R. v. McLean, 2019 BCPC 48

Citation: R. v. McLean 2019 BCPC 48 Date: 20190326 File No: 98816 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ERZSBET McLEAN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE McQUILLAN Counsel for the Crown: D. Novakovic Counsel for the Defendant: J. Thorhaug

Place of Hearing: Port Coquitlam , B.C. Date of Hearing: January 24 - 29, 2019 Date of Judgment: March 26, 2019 [ 1 ] Erszbet Mclean is charged by indictment with 5 counts under the Controlled Drugs and Substances Act (“ CDSA ”) and under the Criminal Code . Those counts are as follows: 1. Possessing methamphetamine for the purpose of trafficking on September 29, 2016, contrary to section 5(2) of the CDSA . 2. Possessing fentanyl and methylfentanyl for the purpose of trafficking on September 29, 2016, contrary to section 5(2) of the Criminal Code . 3.

Three counts of possessing property having a value of less than $5000 knowing that the property was obtained by commission of an offence punishable by indictment, contrary to s. 354(1) of the Criminal Code .

Those 3 items were a Dell Laptop, a Cannondale bicycle and an IPad Air. [ 2 ] In final submissions the crown advised that given the evidence at trial, it is not proceeding on the possession for the purpose of trafficking charge regarding methamphetamine (count 1) but rather seeks a finding of guilt with respect to the lesser offence of simple possession of methamphetamine, contrary to s. 4(1) of the CDSA . [ 3 ] As the crown sought to adduce a statement made by Ms. McLean to police officers, a voir dire was declared to determine its voluntariness.

At the conclusion of the voir dire, counsel agreed that all admissible evidence on the voir dire would become part of the trial proper. In accordance with that process the evidence for the crown consisted of the testimony of 6 police officers, one of whom was qualified as an expert. Admissions of fact, a number of documents and the audio and video recorded statement of Ms. McLean were also admitted into evidence during the trial. Ms. McLean elected to not testify or call any evidence.

FACTS [ 4 ] At approximately 9:00 AM on September 29, 2016 Coquitlam RCMP executed a search warrant on a residence at 1526 Grant Avenue, in Port Coquitlam, B.C. The search warrant was the culmination of a drug investigation which included some surveillance of the residence. [ 5 ] Entry to the residence to execute the search warrant was conducted by members of the Lower Mainland Emergency Response Team (“ERT”). That was effected by breaking in both the front and rear doors to the residence. There were four bedrooms in the residence.

When members of the ERT team entered the residence, one of the members, Constable Long, proceeded through the living room and went down a hallway to the door to the master bedroom. The door to that bedroom was locked so Constable Long kicked in the door. Upon entering, he discovered Ms. McLean in the bedroom, crouched down behind the bed. She then complied with Constable Long’s instructions to raise her hands above her head and exit the room into the custody of another ERT officer. [ 6 ] Ms.

McLean was then handed off to the custody of ERT officer Constable Kizinkewich who obtained her name and date of birth and arrested her for possession for the purposes of trafficking. He handcuffed her with zap straps and maintained custody of her until the residence was safely cleared. She was then returned to the master bedroom where she had originally been found, and was handed off to the custody of Coquitlam RCMP officer, Constable Kadkhoda, who again arrested her and advised her of her Charter rights. [ 7 ] Seven other individuals were also found in other rooms in the residence upon entry by ERT officers.

All were arrested and transported to the police station. [ 8 ] After transporting individuals to the police detachment, Constable Blakeman and Constable Kadkhoda returned to the residence and conducted a search of the master bedroom and attached ensuite bathroom and seized a number of items. [ 9 ] The master bedroom contained a bed in the centre of the room, with considerable clutter, consisting of mostly clothing, on the floor surrounding the bed. A dresser and one or two bedside tables were also in the bedroom. A small ensuite bathroom was accessible from the master bedroom by a door.

The ensuite bathroom was also accessible by another door on the opposite side of the bathroom. However, that door was locked, with furniture placed in front of the door on the bathroom side, indicating that it was only to be used by the occupant of the master bedroom. In fact a sign on the bathroom side of the door told readers to not ever open that door. [ 10 ] No drugs or drug paraphernalia were in plain view in either the master bedroom or the ensuite bathroom. However, a number of items were located and seized in the search of the master bedroom and ensuite.

They included a sunglasses case which was found on the bed, which contained 2 meth pipes as well as two small baggies containing a total of 1.0 gram of methamphetamine. A baggie containing 0.4 gram of methamphetamine was found inside a jewellery container in the master bedroom. The jewellery container also contained a small electronic scale. A baggie containing 0.1 gram of methamphetamine was found in the night stand.

A second sunglass case containing 2 meth pipes was also found on the floor near the bathroom door. [ 11 ] Inside the ensuite bathroom officers located and seized another sunglass case which contained a meth pipe. They also located and seized a plastic container in the bottom drawer of the bathroom vanity. That container held clear plastic baggies which in turn contained small flaps which held .8 gram of fentanyl/methylfentanyl and caffeine. Another two baggies contained a mixture of fentanyl/methyfentanyl weighing 6.0 grams. The plastic container also contained a baggie with 1.7 grams of methamphetamine.

The container also contained a number of empty unused small Ziploc bags, or dime, bags and a baggie containing 0.3 gram of cocaine. [ 12 ] I note parenthetically that the drug expert in this trial, Sergeant Rettie, described methylfentanyl as an analogue or derivative of fentanyl and occupying the same class of drugs as fentanyl. Thus, for simplicity I will refer to the combination of fentanyl and methylfentanyl simply as fentanyl, despite the fact that the two are technically distinct compounds.

[ 13 ] The search of the master bedroom also led to the location and seizure of other items associated with drug use and drug trafficking. Those include a box under the bed containing cut up and folded lottery tickets, a notebook found in the bedroom closet which appears to include “scoresheets” commonly used for keeping track of drug sales, a Ziploc bag in the closet which included many unused baggies, or dime bags, and another digital scale. [ 14 ] Approximately 21 laptops were located and seized from the master bedroom closet.

The serial numbers for the laptops were run by the police and two of them were subsequently found to be stolen. [ 15 ] Two purses were found under the bed. They contained cash in the total amount of $1055.00 as well as $3.00 USD. [ 16 ] The master bedroom contained a number of documents in a dresser drawer which connected Ms. McLean to the residence and that particular bedroom. Those include a Notice to End Tenancy Notice naming Ms.

McLean as the lessor of that residence, a Notice of a Dispute Resolution Hearing in her name for that address, and a Shaw invoice. [ 17 ] A broader search of the residence, including the yard, revealed that there were a number of bicycles and parts of bicycles on the property. Of those, two bicycles were seized, one of which was eventually returned to the residence. The other seized bicycle, a Cannondale Trail 6, was found in the garage and was subsequently determined to be stolen.

A large Ziploc bag of marijuana was also seized from the garage. [ 18 ] One of the other individuals arrested at the residence possessed a baggie containing a small amount of methamphetamine. [ 19 ] Subsequent to her arrest, Ms. McLean made a statement to the police, which I determined to be voluntary. In that statement she confirmed that she had been living at the residence for 4 months. She confirmed the purse under the bed to be hers and asserted that the cash found in the purse was to pay the upcoming rent for the house.

With respect to the laptops in the closet, she stated that she bought them all at second hand shops. ISSUES [ 20 ] As these are all possession offences, the Crown must prove beyond a reasonable doubt that Ms. McLean was in possession of the drugs, the lap tops and the bicycle. With the charge of possession for the purposes of trafficking, the Crown must also prove beyond a reasonable doubt that the drugs were possessed for the purposes of trafficking. [ 21 ] As Ms.

McLean did not have physical possession of the drugs that were seized, nor the lap tops or bicycle, the Crown must prove beyond a reasonable doubt that Ms. McLean had possession as defined in the Criminal Code . Section 4(3) of the Code , which by reference, is also the applicable definition in the CDSA , states: Possession

(3) For the purposes of this Act, (

a) a person has anything in possession when he has it in his personal possession or knowingly (

i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and (

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them. [ 22 ] In the present case I understand the Crown to be alleging that Ms. McLean had constructive possession of the drugs and items. CASE LAW [ 23 ] Neither the crown nor the defence relied on any case law in support of their positions. Nonetheless it is helpful to describe some of the relevant principles from the leading cases. [ 24 ] The meaning of constructive possession is summarized in R. v.

Morelli 2010 SCC 8 at paragraph 17 : [17] Constructive possession is established where the accused did not have physical custody of the object in question, but did have it “in the actual possession or custody of another person” or “in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person” ( Criminal Code , s. 4(3) ( a )).

Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his “use or benefit” or that of another person. [ 25 ] Knowledge and control are essential elements of constructive possession: R. v. Vu 2002 BCCA 659 at para 17 . [ 26 ] Furthermore, since the drugs were not found on Ms.

McLean’s person, and there is no direct evidence of her being in possession, the Crown’s case is circumstantial and it must prove constructive possession, with its requisite elements of knowledge and control, through circumstantial evidence. [ 27 ] The BC Court of Appeal discussed the proper approach to the use of circumstantial evidence in R. v. Ngo 2009 BCCA 301 at paragraphs 53-55 :

[53] The Crown may prove the essential elements of an offence through direct or circumstantial evidence, or a combination of both. Where the case rests on circumstantial evidence, the trier of fact must be satisfied beyond a reasonable doubt that the guilt of theaccused is the only reasonable inference to be drawn from the facts: R. v. Vu (T.T.), 2004 BCCA 381 , at para. 31, 201B.C.A.C. 293.

However, the criminal standard of proof is not to be applied to each individual piece of evidence… [54] In considering whether the circumstantial evidence supports an inference of guilt beyond a reasonable doubt, the trier of fact mustnot examine each individual circumstance in isolation. Instead, the proper approach is to consider whether all the evidence, takentogether, establishes the guilt of the accused and is inconsistent with any other rational conclusion: R. v. G.L.J., [1997] B.C.J. No.2994 at para. 29 (C.A.); R. v.

Aylward (1993), (BC CA), 36 B.C.A.C. 14, at paras. 5-7. [55] As to competing inferences from circumstantial evidence that might be open to a trial judge, the observation of McEachernC.J.B.C. in R. v. To (1992), (BC CA), 16 B.C.A.C. 223 at para. 41, is apposite: It must be remembered that we are not expected to treat real life cases as a completely intellectual exercise where no conclusion can bereached if there is the slightest competing possibility.

The criminal law requires a very high degree of proof, especially for inferencesconsistent with guilt, but it does not demand certainty. ... [28] The Supreme Court of Canada recently re-stated the law regarding the use of circumstantial evidence in R. v. Villaroman 2016SCC 33. At paragraph 30: [30] It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantialevidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language isrequired.

Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that suchevidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of “filling in the blanks” by tooquickly overlooking reasonable alternative inferences. It may be helpful to illustrate the concern about jumping to conclusions with anexample. If we look out the window and see that the road is wet, we may jump to the conclusion that it has been raining.

But we maythen notice that the sidewalks are dry or that there is a loud noise coming from the distance that could be street-cleaning equipment, andre-evaluate our premature conclusion. The observation that the road is wet, on its own, does not exclude other reasonable explanationsthan that it has been raining.

The inferences that may be drawn from this observation must be considered in light of all of the evidenceand the absence of evidence, assessed logically, and in light of human experience and common sense. [29] Further, in assessing circumstantial evidence, an accused is not required to support an innocent inference with proven facts. Heneed only establish that any such inference is reasonable under the circumstances.

At paragraphs 35-37 of Villaroman: [35] … Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and iscontrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect tocircumstantial evidence is the range of reasonable inferences that can be drawn from it.

If there are reasonable inferences other thanguilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt. [36] I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by themere 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 andcommon sense which must be logically based upon the evidence or lack of evidence”: para. 30 (emphasis added). A certain gap in theevidence may result in inferences other than guilt.

But those inferences must be reasonable given the evidence and the absence ofevidence, assessed logically, and in light of human experience and common sense. [37] When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonablepossibilities” which are inconsistent with guilt: R. v. Comba, (ON CA), [1938] O.R. 200 (C.A.), at pp. 205 and 211, perMiddleton J.A., aff’d (SCC), [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28 , 335 B.C.A.C. 11, at para. 20; R.v. Mitchell, [2008] QCA 394 (AustLII), at para. 35.

I agree with the appellant that the Crown thus may need to negativethese 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”: R. v. Bagshaw, (SCC), [1972] S.C.R. 2, at p. 8. “Otherplausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence ofevidence, not on speculation. ANALYSIS Possession [30] In the present case the Crown relies on the following evidence in support of Ms.

McLean having knowledge and control of thedrugs: 1. She was the only occupant of the locked master bedroom at the time of the execution of the search warrant. 2. The ensuite bathroom, in which most of the drugs were found, permitted access only from the master bedroom due to thelocked and blocked second door to the bathroom. 3. Several personal papers in Ms. McLean’s name were found in the bedroom, including documents which name her as the holderof the lease for the property. She further confirmed in her statement to police that she resides there and collects the rent from the othertenants to pay the landlord. 4.

She acknowledged that the purse under the bed in the master bedroom was hers, as was the cash contained in it. 5. She acknowledged in her statement that the ensuite bathroom was hers, although she called it “my joint bathroom”.

6. A notebook found in the closet had the name “Liz” on the cover, that being the name that she goes by. 7. After she was removed from the residence she asked an officer to retrieve her coat for her, which was retrieved from the master bedroom. [ 31 ] Ms. McLean argues that there is an absence of evidence in this case, which I must consider in accordance with Villaroman , and that such absences should preclude a finding of guilt. Some of the areas in which the defence says there are such gaps in the evidence are as follows: 1.

There was no surveillance evidence prior to the execution of the search warrant connecting Ms. McLean to the residence, or trafficking from the residence. 2. The residence contained 3 other bedrooms and seven other individuals. 3. No keys to the residence were found on her person. 4. The crown did not adduce any forensic evidence, such as fingerprints, which connected Ms. McLean to the drugs or property. [ 32 ] Considering all of the circumstances I find it impossible to reach any conclusion other than that Ms. McLean was the sole resident of the master bedroom, and the attached ensuite bathroom.

I also find that she was in possession of the drugs that were located in the master bedroom and the ensuite bathroom. The lack of any forensic evidence does not weaken that conclusion in any way. While the fact that there were other residents and occupants of the residence is of some consequence, I do not find that fact raises a reasonable doubt about Ms. McLean having the knowledge and control of the drugs found in the master bedroom and bathroom [ 33 ] Turning to the issue of possession of the two laptops and the bicycle, there was evidence at trial that they had previously been stolen.

The IPad had been stolen from a vehicle just over a month before the search warrant was executed. The Dell Latitude lap top had been stolen in a break in to a home 21 months before the search warrant. The Cannondale bicycle had been stolen from a secured parking lot approximately 6 weeks before the search warrant. [ 34 ] Section 354(1) of the Criminal Code includes a requirement that the accused knows that the property was obtained by or derived directly from the commission of an indictable offence.

The mens rea may be satisfied by actual knowledge or wilful blindness. [ 35 ] The Crown says that the doctrine of recent possession applies to the IPad and the Cannondale bicycle, insofar as both had recently been stolen and then found in the residence leased by Ms. McLean. The doctrine of recent possession provides that an inference of knowledge can be drawn by an accused possessing an item that has recently been stolen. [ 36 ] I am satisfied, based on the reasons stated above, that Ms. McLean was in possession of both lap top computers which were found in her closet.

However, the doctrine of recent possession should not apply to the Dell laptop which had been stolen 21 months previously. Without the inference that flows from that doctrine, I am unable to find that Ms. McLean had the requisite knowledge of the origin of the Dell laptop. Similarly there is an absence of evidence that she was wilfully blind to its having been stolen. [ 37 ] As for the IPad, I am able to find sufficient proximity in time for the doctrine of recent possession to apply.

However, the principles that have evolved under that doctrine also provide that if a pre-trial explanation of such possession is provided by the accused, no adverse inference can be drawn on the basis of recent possession alone, if the explanation were one that could reasonably be true: R. v. Graham [1974] SCR 579 . The trier of fact need not believe the explanation. It is enough that it raises a reasonable doubt. [ 38 ] In the present case, Ms. McLean told police officers that she had purchased the laptops from second hand shops.

While such an explanation is suspicious, and indeed somewhat unlikely, I cannot see that it is entirely unbelievable. In that regard I note that of the 21 laptops that were seized only 2 were found to be stolen. Under the circumstances of this explanation, I do not believe that the Crown is able to rely solely on the doctrine of recent possession to prove knowledge. I similarly do not find the existence of evidence which would allow me to find that Ms. McLean was wilfully blind. [ 39 ] With respect to the Cannondale bicycle, it was found in the garage.

The residence was occupied by a number of other individuals, one of whom Ms. McLean referred to in her statement to the police as owning one of the bicycles. On the whole of the evidence, I do not find that Ms. McLean having possession of it is the only rational inference. Indeed, an equally rational inference is that the bicycle was in the possession of another occupant of the residence. [ 40 ] As such I find that the crown has not proven beyond a reasonable doubt that Ms.

McLean possessed the two laptops and the bicycle knowing that they were obtained by the commission of an indictable offence as required by s. 354(1) . Possession for the Purposes of Trafficking [ 41 ] Finally, I will turn to the issue of whether the Crown has proven beyond a reasonable doubt that Ms. McLean possessed the fentanyl for the purposes of trafficking. [ 42 ] The Crown relies on the facts established at trial as well as the expert evidence of Sergeant Luke Rettie who opined that whomever possessed the fentanyl possessed it for the purposes of trafficking.

Sergeant Rettie was qualified as an expert in the areas of possession of methamphetamines, fentanyl and methylfentanyl as well as a number of aspects of those drugs, being possession for the purposes of trafficking, trafficking, consumption, packaging, terminology and language, distribution and pricing. [ 43 ] Sergeant Rettie has been a member of the RCMP for 18 years and for the past 11 years has been primarily involved in the investigation of drugs. He has been involved in approximately 300 drug investigations, 50 to 100 of which have involved methamphetamine and a similar number involving fentanyl.

In reaching his opinion in this case he reviewed the Report to Crown Counsel, the exhibit flow chart, photographs of the exhibits, certificates of analysis and some of the notes prepared by officers involved

in the investigation. He stated that his opinion is subject to change, based on the evidence led at trial. [ 44 ] Sergeant Rettie and the Crown rely on the evidence in five specific areas in support of the proposition that the fentanyl was possessed for the purposes of trafficking. [ 45 ] Quantity : The amount of fentanyl seized was 6.8 grams, most of which was contained in one baggie. Sergeant Rettie described that a typical fentanyl user will use 0.1 to 0.2 grams at a time, with daily use up to .5 or 1.0 grams for a heavy user.

Fentanyl is typically sold to the end user at a point (0.1 grams) or ¼ gram amount, with the street price being $20 for a point and $40 for a ¼ gram. The 6.8 grams of fentanyl seized would therefor equate to 68 point bags. If sold at the point level, this quantity of fentanyl would have a value of $1360. If sold by the gram level, the fentanyl would be worth $952. Sergeant Rettie opined that most users just purchase what they need for a fix which is one or two points, or a ¼ gram.

That is the practice of addicts because fentanyl is readily available and possessing more than such small amounts creates a risk of being robbed or having the drugs seized by the police. Furthermore, holding larger amounts of cash to buy larger quantities for personal use creates a risk of robbery or theft for the user. [ 46 ] The defence says that the relatively large quantity of fentanyl seized should be viewed in the context of there being other occupants of the residence in addition to Ms. McLean.

This amount may be a very large amount for an individual to be using, but not so large where others may be drawing from the same amount. However, Sergeant Rettie also stated that he does not believe that drug users would store their drugs communally for other household members together in such a manner. The defence further asserts that while the amount may be fairly large for an end user, it nonetheless only equates to a 6 to 7 day supply for a heavy user. [ 47 ] Packaging : Sergeant Rettie stated that the manner in which the fentanyl was packaged was supportive of it being ready to be trafficked.

One baggie contained 6.0 grams of unpackaged fentanyl, which is not consistent with personal use, and in fact is consistent with trafficking. A number of paper flaps containing fentanyl were seized and were found to contain a total of 0.8 grams of fentanyl. These flaps are consistent with end user amounts and packaging, while possessing that number of flaps is not. Furthermore, the box under the bed containing cut up lottery tickets, many of which were folded in the shape of flaps to hold drugs is consistent with trafficking, and inconsistent with personal use.

The flaps that did contain fentanyl were made of lottery tickets, the same as the empty and unused ones found under the bed. In addition, the bag found in the bedroom closet containing a number of unused “dime bags” is consistent with drug trafficking, and not consistent with end user drug use. [ 48 ] The defence points out the fact that lottery tickets are readily available to the public at large and are not only used by drug dealers.

The same can also be said for the empty dime bags, which are also readily available and may be used for purposes other than packaging illegal drugs. [ 49 ] Electronic scales : Two electronic scales were located in the master bedroom. Sergeant Rettie stated that electronic scales are used by drug dealers to measure drug amounts for sale. He said that drug users do not typically have any need or use for scales as they receive the quantity of drugs they pay for, without the need to weight it.

While the defence did not appear to take issue with that opinion, it was pointed out that there was no evidence at trial that the scales were operable. [ 50 ] Scoresheets : A notebook of scoresheets was found in the bedroom closet. Sergeant Rettie went through these in some detail referring to the various notations suggestive of recording sales of points of “down”, which refers to opiates, and “side”, which refers to methamphetamine. However, as the defence points out, various dates are noted on these pages, all of which reference 2013.

Furthermore, the pages do not contain any notations specifically connecting Ms. McLean to the notebook, although it was found in her bedroom closet. [ 51 ] Combination of drugs : Sergeant Rettie testified that a typical drug user will use one drug of choice, or more broadly, one category of drug. He said that it is unusual for a drug user to be using more than one drug at a time, although an addict may move from one drug to another over the period of their addiction.

He said that it is particularly unusual for a drug user to use three different drugs, such as the fentanyl, methamphetamine and cocaine, being the drugs that were seized in this case. It would be particularly rare for a user to use high levels of such drugs, such as a gram of each in a day.

In Sergeant Rettie’s opinion the mixture of the drugs seized, combined with the quantities of each is strongly supportive of the fentanyl being possessed for the purposes of trafficking. [ 52 ] The defence also notes that there is an absence of evidence of other indicia often associated with drug trafficking, such as frequent foot traffic to the residence, ringing cell phones, or observations of short meetings. [ 53 ] In my view, of the various facts set out above, I am unable to rely on the scoresheets as supportive of possessing drugs for the purposes of trafficking.

While I have no hesitation in concluding that they are in fact scoresheets used in the sale of illicit drugs, they clearly refer to a period in 2013 and I am unable to infer another date. While this may lead to the conclusion that Ms. McLean was trafficking in drugs in 2013, she is being charged with an offense in 2016. [ 54 ] However, without relying on the scoresheets I find that the other indicia described above, being the quantities, packaging, the electronic scales, and the combination of drugs can lead to no reasonable inference other than that the fentanyl was possessed for the purposes of trafficking.

Given the expert evidence I do not believe that this quantity of fentanyl would be possessed by an end user for personal use. Nor do I find the general availability of lottery tickets and empty dime bags undermines my conclusion, particularly when the lottery tickets were folded in a manner unique to drug packaging.

As for the electronic scales, while officers apparently did not bother to test them to see if they were operable, it is the fact of possessing the scales that supports the conclusion of trafficking. [ 55 ] I also do not find the absence of evidence of cell phones ringing, foot traffic and short meetings undermines my conclusion. Those may be features of a dial a dope drug operation, but not every drug trafficking operation is a dial a dope model. There is no evidence that this one was. Nonetheless I am satisfied beyond a reasonable doubt based on all of the circumstances, that the fentanyl was possessed by Ms.

McLean for the purposes of trafficking.

SUMMARY [ 56 ] In

summary I find Ms. McLean not guilty of counts 3, 4 and 5, being possession of the two laptops and the bicycle. As for

count #1, I find her guilty of the lesser included offence of simple possession of methamphetamine contrary to s. 4(1) of the CDSA . As for count #2, I find her guilty of possessing fentanyl and methylfentanyl for the purposes of trafficking contrary to s. 5(2) of the CDSA . _________________________________ The Honourable Judge R. P. McQuillan Provincial Court of British Columbia