His Majesty the King - v. -, 2023 SKPC 15

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 15 Date: January 11, 2023 Information: 991167501 Location: Saskatoon _____________________________________________________________________________ Between: His Majesty the King - and - Denar Brandon Thomas Appearing: C. Ready and A. Goodman For the Crown N. Stooshinoff, K.C. and D. Martyn For the Accused JUDGMENT R.D. JACKSON , J I. INTRODUCTION [ 1 ] Denar Brandon Thomas was charged on or about July 23, 2021, at or near Saskatoon, Saskatchewan, in a three count Information as follows (paraphrased):

(1) Possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , SC 1996, c 19 [ CDSA ];

(2) Trafficking in cocaine, contrary to s. 5(1) of the CDSA ; and

(3) Possession of proceeds of crime, contrary to ss. 354(1) and 355 (

a) of the Criminal Code , of a value exceeding five thousand dollars. [ 2 ] Count 2 of the Information relating to trafficking cocaine was stayed by the Crown at the outset of the trial. [ 3 ] Prior to the commencement of evidence following submissions by counsel, defence withdrew its s. 8 Charter [1] notice relating to an alleged breach of unlawful search and seizure. [ 4 ] The Crown called nine Saskatoon Police Service (SPS) officers as witnesses relating to surveillance, vehicles and residence searches, circumstances of arrest, as well as expert evidence regarding drug trafficking and proceeds of crime. [ 5 ] The defence called the accused, Denar Brandon Thomas, and Spencer Ellis King as its evidence.

II. ISSUES [ 6 ] The issues for determination were narrowed by counsel at the conclusion of the trial. Defence conceded, by reason of the packaging and quantity of drugs retrieved in the vehicle search, that the cocaine located was possessed for the purpose of trafficking. [ 7 ] The only live issues then related to knowledge and control of the cocaine by the accused as driver and sole occupant of the subject vehicle, as well as proof of the requisite elements of possession of proceeds of crime regarding cash located on the accused and in the vehicle at the time of the stop, as well as his residence. III.

THEORY OF THE CROWN [ 8 ] The Crown posits that Mr. Thomas, in concert with others, was an integral part of a “dial-a-dope” cocaine trafficking enterprise operating over the spring and summer months of 2021 in Saskatoon. IV. THEORY OF THE DEFENCE [ 9 ] The defence position essentially is that Mr. Thomas was an unwitting dupe caught in the wrong place at the wrong time in incriminating circumstances. Rather than participating in cocaine trafficking, he was actually conducting a personal commercial business selling sports cards and unique athletic footwear to individuals who had responded to his online advertising.

Surveillance of him conducting short duration stops were in a borrowed vehicle utilized for personal meets for potential clients and that he was totally unaware of the presence of cocaine nor had knowledge of any criminal wrongdoing. V.

SUMMARY OF CROWN EVIDENCE The Surveillance [ 10 ] Mr. Thomas, along with others, including one Khadeem Brown-Ramkissoon, came to the attention of SPS in early spring 2021 via confidential informants regarding their potential involvement in a “dial-a-dope” cocaine trafficking operation ongoing in Saskatoon. The information received related to names, vehicle descriptions, nature of transactions, and mobile telephone numbers being utilized.

[ 11 ] As a consequence, SPS assembled surveillance teams in early June 2021 and obtained a mobile phone tracking warrant on July 6, 2021, relating to the number 306-261-1470 described as the “target phone”. Surveillance was conducted by various SPS members and teams on June 18 and 26, and July 6, 20, 21, 22, and 23. [ 12 ] On July 23, the ground surveillance was supplemented by air support, which video-recorded 18 short duration meets, involving the target vehicle, a Nissan Rogue (the “Nissan”), entered into evidence as Exhibit P-17. [ 13 ] Throughout the surveillance dates, Mr.

Thomas was the sole occupant and operator of the Nissan which was observed to make numerous short duration meets during this time. Additionally, at no time when the Nissan departed the residence of the accused, did the target phone appear to remain in the residence. The Arrest [ 14 ] Following the last video-recorded stop on July 23, the decision was made to effect the arrest of Mr. Thomas. Constable Paré accordingly conducted a traffic stop on the Nissan, and Mr. Thomas was arrested for the Criminal Code offences before the Court. [ 15 ] Located on Mr.

Thomas’ person was the following: a) $2000 Canadian currency, mostly in twenties, bundled in two rolls, bounded by elastics in the front left pocket of his shorts;

b) Wallet and contents containing $15 Canadian currency in front left pocket of his shorts;

c) Flyer material “folded up very small” [2] – found in right pocket located at scene in Nissan: a. black iPhone inside Adidas phone case with earbuds laying adjacent on the front passenger seat; b. black Samsung mobile phone inside driver’s door open compartment bearing the number, 306-261-1470 (the target phone);

d) Located at SPS Detachment inside hidden door panel accessed through bottom of driver’s side door handle: a. two socks, one black and one grey, containing sandwich-type plastic bags in which were individually wrapped packets of hard (crack) and soft (cocaine) as follows: i. 25 pieces of hard cocaine – 8.3 g; ii. 38 pieces of hard cocaine – 15.6 g; iii. 38 pieces hard cocaine – 14.9 g; iv. 38 pieces of hard cocaine – 14.8 g; v. 38 pieces of hard cocaine – 15.0 g; and vi. 4 pieces of soft cocaine – 1.1 g. b. wallet (no identification) containing various cards – one of which was for a business “Afro Queen” in Saskatoon and $820 Canadian currency. [ 16 ] Constable Vogel, who assisted with the arrest of Mr.

Thomas on scene, noted that the Samsung phone with the target number was laying inside the driver’s door pocket, plainly visible and accessible to the driver. Further, as she approached the Nissan “all (she) heard was the phone ringing and buzzing and that’s what alerted her to the door pocket – it was continually…buzzing and ringing – ringing off the hook with people’s names on it.” [3] [ 17 ] Subsequently, at SPS Detachment, Cst. Gilbertson conducted a thorough search of the Nissan.

He testified that the Nissan appeared remarkably clean on the inside, so he began to search for hidden compartments where drugs could possibly be located. He looked “behind panels or electrical equipment – anywhere where something can be concealed…I noted that the window assembly, door lock assembly on the driver’s side door armrest was loose…” [4]

[ 18 ] Constable Gilbertson then utilized a pry tool with an end similar to a staple remover to lift the assembly enough to grasp and lift it – approximately one inch he estimated. He used the pry tool, he explained, because he has no fingernails. He was able to lift the assembly “with ease” [5] and that he encountered no resistance in doing so “…it was simply just sitting there via gravity.” [6] [ 19 ] Once the assembly was lifted, Cst. Gilbertson was able to reach in and retrieve the two socks containing the packaged cocaine as well as the wallet holding $820 in cash. [ 20 ] In cross-examination, Cst.

Gilbertson acknowledged that he completed this aspect of the search with the door open and that he had not repeated it with the door closed. Further, he did not find any pry tool, screwdriver, or knife in the Nissan. The Residence [ 21 ] The residence of Mr. Thomas, located at 213 Willis Crescent, was searched July 23, 2021, incidental to arrest and yielded the following seized as evidence: a) $860 Canadian currency in the nightstand in Bedroom 1, identified as occupied by Mr. Thomas;

b) electronic scale in the same nightstand with trace elements of cocaine on the surface;

c) black Samsung mobile phone in Bedroom 1 closet;

d) black Motorola mobile phone on kitchen counter; e) $985 Canadian currency in living room; f) $115 Canadian currency on living room floor;

g) Samsung mobile phone on living room floor; and

h) SaskTel letter addressed to Mr. Thomas. [ 22 ] Otherwise, the searched premises were noted to be exceptionally clean and neat. No illicit drugs, score sheets or drug paraphernalia were found nor was there any evidence of crack cocaine production in the residence. [ 23 ] Photographic evidence (Exhibit P-2, Photo Number 0057) depicted 19 pairs of athletic shoes on a rack in Mr. Thomas’ bedroom closet.

The Target Phone [ 24 ] Sergeant Parisien of the SPS ultimately conducted a forensic examination of the mobile phone bearing the number 306-261- 1470, identified as the target phone, which was located in the Nissan at the time of arrest. [ 25 ] Sergeant Parisien was not tendered as an expert witness as his evidence involved what was located on the phone rather than offering any opinion evidence relating thereto. No objection was taken by defence in this regard. [ 26 ] Numerous references were found relating to suspected drug transactions (detailed in Exhibit P-19) as explained in the expert evidence of D/Cst.

Hartery, infra . Examples included: Kayla Kirb

Incoming: “I’m at Crackers. Come here. Im pulling out moneu ( sic ).” Outgoing: “I’m on my way. i got bought out so I had to run home quick.” Christie Rose Bets Incoming: “…Im mobile and I need 100 soft.” Alisha 3 Incoming: “…don’t even waste my time either. I got a life. Im not sitting here waiting on the dial a dope to roll in…” Chad Incoming: “any girls yet?” Mikey Cody Incoming: “A game of boys a bill for all rings right now…” … “hey bro can you help me with a couple of boys.

I will give you a ring for collateral.” Lawrence Jean Tait Incoming: “40” “80” Velva Incoming: “Do you have girls” 1-306-229-9446 Incoming: “Was wondering if you got half of boys n half of girls” [ 27 ] Sergeant Parisien was questioned in cross-examination as to the possibility of such text messages being generated from an outside third-party device rather than coming from the person actually possessing the target phone. He stated this was theoretically possible using appropriate software, however, there was no evidence from his examination of the phone that this was the case in this instance.

To the contrary, he testified, these messages according to his observations were going directly from device to device i.e. from the target phone to the recipient and not being generated from a third-party device, as suggested. He stated further that there was no software found on the target phone that would permit such third-party initiation of the text messages. Video Air Surveillance [ 28 ] The 18 video-recorded stops on July 23, 2021, by air surveillance contained in Exhibit P-17 have been carefully reviewed by the Court.

Particular note was made regarding the duration of time individuals were observed entering and exiting the Nissan, as follows: Stop One – John A. MacDonald Road 7:08:55 enters 7:09:19 exits -24 seconds

Stop Two – Walmart – Betts Avenue 7:25:23 enters 7:25:42 exits -19 seconds Stop Three – Lorne Avenue back alley 7:39:54 enters 7:40:20 exits -26 seconds Stop Four – Home Depot parking lot 7:50:48 enters 7:51:06 exits -18 seconds Stop Five – Second Street West 8:01:40 enters 8:04:45 exits -185 seconds Stop Six – Kensington Scotiabank 8:25:44 enters 8:27:01 exits -77 seconds Stop Seven – Stonebridge Sobeys 8:44:06 enters 8:44:57 exits -51 seconds Stop Eight – Lorne Avenue Back Alley 8:55:15 enters 8:55:28 exits -13 seconds Stop Nine – Carleton Drive 9:09:14 enters

-exit obscured by large tree and accordingly no time discernible Stop Ten – Second Street East 9:27:41 enters 9:28:30 exits -49 seconds Stop Eleven – 106 th Street West 9:44:31 enters -video stops and accordingly, no time discernible Stop Twelve – Preston Crossing 10:39:39 enters 10:40:55 exits -76 seconds Stop Thirteen – 115 th Street 11:01:42 enters 11:02:52 exits -70 seconds Stop Fourteen – Wedge Road 11:27:42 enters 11:29:22 exits -100 seconds Stop Fifteen – Carleton Drive 12:25:50 enters 12:46:33 exits -43 seconds Stop Sixteen – Tupper Crescent back alley 13:04:45 enters 13:06:17 exits -92 seconds Stop Seventeen – Confederation Mall Parking Lot (south)

13:30:20 enters 13:30:52 exits -32 seconds Stop Eighteen – Confederation Mall Parking Lot (north) 13:54:06 enters 13:56:14 exits -128 seconds At this stop, the Court also notes that the woman entering the Nissan appears to be carrying something in her right hand, although it is difficult to make out any detail. Upon her exit, however, she can be clearly seen carrying something white and rectangular in her left hand which may or may not be an advertising flyer as testified to by Mr. Thomas but nonetheless must be considered on the evidence as a whole. Expert Evidence [ 29 ] SPS D/Cst.

William Hartery was qualified to provide expert opinion evidence in methods of packaging, pricing, distribution, patterns of usage and availability of cocaine in Saskatchewan, language and jargon, paraphernalia, as well as the significance of cash and cell phones connected to the production, packaging, distribution, trafficking, possession, and use of cocaine. His report was tendered as Exhibit P-21. [ 30 ] D/Cst Hartery testified that cocaine was readily available in Saskatoon in hard (crack) and soft (powder) purchased commonly at the street level in gram amounts.

Crack cocaine, he stated, was commonly sold in “40 piece” or “80 piece” lots, which simply reflected the price of $40 (between 0.2 and 0.4 grams) and $80 (between 0.6 and 0.8 grams). Further, the street vernacular for hard cocaine (crack) is “boys”, and for soft cocaine (powder) is “girls”. [ 31 ] D/Cst. Hartery also testified that drug trafficking is almost exclusively a cash business, as it is difficult to trace. Typically, a dealer will have a large amount of cash on his person as a result. In his expert opinion, the cash seized on Mr.

Thomas ($2000) and found in the Nissan ($820) would be proceeds of crime, having a regard to his review of the facts and exhibits seized. [ 32 ] As far as packaging is concerned, D/Cst. Hartery testified that 177 pieces of pre-packaged “40 piece” cocaine is significant and consistent with possession by a dealer. He estimated the value of such amount to be $7080 (177 x $40) and believed that this cocaine was possessed for the purpose of trafficking. [ 33 ] Cell or mobile phones, he testified, are critical in drug trafficking operations as the main method of communication for arranging deals.

Dealers will often have multiple phones, including for personal use, and others dedicated to drug transactions. Phones are often changed, he explained, to avoid detection. [ 34 ] Further, D/Cst. Hartery testified that the absence of packaging materials in the target apartment of 213 Willis Crescent did not preclude the packaging being done there. Any such evidence could well have been discarded.

Finding such evidence would be difficult in a communal garbage bin utilized for a multi-dwelling complex, he stated. [ 35 ] As far as “dial-a-dope” operations were concerned, he described them as being a very organized method of trafficking. A dedicated line is used which houses the customers that are loyal to that line. Users will generally send a text or phone the line to arrange a deal. Sometimes the line will reach a “dispatcher” who may or may not be in a different province. If no dispatcher was involved, the line would go directly to the dealer.

Further, cocaine would be supplied pre-packaged for sale or in bulk for local dealers to package. Accordingly, the absence or presence of materials for cooking or packaging would not be determinative one way or the other in a dealer’s residence.

[ 36 ] Viewing and considering all of the exhibits and evidence seized, D/Cst. Hartery’s opinion was that the accused was conducting a “dial-a-dope” trafficking operation in cocaine. VI.

SUMMARY OF DEFENCE EVIDENCE Denar Brandon Thomas [ 37 ] Mr. Thomas is 33 years of age and ordinarily a resident of Toronto, Ontario. He came to Saskatoon in early 2021 for employment after being laid off from his job in Toronto working with Enterra, a waste management company. [ 38 ] He was able to find similar type work in Saskatoon with HS Enterprises doing snow removal, salting sidewalks, and landscape and yardwork in summer. He stated he was paid weekly and was always paid in cash.

His job was fulltime, eight hours a day, five days a week. [ 39 ] When he first moved to Saskatoon, he shared an apartment with Khadeem Brown-Ramkissoon, whom he had not known previously. He subsequently moved with Brown-Ramkissoon to 213 Willis Crescent in Saskatoon, owned by the same landlord as his previous apartment. He never saw Brown-Ramkissoon to be involved in any drug operation, nor was he himself so involved, he testified. [ 40 ] In addition to his work with HS Enterprises, Mr. Thomas testified that he ran a small business on the side selling sports cards and unique athletic footwear. [ 41 ] Mr.

Thomas’ business model, he explained, was to take pictures and list size and colour detail, all of which was then posted online in a flyer on Facebook Marketplace and Kijiji, along with his contact information. Potential customers would then phone or message him to arrange meetings to further discuss possible sales. In this regard, he had flyers printed up at Staples to post up in malls and bus stops and to provide to these potential customers when they met. This explained the short-term meetings over the summer months of 2021 observed by police, he stated. [ 42 ] To facilitate these meetings, Mr.

Thomas had to borrow a vehicle each time, as he did not own one himself. During these meetings, potential sales were discussed which would then have to occur later, as Mr. Thomas did not carry any inventory to these meet ups. The reason for this, he explained, was that in April 2021, he was robbed by two individuals in his vehicle of two pairs of shoes. He did not report this robbery to police because “I was just more in shock. I was just like, did this really happen, like, you know.” [7] [ 43 ] Mr.

Thomas disavowed any knowledge of the hidden door compartment in the Nissan or the cocaine or wallet containing the $820 cash, located therein. He stated further that he was unaware of the target phone found in the open driver’s side door panel of the Nissan, as he would have had his own ear pods in for his personal phone. He testified that he never used nor had spoken or texted on the target phone at any time. [ 44 ] Regarding the $2000 cash found on his person at the time of arrest, he stated this was for a car purchase he was contemplating that he had seen on Kijiji.

He was to meet the seller later that day and give him the cash to hold the deal for him, he stated. [ 45 ] On the day of the arrest, July 23, Mr. Thomas explained variously that during his meet ups, he had meetings, discussed potential sales, purchased cannabis (weed), including cannabis edibles (cookies), as well as attending his worksite to pick up his pay cheque. Spencer Ellis King

[ 46 ] Mr. King was initially called as a computer software expert to give opinion evidence relating to the ability to send text messages through a host phone from a third-party device. Following representations by counsel and discussions in open court, it was determined that Mr. King’s evidence was not required, as the Crown had conceded this point through the evidence of Sgt. Parisien. VII. DETERMINATION [ 47 ] The Crown’s case against Mr. Thomas, both that he possessed cocaine for the purpose of trafficking and proceeds of crime, is based upon circumstantial evidence.

No hand-to-hand cocaine sales were ever observed, nor was any person stopped or arrested who had been seen coming and going from the target Nissan vehicle. [ 48 ] In R v Olynik and Lupkoski , [8] this Court reviewed the law concerning circumstantial evidence and its proper application, at paras 13 and 14 of that decision: [13 ] The leading authorities concerning proof by way of circumstantial evidence was articulated by the Supreme Court of Canada in R v Villaroman , 2016 SCC 33 , recently canvassed by our Court of Appeal in R v Learning , 2019 SKCA 5 . [14] Scott, J in R v Paul Lister , 2021 SKPC 23 [ sic ] , succinctly set out the following template referencing these authorities when having to consider and evaluate circumstantial evidence, at paras 50 – 53: [50] When assessing circumstantial evidence, the Court should consider “other plausible theories” and “other reasonable possibilities” that are inconsistent with guilt.

The question is whether the circumstantial evidence, viewed logically and in light of human experience and common sense, is reasonably capable of supporting an inference other than that the accused is guilty: R v Villaroman , 2016 SCC 33 , [2016] 1 SCR 1000 , paras 37 , 38 [ Villaroman ] . [51] In R v Learning , 2019 SKCA 5 , [2019] SJ No. 8, para 24 , the Court of Appeal summarized the principles set out in Villaroman as follows: (a) “The inferences that may be drawn from [an] observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense” (at para 30). (b) “In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts” (at para 35). (c) “The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it.

If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt” (at para 35). (d) “[A] reasonable doubt, or theory alternative to guilt, is not rendered ‘speculative’ by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus , a reasonable doubt ‘is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence ’”: para 30 (emphasis added). A certain gap in the evidence may result in inferences other than guilt.

But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense” (at para 36). (e) “When assessing circumstantial evidence, the trier of fact should consider ‘other plausible theor[ies]’ and ‘other reasonable possibilities’ which are inconsistent with guilt” (at para 37). (f) “[T]he 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 with the innocence of the accused’…‘[O]ther plausible theories’ or ‘other reasonable possibilities’ must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation” (at para 37; emphasis in the original). [52] Therefore, to justify a conviction, the circumstantial evidence assessed in light of human experience should be such that it excludes any other reasonable alternative.

The alternative inferences must be reasonable, not just possible: Villaroman , para 41, 42 . [53] Further, the Court must be careful that the inferences drawn be distinguished from conjecture or speculation: R v Switucka , 2009 SKQB 260 , 336 Sask R 311. [ 49 ] These principles were revisited by our Court of Appeal in the recent decision of R v Morin , [9] a case which bears several parallels to this case before the Court concerning the determination of proof beyond a reasonable doubt based upon circumstantial evidence. In Morin , the accused was found in a vehicle with other occupants where drugs were located.

The quantity of cash found upon Mr. Morin, together with text messaging on his phone evidencing drug transactions according to expert evidence, dispelled his explanation that he was merely a user and that he had won the cash at a casino. In its decision, the Court reemphasized that the evidence must be such to prove that guilt was the only reasonable inference to be drawn on the totality of the evidence or “Put another way… that the evidence excluded any reasonable alternative to guilt.” [10]

[ 50 ] In addition to consideration of the law and its application relating to circumstantial evidence, since Mr. Thomas testified on his own behalf, the Court must view his evidence according to the principles espoused in R v W. (D.). [11] If the Court believes and accepts the evidence of Mr. Thomas, then he must be acquitted. Further, if the Court does not accept the evidence of Mr.

Thomas, the Court must nonetheless consider whether it is left in reasonable doubt by it, or alternatively, whether based upon the whole of the evidence which the Court accepts, the Court is left in reasonable doubt as to the guilt of Mr. Thomas. [ 51 ] For the reasons that follow, the Court does not believe or accept the evidence of Mr. Thomas, nor is it left in reasonable doubt by the evidence of Mr. Thomas or the evidence as a whole, viewed reasonably in all the circumstances. Further, the Court is satisfied on the entirety of the evidence that the guilt of Mr.

Thomas has been proven beyond a reasonable doubt based upon the principles established in Villaroman , Learning, and Morin , for the following reasons:

a) Mr. Thomas was the only person observed ever operating the target Nissan vehicle surveilled over multiple days throughout June and July, 2021;

b) The target phone located in the Nissan on the day of the arrest July 23, was linked to the Nissan throughout the surveillance. This phone was forensically examined and determined to have multiple messages relating to drug trafficking activity;

c) On the day of the arrest, Mr. Thomas testified that he borrowed the Nissan from Charles Todd (the registered owner) who was staying at 213 Willis Crescent. He recounted Mr. Todd, whom he described as “not really pals” to simply say “yeah sure” when he asked to borrow the vehicle. [12] This cavalier response from someone who, at best, could only be described as an acquaintance for a vehicle where a target phone in a dial-a-dope trafficking operation was left in plain access and view, as well as $7080 worth of pre- packaged cocaine and $820 cash was located, is completely unbelievable.

In R v Bains ; R v Pannu, [13] such a similar explanation where the accused claimed to have borrowed the vehicle where a significant quantity of drugs were found was not only rejected by the Court of Appeal but utilized to impute knowledge of the existence of the drugs, as set out at paragraph 157 therein: [157] Where the subject matter of which an accused is alleged to be in possession is a controlled substance of significant value, it may be open to a trier of fact to infer not only knowledge of the nature of the subject, but also knowledge of the substance itself… It is a reasonable inference that such a valuable quantity of drugs would not be entrusted to anyone who did not know the nature of the contents of the bag or other container.

d) The business model described in Mr. Thomas to sell his sports cards and athletic shoes is implausible and defies common sense. He testified that he advertised his products online, complete with descriptions and prices by way of his sales flyer. He would then be contacted by potential customers whom he would arrange to meet personally (in a borrowed car each time) in various remote locations to further discuss sales prospects. Such an awkward and redundant meeting purpose lacks any credibility whatsoever.

Moreover, his explanation for not carrying inventory to execute sales at these meet ups because he was robbed in April 2021 by two individuals, again, lacks any credibility considering at no time thereafter did he report such incident to police explaining that he failed to do so because he was “in shock”;

e) Ground surveillance prior to the arrest date noted short duration meets. The air video surveillance on July 23, however, offered the Court the ability to observe with precision the duration of these meetings. Many lasted well under a minute, or just over, offering very little, if any, time to have discussed potential shoe or card sales which would have been the purpose of the meet according to Mr. Thomas’ description of his business model. Rather, such short duration meets of this nature would be much more conducive to quick drug sales transactions as testified to by the Crown witnesses;

f) Mr. Thomas testified that he worked essentially full time at HS Enterprises “eight hours a day, five days a week” and was always paid in cash. Yet, he was never observed going or coming from work. To the contrary, he was surveilled on multiple days in June and July, making numerous short-duration meets in the Nissan throughout the course of the day. He also testified that on the day of the arrest, one of his stops was to pick up his pay cheque – notwithstanding that he stated earlier that he was always paid in cash.

Also, he testified to making several purchases on July 23 at his meet ups of weed, cannabis cookies, and specific sports cards. None of these items, however, were located on his person in the Nissan, or are evident in any of the photographs taken at 213 Willis Crescent;

g) Mr. Thomas claimed to not have any knowledge of the target phone found in the open side door panel of the Nissan upon his arrest. Constable Vogel testified, however, that the constant ringing and buzzing of this phone is what alerted her to it as she engaged the accused. Even if Mr. Thomas was wearing earbuds throughout as he claimed, he made eighteen recorded stops where he engaged individuals and would have had to remove his earbuds to do so. The claim that he would, at no time, have heard or been aware of the target phone is accordingly simply not credible.

Further, as set out below, the evidence satisfies the Court that not only was he aware of the target phone but that he was actively using it on July 23;

h) Mr. Thomas stated that at no time did he ever phone or text from the target phone. However, on July 23, the air surveillance video (Exhibit P-17) exactly matches up with the text messages on the target phone (Exhibit P-19) on two occasions showing the target phone texts directing the individual to the Nissan:

Stop Three (07-23-2021) Lorne Avenue Back Alley 7:33:08 – incoming: “I’m walking from Circle K.” 7:33:21 – target phone text: “K.

Ill wait” 7:33:34 – incoming: “Your (sic) in the back” 7:34:07 – target phone text: “Yes” 7:39:54 – air surveillance shows person walking through backyard at 1604 Lorne Avenue and entering the Nissan 7:40:20 – person exits the Nissan and Nissan departs Stop Eight (07-23-2021) Lorne Avenue Back Alley 8:37:27 – target phone text: “on my way” 8:53:31 – target phone text: “here” 8:55:15 – individual enters Nissan parked behind 1604 Lorne Avenue 8:55:28 – individual exits Nissan, and Nissan departs Mr. Thomas was the sole occupant and operator of the Nissan when these meets occurred.

Defence counsel invites the court to consider the possibility of a third-party user utilizing the target phone as a “host” for the text messages rather than the target phone itself initiating the text messages. Although such is possible with the appropriate software as conceded by the Crown, there is absolutely no evidence that this could have occurred here. Sergeant Parisien was definitive that the text messages were directly device to device, such that outgoing messages came from the target phone itself.

Moreover, the content of the text messages reflect directions to the Nissan’s location, so obviously would not be emanating from some third-party source. The only logical inference to draw is that the accused was conversing through these texts as the sole occupant of the Nissan at the time;

i) The secret compartment containing the concealed cocaine and cash in the Nissan was cleverly constructed and obviously designed to be accessed by the operator of the motor vehicle. The driver’s side window mechanism was directly adjacent to the driver and sat loose held by gravity. The concealed compartment was readily and easily accessed by reaching into the compartment. The drugs located in socks would facilitate their retrieval. The fact that Cst.

Gilbertson initiated the lifting of the panel with a pry tool because he did not have fingernails does not, in viewing its design and location, in any way diminish the likelihood that Mr. Thomas was able to access this compartment particularly when viewing all the evidence as a whole regarding his activities on the arrest date; and

j) The $2000 cash in mostly 20 dollar denominations found on Mr. Thomas in bundles held by elastics, according to D/Cst. Hartery’s expert evidence, and again looking at all of the evidence as a whole, leads to no other reasonable conclusion than these monies were the proceeds of crime. Similarly, the $820 cash found in the wallet in the secret compartment given the overall circumstances would also be proceeds of crime. The same cannot be said for any cash found in the residence at 213 Willis Crescent either in Mr. Thomas’ room or the living room, where apparently Charles Todd had been located.

The evidence falls short of proving beyond a reasonable doubt that any of these monies were proceeds of crime. VIII. CONCLUSION [ 52 ] Section 2(1) of the CDSA incorporates the definition of possession found in s. 4(3) of the Criminal Code , which can include personal, constructive or joint possession, the essential elements of which are knowledge and control over the substance in question. [ 53 ] The Crown in this case relies upon the doctrine of constructive possession.

In R v Morelli , [14] the Supreme Court of Canada held that constructive possession is established where the accused holds the substance in actual possession or custody of another person, or in any place, whether belonging to the accused or not, for the benefit of the accused or someone else. [ 54 ] In this case, the defence has conceded that the drugs found in the Nissan were contained and packaged for the purpose of trafficking, the only live issue being the knowledge and control of Mr.

Thomas. [ 55 ] For all the reasons stated herein, when considering the evidence as a whole, viewed logically and in light of human experience and common sense, the Court is satisfied beyond a reasonable doubt that Mr. Thomas had knowledge and control of the cocaine located in the Nissan, and that no other reasonable alternative has been advanced on the evidence. Accordingly, the Court determines Mr.

Thomas was in constructive possession of the said cocaine. As noted previously, the elements of such possession being for the purpose of trafficking have been conceded by defence and, in any event, have been so proven beyond a reasonable doubt on the evidence. [ 56 ] Further, the $2000 cash found upon Mr. Thomas and $820 in the wallet in the secret compartment in the Nissan totaling $2820 were proceeds of crime based upon the only reasonable conclusion to draw when viewing the evidence as a whole, including the expert evidence of D/Cst. Hartery. [ 57 ] Mr.

Thomas is found guilty on Counts 1 of the Information of possession of cocaine for the purpose of trafficking and of Count 3 of the included offence of possessing proceeds of crime of a value not exceeding $5000. [ 58 ] The Court will now entertain sentencing submissions for Mr. Thomas for those offences for which he has been found guilty herein. ____________________ R.D. Jackson, J.