R. v. Au Date:, 2012 BCPC 36

Citation: R. v. Au Date: 20120125 2012 BCPC 0036 File No: 85841-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LOUIS AU ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE DYER Counsel for the Crown: H. Blair (Appearing as Agent) Counsel for the Accused: M. Connaghan Place of Hearing: Port Coquitlam, B.C.

Date of Hearing: January 25, 2012 Date of Judgment: January 25, 2012 [ 1 ] THE COURT : The accused, Louis Au, is charged with one count in the Information before the Court, namely, that on October 14th, 2010 in Coquitlam he did unlawfully possess a controlled substance, namely, cannabis marihuana, for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act (hereinafter referred to as "the Act"). [ 2 ] At trial, the accused entered a not guilty plea to the above listed charge of unlawfully possessing a controlled substance for the purposes of trafficking, however, during the trial, defence counsel conceded that the Crown had proven possession of marihuana. [ 3 ] The accused did not testify at trial.

I note that while an accused is not required to take the stand and testify, as he is of course presumed innocent until proven guilty, under the Charter of Rights and Freedoms, he may if he chooses give evidence at trial.

However, the onus rests solely on the Crown to prove the charge against the accused beyond a reasonable doubt. [ 4 ] There are two requirements of the charge that the Crown must prove before the Court: 1. that the accused was trafficking; and 2. the accused was trafficking in a controlled substance, namely, marihuana. [ 5 ] A definition of trafficking is provided in s. 2 of 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, (

b) to sell an authorization to obtain the substance, or (

c) to offer to do anything mentioned in paragraph (

a) or (b), otherwise than under the authority of the regulations. [ 6 ] The alleged substance in the case at bar, cannabis marihuana, is a substance listed in

Schedule II, 1.(2) of the Act.

[ 7 ] The main issue raised by defence counsel is whether or not Crown has proven the charge of possession for the purposes of trafficking beyond a reasonable doubt. [ 8 ] The related issue surrounds the method used by police to sample the marihuana, a random sample from one of the seven packages. The defence submits the onus is on the Crown to prove trafficking beyond a reasonable doubt, and to do so Crown must establish that the majority of the packages found contained marihuana, not just one.

As such, the defence further submits that all the Crown has proven is that the accused was in possession of 1.9 grams of marihuana, the amount in the one sample package. [ 9 ] Crown called two witnesses in this case, Constable Evan Todd, and Constable Andrew Dean, who was qualified as an expert. [ 10 ] Defence counsel called no witnesses and led no evidence. [ 11 ] I turn now to a

summary of the evidence given by the two Crown witnesses at the trial before me. [ 12 ] The first Crown witness was Constable Evan Todd, a four-year veteran of the Coquitlam RCMP.

At the time of the offence, Constable Todd was a patrol officer, but he now serves as a member of the Drug Suppression Team. [ 13 ] Constable Todd's evidence is that on October 14th, 2010, he was on patrol in a marked police vehicle and observed a gold Acura with a licence plate reading 919NGV at, or near, the intersection of Pipeline Road and David Avenue in Coquitlam at approximately 12:35 p.m. [ 14 ] He noted that the driver of the vehicle appeared to be young and there was no "N" or "L" sign displayed on the rear of the vehicle.

Todd checked the licence plate number of the vehicle on PRIME and received information that the vehicle's registered owner was a Class 7 driver who was required to display an "N" sign at all times when driving. As such, Todd proceeded to activate his lights and stop the aforementioned vehicle on David Avenue, just past Pipeline Road. [ 15 ] As he approached the vehicle, he noted that the driver was a single occupant. Todd asked the driver to produce his driver's permit which indicated the name Louis Au of Vancouver thereon.

The driver's permit was a learner's permit which required the driver to have a qualified supervisor with him. [ 16 ] Todd then leaned down to ensure that the picture on the permit matched the driver of the vehicle and he confirmed that it did. In doing so, the Constable was hit with a strong smell of vegetative marihuana emanating from the vehicle. [ 17 ] As a result of his police experience, Todd testified to his familiarity with both the smell of fresh marihuana and burnt marihuana, and as to his ability to be able to distinguish between the two distinct odours.

At the time of the investigation, Todd had participated in approximately 100 drug investigations involving marihuana. [ 18 ] Based solely on the strong odour of fresh marihuana, Todd formed the opinion that the accused was in possession of marihuana and placed him under arrest. He then read the accused his Charter rights from memory, and the accused indicated that he understood his rights and wanted to speak to a lawyer. [ 19 ] He then escorted the accused from his vehicle to a place approximately ten feet from his vehicle and performed a pat-down search for weapons.

Todd noted that the strong smell of vegetative marihuana was still present when the accused was standing a fair distance away from his vehicle. [ 20 ] Todd returned to the accused's vehicle and performed a search incident to arrest. At this point, he no longer smelled the odour of vegetative marihuana emanating from the vehicle. As a result of the search, he located two cell phones inside the vehicle.

On cross- examination, Todd stated that both phones were found in the centre console area of the vehicle in plain view. [ 21 ] Subsequent to the search, Todd returned to where the accused was being detained, and once again detected the smell of marihuana. He noted at this point that he noticed the zipper on the front of the accused's pants was undone.

The Constable testified that in his experience, drug traffickers often attempt to hide drugs in their crotch area in order to avoid detection by police. [ 22 ] As a result of these observations, Todd concluded that the accused had marihuana hidden in his crotch area.

When the officer advised the accused that he knew that there were drugs hidden in his crotch area, the accused admitted that he did in fact have marihuana there, stating to the officer words to the effect "Yes, I have marihuana". [ 23 ] The accused subsequently was uncuffed and produced one plastic bag from his crotch area containing seven individual bags allegedly containing marihuana. [ 24 ] Todd stated that the bags were marked with three different symbols.

Two of the bags were marked with a star and had a weight of 3.4 grams each; four of the bags had two lines and had weights of 2 grams, 2 grams, 1.9 grams, and 1.7 grams respectively, and one bag had a single line marking with a weight of 3.2 grams. The total weight was 17.6 grams including the weight of the bags. [ 25 ] After seeing the seven individual bags, Todd formed the opinion that the accused was in possession of marihuana for the purpose of trafficking.

He immediately placed the accused under arrest for this offence and read him his rights from a police authorized Charter card. [ 26 ] Todd testified that his reasons for forming this opinion were twofold: the two cell phones found in the accused's vehicle, and the seven individual packages seemingly of marihuana found on his person. [ 27 ] In conjunction with the arrest, Todd seized as evidence the seven bags of suspected marihuana, the two cell phones, and $50.00 in cash: two $20.00 bills and two $5.00 bills from the accused's wallet. He placed all these items in exhibit bags which he later examined.

[ 28 ] While waiting for a tow truck to transport the accused's vehicle to an impound lot, Todd wrote the accused two tickets: one for failing to display an "L" sign, and a second for driving contrary to restrictions. [ 29 ] Following this, the accused was taken back to the Coquitlam RCMP Detachment and processed. The accused stated that he no longer wanted to speak with a lawyer and was later released at 1:30 p.m. on a promise to appear. [ 30 ] Todd then examined the exhibits he collected at the scene.

He first examined the two cell phones, an iPhone and a second cell phone, a BlackBerry, and noted that they both were password protected and locked. [ 31 ] The iPhone received numerous missed calls and texts. In the short period of time between 12:45 p.m. and 1:30 p.m. it received three missed calls from "D", two missed calls from "ARR" and four other missed calls from an unknown number. [ 32 ] When asked by Crown whether he answered any phone calls that were made to the iPhone, Todd confirmed that he did answer one call at 3:20 p.m.

The name that appeared on the caller ID was "Gray Escape" and it was his evidence that he had the following conversation with the caller: Todd: Yo. Male Voice: Can I get a 20? Todd: Yes. Where? Male Voice: My wife is going to meet you. They then arranged a location to meet. [ 33 ] On cross-examination, Todd admitted that there were no attempts made by himself or by any other officer to ascertain ownership of this cell phone. [ 34 ] Todd also examined the seven packages or bags of alleged marihuana.

He weighed each bag individually and took one random sample from bag number 4 which was marked with two lines and was, when earlier weighed, found to be some 1.9 grams in weight. [ 35 ] The sample was put in a clean, dry, empty, plastic bag and was sent to Health Canada to be tested.

The certificate of analysis from Health Canada was entered as an exhibit at trial and it confirmed that the sample tested was in fact cannabis marihuana. [ 36 ] On cross-examination, it was admitted that the listed weights of alleged marihuana included the weights of the plastic bags that the marihuana was stored in, as I have alluded to earlier in these reasons. Each plastic bag itself was not weighed separately. As such the weights of the plastic bags themselves were not discounted from the total weight. [ 37 ] The second witness to testify was Constable Andrew Dean who was qualified as an expert at trial.

He was permitted by the Court after qualification to give opinion evidence on common usage, pricing, and packaging of marihuana. He further was permitted to provide opinion evidence on dial-a-dope operations and common street language associated with these operations. [ 38 ] Constable Dean joined the RCMP in November 2006 and at trial had some five years of experience. In September 2009, Dean joined the Marihuana Enforcement Team. [ 39 ] Dean testified that during his career he had drafted 30 search warrants and had been the affiant in at least 25.

This was his first appearance in court as a qualified expert but he has appeared in court about half a dozen times as a police witness. [ 40 ] A

summary of Dean's evidence-in-chief is as follows: 1. The common amount of marihuana consumed by a user varies. A recreational user may use only one marihuana cigarette every couple of weeks; others may use half to one gram per day; and heavy addicted users can use between two to three grams per day. A marihuana cigarette contains between a third of a gram and half a gram of marihuana. 2. A dial-a-dope operation is an effective way of completing drug transactions over a large area. A phone number is set up and given to clients.

The original phone is stored somewhere safe and is forwarded to the driver's work phone so that if the driver gets arrested the entire line will not be shut down. The driver's work phone has contact information for regular customers stored in it. When a client wants to purchase marihuana or a different illegal substance, they simply call the phone number, place their order and arrange a location to meet. When an order is placed, the dealer will drive to the arranged location and complete the transaction. 3.

In Port Coquitlam at the time of the offence, marihuana was commonly packaged for sale in small, marked plastic bags. The markings represent the weight of the marihuana contained in the small bag. Commonly, marihuana is packaged for sale in amounts of one gram, two grams, 3.5 grams or an eighth of an ounce, or up to 28 grams, one ounce. The markings are necessary so the vendor can distinguish them for valuing the sale in each case. Therefore, the markings show value. 4. In this case, the markings on the bag seemed to denote the weight of marihuana found in each bag.

There were three bags with approximately 3.5 grams, and four bags with two grams each. These weights were commonly associated with trafficked marihuana. 5. In Port Coquitlam at the time of the offence, the average price on the street for one gram of marihuana was $10.00. In this case, the amount of marihuana possessed by the accused had a street value of $185.00 and as I said, totalled 17.6 grams including the weight of the bags. 6. In Port Coquitlam at the time of the offence, the average buying pattern of a marihuana user varied depending on use.

A heavy user typically buys a larger quantity of marihuana each time as buying in bulk reduces the price.

7. In the Constable's experience, it was uncommon for an individual to have seven individual marked bags of marihuana in his orher possession unless it was for the purpose of trafficking. If a user was to purchase this amount, it would typically be in one larger bag. 8. In reference to the phone call answered by Todd on the accused's iPhone at 3:20 p.m., Dean stated that the caller with IDname "Gray Escape" was a description of the customer. He further noted that a "20" is street language for a two gram bag of marihuanawhich has a street value of $20.00. 9.

Typically, a marihuana user that is in possession of marihuana will also have drug paraphernalia in his possession. Forinstance, they may have a grinder, rolling papers, or a pipe. In this case, no drug paraphernalia was found on the accused or in hisvehicle, and Constable Dean felt this absence of paraphernalia was very significant. 10. The location where the drugs were located is also significant indicia of trafficking. It is not normal for a marihuana user tohide the drug in his or her crotch area as it can degrade in this location.

This instead is a common action of drug traffickers as they wantto prevent the police from finding it. 11. The quantity of small bills found was an indicia of trafficking, however, the amount of money found in this case is notindicative of drug trafficking. 12.

The totality of the circumstances in this case, including the marihuana itself and its packaging, the location it was found, thephone call, the two cell phones, and the lack of drug paraphernalia, all indicate in this officer's opinion that the accused was in possessionof marihuana for the purposes of trafficking. [41] On cross-examination, Constable Dean further testified as follows: 1. It would take a heavy marihuana user who smokes two to three grams per day approximately 8.8 days to consume the amountof marihuana seized in this case. 2.

It is a possibility that a sale for any amount of marihuana could be worked out, but in this case if the accused was a drug user,he would have paraphernalia with him. 3. The possession of used drug paraphernalia is an offence. POSITION OF THE PARTIES The Crown [42] The Crown submitted that the evidence proves beyond a reasonable doubt that the accused is guilty of possession of marihuanafor the purpose of trafficking. [43] Firstly, the accused was found in possession of marihuana, which is partially admitted to by the defence.

It is the specificamount of marihuana found on the accused person that is in dispute. [44] The Crown submits one can infer that the entire substance seized was marihuana if a random sample tests positive formarihuana.

In this case, a random sample did test positive for marihuana and thus it can be inferred that the entire amount seized, all17.6 grams, is marihuana. [45] Secondly, relying on the testimony of the Crown expert, Crown submitted that when one looks at the totality of the evidence, itdemonstrates that the accused was not merely in possession of the marihuana but that he was in possession of the marihuana for thepurposes of trafficking. The combination of the following indicia assisted the expert in formulating this opinion: 1. The seven individual packages were found on the accused. 2.

The fact that the accused hid the marihuana in his crotch. 3. The lack of drug paraphernalia. 4. Possessing two cell phones. 5. The phone call at 3:20 p.m. to the iPhone found in the accused's vehicle. The Defence [46] Defence relies on two cases: R. v. Cao, [1998] A.J. No. 66, a judgment of Johnstone J. of the Alberta Queen's Bench; and R. v.Grant, 2001 ABCA 252 , [2001] A.J.

No. 1257, a judgment of the Alberta Court of Appeal. [47] The defence concedes that the accused was in possession of 1.9 grams of marihuana, however, they submit that if the Crown hadwanted to prove trafficking, then a majority of the packages should have been tested to prove that they all contained marihuana. [48] Further, even if the Crown can prove that the accused possessed 17.6 grams of marihuana, the Crown expert stated that it waspossible for this amount to be amount to be bought for personal use, thus trafficking cannot be proven. [49] In addition, there were no steps taken by the police to determine whether the accused is in fact the owner of the two cell phonesfound in the vehicle.

Further, there was no evidence led of who the caller was, nor was there evidence led of who the caller was meaningto call.

[50] As a result, the defence submits that the threshold that the Crown must meet to prove that the accused is guilty of traffickingbeyond a reasonable doubt was not met in this case. [51] In a written submission filed in response to defence's written submission, Crown asserts that both these Alberta cases (neither ofwhich have historically been followed in British Columbia and are not binding on me) ought not to be followed by this Court. [52] As to R. v. Grant, supra, Joyce J. in the case of R. v. Grunwald, 2008 BCSC 1738 , [2008] B.C.J.

No. 2464 says itscryptic statement of principle is not in accordance with other authorities argued in Grunwald and in his respectful view, goes too far. [53] Crown also points out that defence counsel has not provided the reasons of the trial judge, Moshansky J. in Grant, supra,apparently given on September 8th, 2000, and submits that without them, the principles stated in Grant essentially with no context, is ofno utility to me. I agree with this submission. [54] As to R. v. Cao, supra, in reply Crown asserts it can be factually distinguished from the case at bar. I will return to this caseshortly.

THE LAWCircumstantial Evidence [55] Where a criminal case is based as it is here, substantially if not wholly on circumstantial evidence, a finding of guilt thereon mustonly be made if the trier of fact is satisfied beyond a reasonable doubt that the finding of guilt of the accused is the only reasonableinference to draw from the proven facts: see R. v. Cooper (1997), (SCC), 34 C.C.C. (2d) 18 and R. v. Dhaliwal, 2005BCSC 942. The latter is a judgment of The Honourable Mr.

Justice Romilly of our Supreme Court who put the matter in this way inpara. 20: [20] In a case which is based wholly on circumstantial evidence, the finding of guilt must be founded on the conclusion that "therewas no other rational explanation for the circumstantial evidence but that the defendant committed the crime": R. v. Charemski, (SCC), [1998] 1 S.C.R. 679, at para. 13. [56] In R. v. M.A.M., [2005] B.C.J.

No. 2357, Romilly J. after restating the above principle at para. 29 of his reasons said this in para.30: [30] Where there is evidence of an alternative rational explanation, the circumstantial evidence linking the accused to an offence or tothe possession of stolen property, will be given less weight. For instance, in R. v. Egresits (2002), 165 B.C.A.C. 63, 2002 BCCA 163,the appellant was appealing a conviction for unlawfully producing marijuana. His conviction rested on the discovery of a growoperation.

However, there was in the record considerable evidence connecting other parties to the house including the mother of theappellant, his brother and another individual. The B.C. Court of Appeal ordered an acquittal when they found that the circumstantialevidence linking the appellant to the offence was not greater than that linking other persons to the offence. [57] In R. v. Fisher, 2005 BCCA 444 at para. 47, Mr.

Justice Smith of the British Columbia Court of Appeal in dealing with apossession of illicit drugs case points out that a rational conclusion other than that the accused committed the criminal act must have abasis in evidence and cannot be based on speculation. [58] These above principles were I note followed by Johnstone J. in R. v. Cao, supra, at para. 7 of his reasons. [59] At the end of the day, the fundamental issue remains: has the Crown proven the guilt of the accused beyond a reasonable doubt?

SIZE OF SAMPLE [60] I will now deal with defence counsel's submission that because a proper analysis was not done, all the Crown has proven ispossession of one package of marihuana weighing 1.9 grams, which cannot amount to possession as charged for the purposes oftrafficking. [61] The essence of his argument is found in paras. 10 and 11 of his December 8th, 2011 written submission as follows: 10. It is further submitted that the qualified analysts at Health Canada were provided with a sample taken by Constable Todd frombag number 7 as described at that trial. That bag was said to weigh 3.4 grams.

The only sample forwarded for scientific analysis wasthat as provided by Constable Todd. The use of the scientific analysis of the samples submitted provided the Court is reliable andtrustworthy evidence that the substance was actually illegal according to its components as per R. v. Grant, supra. Those componentsrelate to bag number 7 only. While it was open to the Constable to submit all packages or some of the packages for analysis, he chose tosubmit a portion from only one package. 11.

Finally, it is submitted that though the substance removed from bag number 7 was found to be marihuana, this Court has noevidence before it to satisfy it beyond a reasonable doubt as to what portions of the substance the seven bags was in fact marihuana as perR. v. Cao, supra. [62] I do not understand the evidence to be that Constable Todd removed a random sample of the substance from bag number 7 whichweighed 3.4 grams.

My notes of this officer's evidence are that he took one random sample from one of seven bags seized, namely, bagnumber 4 which bag and contents weighed 1.9 grams. [63] This is the sample that was sent for analysis and resulted in the certificate of analysis from one Allison McPhee at HealthCanada, dated January 5, 2011 which was filed as an exhibit at trial, stating that this random sample was cannabis marihuana, clearly adrug scheduled under the Controlled Drugs and Substances Act.

[64] It is important that this was a random sample which I took to mean that bag 4 was randomly selected from among the sevenbags. [65] The issue raised by defence counsel really boils down to whether or not the proof offered by Crown, in the case at bar, issufficient to allow me to find, including by rational inference, that Crown has proven beyond a reasonable doubt that all seven bagscontained the same substance. [66] Crown counsel in her written responding submission asserts that the case law is clear that not all samples of the suspected drugseized from any accused need be analyzed and that a random sample of the group will suffice.

I think she means in the context of thiscase that not all packages seized (here seven in total) need to have a sample taken therefrom and then the seven samples submitted foranalysis in order for Crown to discharge the onus of proving beyond a reasonable doubt that all seven packages contain marihuana. [67] Crown relies on the following eight cases or legal authorities in her two written submissions: 1. D.A. MacFarlane, Q.C., R.J. Fratter see Proulx Drug Offences in Canada, 2011, 3rd edition, Volume I, published byThompson Reuters Canada Ltd. 2. R. v. Callejas, [2010] O.J. No. 6046 3. R. v.

Callejas, 2011 ONCA 393 , [2011] O.J. No. 2232 (Ont. C.A.) 4. R. v. Cripps, [1969] B.C.J. No. 302 (B.C.C.A.) 5. R. v. Flett, [1970] B.C.J. No. 553 6. R. v. Herman, [1966] O.J. No. 188 7. R. v. Grunwald, supra 8. R. v. Grunwald, [2010] B.C.J.

No. 1088 (B.C.C.A.) the unanimous judgment of the Court being given by Bennet J.A. [68] I have reviewed these cases and in addition, two cases referred to in Martins Criminal Code of Canada, 2012, Judicial Edition,cited at p. 1836 under the heading "Proof of Nature of Substance other than by Certificate Under the Act" (the Act of course being theControlled Drugs and Substances Act) namely: 1. R. v. Woodward, (ON CA), [1975] O.J. No. 91 (Ont. C.A.) 2. R. v. Van Esch, [1975] O.J. No. 460 (Ont. C.A.) [69] I do not intend to refer to the facts of all these cases.

Three are clearly binding on me being Cripps, supra, Flett, supra, andGrunwald, supra. Judgments of the Ontario Court of Appeal, while not binding on me, are entitled to some considerable deference inthis Court. [70] In Cripps, supra, involving the same charge as is before this Court which proceeded before a jury, the police located a plastic bagunder a car in a pub parking lot. After the driver of this car entered the pub, they opened the bag and found a balloon inside containing30 to 50 capsules, all the same size and shape.

The police opened one and took a small sample of the brown substance therein, closed it,and replaced it with the other capsules. Later, the accused was arrested with the balloon and contents in his possession. The sample wasanalyzed and found to be heroin.

McFarlane J.A. said this at para. 11 of the Court's reasons: [11] The first of these was that the learned trial judge erred in refusing to direct an acquittal because of lack of evidence that there wasany heroin in the bag which was replaced by the officers under the car or, alternatively, that the evidence in that regard was so slight asto render it unsafe to allow a conviction to be recorded on it.

I think the evidence that "a small sample of the brown powder" was takenfrom the capsule which was removed and replaced was sufficient to justify a finding by the jury that a quantity of the powder was left inthe capsule. Since the sample was found to contain heroin it was a fair inference that the replaced capsule did also.

It was also open tothe jury to infer that other capsules in the bag also contained the drug. [71] As in Cripps, supra, the seven packages in the case at bar were all located together in one plastic bag or container and weresimilar in outward appearance save for the markings on the packages. [72] In Flett, supra, four 1-kilogram packages alleged to contain marihuana were located by police in a sealed compartment in thepassenger door of the car driven by the accused when he was apprehended by police.

It seems four certificates of analysis were obtainedfrom Health Canada, I assume one for each package, but on appeal, only one was said to be admissible, notwithstanding the trial judge'sfinding that all four were admissible at trial, because Crown had not complied with the notice requirements under s. 9(3) of the thenNarcotic Control Act. The accused's fingerprint was found on the wrapping of one package, not the one analyzed with the validcertificate and found to contain marihuana and for which proper notice had been given by Crown to defence counsel.

Chief JusticeDavey said this in part at para. 7 of the Court's reasons in dismissing the accused's appeal: [7] … Nevertheless, it was found in his presence, found along with the other parcels, one of which was proven to be marihuana,hidden in the same place. Under the circumstances I have no doubt at all that Flett was guilty, that an inference could be properly drawnand ought to be drawn that Flett had possession, not only of the parcel sealed with masking tape upon which his fingerprint was found butalso the three other parcels, one of which was shown by the certificate to be marihuana. [73] In R. v.

Herman, supra, an undercover police officer purchased two capsules of a drug bundled together in paper from theaccused. Only one was analyzed. The trial judge found that the unanalyzed capsule contained a prohibited drug. The Ontario Court ofAppeal upheld this finding stating that the possibility that the one unanalyzed capsule may not have contained a forbidden drug was so

remote that it could not be regarded as a rational conclusion within the rule in Hodge's case at para. 2. [74] As to R. v. Cao, supra, I agree with Crown's written reply submission in para. 5 and 6 that this can be factually distinguishednotwithstanding it is not binding on me as follows: 5. With respect to the second case submitted by the defence R. v. Cao, the prosecution respectfully submits that this case can bedistinguished from the case at bar.

In the Cao decision the Court was not satisfied that all of the items seized were cocaine because ofthe lack of evidence about the manner in which the samples were processed, including the information about which of the seized foldswere tested. Specifically, the distinction here is the fact that the officer seized 13 folds which were different in colour, pink and white,and there was no evidence from which of those 13 folds the sample was taken and whether both pink and white folds were tested. 6.

It is prosecution's respectful submission that in the case at bar the Exhibit No. 3, book of photographs, clearly depicts sevenplastic bags with a green substance inside. In the case at bar the bags seized from the accused are identical in appearance andtransparent, unlike the pink and white folds of powder seized in the Cao case. [75] In R. v.

Grunwald, supra, only five random samples were taken and analyzed from 80 Ziploc bags, 40.06 pounds of marihuana,located in six garbage bags in the bed of the pickup truck driven by the accused, and the Court held such a random sample was sufficientto prove that all bags contained marihuana. As in the case at bar, the investigating police officers throughout their work detected a verystrong odour of marihuana. Mr.

Justice Joyce said this at para. 52 of his reasons: [52] In addition to the evidence of the certificates of analysis, there is a considerable body of other evidence upon which I rely indetermining this issue. Mr. Grunwald was in possession of six garbage bags that contained 80 Ziploc bags, all of which were about thesame size and weight and contained material that police officers experienced in marihuana seizure cases believed looked like driedmarihuana bud. They recognized the odour in the back of the truck and in the lunchroom as the distinctive odour of marihuana, an odourthey were familiar with.

In addition to the material found in the back of the truck, the police also found nearly $400,000 in cash,notebooks containing entries dealing with sums of money, five cell phones and a pager. This is all evidence consistent with the drugtrade. [76] In R. v. Woodward, supra, two later accused individuals were asked in a public park in Brighton, Ontario if they possessed anymarihuana by a police officer. They did not respond verbally but emptied some 14 bags containing a brownish-greenish substance onto apicnic table in the police officer's presence. Some form of sample therefrom was analyzed.

I have to assume the result disclosedmarihuana. The trial judge held for a technical reason that the certificate of analysis was inadmissible but nonetheless convicted theaccused.

The Ontario Court of Appeal said he was in error and ordered a new trial and said this in its reasons at para. 10: [10] As to Constable Creighton's opinion evidence that the contents of these plastic bags was marihuana, an opinion which he basedon the odour of the substance which he detected without having opened the plastic bags, it may be said that while that evidence did notcarry substantial weight it was, nevertheless, some evidence and was properly admitted.

Furthermore, coupled with the admission of theaccused by his conduct, as previously described, that he had marihuana in his possession, it takes on considerably more potency. [77] Finally, in R. v. Van Esch, supra, the accused was apprehended by the police driving a car with a brown bag protruding underthe front of the passenger seat containing 17 small plastic bags containing what appeared to be a green plant-like substance which theinvestigating officer suspected was marihuana. Other similar stashes were found elsewhere in the vehicle.

The police officer asked thethree men inside the car, "Who owned the marihuana?" and the accused said, "It's mine". [78] All quantities located were analyzed with some 21 separate certificates being procured from Health Canada, all of which the trialjudge in error (according to the Ontario Court of Appeal) ruled inadmissible. A new trial was ordered.

The Ontario Court of Appealsaid this in para. 13 of its reasons: [13] We are also of the view that the evidence of the admission of the respondent that he was the owner of "the marihuana", ifaccepted by the trial Judge, was some evidence that the substance in question was marihuana. The weight of that evidence, was entirelyfor the trial Judge. See Reg. v. Woodward (Court of Appeal for Ontario; released February 3, 1975). [79] In the case at bar, notwithstanding these authorities, no voir dire was conducted relating to the voluntariness of the accused'sstatement, "Yes, I have marihuana".

In addition, before he made this statement and after he had been read his s. 10(

a) and (

b) rights, hedid ask to speak to a lawyer and had not done so at the time the statement was made. [80] In the result, I do not find the question put by Constable Todd and the accused's answer can be considered as evidence of anevent within the circumstances I am to consider in this case.

However, I do find that Constable Todd's lay opinion that he smelledmarihuana in the car and later isolated the smell to the accused is a relevant piece of evidence I can consider, and I do consider it. [81] I am of the view that Crown has proven beyond a reasonable doubt on the circumstances of this case that all seven packagescontained marihuana. In my view, there is no other reasonable inference to draw from the facts of this case.

The possibility that the sixpackages not sampled may not have contained a forbidden drug, namely, marihuana, cannot in my view be seen as a possible rationalconclusion, nor amount to evidence that would raise a reasonable doubt. [82] I observe that unlike, for example in R. v. Brown (1969), (BC CA), 4 C.C.C. 229, a judgment of our Court ofAppeal, referred to in para. 12 of the Crown's written submission, there is no evidence before me that Mr.

Au was selling items on thenight in question or even possessed same that looked like the seven packages in issue that did not contain drugs. [83] I have said as well that the fact that the sample was randomly taken is an important fact in reaching the above conclusion. THE LAW WITH RESPECT TO TRAFFICKING [84] There are two helpful cases on point, namely, R. v. Bhullar, 2011 BCSC 416, a judgment of Ehrcke J. and R. v. Sturgeon, 2005

NBPC 3, a judgment of The Honourable Judge Ferguson. [85] In Bhullar, supra, at paras. 22 to 24, Justice Ehrcke set out the steps a trial judge must follow in determining whether an accusedis guilty of trafficking: [22] The onus is on the Crown to prove beyond a reasonable doubt that Mr. Bhullar had the drugs in his possession for the purpose oftrafficking: R. v. Lukianchuk, 2001 BCSC 119. [23] As set out in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, even though I do not believe Mr. Bhullar's evidence istrue, I must consider whether it raises a reasonable doubt.

If I am uncertain whether his evidence is true or false, I must give the benefitof the doubt to the accused. Even if his evidence does not raise a reasonable doubt, I must consider whether on the whole of the evidencethe Crown has satisfied its onus of proving his guilt beyond a reasonable doubt. [24] In R. v. Debenetti, [1991] O.J. No. 1953 (Ont. Ct. Gen.

Div.), Kozak J. set out a number of factors that a court might consider indetermining whether the Crown has proved possession for the purpose of trafficking: In proving the intention to traffic, the Crown may ask the Court to draw an inference of trafficking from the following categories ofevidence: quality of drugs, drug paraphernalia, packaging, debt lists, statements of the accused, association with known drug traffickers,or unexplained wealth. [86] Judge Ferguson in a Provincial Court decision from New Brunswick, namely, Sturgeon, supra, quoted a similar list of indicia oftrafficking at para. 31 as follows: [31] A similar approach is found in the 1999 National Criminal Law Program Montreal, Que. paper

Section 1.1 written by J. DavidEaton Q.C. of St. John's Nfld.

Entitled: "Obtaining, Possession and Trafficking - Controlled drugs and Substances" at p. 20 where theauthor offers the following checklist: 1) Quantity of the drugs and way in which they were packaged - whether it is consistent with personal use; 2) Value of the drugs - how the value relates to the accused's ability to purchase for personal use from lawfully acquired funds; 3) The presence of paraphernalia - some paraphernalia is as consistent with personal use as it is with trafficking - e.g. scales canbe for the purpose of checking weights when purchasing; 4) The presence of money and the denominations of the cash - it is not an offence to possess cash and some people stilllegitimately still carry large quantities; 5) Unexplained wealth; 6) Presence of documents or records - scoresheets or tote sheets may contain numbers which can be related to unit values ofdrugs; 7) Association with traffickers - people who purchase for personal use associate with traffickers; 8) The statement of the accused, if any; and 9) Other defence evidence - this might relate to the use habits, lawful sources of income or any other relevant factor. [87] Thus, a judge must look at what indicia are presented to determine whether an accused is guilty of possession of an illegalsubstance for the purposes of trafficking or just simple possession.

DISCUSSION [88] I find that the Crown has proven the following facts beyond a reasonable doubt: 1. The accused was found in personal possession of one plastic bag containing approximately 17.6 grams of marihuana,packaged in seven separate plastic-wrapped packages weighing between approximately 2 grams as to four of them and 3.2 to 3.4 gramsas to three of them. Each package was clearly marked. 2. The marihuana was secreted in his crotch area so as to hide it from being found by anyone including the police. There is noother reasonable inference to draw as to why he would have it there. 3.

The accused possessed two cell phones. Both were password protected and locked out when found. Both were on oroperative when found. While not found on his person, they were located in the vehicle's centre console area within an easy reach of theaccused, the sole driver in the car when apprehended by the police. One of the cell phones showed numerous missed calls and texts to it. 4. At about 3:20 p.m., the police intercepted a call on one of the two cell phones of an unidentified man, looking to purchasemarihuana, a "20" from the person in possession of the phone, the accused, at the location to be arranged.

A "20" means a two-gram bagof marihuana with a street value of some $20.00. 5. There was no drug paraphernalia found on the accused or in his vehicle. 6. The accused was found to possess cash money, namely, two $20.00 bills and two $5.00 bills, totalling $50.00. 7. Todd smelled a strong odour of vegetative marihuana on the accused outside his car before he recovered any drugs from him.

[89] Further, I accept those portions of Constable Dean's opinion evidence set out above in these reasons, paras. 1 to 12, beingmindful as to number 12 that I am to make the decision in this case and not Constable Dean. [90] There can be no question that Crown has proven that this accused possessed 17.6 grams of marihuana, contrary to the provisionsof the Controlled Drugs and Substances Act. [91] Has Crown proven beyond a reasonable doubt that he possessed this drug with intent to traffic, that is to say, as charged forpurposes of trafficking, contrary to s. 5(2) of the Act? [92] Defence counsel argues that based on Dean's evidence that if all the 17.6 grams of substance confiscated from the accused wasmarihuana, it could have been consumed in two weeks to two years, depending on its rate of consumption and in essence it could havebeen for personal use.

Dean in fact said a heavily addicted marihuana user would tend to buy more than the recreational user, typically alarger bag which would be stored in more optimal conditions to preserve its shelf life. He testified that larger bags could be for exampleone ounce or 28 grams. This optimal storage typically would be done in an airtight container or in one's freezer. If stored in this way, itcould last up to one year.

Marihuana being a plant substance degrades quickly unless stored in such conditions. [93] I do not find that the plastic bag, wherein the seven smaller packages of marihuana were found once the accused had removedthem from his crotch area, can be reasonably described as an airtight container. Nor would I equate storage of this marihuana in theaccused's crotch area as storage in the type of optimal conditions Constable Dean referred to in his evidence. He said a user would notgenerally put his pot in his crotch area whereas a trafficker would, to hide it from the police.

This opinion greatly appeals to my commonsense. [94] As well, Constable Dean testified that typically a heavy user of marihuana when detained by the police would have some drugparaphernalia, in essence close at hand, including on them giving as an example, cigarette papers.

Here, of course, none of these thingswere found either on the accused or in his vehicle by the police. [95] Finally, Constable Dean in his cross-examination said that the quantity of marihuana found, if consumed at the rate of two gramsa day which would equate to -- based on his evidence -- four to six cigarettes a day and this would put the person so using on the heavyside of the spectrum of users, starting with recreational users as described in his evidence and such users are typically found with drugparaphernalia.

CONCLUSION [96] Based on all the evidence in this case, I am of the view that the accused's possession of the marihuana in issue for purposes oftrafficking, is the only reasonable non-speculative inference to draw from the proven facts.

There is no other rational inference to bedrawn on all the proven evidence in this case including, for example, that the accused was merely possessing the marihuana for personaluse. [97] The totality of the evidence -- which I will not repeat -- shows in my view beyond a reasonable doubt that the accused wasinvolved in a dial-a-dope marihuana sales operation. [98] The defence called no witnesses and gave no evidence.

He did not offer any plausible explanation for the above listedinculpatory facts nor, in my view, did he through counsel, point to any plausible explanation for his possession other than for purposes oftrafficking that might reasonably exist on all the evidence in this case, whether or not he chose to testify. Nor in my view did he point toany evidence that in my view raised a reasonable doubt as to the purpose of his possession of the marihuana in question. [99] Any suggestion that it was for his personal use on the facts of this case is, in my opinion, sheer nonsense.

Such a finding couldonly be made if I were to speculate about this accused and create evidence that does not exist in this case. [100] It is significant that the accused did not testify in this case, having regard to the extent of the circumstantial evidence, and I findthat the dictum of Irving J.A. in R. v.

Jenkins (1908), (BC SC), 14 C.C.C. 221 is, as well, directly applicable on thefacts of this case, namely: it is true that a man is not called upon to explain suspicious things, but there comes a time when circumstantialevidence having enveloped a man in a strong and cogent network of inculpatory facts, that man is bound to make some explanation orstand condemned. [101] Based on the evidence before me, I am convinced beyond a reasonable doubt of the guilt of the accused on the count on theInformation before me and I find the accused guilty on the count of possession of an illegal substance for the purpose of trafficking. [ORAL REASONS FOR JUDGMENT CONCLUDED]