Her Majesty the Queen - v. -, 2017 SKPC 084

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 084 Date: October 6, 2017 Information: 90117070, 90117072, 90117073 Location: Buffalo Narrows _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kut Deng, Abdirizak Yussuf, and George Chartier Appearing: Gerald Perkins For the Crown Ian Mokoruk For the Accused, Kut Deng Blaine Beaven For the Accused, Abdirizak Yussuf Gregory Chovin For the Accused, George Chartier DECISION M.

MARTINEZ , J Introduction [ 1 ] Kut Deng, Abdirizak Yussuf, and George Chartier, are jointly charged in Information 90117070 [ Info 070 ] of possessing crack cocaine for the purpose of trafficking [ possession for the purpose ], contrary to s. 5(2) of the

Controlled Drugs and Substances Act [ CDSA ]. [ 2 ] Mr. Deng and Mr. Yussuf face additional charges arising from the events from which the possession for the purpose charge arose. Those charges appear in Informations 90117072 [ Info 072 ] and 90117073 [ Info 073 ]. I will address the latter alleged offences after I deal with the possession for the purpose charge. The Facts and Evidence [ 3 ] Mr. Chartier lives in Buffalo Narrows, Saskatchewan. At the material time, Messrs.

Deng and Yussuf, as well as a fourth co-accused, K.K., who is a teenage girl, were his house guests. [ 4 ] Members of the Buffalo Narrows R.C.M.P detachment suspected that all of the co- accused were involved in trafficking crack cocaine from Mr. Chartier’s home. The police planned to execute a search warrant at Mr. Chartier’s house on July 16, 2017. For this reason, several police officers kept a close watch on his home for several hours before the planned early morning raid. [ 5 ] None of the officers who watched the comings and goings from Mr.

Chartier’s house, and who testified at trial, noted any activity that might be considered consistent with illicit drug trafficking. [ 6 ] R.C.M.P. officers arrested K.K. at the home of Mr. Chartier’s next-door neighbour, the night before the raid, and others arrested Mr. Chartier after he took out the trash the next morning. Only Mr. Deng and Mr. Yussuf were left in Mr. Chartier’s house when the R.C.M.P. Emergency Response Team breached its front entrance. The police found the two men sitting in the main floor living room. [ 7 ] During their search of Mr.

Chartier’s house, the police seized 15 grams of crack cocaine, which, according to the Crown’s expert witness, was packaged for sale. The packaged cocaine was found stuffed in a sock hidden in the attic. A small electric scale containing what appeared to be cocaine residue and a box of plastic baggies typically used for packaging crack cocaine for sale, were found hidden between the mattresses of a bed located in an upstairs bedroom. The police found and seized only one cell phone in Mr. Chartier’s home. The cell phone appears to have belonged to K.K.

It contained a couple of messages that the expert witness said might be related to past drug transactions. [ 8 ] When the police arrested Mr. Deng, he was carrying $1,800.00 in $20.00 bills on his person. Similarly, Mr. Yussuf possessed a significant sum of money in cash ($1,220.00). [ 9 ] Although they did not testify at trial, Mr. Deng and Mr. Yussuf gave statements to the R.C.M.P. which the Crown entered into evidence at trial. In their recorded statements, both men denied involvement in any drug trafficking and denied knowing anything about an illicit substance being in Mr. Chartier’s home. Mr.

Chartier also did not testify at trial. If he gave a statement to the police, the Crown did not enter it in evidence. [ 10 ] K.K. plead guilty to possessing cocaine for the purpose of trafficking before I heard the trial of her three co-accused. K.K. is serving a youth custodial sentence for her crime. Info 070: Law, Analysis, and Verdict

[ 11 ] In arriving at my decision on the possession for the purpose charge, I had the benefit of reviewing Judge Anand’s decision in R v April , 2017 SKPC 42 [ April ]. I thank the Crown prosecutor for bringing the case to my attention. [ 12 ] In April , at paragraphs 27 through 37, Judge Anand thoroughly reviews the law as it pertains to the meaning of “possession” in the context of s. 5(2) of the CDSA . In order to prove that an accused person possesses an illicit substance, the Crown must prove the accused not only knew of the substance and of its general location, but that he or she had some measure of control over it. At paragraph 38 of his decision, Judge Anand provides a useful

summary of the applicable law: … The knowledge element of possession, which can be satisfied by virtue of the doctrine of wilful blindness, requires that the accused have knowledge of the nature of the substance or material in question, but the accused need not know the precise nature of the substance or material as long as knowledge of the substance or material’s illicit character is established. In addition, the knowledge element of possession requires that the accused know, or be wilfully blind to, the general location of the substance or material in question within a building, receptacle, or place.

The control element of possession, which requires that the accused must be able to exercise some measure of control over the substance or material, is satisfied if the accused has the ability to decide what will be done with the substance or material. To have this ability, the accused or someone he or she has authority to direct would have to know precisely within a building, receptacle, or place where the items are located. … [ 13 ] The Crown’s case is entirely circumstantial. There is no direct evidence linking any of Messrs.

Deng, Yussuf, or Chartier to the crime K.K. admitted committing. [ 14 ] The Crown’s theory is that all four co-accused were involved in the cocaine trafficking business and that the circumstantial evidence leads to no other rational conclusion. Defence counsel disagree. All three point to K.K.’s guilty plea and to the fact that someone took care to hide all evidence of drug trafficking.

They argue that a reasonable inference I can draw from the evidence, and from K.K.’s admission of guilt, is that she is the one who hid the evidence of drug trafficking and that she acted alone, without any of their clients being any the wiser. [ 15 ] The Crown bears the burden of proving its case beyond a reasonable doubt. In a case in which the only evidence tying an accused to a crime is circumstantial, the Crown’s evidence must lead to no rational conclusion other than that the accused is guilty.

If a reasonable inference can be drawn from the Crown’s evidence that is consistent with the accused’s innocence, whether or not there is evidence to support such an inference, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt; see R v Villaroman , 2016 SCC 33 at paras 35-37 , [2016] 1 SCR 1000. [ 16 ] In the case before me, all evidence of cocaine trafficking was hidden from view: either in the attic of Mr. Chartier’s house or underneath a bed mattress. Unlike the facts in April , nothing else tied to drug trafficking was found, in plain view, anywhere in Mr. Chartier’s house.

There also is no evidence that any of the co-accused slept in, or regularly were in, the bedroom where the scale and baggies were hidden. [ 17 ] On this evidence, I cannot find that Mr. Chartier was aware of, or wilfully blind to, the fact that someone in his house was trafficking crack cocaine. More importantly, one reasonable inference I can draw from the evidence is that Mr. Chartier knew nothing at all about it because the admitted drug trafficker, K.K., hid the cocaine and other evidence of trafficking from him. For this reason, in relation to Mr.

Chartier, the Crown has not proven beyond a reasonable doubt the knowledge component of possession for the purpose of trafficking. Without knowledge there cannot be control and for these reasons, I must acquit him. [ 18 ] I now turn to Mr. Deng and Mr. Yussuff. The explanations they gave in their recorded statements about why they were in Buffalo Narrows were, at best, unconvincing. In fact, I find their presence in Buffalo Narrows to be extremely suspicious as neither has any connection to the community.

In addition, it is very suspicious that both men were carrying unusually large sums of cash on their persons when they were arrested. However, there is nothing unlawful about these men being in Buffalo Narrows, nor is it illegal for someone to carry large sums of cash.

[ 19 ] Ultimately, the onus is not on these accused to explain why they were at Mr. Chartier’s home, nor is the onus on them to explain why they were carrying so much money. The evidentiary burden remains on the Crown to prove its case against them beyond a reasonable doubt. [ 20 ] Once again, one reasonable inference I can draw from the evidence is that Mr. Deng and Mr. Yussuf knew nothing about K.K.’s drug trafficking activities because she hid it from them.

As such, the Crown has not met its evidentiary burden of proof beyond a reasonable doubt and I acquit these co-accused of the offence with which they are jointly charged in Info 070. The Remaining Charges [ 21 ] In separate Informations, Mr. Deng and Mr. Yussuff are charged with possessing Canadian currency knowing that the money was the proceeds of an indictable criminal offence. As that indictable offence is the crime of which I just acquitted them, and as carrying large sums of cash is not illegal, I also must acquit them of this offence. Specifically, I acquit Mr. Deng of count 5 in Info 073 and Mr.

Yussuf of count 2 in Info 072. [ 22 ] Mr. Deng has three charges remaining in Info 073. All are breaches of conditions contained in his Alberta recognizance. [ 23 ] The first, count 2, charges that he failed to keep the peace and be of good behaviour by being arrested in a residence where trafficking of a controlled substance was taking place. I doubt that it is unlawful for someone to simply be arrested in a place where drug trafficking is going on, especially when the Crown has not proven beyond a reasonable doubt that Mr. Deng knew about K.K.’s drug trafficking.

Further, while there is clear evidence that K.K. trafficked cocaine, there is no evidence that she actually sold it from Mr. Chartier’s home, which I believe would be a required element of his residence being “a residence where trafficking of a controlled substance was taking place .” For these reasons, I acquit Mr. Deng of this count. [ 24 ] The next count, number 3, charges that Mr. Deng breached his recognizance by being in contact with K.K. contrary to the exceptions contained in his recognizance. Those exceptions included being present in court at the same time as her or when a lawyer is present.

On the evidence before me, I find him guilty of this offence. [ 25 ] Finally, for reasons which by now are readily apparent, I acquit him of count 4 which charges him with breaching his recognizance by being found in possession of crack cocaine.

__________________________ M. Martinez, J.