R. v. Mayer & Vanduinkerken Date:, 2011 BCPC 151

Citation: R. v. Mayer & Vanduinkerken Date: 20110228 2011 BCPC 0151 File No: 83931-01 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ROBERT BRIAN MAYER and EMILY VANDUINKERKEN ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE ST. PIERRE Counsel for the Crown: K. MacWilliam Counsel for the Accused: G.J. Harris, Q.C. Place of Hearing: Port Coquitlam , B.C. Date of Hearing: February 28, 2011 Date of Judgment: February 28, 2011 [ 1 ] THE COURT: This is Robert Mayer and Catherine Vanduinkerken, a preliminary hearing for them. There are two counts on the Information.

One is commonly referred as production of a controlled substance, to wit, marihuana, and then the other one is possess a controlled substance for the purposes of trafficking. [ 2 ] The issue on the preliminary inquiry that I am being asked to determine is whether there is sufficient evidence to commit Ms. Vanduinkerken, who is the second co-accused on the Information, for trial. Counsel for Ms.

Vanduinkerken says that there is not and counsel for the Crown says that if we take the circumstances as a whole and the limited jurisdiction of a preliminary hearing judge, then there is sufficient evidence. [ 3 ] The law essentially on the issue of committal is where there is direct evidence on each of the essential elements the preliminary inquiry judge must commit, because then it is for the jury to decide whether they believe the evidence or not. It is different where the evidence is circumstantial, and that is obviously the issue in these kind of cases.

For the most part, in these kinds of cases, the Crown must necessarily rely on circumstantial evidence, and then in that case, the judge must engage in some kind of weighing, limited weighing of the evidence, but only for the purposes of assessing whether it is reasonably capable of supporting the inference that the

Crown would ask the trier of fact to draw eventually. [4] So, in other words, the preliminary inquiry is not the proper forum for weighing competing inferences or for choosing amongthose inferences, nor is the preliminary hearing judge to consider whether there is a rational explanation for the evidence other than theguilt of the accused. The Crown's case has to be taken at its highest and considered as a whole.

If the evidence is reasonably capable ofsupporting an inference of guilt, then a committal must ensue, even if the evidence is also capable of supporting an inference of non-guiltor innocence. [5] That crucial distinction was described by the Supreme Court of Canada in a case called Cinous 2002 SCC 29 , [2002]162 CCC (3d)129, paragraph 91, where the court says: The judge does not draw determinate factual inferences, but rather comes to a conclusion about the field of factual inferences that couldreasonably be drawn from the evidence. [6] Again, that is a point made clearly in a case called Howells, H-o-w-e-l-l-s, from our Court of Appeal 2009 BCJ No. 2221.

That isa case where the police were tracking these three accused who were travelling in a 160-foot skiff off the coast without lights and theysaw some objects being thrown into the water, and it turned out they were three big garbage bags of marihuana. The issue there waswhether the accused had sufficient evidence to prove possession. [7] The Crown's case for committal was that there was this quantity of marihuana, and the circumstances in which it was seized.

Sothere were suspicious circumstances and the preliminary hearing judge there essentially said that the circumstances raise "too manyother possibilities" and that therefore he held that no jury of reasonably people, properly instructed on the law, could come to a verdictbeyond a reasonable doubt that there was knowledge and control of the contents of those garbage bags. [8] The appeal court dismissed that, and said that the inquiry judge entered upon the task of the trier of fact by directing his attentionto the "too many other possibilities".

His jurisdiction under s. 548 was limited to a determination of whether there was evidence whichcould reasonably support a finding of guilt, and for that purpose, his analysis should have been limited to whether inferences from thecircumstantial evidence supporting the Crown's case could reasonably have founded a conviction. [9] In this case there is the police, for reasons that will become an issue at trial, I am sure, who attend upon the house where Ms.Vanduinkerken is inside, and she comes out of the house. She has a child.

Eventually she gets let back into the house where she getssome clothing for the child in order for somebody else to come and pick up the child. [10] She is about to be arrested by the police, because on the property is a grow operation in various outbuildings. Inside the housewhere she was coming out of was found a quantity of marihuana, at least one quantity that has been proven, the 10.5 pounds that did getsampled and certified as actual narcotics. That was in the house where she came from. There was, the evidence is, an overpoweringsmell of marihuana throughout the house.

There was large amounts of money laying around the house and things of that nature. [11] The Crown has to lead some evidence of knowledge and control over not only the residence itself. That is not the issue. Theyneed to lead evidence on the narcotics themselves. But there has been evidence that there is two vehicles on the property, at least onethere and one that arrives, that are both registered in her name. There are documents that are seized from the house, firearms documentsthat are in her name.

There are some photographs of mail at the house that have a post office box number on them, but they are at thehouse, and there is her presence. There is the baby's birth certificate there in the house with her name and the co-accuseds' name as theparents. There is the odour. There is the presence of the baby, at least. I guess an inference can be drawn, it is her baby and the subjectof the baby's birth certificate, and evidence of some sort of residence there. At least there is a baby's room set up and that is where theclothes were retrieved from.

Not the strongest set of circumstances in the whole world, that is for sure. [12] Certainly a trier of fact could come to one of those conclusions,, that was impugned in the Howells case, that there is a host ofother possibilities, some of which may be consistent with non-guilt, but that is not my forum, I am told. I am told by the Court of Appealthat the inferences from the proven facts are not to be weighed at this point in time.

There is one inference, and this, the Crown says, isconsistent with the guilt of the accused, at least as a party or as a principal, and I suppose that is one of the inferences. [13] In that regard, if that is one of the inferences that could be drawn from the facts, then there is sufficient evidence to commit Ms.Vanduinkerken for a trial. Again noting, without embarking on someone else's bailiwick or their jurisdiction, is that again it is not themost clear-cut case in the whole world.

However, having said that, I do not have, the -- under the circumstances, there is enoughevidence to commit for a trial, given the instructions that I am to take from Arcuri, the Supreme Court of Canada, and from our Court ofAppeal, where my task is limited. It is only a question of what would be reasonable for a properly instructed jury on the circumstances. [14] Quite frankly, I find it difficult.

You take the instructions from Arcuri where a judge is not to draw inferences from facts, andyet you place that in juxtaposition to the other instructions that are basically you do not commit somebody if a properly instructed jurycould not convict. They are not very compatible, quite frankly. So, obviously, that troubles me, because, quite frankly, if a judge wereto draw inferences, then you might come to a different conclusion. But I am told I am not supposed to draw inferences.

So it is simplythe facts that are set out and whether one of the inferences could be consistent with guilt, and that is certainly the case here. Those aremy comments, in any event. (REASONS FOR JUDGMENT CONCLUDED)