R. v. Rushton Date:, 2014 BCPC 63

Citation: R. v. Rushton Date: 20140411 2014 BCPC 0063 File No: 89477-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SHANE RUSHTON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE POTHECARY Counsel for the Crown: A. Ip Counsel for the Defendant: J. Dunne Place of Hearing: Port Coquitlam , B.C.

Dates of Hearing: December 19 & 20, 2013 and March 12, 2014 Date of Judgment: April 11, 2014 [ 1 ] Shane Rushton is charged with three counts of possession of drugs, being methamphetamine, cannabis (marihuana) and codeine (methylmorphine), for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act. These events took place October 6, 2011 following the execution of a search warrant at Rushton’s residence in Maple Ridge. [ 2 ] The evidence in this case clearly establishes simple possession of all of these substances.

However, the issue that arises is whether or not sharing one’s drugs from time to time, without being paid, necessarily falls within the definition of trafficking in the Controlled Drugs and Substances Act , s. 2: “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; when the substance is kept for personal use but made available on a sharing basis to friends from time to time. Circumstances : [ 3 ] Numerous facts were admitted into evidence by way of an agreed statement of facts. However, other evidence was provided viva voce. Police testified about earlier surveillance of people coming and going from the apartment, including one who had a key, between the hours of 10:50 a.m. and 12:50 p.m. on September 21, 2011.

That evidence was relied upon for the search warrant. [ 4 ] The search warrant was executed on October 6, 2011 beginning at about 2:20 pm. Rushton was in the two-bedroom apartment and arrested along with other occupants. Two persons were with him in his room at the time and two or three more were elsewhere in the apartment. A quantity of drugs was located in various places throughout the apartment, including some in safes or lock boxes in Rushton’s bedroom.

Rushton had possession of the key for one of the boxes and offered it up to the police as well as the combination to the other when arrested. [ 5 ] Police seized the following items: three notebooks with columns of writing, including one from the living room near the television; an electronic safe from the bedroom containing a 39-gram bag of loose marihuana and 25 – one gram baggies of marihuana; a second safe or lock box containing a bag holding 11 grams of loose marihuana, another with 10.5 grams of loose marihuana, 19 - one gram baggies of marihuana and a small bag of codeine pills stacked in columns, 3 - 0.1 gram baggies of methamphetamine plus another 0.1 gram baggie of methamphetamine.

These quantities totalled: 104.5 grams of marihuana (64 grams in one safe and 40.5 in the other), 0.4 grams of methamphetamine and 22 codeine pills. Also located were two scales (one being a novelty item) and a marihuana grinder. In addition, found throughout the apartment were numerous identical small baggies with similar markings, some apparently used, others not. The grinder was seized but no rolling papers, lighters, pipes, needles, etc.

However upon close examination of the photographs, rolling papers could be seen as well as some baggies containing a sticker from Tag’s Dispensary, an establishment which dispensed medical marihuana to its customers. Police also located a Form B1 in the name of Rushton, stamped by a doctor in Maple Ridge, for him to use up to 20 grams of marihuana per day.

A pellet gun and bear spray were also found in the apartment. [ 6 ] In the opinion of an expert witness called by the Crown, while some of the marihuana was possessed for personal use, the balance of the marihuana and the other drugs were all possessed for the purpose of trafficking, particularly given the presence of the grinder, scales, packaging materials, and score sheets. It should be noted that at least one of the so-called “score sheets” was exactly that – for a game, not for drug sales.

That distinction was not made by the expert. [ 7 ] The expert agreed in cross-examination that he was aware that some people used marihuana for medicinal purposes, and sometimes in combination with other drugs or medications for synergistic effects to relieve pain. He also agreed that different strains of marihuana have different effects. When counsel reviewed the notes made alongside the numbers in the other books, the expert agreed that it was unusual in his experience for comments and notes to be written beside numbers on score sheets.

He further agreed that marihuana, if stored properly, can last for years, and even otherwise, can have a shelf life of a year. He also confirmed that the larger quantities located were in unusual amounts – not in street sale amounts. His primary concern regarding the codeine pills was that they were not in a prescription bottle.

He also did not expect that dealers would sell marihuana in used baggies and he did not know the minimum number of small baggies one could buy at a time. [ 8 ] The expert further indicated that according to the reports, there was no indication that any cell phones rang or that any of the others in the apartment had been found in possession of the same drugs or was known to be a drug user by the drug enforcement team. As well, there was no money located. Notwithstanding that information, and although finding it unusual, he did not modify his opinion. [ 9 ] Ruston testified on his own behalf.

He is 40 years old with a grade 7 education, and worked primarily in vinyl siding installation when able to work. He now has a criminal record, primarily for the offence of theft under, all of which post-date this matter. He was on probation at the time of this incident from a 6-month conditional discharge he received on May 6, 2011. Between the ages of 14 and 22, he worked as a skidder operator with his father during which time he broke both his wrists necessitating five surgeries. These

injuries have left him with chronic pain and reduced flexibility and strength in his wrists. He had knee surgery at 16, and developedsciatic problems and lower back pain, primarily from wearing a very heavy tool belt while on the job. As a result of the pain, he appliedfor a medical marihuana licence through his doctor. He testified that he had been using marihuana since the accidents to distract himfrom the pain.

In the past he used heroin as it was the only drug he found which took away the pain, and is currently taking methadonewhich along with the marihuana assists with pain relief. [10] Rushton began living at this apartment in August 2011 with a roommate, sharing the rent. Within a week of moving in, hisroommate became very ill with a staphylococcus infection which nearly killed him. He was in a coma for two weeks and developed one-side paralysis and flesh-eating disease. He remained hospitalized for 7 or 8 months.

The roommate wanted him to save his room forhim, so Rushton hit upon the idea, with his roommate’s consent, of subsidizing the rent by allowing short-term rentals, and preparingmeals for his guests for a fee. He testified that he charged $10/person per night for staying overnight, plus $5 or $10 per meal if theyate. He said that what the expert described as “score sheets” were in fact his records of what people owed him for rent and food.

Thelist appeared to overlap in places between the two books (the third was indeed used for games etc.) because, he said, one was typicallykept in the kitchen for his guests to access, and the other was his personal record. [11] He denied adamantly ever selling drugs although admitted that he regularly smoked his drugs with his friends and guests. Hetestified that when he first obtained his marihuana licence that he would buy from Tags Medical Marihuana Dispensary. They apparentlyhave ten or fifteen different grades or strains of marihuana, and the price was always $10 per gram, regardless of packaging.

Hedescribed always trying to have a variety available as he would need to switch frequently to maintain the effect. The marihuana that hefound to not be as effective was kept in the lock box; the more effective was kept in the electronic safe. He kept it secured to ensure thathis guests did not gain access to it. [12] He described his actual consumption in October 2011 as anything from one to twenty grams per day. He said that one of thescales looked like a cellular phone and was not reliable, essentially just a toy.

He used the other to ensure he was not being shorted whenbuying, and to divide what he had so that he would know how much was on hand and how long it would last, to prevent running out. Hecould also keep his marihuana fresher by not having to open the same bag so often so he would weigh it and portion it out. He said thathe made up some of the one-gram baggies and that he purchased some of the others. He described being able to buy the small baggies inminimum lots of 50 at a time.

He kept the pellet gun which was empty and broken and the bear spray for his own protection to scareaway anybody who might try to attack him. [13] He testified that the methamphetamine was his and that he used it from time to time by snorting it, although he was trying tostay clean. The codeine pills had been loaned to him by a friend as he had run out. He kept them as a last resort for pain relief, andwould take up to ten at a time. [14] He agreed that when he had guests at his apartment, if he was smoking marihuana, he would usually share it with them,commenting that it would be pretty rude not to.

He would maintain control of it at all times including control of the safe and lockbox. He would also sometimes share methamphetamine with certain of his guests. He added that he generally smoked at least one joint ofeach different kind of marihuana that he had per day, in order to maximize and vary the effect. [15] He testified that no one who stayed at his apartment or ate there did so for free. They would pay for it. Sometimes he would letthem have access to some of his marihuana when he was smoking, but he would not always even invite them in.

Analysis: [16] During submissions by counsel, I indicated that, following the principles in R. v. W.D. (SCC), [1991] 1 S.C.R.742, while I did not necessarily believe everything that Rushton stated during his testimony, I was not prepared to disbelieve it. As such,he was entitled to the benefit of the doubt that he kept these drugs for sale or, said another way, for the purpose of trafficking. Thisdoubt then outweighed the opinion of the expert called by the Crown.

However, I was still left with the issue of whether, by his ownevidence, he had admitted that his possession was for the purpose of trafficking by reason of the use of the word “give” in the definitionwhen he shared his drugs with guests in his home. [17] The issue has been even more narrowly phrased by defence counsel to speak only of the moment when he was found inpossession, as follows: at the time that the police executed the search warrant, was Rushton’s possession of one or more of thesesubstances for the purpose of “giving” some to other people, or was his possession only simple possession, notwithstanding that in thefuture he might well “give” some of his drugs to his guests.

Cases: [18] The following cases were provided to me by counsel: • R. v. Taylor (1974) (BC CA), 17 CCC (2d) 36, BCCA • R. v. Rogalsky [1975] S.J. No. 408, Sask CA • R. v. Johnston , Alta QB • R. v. Smith , BCSC • R. v. Munro 2003 SKPC 49 • R. v. Ward 2007 SKPC 142

[19] In R. v. Taylor, six schoolmates decided to purchase a quantity of hashish jointly. They were all heavy users and realized therewas an economic advantage in buying a larger quantity and dividing it amongst themselves after the purchase. Each paid his share of theproposed price to Taylor who purchased a quarter pound. Taylor and another of the six hid it where it would be accessible to all six. One evening, Taylor took it to his home hiding the larger portion in his basement and cutting off small portions to smoke with some ofthe others who were coming to visit and were part of the original six.

After smoking some of it, the police arrived and found a smallquantity on Taylor as well as one of his friends. In addition, the cache of the larger quantity was discovered in the basement. The friendpleaded guilty to simple possession. Taylor was convicted of possession for the purpose of trafficking (PPT).

The conviction wasupheld on appeal on the basis, as stated in paragraph 18, “The gravamen of the charge of trafficking is possession plus the intent orpurpose of physically making the hashish available to others, regardless of ownership.” The Court of Appeal found that even if therewas joint ownership with others, it did not, “alter the nature of the physical act of giving, delivering or distributing the narcotic to anotheror others,” thus constituting the offence.

It should be noted that at the time of this decision, there was a reverse onus in s. 8 of theNarcotics Control Act, such that a person found in possession of narcotics had to prove, on a balance of probabilities, that he did not havethem for the purpose of trafficking and the Court held that the trial judge found that Taylor had not discharged that burden. [It should benoted that this reverse onus was found to be unconstitutional in the decision of R. v. Oakes (SCC), [1986] 1 S.C.R. 103.] [20] In R. v.

Rogalsky, Rogalsky was charged with possession of cannabis resin contrary to the Narcotics Control Act and LSDcontrary to the Food and Drugs Act, both for the purpose of trafficking. The definition of “traffic” was different in the two Statutes withonly the Narcotics Control Act including the word “give”. Rogalsky testified that he had purchased the drugs for his own use butcomplied with the etiquette amongst drug users that one did not consume the drugs in front of others without offering to share.

The trialjudge accepted his evidence but found that “sharing” was included in “giving” and convicted him of PPT with respect to the cannabisresin but convicted him of possession only regarding the LSD. There was no discussion of the reverse onus. The appeal was dismissed. The reasoning regarding the Food and Drugs Act was followed in R. v. Johnston and R. v. Smith. [21] The Controlled Drugs and Substances Act (CDSA) came into force in 1996, replacing the Narcotics Control Act and parts of theFood and Drugs Act. [22] In R. v.

Munro, a search warrant was executed on Munro’s residence and a total of 63 grams of marihuana was located includingsome marihuana cigarettes. Munro was arrested in the residence. He stated when questioned that he had less than an ounce ofmarihuana in the house, or probably just over. When he was asked about some people who had arrived just before the police attended, hereplied, “Honestly, we were just going to roll a joint.” Asked if they paid him, he stated, “No, I’m a generous guy.” Counsel argued that“sharing” does not necessarily mean “trafficking” within the meaning of the CDSA.

The Court found, following Rogalsky, “that theaccused possessed the substance for his own use but would share it with others,” and that, “As held in Rogelsky, possessing cannabis forone’s own use but being prepared to share it with others establishes possession for the purpose of trafficking.” [ In the alternative, theCourt held that in considering all of the surrounding circumstances, PPT had been proven in any event.

In this case, I have alreadyexpressly ruled that the surrounding circumstances do not prove PPT beyond a reasonable doubt.] No mention was made of the reverseonus part of the ruling in Rogelsky. [23] Finally, in R. v. Ward, Ward was charged with two counts of PPT cannabis marihuana and cannabis resin as well as two countsof production of each substance. A grow-op containing 83 plants was located in the basement of a house which was owned by Wardalthough he was not living there at the time. He denied any knowledge of the grow-op, suggesting that it belonged to one of his tenants.

He denied selling marihuana and stated he had never smelled it in the house, perhaps as a result of an earlier nose injury. The trial judgehad a reasonable doubt about his possession of the grow-op and acquitted him of the production charges and PPT charge relating to thecannabis resin. However, he found that the small canister of marihuana (too small to have been quantified in the judgment) that he hadin his vehicle when he arrived at the residence and which Ward had said he bought to share with a friend was sufficient evidence to findhim guilty of possession of marihuana for the purpose of trafficking.

Analysis: [24] The issue in this case relates to the mens rea of “purpose of trafficking”. For it to make any sense, it was argued that there mustbe a temporal connection between the possession and the purpose. In other words, can someone who is in possession of marihuana forpersonal use, be found to have it for the purpose of trafficking if, at some time in the future, he may share some of it with others?

Noneof the cases provided to me addresses this aspect of the matter. [25] I am satisfied that the line of cases that follow Rogalsky can be distinguished on the basis that it was decided at the time of areverse onus clause, no longer in effect. The cases do not recognize that change and, in my view, are lacking in that respect. [26] A helpful analysis can be found in cases relating to the charge of possession of a weapon, a knife, for a purpose dangerous tothe public peace. A knife is an object that is ordinarily possessed for innocent purposes such as cooking, camping, fishing or fornumerous other activities.

But there are instances where the intent of the possession changes it from being an innocent object to aweapon and if it is concealed or intended to be used for a dangerous purpose, the law is broken. [27] One fairly recent discussion of intent in this regard comes from R. v. MacPherson and Oset 2005 BCSC 381 as follows: [44] Furthermore, as conceded by the Crown, because the knife does not prima facie fit the Criminal Code definition of “weapon”, theCrown must prove that the knife in this case was being concealed for an unlawful purpose. In R. v. Wees, [1992] B.C.J.

No. 302 (S.C.),Hardinge J. considered a case in which the accused was arrested for possession of cocaine for the purpose of trafficking, and a lock bladeknife with an 8 cm. blade was found in his trouser pocket.

In overturning the provincial court’s verdict of guilty, Hardinge J. identifiedthe appropriate test to be applied in such cases: In addition to the cases referred to by the trial judge, the question as to the nature of the intent the Crown must prove to support a chargeunder s. 89 of the Code, when an intrinsically neutral object is the subject of the charge, was dealt with by Wetmore, C.C.J. (as he thenwas) in R. v. Rene George Wilson, [1986] B.C.J. No. 1506, August 1, 1986, Vancouver Registry No. CC860003. In that case theaccused had been found with a pair of scissors concealed in the waistband of his trousers.

When asked what they were for he replied,

"protection". After reviewing a number of decisions including R. v. Marena Riding at the Door, supra, Judge Wetmore said at p. 7 of his reasons forjudgment: The test which seems to arise out of the cases is whether at the instant of discovery the possession is for a purpose of real apprehendeduse, or a mere speculation of a possibility of use.

Oset was acquitted of carrying a concealed weapon notwithstanding all the circumstances because of the inability of the Crown to proveintent based on this analysis at the time he was found in possession of the knife. [28] While these weapons charges are certainly different from the charge here, the discussion of present intent versus future intent is apt. In R. v. Halvorssen (1979) (BC CA), 46 CCC (2nd) 543, also referred to in R. v.

MacPherson and Oset (supra), Bull, J., stated, “The test applicable to such an intention of possession [of a knife] is a subjective one at the time in question.” Thesecases suggest strongly that the intention with which someone possesses something, be it a knife or marijuana, must be temporallyconnected to the time of possession. [29] Here the possession of the drugs is both proven and admitted. But Rushton has strongly denied that at the time of their beingfound in his possession, he had them for any purpose beyond personal use.

He admitted that he might share them in the future and thathe had shared them in the past, but that was a decision that he made at that time. [30] As stated above, I am not satisfied that the Crown has proven that the drugs were possessed for the purpose of trafficking basedon the surrounding circumstances, as a result of not rejecting Rushton’s evidence. Similarly, it was his evidence that at the time when hewas found in possession of the drugs, his only intention was to possess them for personal use.

Although he acknowledged a futurepossibility that he might share them with others, I do not find that that possibility is sufficient to prove intention at the time of the search. [31] Accordingly, on each count, I find Rushton not guilty of the charges of possession of the drugs and substances for the purposeof trafficking, but guilty of the lesser included offences of possession simpliciter with regard to all three counts. The Honourable Judge D. Pothecary Provincial Court of British Columbia