R. v. Richardson, 2018 BCPC 427

Citation: R. v. Richardson 2018 BCPC 427 Date: 20181102 File No: 86949-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JASON CLIFFORD RICHARDSON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B.G. HOY Counsel for the Crown: J.M. Le Dressay Counsel for the Defendant: J. Boxall Place of Hearing: Abbotsford , B.C. Date of Hearing: October 2-3, 2018 Date of Judgment: November 2, 2018

[1] The Defendant is charged with possession for the purposes of trafficking in methamphetamine and cocaine. The issue posed inthis circumstantial case is whether the Crown has proven its case beyond a reasonable doubt with regard to the element of knowledge. The Law [2] R. v. Villaroman, 2016 SCC 33 is the most recent statement of the law on circumstantial evidence.

From para. 37 the courtstated: When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonable possibilities"which are inconsistent with guilt … I agree with the appellant that the Crown thus may need to negative these reasonable possibilities,but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent withthe innocence of the accused" … "Other plausible theories" or "other reasonable possibilities" must be based on logic and experienceapplied to the evidence or the absence of evidence, not on speculation.

The following cases have also been considered in this judgment: R. v. To, (BC CA) and R. v. Chualna, 2003 BCCA650. Discussion of the Evidence [3] The Abbotsford police commenced surveillance on October 31, 2017 for drug activity at a residence at 33278 Robertson Streetand a storage facility at 3201 McCallum Road with B.M. being the target of this investigation. In the course of this, two vehicles, anAltima and a Lexus, were also identified as part of the drug activity being surveilled. On November 23, 2017 the Altima was stopped bythe police at the residence on Robertson Street.

This vehicle was registered to and driven by the Defendant who was the lone occupant. The residential address of the registered owner is in Pitt Meadows. [4] The trunk of the vehicle was opened by an electronic key fob which had been secured by the police from the Defendant upon hisarrest. Inside the trunk was a black backpack. This pack had a Dakine brand name on it plus other logos. It is distinctive in appearance. Within the closed backpack was a large, plastic container sealed with duct tape and gift bag within which were two Ziploc bags.

Thecontents of these Ziploc bags were analyzed as methamphetamine and cocaine. From his pockets was seized a quantity of cash. [5] The expert's opinion evidence concludes the seized drugs are consistent with PPT. The value of the crack cocaine ranges fromapproximately $5,000 to $5,600 if sold in bulk, and about $10,000 if sold at the street level in .1 gram amounts.

The methamphetamineranged in value from $13,000 to $16,000 in bulk form and $56,000 if sold in .1 gram amounts at street level. [6] The question raised in this circumstantial case is whether there are other reasonable possibilities from the evidence that theDefendant did not have knowledge of the drugs in his vehicle. The defence says the drugs could have been concealed in the trunk byanother person. [7] As I consider the evidence, there is a considerable amount of interaction between the parties that weaves an interlinked pathbetween those being surveilled.

It is observed that B.M. and the Defendant attended both the residence and the storage site. These arecommon destinations for both persons. As between them, it was B.M. who attended the storage site far more frequently than theDefendant. They appeared to act jointly when both parties were at the storage site on November 12. As well, there is evidence theDefendant allowed B.M. to use his Altima as it was seen driven by B.M. to the storage site on November 4, 14 and 20.

The Defendant isobserved as a passenger in the Lexus with B.M. on November 12 at the storage site and November 22 at the residence. [8] There is also another person who appears to have some common connection to both B.M. and the Defendant; this is B.H. who isB.M.'s son. On November 8, B.H. is seen with B.M. and later on the same day with the Defendant at the storage site. On this date thereare other details of the parties' activities at this location from a CCTV video, part of which involved a black backpack.

This shall bereviewed in further depth later in this judgment. [9] At the outset of the surveillance on October 31, B.H. is observed with B.M. in the Lexus at the residence. On November 22, theday preceding the arrest, the Defendant's vehicle is observed parked on the street of the residence in the morning. Surveillance nextshows the Altima leave and then return at 10:41 a.m. with the defendant driving. At 16:14 hours, B.M. leaves the residence in the Lexuswith the Defendant as his passenger. The Altima remains at the residence until the surveillance ended at 7:30 p.m.

It is unknown whenthe vehicle left or where it went to through the evening hours. What is established is that on November 23 the defendant had driven tothe residence at 4:36 p.m. which was being searched. He was then stopped on the street and arrested. In submissions, the defence saysthere are a variety of points raising plausible theories or other reasonable possibilities which weighs negatively against the Crown's case. [10] Upon review of the 24 days from the initiation of the investigation until the arrest of the Defendant there are gaps in thesurveillance.

The police made their observations on 13 different dates. None of the surveillance involved evening hours. Thesurveillance involved the storage site, the residence, the Lexus and Altima. Exclusive Possession [11] The defence submits that the Defendant did not have exclusive possession of the Altima which gives rise to a plausibleexplanation of the presence of the drugs in the trunk.

He says there is a lack of evidence as to how the backpack with the drugs ended upin the trunk of the Altima and suggests others may have been responsible. [12] I do not disagree, having reviewed the evidence, that indeed B.M. had used the vehicle on November 14th and 20th. From theCCTV a variety of items were being moved to and from the storage unit and other items were being moved about in the Altima from thetrunk to the backseat. However, where this may establish some past permissive use of the Altima, it does not go further than that.

It isnot evidence which has created a plausible theory pointing to another alternative of possession and control on the offence date.

Furthermore, it does not logically follow that there is a plausible alternate theory of possession and control given the three-day gap from B.M.'s last use of the Altima until the arrest of the Defendant. Throughout, I keep in mind the totality of the evidence. Altima - Unaccounted Use [ 13 ] As submitted by the defence, it is noted there are gaps in the evidence of the whereabouts of the Altima. This in itself, however, does not plausibly raise an alternative theory as to how the drugs came to be in the trunk of the Defendant's vehicle.

It is conjecture amounting to speculation simply to assert there is a gap in the evidence concerning unaccounted use of the Altima. In assessing this, it is again the evidence as a whole that I weigh. The Backpack [ 14 ] It was argued there is an inference that the backpack seen in the CCTV video on November 8 from the storage site is the same as the one that was seized on November 23 from the Defendant's vehicle. Firstly, I find the evidence does not establish that in fact this is the same backpack.

From the CCTV the best that can be said is that it is black but other distinguishing features can only be described as some lighter tone and obscured image of some ill-defined sort on the pack. It is not clear what this might be. It amounts to speculation for one to conclude it is the same backpack. [ 15 ] Secondly, even if it could be said that there is sufficient similarity to the backpack that was seized, its possession by B.M. and B.H. at the storage site is only evidence of past possession on November 8. This is a significant time gap as it is 15 days prior to the offence date.

Examining the details of the evidence closer to the offence date it is noted that B.M. is again seen at the storage site on November 20 driving the Altima. The hypothetical is premised on the backpack as the method of transporting drugs; however, the CCTV footage establishes only boxes being removed, there is no indication of any type of backpack being moved to or from the vehicle or its trunk. Joint Venture [ 16 ] The evidence confirms B.M. was the main subject in this drug investigation. It is also evident that the scope of the investigation expanded with the observations made of the Defendant.

As between the Defendant and B.M. there is a considerable amount of activity that intersects one another. Noteworthy are the Defendant's activities from being at the residence, the storage site, through sharing rides with B.M. and allowing him to use his vehicle. There is certainly some degree of cooperative conduct between the parties but its type is uncertain. I would not conclude it is a joint venture. Conclusions [ 17 ] At arrest the Defendant is driving a vehicle he owns. Access to the trunk was gained through the use of his key fob.

In the trunk within a backpack is methamphetamine and cocaine with a value ranging from $18,000 to $66,000. These drugs have a very high value. Entrusting this valuable commodity to an unwitting person is unlikely. It does not logically follow that some third party would have placed them in the trunk without the knowledge of the Defendant. Common sense says otherwise. The only obvious and logical inference from the totality of the evidence is that the Defendant had knowledge of the presence of the drugs in the trunk of his vehicle.

He certainly had control. [ 18 ] The submissions by the Defence are not plausible theories or reasonable possibilities which cast doubt on the Crown's case. They do not amount to anything more than speculation and does not logically flow from the evidence presented by the Crown. [ 19 ] Upon the whole of the evidence, I find the Crown has proven its circumstantial case beyond a reasonable doubt and I convict the Defendant of possession for the purposes of trafficking, Count 1, methamphetamine; and Count 2, cocaine. (ORAL REASONS FOR JUDGMENT CONCLUDED)