R. v. Peters, 2019 MBPC 41

CITATION: R. v. Peters, 2019 MBPC 41 THE PROVINCIAL COURT OF MANITOBA Brandon Centre BETWEEN Her Majesty the Queen ) Christina Cheater ) ) for the Crown - and – ) ) ) Kevin Vincent Peters ) ) Candace Olson for the Accused Accused ) ) ) Reasons for Decision ) ) Delivered: July 8, 2019 at the City of Brandon, in the Province of Manitoba Hewitt-Michta, A.C.J. INTRODUCTION [ 1 ] Mr. Peters was the front seat passenger in a vehicle stopped by police just before 4:00 a.m. in Brandon.

Police seized methamphetamine [meth] and oxycodone from the vehicle as well as a machete, packaging materials, cell phones, a scale, a pipe, and a propane torch. [ 2 ] There is little dispute the evidence supports the conclusion that possession of the methamphetamine and oxycodone was for purposes of trafficking. The issue in this case is whether the evidence establishes beyond a reasonable doubt Mr. Peters had possession of the drugs seized. [ 3 ] The crown asserts the only reasonable inference arising from the evidence is that Mr. Peters had both knowledge and control of the drugs.

The crown relies on evidence of officers who seized drugs proximate to the accused’s position in the vehicle as well as expert witness Staff Sargent Anderson who opined the quantity of drugs, along with the nature of other items seized, are indicative of trafficking. [ 4 ] The defence argues guilt is not the only reasonable inference available on the circumstantial facts of this case and that the crown fails to meet its onerous burden of proof beyond a reasonable doubt. The accused did not testify.

The Law [ 5 ] Because the crown relies on circumstantial evidence, I must not convict the accused unless I am satisfied that guilt is the only reasonable inference arising from the evidence. I need to consider conceivable inferences that would be inconsistent with guilt, even if they are not based on proven facts. The court’s assessment is grounded in logic and experience, not speculation. [ R. v. Villaroman , 2016 SCC 33 , [2-16] 1 S.C.R. 1000 ] [ 6 ] In order to prove possession, the crown must establish Mr. Peters had knowledge of the drugs and that he exercised a measure

of control over them. Exclusive possession is not a prerequisite. Joint possession with others is sufficient. Evidence [ 7 ] Constable Fisher approached the vehicle around 4:00 a.m. after the driver turned without signalling. Ashley Glaze was the driver and Mr. Peters was the front seat passenger. There was a male in the backseat. [ 8 ] A CPIC flag alerted police the vehicle is associated to Mr. Peters and of potential interest to police. Mr. Peters was subject to arrest on an unendorsed warrant. [ 9 ] Constable Dixon attended to assist.

When the front passenger door opened, a bag was visible on the floor between Mr. Peters’ feet. The officer suspected it contained crystal methamphetamine. Analysis after the fact confirmed the presence of 5.2 grams of methamphetamine. [ 10 ] During the arrest of Mr. Peters, he showed signs of impairment by drug; admitted smoking meth recently; attributed ownership of the meth in the vehicle to “Ashley”; and identified the presence of a “sword” in the vehicle. [ 11 ] Once the occupants were secure, a search of the vehicle ensued. [ 12 ] Constable Dixon was the exhibit officer. [ 13 ] Ms.

Glaze handed over two baggies from her sweater. Constable Fisher believed they contained small amounts of methamphetamine and marijuana. Analysis later determined she was in possession of cannabis marijuana but the other substance was indeterminate. [ 14 ] A package of unused “dime baggies” was concealed in Ms.

Glaze’s purse. [ 15 ] Police located a scale in the front console area. [ 16 ] Under the front passenger seat police seized a lunch kit containing men’s toiletry items, a pill bottle (prescription label obliterated) with 80 tablets later identified as low dose oxycodone (“Percocet”) and acetaminophen, another baggie of 1.6 grams methamphetamine, a baggie with a small amount of marijuana, and empty packaging material. [ 17 ] At Mr.

Peters’ feet, closer to the front of the vehicle than the bag of methamphetamine, police seized a propane lighter, which the expert witness identifies as a likely ignition source for smoking meth. [ 18 ] Police seized three cell phones; a business card size piece of paper detailing Mr. Peters’ iCloud account information; and further packaging materials inside the vehicle. [ 19 ] Lodged between the driver’s seat and the front center console, Constable Fisher located a bag he believed contained a further 3.4 grams of methamphetamine. Subsequent analysis was indeterminate.

This bag was not visible until the driver, Ms. Glaze, stepped out. [ 20 ] Police found a modified pipe containing a liquid substance in the rear passenger area. The expert witness examined the object and confirmed it to be a “meth pipe”. [ 21 ] A search of the trunk resulted in seizures of a machete; a bag containing rolling papers and packaging materials; and a SIM card identifiable to a female not present. [ 22 ] Staff Sargent Anderson’s expertise is evident from his qualifications; experience; and testimony. He confirms the meth trade is flourishing in Brandon.

End users tend to purchase meth at the point level. Upper range habitual hard-core use is approximately 2 grams per day. The total meth seized in this case is indicative of trafficking, not personal use. [ 23 ] Dealers typically price oxycodone per tablet. End users generally purchase what they require to get high. The quantity of oxycodone police seized is excessive and suggestive of trafficking. Destruction of the prescription bottle label is consistent with unauthorized possession. [ 24 ] The scale seized appears contaminated with meth shards.

Scales are an accoutrement of the drug trade to weigh meth and ensure profitability. Other tools of the drug trade seized in this case are unused packaging materials, machetes, and to a lesser extent cell phones. [ 25 ] Staff Sargent Anderson’s expert opinion, based on an assessment of the totality of the circumstances in this case, is that possession of the meth and oxycodone was for purposes of trafficking at the lowest level. Street level traffickers sometimes have drivers; often are users themselves; and do not always utilize score sheets.

Analysis [ 26 ] The evidence is straightforward and barely contentious. Two defence assertions require consideration. [ 27 ] First, the defence suggests it is conceivable police seized the 5.2 grams of meth from the driver’s seat area and the 3.4 grams of indeterminate substance from the front passenger seat floor but mistakenly reversed them when cataloguing the seizures. Constable Dixon conceded there were other officers involved in the search and that he did not indicate on the exhibit bag containing the 5.2 grams

of meth where it was located in the vehicle. [ 28 ] I do not have any doubt about where police located the 5.2 grams of meth. The search involved multiple officers but it was methodical and in accordance with an established procedure. Constable Dixon was the exhibit officer. Other officers assisted by searching and identifying items for seizure but Constable Dixon was the only officer to actually seize items. [ 29 ] Constable Dixon made notes to the best of his ability during the search and supplemented them after the fact.

He described laying out exhibits in the trunk of his police car in the order in which he seized them. He processed and assigned exhibit numbers to those exhibits before concluding his shift. There were not a large number of exhibits to manage. [ 30 ] Constable Dixon was the officer who first noticed and ultimately seized the 5.2 grams of meth. The exhibit numbers and seizures they denote flow logically with the officers’ evidence in terms of sequence of events. The observation that triggered the search was of the bag at Mr. Peters’ feet and exhibit #1 is the 5.2 grams of marijuana.

The bag of 3.4 grams unknown substance is exhibit #15 and follows all of the seizures from Ms. Glaze’s person and the passenger side of the vehicle where Constable Dixon himself was searching. [ 31 ] I am satisfied beyond any reasonable doubt that police seized the bag containing 5.2 grams of meth from the front passenger floor. [ 32 ] Second, defence says it is possible Mr. Peters had no knowledge of the 5.2 grams of meth at his feet because it was under the seat. Constable Dixon testified he noticed the bag between Mr. Peters’ feet as soon as the passenger door opened.

He conceded that in his notes he described the bag as being under the front passenger seat. [ 33 ] Certainly, the evidence suggests at least some portion of the bag may have been under the front passenger seat but Constable Dixon’s evidence that the bag was immediately visible upon opening the passenger door is compelling and determinative. I am convinced beyond a reasonable doubt the bag of meth at Mr. Peters’ feet was clearly visible to anyone standing outside the door and obvious to anyone getting into the vehicle. [ 34 ] The evidence supports an inference that Mr.

Peters had both knowledge and a measure of control over the methamphetamine and oxycodone seized proximate to his position in the vehicle. He admitted using meth close in time to the stop and was obviously under the influence. Other than a small amount of marijuana in Ms. Glaze’s possession, all of the drugs seized were within his reach. The vehicle was associated with him on CPIC and there was personal account information related to him located in the vehicle. Comments to police during arrest displayed knowledge of items in the vehicle including meth and a weapon.

There is expert opinion evidence that the totality of the circumstances indicates possession for the purposes of trafficking. [ 35 ] The defence asserts guilt is not the only plausible inference available on the evidence. Defence suggests it is plausible Ms. Glaze was in possession of the drugs for the purposes of trafficking; that she concealed the drugs under the passenger seat; and that an inattentive Mr.

Peters, high on meth, could not see them when he entered the darkened vehicle prior to the police stop. [ 36 ] While I am not constrained by proven facts in this assessment, I find this suggestion speculative beyond the evidence before me and implausible. Other than a small amount of marijuana, none of the drugs was within the reach or control of Ms. Glaze. The most valuable quantity of meth was not concealed from view. It defies logic and experience to accept a drug dealer would jeopardize her product in such a manner. [ 37 ] Joint possession with Ms.

Glaze is a plausible inference but I am unable to conceive of any plausible inference inconsistent with Mr. Peters’ guilt. The crown has proven beyond a reasonable doubt that Mr. Peters had possession of the methamphetamine and oxycodone in the vehicle. [ 38 ] Staff Sargent Anderson was a credible witness who provided highly reliable evidence. Cross-examination did not shake or alter his evidence and opinion. I am satisfied beyond a reasonable doubt that Mr. Peters’ possession of the methamphetamine and oxycodone was for the purposes of trafficking.

CONCLUSION [ 39 ] I convict the accused of possessing both methamphetamine and oxycodone for the purposes of trafficking pursuant to section 5(2) of the Controlled Drugs and Substances Act. “ORIGINAL SIGNED BY:” Associate Chief Judge S. Hewitt-Michta