R. v. Mosterd, 2021 BCPC 291

Citation: R. v. Mosterd 2021 BCPC 291 Date: 20211129 File No: 90092-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JAKOB IVAR MOSTERD ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G.J. BROWN Counsel for the Crown appearing by teleconference: S. Gill Counsel for the Defendant: P. Derksen Place of Hearing: Abbotsford , B.C. Date of Hearing: November 4 - 5, 2021 Date of Judgment: November 29, 2021 [ 1 ] THE COURT: These are my reasons for judgment in R. v. Mosterd.

INTRODUCTION [2] Jakob Mosterd stands charged with possessing heroin/fentanyl, fentanyl, cocaine, and methamphetamine for the purpose oftrafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act. The allegations arose on July 24, 2019, in Abbotsford and thematter proceeded by indictment. [3] In my voir dire ruling on October 29, 2021, I found that the safety search of Mr. Mosterd's man bag did not constitute a Charterbreach and no evidence was excluded on that basis. In that ruling, I summarized the evidence of Sgt. Murray, Cst. Springman and Cst.Cartmell.

All that evidence went into the trial proper with the exception of any reference to Mr. Mosterd's criminal history, certainstatements made to persons in authority, and certain hearsay. My ruling can be found at R v Mosterd 2021 BCPC 271. [4] Consequently, there is no doubt that illicit drugs were found in Mr. Mosterd's man bag and his shirt pocket. The real issue at trialis whether Mr. Mosterd had these drugs for personal possession or for possession for the purpose of trafficking.

The Crown must provepossession for the purpose of trafficking beyond a reasonable doubt and an expert gave opinion evidence in that regard. [5] However, Mr. Mosterd also gave evidence. Accordingly, I must engage in a W.(D.) analysis on the credibility and reliability ofthe witnesses to establish whether or not the Crown has proven possession for the purpose of trafficking beyond a reasonable doubt. KEY EVIDENCE FROM THE VOIRE DIRE [6] As indicated, the evidence from the voir dire went into the trial proper with certain exceptions. I will not repeat my

summarycontained in my voir dire ruling. The key evidence is as follows. [7] During a safety search of Mr. Mosterd, Cst. Springman saw what she suspected to be a larger bag of crystal meth in the mainzipper of his man bag. The bag contained 7.3 grams of crystal meth, as analyzed by Health Canada. [8] Mr. Mosterd was placed under arrest and Cst. Springman then performed a search incidental to arrest. She located $475 cash inMr. Mosterd's pants pocket. In the man bag she located pills in a pill bottle which included Xanax, Elza pills, P 25 pills, acetaminophen,Trazodone, and Clonazepam.

The man bag also contained a rock of hash weighing 28.05 grams and a bag of Xanax. [9] A more thorough search of Ms. Mosterd was conducted at the Abbotsford police station. In Mr. Mosterd's shirt pocket therewere five baggies of cocaine weighing 2.5 grams, a baggie of heroin/fentanyl weighing .58 grams, purple baggies of fentanyl weighing5.26 grams, and 15 bags of crack cocaine weighing 6.93 grams. [10] Cst.

Cartmell confirmed the total weights as follows: 7.3 grams of crystal meth; 5.26 grams of fentanyl; .58 grams ofheroin/fentanyl; and 9.52 grams of cocaine. [11] A functioning scale was located in the man bag, and an airsoft revolver was found in the backpack. A Samsung phone and threeiPhones were also in the backpack. FURTHER CROWN EVIDENCE AT TRIAL Special Cst. Ward [12] Special Cst. Ward executed a search warrant on the Samsung cell phone found in Mr. Mosterd's back pocket. Exhibit 5 is theExtraction Report for the Samsung, and it has a list of contacts and text messages for the period July 17 to July 24, 2019.

The ExtractionReport also lists data files, some of which could populate automatically. Cst. MacDonald [13] In a second voir dire, I qualified Cst. MacDonald as an expert to provide opinion evidence with respect to controlled substancesand, in particular, their packaging, their value, their method of distribution and usage patterns. I found that his opinion would be relevantand necessary, to a degree, as the court requires assistance with subjects such as drug jargon, methods of drug distribution, and methodsof consumption. [14] Following R. v.

Mohan, (SCC), [1994] 2 SCR 9, I also found there was no exclusionary rule applicable to thisopinion and Cst. MacDonald was properly qualified. He had special drug course training and had experience in the field with significantfiles involving undercover scenarios and investigations. [15] Cst. MacDonald had not been qualified as an expert in court previously but that goes to weight. I appreciated that Cst.MacDonald worked in the same Abbotsford Police Department that investigated Mr. Mosterd, but he was not part of that investigation inany way. [16] In his direct testimony, Cst.

MacDonald stated that his role as an expert was to be unbiased. [17] Cst. MacDonald was given a hypothetical situation, very similar to the Crown's case at trial. A man is detained and a bag of 7.3grams of meth is found in his man bag. In his shirt is found five baggies of cocaine weighing 2.59 grams, one baggie of heroin/fentanylweighing .58 grams, 12 baggies of fentanyl weighing 5.26 grams, and 15 baggies of crack weighing 6.93 grams. Cash in the sum of $475was found in the pants pocket of this man, and there was rock hashish and pills in the man bag.

The backpack had a scale with fentanylresidue, and an airsoft gun. It also contained three cell phones. [18] According to Cst. MacDonald, the 7.3 grams of meth could be worth $200 to $240 as two eight-balls, or as much as $730 if soldas points. The five baggies of powder cocaine at 2.59 grams is worth $200, a half gram sells for $40. The one baggie of .58 grams ofheroin/fentanyl can sell for $80. The 12 baggies of fentanyl (5.26 grams) could sell for $805. The 15 baggies of crack cocaine weighing6.93 grams could sell for $580.

[ 19 ] The cash in combination with the other evidence is indicative of trafficking. The presence of a scale is indicative of a dealer who wishes to break down a bulk amount into smaller packages for sale. An airsoft revolver and a folding knife can be forms of protection from customers or rivals. The packaging seen in Mr. Mosterd's belongings is common for street-level sales. [ 20 ] Some of the pills found on Mr. Mosterd can help with withdrawal. [ 21 ] Cst. MacDonald also reviewed the text messages on the Samsung found in the backpack. This phone did not have typical drug customers' names.

There is a reference to a possible dealer, "LT Boss". [ 22 ] Text 179 is from Mario Personal saying, “I owe u a q (i.e. quarter) still.” In text 170, Mario Personal says he is "way too busy right now", i.e., to organize a drug transaction.

At text 169, there is an outgoing text to Mario Personal saying, “... been texting and calling since noon ... u can't even drop off the q u owe me," and refers to "ice" (meth) and also says, “need badly now.” [ 23 ] Text 160 is outgoing to LT Boss from “Jay, Tara's friend” (presumably the accused), requesting a quarter zip d (an ounce of down/fentanyl) and a quarter zip rock (crack cocaine). In text 158 LT Boss responds, “u want q of d and q of hard.” LT Boss is obviously a supplier or dealer. [ 24 ] In text 156, the outgoing caller (probably Mr.

Mosterd) says to LT Boss he has $950 cash on him right now and will spend $50 on side (meth) too. In text 155, LT Boss offers hard (crack cocaine) four for a quarter and a ball (eight ball) of d (fentanyl). The fentanyl is likely worth $400. LT Boss then says, "that's $800," presumably for the total. [ 25 ] Text 135 is a request to LT Boss for drugs. It appears the caller may be selling copper for cash. [ 26 ] In text 116, Tara is asking “do you have any d on you.” Cst. MacDonald opines that is a customer asking for down/fentanyl. She also asks for a side (meth) later.

I note that at text 114, the outgoing call presumably from Mr. Mosterd says, “I have nothing, hun Mario be here soon.” [ 27 ] Cst. MacDonald referred to text 105 to LT Boss where the caller says: Hey bro I got 200 left on me right now and I have 4 sales right now Can I give u the 200 and get a ball of d (fentanyl) and half b (ball) of side (meth) and some hard (crack) from you, bro.

I wanna work for u i have so many sales, bro I'll move the stuff so fast I promise you that if you can do that I'll stick with u My cheque is in my hand I'll let u hold onto it but my bank is closed I'll have 900 tomorrow and give it all tomorrow. This text was sent July 19, 2019, and Cst. MacDonald opined that the caller was applying to be some form of dealer. [ 28 ] In text 104, the caller says to LT Boss, “I know u don't know me all that well but I'll give you my cheque to hold on to...” Cst.

MacDonald said the caller was ingratiating himself with the supplier in order to get a drug line. [ 29 ] In text 90, the caller requests a half gram from Nig Jay. In text 75, the caller texts Tash and says, “be there shortly do u have rigs (needles) lol.” [ 30 ] In text 73, LT Boss is upset with the caller because he waited all day, and the caller had wanted a half ball for $200. In text 71, the caller texts LT Boss and says he will have 9 bills ($900) for a "good load up." Cst.

MacDonald says that means the caller is being loaded by the supplier. [ 31 ] In text 46 there is an outgoing text to Tash, “I have tons of kill dope (drugs). just got loaded up. I'll hook you up if you needed okay?” Also in text 44, the caller says, “I got killer Xannac and side (meth) and dizz whatever you need.” The caller offers Tash free side for a mistake made. [ 32 ] In text 35, there is a text to Nig Jay. The caller says his boss told him he was shorted $530.64 and he was going to pick it up.

He offers Nig Jay $100 for cashing a cheque, and with the $430, he was requesting $30 worth of d (down or fentanyl) plus $400 cash. [ 33 ] In text 27, Tash indicates she is "sick as fuck" i.e., drug sick. In text 14, Tash asks the caller if he has any dope and then says she's "dying," i.e., she needs drugs. [ 34 ] Looking at all these texts, Cst. MacDonald believed the caller was trying to facilitate drugs from a supplier for sales to customers. The other cell phones were not analyzed. [ 35 ] According to Cst. MacDonald, a heavy user would use 1.5 to 2.5 grams of powder cocaine per day.

A heavy user would use two to three grams of crack cocaine per day. With fentanyl, it is hard to estimate daily usage as the potency of fentanyl is variable. Fentanyl is cut with caffeine and the percentage of fentanyl in a baggie varies greatly. Fentanyl also affects people differently, depending on weight, gender and other factors. [ 36 ] Pure heroin is no longer on the street as fentanyl is cheaper and stronger. [ 37 ] Cst. MacDonald indicated that a purchaser usually only buys an amount for the day and will not buy much excess.

It is also uncommon for a user to mix stimulants like meth and cocaine with depressants such as fentanyl. In cross, he agreed that there are speedballs consisting of fentanyl and meth, but Cst. MacDonald said this is not common. [ 38 ] Also, Cst. MacDonald says that drug users typically have drug paraphernalia such as pipes, needles and spoons. [ 39 ] With respect to the drugs found on Mr. Mosterd, the 7.3 grams of meth equates to 182 doses, so this meth would last for many days. One dose lasts two to four hours.

The 2.59 grams of powder cocaine would be a one-and-a-half to five day supply, and users rarely buy powder and crack cocaine together. The .58 grams of heroin/fentanyl is probably a single dose. The 5.26 grams of fentanyl in 12

baggies is a multi-day supply. The 6.93 grams of crack cocaine is a three-and-a-half to four-and-a-half day supply, considering a medium user uses 1.5 to 2 grams a day. [ 40 ] Looking at the hypothetical in totality, Cst. MacDonald says it would be rare to have so many sizes and types of drugs for personal use. [ 41 ] In cross-examination, Cst. MacDonald agreed that Tash and Tara could be friends and not customers, even though they wanted drugs.

He also agreed there is no explicit reference to others buying drugs on this cell phone. [ 42 ] At text 69, the caller is offering Milwaukie tools and later LT Boss says he needs a circular saw. At text 160, the caller is offering to pay some of what Tara owed to LT boss. [ 43 ] In cross, Cst. MacDonald conceded that a careful drug user could use a scale to weigh out the fentanyl. He also agreed there was no evidence of score sheets. DEFENCE EVIDENCE AT TRIAL Mr. Mosterd [ 44 ] Mr. Mosterd is 31 years old and he has a son in Calgary.

He is currently on a Persons with Disability income of $1,415 per month. [ 45 ] When he was 17, he was involved in a serious motor vehicle accident and suffered spinal injuries. He was prescribed medication but he also abused cocaine. Mr. Mosterd was cut off his medication and found alternate sources including street drugs. [ 46 ] Mr. Mosterd has a bad drug addiction, but he was clean for four years when his son was born. That sobriety ended five years ago. He uses fentanyl, meth, cocaine, GHB, and magic mushrooms. [ 47 ] Mr. Mosterd has some issues with his mental health.

He suffers from PTSD, anxiety/depression and schizophrenia. His current prescription medications are Olanzapine, Seroquel, Trazodone and methadone. [ 48 ] When these allegations arose in July of 2019, Mr. Mosterd's drug use was really bad. He used fentanyl as a depressant and cocaine/meth as stimulants. He would smoke or inject fentanyl, inject meth and smoke crack cocaine. The injection of meth and fentanyl was the ultimate rush, a speedball. Mr. Mosterd consumed powdered cocaine at parties, and when he was alone he would smoke crack cocaine. [ 49 ] Mr.

Mosterd has a lengthy criminal record, largely due to his drug use. He would commit crimes to get drugs. [ 50 ] When Mr. Mosterd was arrested in July of 2019, all the drugs found were for his own consumption. He had purchased large amounts because he was going camping for four days. He estimated that he would go through the drugs he had in one to two days. [ 51 ] Mr. Mosterd was going camping with his girlfriend, Tara, and Mike Lopeke and his girlfriend. Mr. Mosterd had purchased the drugs earlier on July 24, 2019. He says he had tinfoil and a lighter to ingest the drugs. Mr.

Mosterd paid his dealer with a copied cheque which was to be held until he arranged payment. He owed $1200 to $1300 for the drugs, and that drug debt was due in five days. He planned to get the money by breaking into cars or committing other crimes. [ 52 ] Mr. Mosterd also had a business where he sold tools for cash. For example, LT Boss bought tools from him. Mr. Mosterd actually got a business licence for this business he ran with his father. He admitted to selling stolen property but the business went legit on October 1st, 2019, and he gave out receipts and had a tax program app.

His business is on Facebook. [ 53 ] Regarding Mr. Mosterd's Samsung cell phone, he sent out many of the texts but he also shared the phone with his girlfriend Tara. Mr. Mosterd bought drugs from LT Boss, Mario Personal and Nig Jay. Mr. Mosterd said he never sold drugs for any of these individuals. [ 54 ] Mr. Mosterd's girlfriend, Tara, used fentanyl and meth and she also smoked crack. Tash is an acquaintance of Tara. Tash used fentanyl, meth, and GHB. [ 55 ] Regarding texts 69 down to 61, Mr. Mosterd offered to sell tools to LT Boss and LT Boss was looking for certain tools.

Sometimes the tools would be sold for money but more often they were traded for drugs. [ 56 ] In texts 15 down to 11, Mr. Mosterd explained that he was not supplying drugs to Tash. She was simply asking if he had any because she was drug sick. [ 57 ] In text 105, Mr. Mosterd agreed that it seemed like he was offering to work for LT Boss selling drugs. Mr. Mosterd explained that when he needed drugs he said things like that. Within that text he offered a fraudulent cheque as collateral. He wanted to sound convincing by texting, "I have so many sales, bro.

I'll move this stuff so fast." Sometimes when you offer sales you can get cheaper prices. [ 58 ] In text 46 when Mr. Mosterd said to Tash, "I have tons of kill dope, just loaded up if needed, okay," he is saying he got a lot of drugs for the cash he had. He knew Tash was drug sick. He asserts that he did not send text 44 to Tash regarding killer Xanax and giving her free side for a mistake. He says Tash and Tara were having a dispute, and the communications were between them. [ 59 ] In data files 501, 503, 508, and 516, Mr. Mosterd was selling or looking for tools through his business. Mr.

Mosterd said that the other cell phones in his backpack were in rough shape or not operational. He was trying to fix them for resale. He said the small baggies were to hold jewellery. He had the airsoft gun to use when camping. The folding knife was for self-defence because he had been

assaulted three to four years ago. [60] In cross-examination, Mr. Mosterd was shown his six-page record which included offences such as breaches, a break and enter,mischief, theft under, drug possession, possession of stolen property, dealing with identity documents and fraud. Of course, the record isrelevant only to credibility not propensity. [61] In cross, Mr. Mosterd said he first used drugs when he was 15. His drug usage went from cocaine, alcohol, magic mushrooms,and ecstasy, to heavier cocaine and crack cocaine use. In his early twenties he began to use meth and heroin/fentanyl.

He has overdosedfive times and uses a scale to weigh out his portions. Mr. Mosterd also tried to commit suicide three years ago. [62] Mr. Mosterd generally tests fentanyl by smoking it and then weighing out a point or a quarter at a time. [63] In July of 2019 Mr. Mosterd was in a downward spiral. He was using fentanyl, meth, crack, coke, many times every day. If hetook a downer he would then take an upper. [64] In cross, Mr. Mosterd said he was homeless at the time and also rented out part of a basement suite on Emerson Street inAbbotsford.

He stated his business selling tools was an attempt to live a proper life. [65] Mr. Mosterd said in cross that he was leaving on July 24, 2019, to camp on Vedder Mountain for four days. He had cash to getcamping gear. There are photographs of the cheques Mr. Mosterd used as collateral to get drugs. Mr. Mosterd said the pills were for hisown use for anxiety and other issues. [66] In cross, Mr. Mosterd said the hash was for his own use as he had been consuming marihuana products since he was 15. Mr.Mosterd reiterated in cross that he did not have a large amount of drugs on him and they were for personal use.

He said he had tinfoil forthat purpose. He agreed he did not have a Naloxone kit. [67] On Mr. Mosterd's cell phone contact list, he said his dealers were listed as Derek Dealer, LT Boss, and Mario Personal. RyanScare Face was a friend and Brigg Merch bought merchandise from him. [68] In texts with Mario Personal (text 179), Mr. Mosterd reminded Mario that he owed him a quarter gram of fentanyl. He alsorequested drugs from LT Boss at text 160 and offered to pay half of what his girlfriend owed to get drugs faster. [69] At text 116, his girlfriend Tara was just asking for some down (fentanyl).

He replied that he had nothing and Mario would bethere soon. [70] In text 71, Mr. Mosterd said to LT Boss, "I'll call when I get full paper for a good load up, all right." He had $900 and wanted tobuy drugs but he said those drugs were not for resale. [71] In cross, Mr. Mosterd said he could use eight to nine grams of fentanyl in a day. [72] It was not Mr. Mosterd's intent to break down the 7.3 grams bag of meth for resale. Did Mr. Mosterd Possess the Drugs for Personal Use or for Trafficking? [73] As outlined above, there is no doubt Mr.

Mosterd was in possession of illegal drugs: 7.3 grams of crystal meth, 5.26 grams offentanyl, .58 grams of heroin/fentanyl, and 9.52 grams of cocaine. The only issue is whether he possessed those drugs for personal use orfor trafficking. [74] Because the defence provided evidence and there were some exculpatory text messages, this case requires an assessment of thecredibility and reliability of a number of witnesses, including the accused and Cst. MacDonald. [75] In a case involving credibility, the legal principles in R. v. W.D., [1991] 1 SCR 172 and R. v. H.(C.W.) (BCCA), 1991 68 CCC (3d) 146 apply.

I will enumerate those principles shortly but it is important to bear in mind that R. v. W.(D.) is not aone-size-fits-all magical incantation as discussed in R. v. Ryon, 2019 ABCA 36. [76] The fundamental rule is that the burden of proving guilt of the accused is upon the prosecution. Further, the principle ofreasonable doubt applies to issues of credibility as well as fact. It is not proper to view a decision in this case as an either/or choice.

Theverdict depends not on a stark choice of who was believed but whether the charge was proven beyond a reasonable doubt. [77] Applying the case law, the analysis in a credibility case such as this one should be as follows: 1. If I believe the accused's evidence denying guilt (or any other exculpatory evidence to that effect) I must acquit. Even in this first stepI should consider the exculpatory evidence in the context of the evidence as a whole: see R. v. Dinardo, 2008 SCC 24 , [2008] 1SCR 788 at paragraph 23. 2.

If after careful consideration of all the evidence I am unable to decide whom to believe, I must acquit: see R. v. H.(C.W.) above. 3. If I do not believe or am having difficulty believing the accused (or where applicable other exculpatory evidence) but I am left inreasonable doubt by it, I must acquit. This may occur where I neither accept nor reject exculpatory evidence but I am unsure whether theevidence is true or false: see R. v. Ryon above at paragraph 38. 4.

Even if I am not left in doubt by the evidence of the accused I must ask myself whether, on the basis of the evidence which I doaccept, I am convinced beyond a reasonable doubt by the evidence of the guilt of the accused. In short, mere rejection of the accused'sevidence or other exculpatory evidence cannot be taken alone as proof of the accused's guilt. I must assess the evidence I do believe.

[ 78 ] When I examine Mr. Mosterd's evidence in the context of all the evidence, it holds up to some degree. He was in possession of a relatively small quantity of drugs, albeit in many varieties and for multi-day use. He explained that he was a heavy user who would likely consume all the drugs he possessed in about two days. Text 154 reveals that he can easily spend $800 on one drug purchase and it seems clear his disability money mainly went to drug purchases. [ 79 ] Mr. Mosterd consumed both uppers (meth, cocaine) and downers (fentanyl/heroin). [ 80 ] Mr.

Mosterd was frank not only about his criminal record but also about his need to commit crimes to support his drug habit. I found his explanation about using baggies for jewelry to be weak. But Mr. Mosterd had no score sheets and, more to the point, none of the texts on his Samsung explicitly refer to him selling drugs to anyone. [ 81 ] However, I found Cst. MacDonald to be a good and fair witness. I accept his testimony about the value of the drugs. Generally speaking, the totality of the circumstances he reviewed pointed to possession for the purpose of trafficking.

There were a variety of drugs in packaging suitable for street sales and there was a scale. In answer to these circumstances, Mr. Mosterd says he is one of those heavy users who consumes drugs quickly, both uppers and downers, and he uses a scale as a consumer not a dealer. [ 82 ] Cst. MacDonald reviewed the texts and believed they demonstrated that Mr. Mosterd was offering to acquire drugs from a supplier for street sales to customers. Mr. Mosterd also had no drug paraphernalia, according to Cst. MacDonald, although Mr.

Mosterd said he had tinfoil and a lighter and not every miniscule item in the knapsack was catalogued. [ 83 ] In my view, the text messages contain both inculpatory and exculpatory evidence. Text 105 is damaging to Mr. Mosterd's defence because Mr. Mosterd is at least asking to become a street dealer for LT Boss. The Crown's theory is that he, in fact, becomes that dealer days later. But Mr. Mosterd testified that he sent this text as a desperate ploy to get more drugs. There is no text suggesting that LT Boss ever accepted Mr. Mosterd's offer and, furthermore, there is no text evidence of Mr.

Mosterd selling drugs to anyone. I see none of the typical requests for "40 hard" or "60 soft" and so on. [ 84 ] True, Mr. Mosterd's girlfriend asked him for down in text 116 but his response was "I have nothing hun Mario (a dealer) be here soon." Text 46 appears inculpatory, but Mr. Mosterd said that that text is between his girlfriend and Tash. As well, when he used the word "loaded" he meant he was loaded with drugs for use, not for resale. Mr. Mosterd's friends were as addicted as he was. [ 85 ] The texts do clearly reveal that Mr.

Mosterd bought drugs from a number of dealers including LT Boss, Mario Personal and Nig Jay. The cash in Mr. Mosterd's possession is said to be for drug purchases or possibly, in one instance, for camping gear. [ 86 ] If I had only the Crown's case to consider I may well have arrived at a different conclusion. But when I consider all the evidence in total, I have a reasonable doubt as to whether Mr. Mosterd possessed illegal drugs for personal use on a camping trip, or whether he possessed them for low-level street sales. I do not wholeheartedly believe Mr.

Mosterd, but his evidence and the text messages leave me with a reasonable doubt. [ 87 ] Mr. Mosterd's tale is a sad one, reminding us how desperate homeless drug-addicted people can become. I hope he can turn his life around. Mr. Mosterd, could you please stand up. [ 88 ] THE ACCUSED: Yes, Your Honour. [ 89 ] THE COURT: I find you not guilty of the charges as laid but I do find you guilty of the lesser included offence of simple possession of heroin/fentanyl, fentanyl, cocaine and methamphetamine under s. 4(1) of the CDSA . (REASONS FOR JUDGMENT CONCLUDED)