement made by Chief Justice McEachern in R. v. To , supra . It is not and I find that the Crown has not so proven that the accused had actual knowledge of the drugs, that is to say, that she delivered it to Mr. Benoit in the Centre knowing the package contained two separate drugs or any prohibited drugs. Proof has not been made on this basis. [ 136 ] However, as in Aiello , supra , and the other legal authorities above referred to make it clear the requisite knowledge in a case of

this sort need not be proven by direct evidence, for example, an admission by the accused that may be proven by inference from all the surrounding circumstances of the case including as to whether the accused was wilfully blind to the package being a prohibited drug or was reckless as to whether it contained a prohibited drug or not. [ 137 ] Mr.

McMurray in further oral argument before me invited by the Court on March 3rd last finally dealt with this latter point and I will try to briefly summarize his helpful submissions. [ 138 ] He candidly admitted that there was no doubt his client intended to deliver to and hand over to Mr. Benoit contraband and that she knew what she had was contraband but she believed it was tobacco and not an illegal drug. I should believe her on this point or at least have a reasonable doubt on this important point, her knowledge of what she had.

Even if I did not believe her or have a reasonable doubt, the circumstances of this case he argued were such that she was not put on enquiry as to the true or actual contents of the package. The circumstances were not such that she ought to have suspected it contained a drug or that she must be regarded as being either wilfully blind as to what was

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