R. v. Russell, 2019 NSSC 187

Supreme Court of Nova Scotia Citation: R. v. Russell , 2019 NSSC 187 Date: 20190612 Docket: CRBW 468760 Registry: Bridgewater Between: Her Majesty the Queen Plaintiff v. William Oswald Russell Defendant Library Heading Restriction on Publication: s. 539(1) Judge: The Honourable Justice Mona M. Lynch Heard: March 12, 13, 2019 in Bridgewater, Nova Scotia Final Written Submissions: April 17, 2019 Written Decision: June 12, 2019 Subject: Criminal; Possession for purposes of trafficking in Hydromorphone; admissibility of text messages

Summary: The accused was charged with possession for the purposes of trafficking in Hydromorphone; Trafficking in Marihuana; and possession of Marihuana. Police arrested accused and obtained a search warrant to search his residence and cell phone. A pill container with 18 12mg Hydromorphone capsules found. Accused position was that the Hydromorphone was for personal use. Text messages on cell phone showed requests for Hydromorphone and arrangements to meet. Issues:

(1) What use can be made of the text messages?

(2) Has the Crown proven all of the elements beyond a reasonable doubt? Result: Text messages not admissible under principled exception. Outgoing messages used for truth of their contents based on statements against interest exception. Incoming messages from witnesses considered. Incoming messages from persons who did not testify were used for context of the outgoing messages. Accused found guilty of possession for the purposes of trafficking in Hydromorphone; not guilty to trafficking in Marihuana; and not guilty to possession of Marihuana. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION.

QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia Citation: R. v. Russell , 2019 NSSC 187 Date: 20190612 Docket: CRBW 468760 Registry: Bridgewater Between: Her Majesty the Queen

Plaintiff v. William Oswald Russell Defendant Restriction on Publication: s. 539(1) Judge: The Honourable Justice Mona M.

Lynch Heard: March 12 and 13, 2019, in Bridgewater, Nova Scotia Final Written Submissions: April 17, 2019 Counsel: Joshua Bryson, for the Plaintiff Nicholaus Fitch, for the Defendant By the Court: Background: [ 1 ] William Oswald Russell is charged with possession of Hydromorphone for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act ( CDSA ) on June 27, 2016; trafficking in Cannabis Marihuana contrary to s. 5(1) of the CDSA on June 26, 2016 and possession of Cannabis Marihuana contrary to s. 5(1) of the CDSA on June 27, 2016. [ 2 ] The matter was before the Court in May and June 2018 for a voir dire in relation to various matters resulting from the events of June 27, 2016.

In a written decision R. v. Russell , 2018 NSSC 161 , the arrest was found to be lawful; the warrantless entrance into accused’s residence to effect the arrest was found to be lawful; the ITO was found sufficient to issue a search warrant; the search of the cell phone incidental to arrest was found not to be reasonable.

As a result of the findings, the evidence obtained from the search of the accused’s house and cell phone as a result of the search warrant was not excluded but the evidence obtained as a result of the search of the cell phone pursuant to arrest was excluded. [ 3 ] The trial was held on March 12 and 13, 2019. At the start of the trial the Crown submitted evidence with the agreement of the defence.

Included in the agreements were the tech crime report of the accused’s cell phone without the need to call expert evidence including the agreement that the report was a true and accurate representation of what was on the phone; that Corporal Kutcha was an expert; that the substances were Hydromorphone and Cannabis Marihuana; and that continuity was not in issue. There was also agreement that the accused’s statement to Constable Munro could be admitted into evidence by consent and it was agreed that the statement was made voluntarily.

It was also agreed that the accused could sit at counsel table and that the expert, Corporal Kutcha, could remain in the courtroom to hear all of the evidence. [ 4 ] The Crown presented evidence from two witnesses, Constable Munro and Corporal Kuchta.

The defence called two witnesses, Wayne Oickle and Johna Cox. [ 5 ] During the evidence in chief of Constable Munro, the Crown tendered exhibits, including the statement of the accused and the extraction report of the cell phone. [ 6 ] During the Crown’s closing submission, they submitted that the Court could consider the text messages for the truth of their contents. The matter was adjourned for both counsel to provide briefs regarding the use that can be made of the text messages.

Evidence: [ 7 ] Constable Munro testified that in June 2016 he was a member of the Integrated Street Crime Unit and that members of that unit had received confidential information about pill trafficking involving three individuals, Murray Heath, Frank Hebb and the accused. The unit began an investigation by conducting inquiries and by physical surveillance. They understood that Hebb received a prescription on Mondays and that Heath and Hebb resided together.

On the first morning of surveillance, Monday, June 20, 2016, the police missed the pick up at the pharmacy but observed Heath and Hebb in a red or burgundy Toyota sedan going towards their residence. The police set up surveillance on the road where Heath, Hebb and the accused lived in Lunenburg County, Nova Scotia. The police observed the burgundy Toyota at the Heath/Hebb residence and then the car went to the accused’s residence. Because it was a quiet rural area, it was difficult for the police to sit in one place. Instead they were doing drive-bys using different vehicles.

At about 11:30 a.m. on June 20, 2016, Constable Munro observed two people on the step of the accused’s residence. Constable Munro identified the accused as one of those people and Heath as the other person. [ 8 ] The police felt that what they observed on June 20, 2016 corroborated the information they had received from confidential informants and the inquiries they had made such as to the prescription monitoring program to confirm that Hebb had picked up his prescription.

Constable Munro understood from the information received from the prescription monitoring that Frank Hebb received 60 capsules of 18 mg Hydromorphone.

[ 9 ] On Monday, June 27, 2016 the police started their surveillance earlier in the day. Constable Munro was situated inside the building where it was expected that Hebb would attend to fill his prescription. Constable Munro observed Hebb waiting outside the pharmacy for the doors to open. Hebb then entered the pharmacy and left the pharmacy with a white prescription bag. The other members of the team on the outside of the pharmacy observed Hebb getting into the vehicle with Heath. After that, the surveillance team lost the Heath/Hebb vehicle.

The police proceeded to the road where all three suspects lived and observed the vehicle with Heath and Hebb returning to their residence.

After a period of time, Heath drove, as he had done the week before, to the accused’s residence, stayed for a short period of time and left. [ 10 ] The police had decided, prior to June 27, 2016, that if the pattern from the prior Monday repeated itself that they would do a targeted vehicle stop of Heath and go to the Hebb residence and the accused’s residence to arrest the suspects and to hold the properties for a search warrant. [ 11 ] Constable Munro and another officer approached the residence of the accused. The door was wide open as it was a very hot day. Constable Munro stood on the step and could see Mr.

Russell seated in the living room of the house. Constable Munro advised the accused he was under arrest and Mr. Russell got up and started to come towards Constable Munro. There was dialogue as to what he was under arrest for and the accused wanted to get clothes in another room. The accused made a motion to go towards another room. Constable Munro entered the kitchen area of the house, put hands on the accused and handcuffed him. The spouse of the accused, who also lived in the residence, was present and she secured the dog.

After the accused was placed under arrest, they waited on the step for someone to transport the accused and for the search warrant. At the same time the accused was being arrested so were Heath and Hebb. [ 12 ] Constable Munro searched the accused and found a cell phone, a wallet containing $100, a knife and $40.00 that was loose. Constable Munro was also present for the search of the accused’s residence after the search warrant was obtained. A pill bottle containing 18 12 mg Hydromorphone capsules was seized from the table to the left of the chair where Mr.

Russell was seated when Constable Munro first observed the accused in the residence. There was no label on the bottle. In a kitchen drawer a plastic container was found containing papers, residue, a grinder and about a gram of Marihuana. Plastic baggies were found in various sizes, one-pound, two-pound and seven-pound bags.

No scales, weapons, score sheets or empty capsules were found in the accused’s residence. [ 13 ] Constable Munro did not see a hand off of pills or cash either on June 20 or 27, 2016. [ 14 ] Constable Munro also testified in relation to the text messages extracted from the phone taken from the accused at the time of his arrest. He testified that the person identified as Murray in the text messages was Murry Heath as Constable Munro knew Murray Heath’s number.

Constable Munro also said that the person identified as Johna in the text messages was Johna Cox as he again knew her telephone number. [ 15 ] Constable Munro was also the officer who interviewed the accused at the police detachment on the night of June 27, 2016. [ 16 ] The accused gave a statement to the police that was admitted into evidence with an agreement that the statement was voluntary. In the statement, the accused says that neither he nor his spouse have a prescription for Hydromorphone. Mr. Russell initially indicated that he found the Hydromorphone capsules in his yard.

He was going to check with Frank to see if they were his and if not he would keep them for himself as he had stomach pain. The accused also said that he got the Hydromorphone from Heath but that the Hydromorphone was for his own use. He said that he would not testify against Heath. The accused denied selling pills. Mr. Russell acknowledged getting 12 mg Hydromorphone the week before.

The accused said he did not know where the 12 mg Hydromorphone came from. [ 17 ] Corporal Kuchta was qualified by consent as an expert witness able to give opinion evidence on pricing, value, use, distribution, networking, consumption, terminology and street trafficking in Hydromorphone. [ 18 ] He testified that the capsules seized from the accused’s home were 12 mgs Hydromorphone contin and he knew this because the capsules were orange while 18 mg capsules would be yellow.

He said that the 12 mg capsules would sell for approximately $25 per capsule but that $20 would be within the range but at the low end of the price range. Hydromorphone is consumed in various ways including the beads or contents of the capsules being crushed and snorted or crushed and injected. Capsules are sometimes split where a 12 mg capsule is opened and split into two other capsules that are sold as 9 mg capsules although they actually only contain 6 mgs.

The usual purchase would be between 1 to 3 capsules, 5 at the most as the person buying usually does not have a lot of money and, due to their addiction, they are unable to hold a job. Pills are usually sold through social media or text messaging. Cash is the usual compensation for the pills but it can be stolen property or sexual acts. Corporal Kutcha said that opioids are not considered recreational drugs and they are generally not bought in bulk. He had not heard of other drugs being referred to as blues, except Diazepam on one occasion. It is common that addicts have a large weight loss.

He had never experienced Viagra sold illegally. Generally at first pills are purchased to get high but once addicted, it is no longer about getting high but about sustaining life. [ 19 ] Corporal Kutcha reviewed the text messages on the phone seized from the accused at the time of his arrest. He said some of the messages were consistent with trafficking, some in relation to Marihuana and others in relation to Hydromorphone. Corporal Kutcha was not qualified as an expert in relation to Marihuana. [ 20 ] Corporal Kutcha testified to an exchange which he described people looking for drugs using guarded language.

He testified in relation to an exchange with Johna on June 27, 2016 where she is told that “…Buddy sold them in Lunenburg for more money” and she asks for him to find “something 8s”. (text 8249 and 8250, page 326, Exhibit 8) Corporal Kutcha testified that the person was looking for Hydromorphone and would accept 8mg pills which are not as desired because they are pills and harder to inject. [ 21 ] Corporal Kutcha’s opinion after reviewing the text messages, the evidence of Constable Munro, and seeing the 18 12 mg capsules was that the capsules were possessed for the purpose of trafficking. [ 22 ] The accused did not testify but two defence witnesses were called, Wayne Oickle and Johna Cox.

Wayne Oickle testified that he knew the accused and that he was the person who was in a text message exchange with Mr. Russell on June 26, 2016 in relation to

“blues” and “blue bags”. He testified that he was referring to Viagra. Mr. Oickle testified he bought the Viagra on line and that it did not work for him. He had the Viagra in the house for a couple of years. He was offering Viagra to the accused in the first exchange when he asked, “u want any blues on Tuesday” and the response from the accused was, “How many” to which Mr. Oickle said, “130” and the accused responded, “Yup” to which Mr. Oickle said, “I’m back lol” and the accused said “Great” (texts 7807 to 7816, page 315- 316, Exhibit 8).

He said the later reference from him to the accused, “can u get any ue bags” which he corrected to “blue bags” to which the accused replied, “Yes” and Mr. Oickle said, “I’ll get back to u tomorrow on it” and the accused replied, “ok” (texts 8077, 8087, 8096, 8098, 8100, page 322, Exhibit 8) was also in relation to Viagra. He said the reference to bags was because some were in bags. He said he got them in China and gave the accused about 150 pills in an exchange for lights. He testified that he provided the accused Viagra on one occasion but on cross-examination he said that he had provided Mr.

Russell with Viagra more than 10 times. Mr. Oickle indicated that he never asked the accused for Viagra and on cross-examination he said that “blue bags” referred to cigarettes that come in blue bags. Mr. Oickle admitted to having over 100 criminal convictions with his last conviction occurring in 1997. He is a good friend of the accused. [ 23 ] Johna Cox testified for the accused. In June 2016 she lived 20 minutes from the accused. She did use Hydromorphone but never purchased it from the accused.

At first she testified that references in the text messages between her and the accused were in relation to her looking for weed or cigarettes. Later in her testimony she said she was looking for Hydromorphone. She testified she stopped using pills in 2016 and has been clean and sober since then. She indicated she was taking Methadone for the last three years, since the accused was arrested. She was using 12 mg Hydromorphone and not as often 8 mg. She did not care for 8s. She agreed that with the street terminology of 12s and 8s for 12mg and 8 mg Hydromorphone. Ms.

Cox testified she asked the accused many times for pills but he never gave them to her. Ms. Cox agreed that she was looking for pills from the accused on June 27, 2016 and the accused told her that, “Buddy sold them to his friend in Lunenburg” (text 8249, page 326, Exhibit 8). Ms. Cox agreed that she asked the accused dozens of times for pills but she never got any from him. He gave her the run around. She testified that the accused would lead her to believe that he was looking for pills for her but he did not give her any pills as he wanted her off of the pills. [ 24 ] Ms.

Cox testified that she would ask anyone for pills. Ms. Cox testified that she was having an affair with Mr. Russell. Ms. Cox testified that in an exchange on June 19, 2016 with the accused that she was saying that she had enough money for 6 pills and he responded that he was only getting what Ms. Cox wanted and they make arrangements to meet on June 20, 2016 (texts 5717 – 5724 and 5727 – 5732, page 267, Exhibit 8). She testified that the accused told her that he would get her pills but she did not get the pills.

She acknowledged that on June 25, 2016 she asked the accused if he was getting anything Monday and the accused indicated, “Should have. If buddy doesn’t part with them to the guy in Lunenburg” (text 7592, page 310, Exhibit 8). She acknowledged that on June 26, 2016 she asked the accused to save her 10 pills and to make sure she has enough this time. Ms. Cox says she did not get any pills but that the accused was agreeing to sell her the pills for $10 each and that she was getting a deal. Numerous times in her testimony Ms.

Cox said she did not know Murray Heath although she agrees that the accused responded to her on Monday, June 27, 2016 “Sorry. I was busy and didn’t have the phone on. I haven’t heard from Murry yet” (text 3229, page 325, Exhibit 8). [ 25 ] Ms. Cox fell asleep during cross-examination when the Crown was looking for the correct text messages. Issues: (

a) What use can be made of the text messages? (

b) Has the Crown proven each element of the offences charged beyond a reasonable doubt? Analysis: [ 26 ] As in all criminal trials, Mr. Russell is presumed innocent in relation to the charges and the Crown must prove each element of the offences beyond a reasonable doubt. (

a) What use can be made of the text messages? [ 27 ] The Crown submitted into evidence as Exhibit 8 the text messages and phone call log that were extracted from the cell phone which was seized from Mr. Russell at the time of his arrest. This evidence was not excluded after a voir dire where the ITO was challenged. While the evidence was not excluded, there was no ruling regarding the admission of text messages, which contain hearsay. In closing submissions the Crown submitted that the text messages be considered for the truth of their contents.

Hearsay, whether express or implied, is presumptively inadmissible ( R. v. Baldree , 2013 SCC 35 , para. 31 ). Here the text messages, with the exception of the messages from Wayne Oickle and Johna Cox, are out-of-court statements by persons not called as witnesses. The essential defining features of hearsay are (1) the fact that the statement is adduced to prove the truth of its contents and (2) the absence of a contemporaneous opportunity to cross-examine the declarant ( R. v. Khelawon , 2006 SCC 57 at para. 35 ). The principled exception to the hearsay rule requires proof of necessity and reliability.

No evidence of necessity or reliability was put forward. Therefore, the text messages are not admissible based on the principled exception. [ 28 ] In their written brief the Crown asks that the outgoing text messages be considered as statements against interest, a valid exception to the hearsay rule. The Crown is also asking that the messages of Wayne Oickle and Johna Cox be considered as they testified at the trial. The Crown is asking that the incoming messages be considered not for their truth but to show that the statements in them were made and to provide context to Mr. Russell’s messages.

They are not relying on the documents in possession exception. Statements put forward to show that they were made or for context are not hearsay. Statements against interest are an exception to the hearsay rule ( Khelawon , para. 65 ). To be admissible the Crown must establish, on a balance of probabilities, that the statements, here text messages, were made by the accused. If the Crown meets that threshold, the trier of fact should consider the contents along with other evidence to determine innocence or guilt ( R. v.

Evans [1993], 3 S.C.R. 652 at p. 668) . [ 29 ] Here the evidence that the text messages were authored by the accused includes: (

a) the phone was seized from Mr. Russell

when he was arrested by Constable Munro; (

b) Wayne Oickle and Johna Cox both testified that they were communicating with Mr. Russell in the text message exchanges shown to them on cross-examination; (

c) in response to “Who this” an outgoing message reads, “O sorry. Its Bill R...” (text messages, 7465 and 7466, page 307); (

d) outgoing message, “Good morning Its Bill. Parts are surpose [sic] to be in today.” (text message 7829, page 316); (

e) Johna Cox testified in relation to a text exchange between her and the accused that she and the accused were having an affair, his partner had been “…fucking with my phone”(text 3422, page 209); and (

f) the accused adopts some of the text messages in his statement to Constable Munro (lines 116 – 134). I am satisfied based on the balance of probabilities that the phone belongs to Mr. Russell and that he was the author of the outgoing messages. [ 30 ] The outgoing messages can be considered along with all of the other evidence to determine whether the accused is guilty or not of the offences charged. [ 31 ] The exchanges involving Johna Cox and Wayne Oickle can be considered as both of them testified in relation to those exchanges.

The incoming messages can be considered for the fact that the statements were made as that is not hearsay. They can also be considered to show the context of the outgoing messages. (

b) Has the Crown proven each element of the offences charged beyond a reasonable doubt? (

i) Possession for the purposing of trafficking in Hydromorphone on June 27, 2016 [ 32 ] The elements which the Crown must prove in relation to possession for the purposes of trafficking are: (1) that Mr. Russell was in possession of a substance; (2) that the substance was Hydromorphone; (3) that Mr. Russell knew that the substance was Hydromorphone; (4) that Mr. Russell had possession of Hydromorphone for the purpose of trafficking in it. [ 33 ] The pills were found on the table next to where Mr. Russell was sitting when observed by Constable Munro just prior to his arrest. In his statement Mr.

Russell said that he found the Hydromorphone in the yard, thought they were Frank Hebb’s and if not he was going to keep them for himself for the pain in his stomach. When confronted with the implausibility of having found the pills in the yard and that Murray Heath had said that Heath sold them to Mr. Russell, Mr. Russell asserted that they were for his own use. He admitted that the week before, June 20, 2016, he had gotten 12s and said that he asked for some 18s to try. I am satisfied beyond a reasonable doubt that Mr.

Russell was in possession of the Hydromorphone. [ 34 ] There was an agreement that the substance was Hydromorphone. [ 35 ] I am satisfied beyond a reasonable doubt based on the statement given by Mr. Russell and the conversation between Mr. Russell and Constable Munro that Mr. Russell knew that the pills were Hydromorphone. Constable Munro specifically said Hydromorphone when Mr. Russell replied that he had found it in the yard. [ 36 ] The evidence with regard to trafficking requires more analysis. Possession for the purpose of trafficking does not rule out personal use.

A person can possess a substance primarily for personal use but may also possess some of the substance to sell, give, transfer or deliver all of which are included in the definition of traffic under the CDSA . [ 37 ] Mr. Russell urges the Court to find that his possession of the Hydromorphone was for personal use. Personal use was not ruled out by the expert, Corporal Kutcha. [ 38 ] A review of some the text messages sent by Mr. Russell is necessary when considering whether the possession was for the purpose of trafficking.

All text messages are in Exhibit 8. [ 39 ] An exchange with a person identified as Morgan on June 18, 2016: Morgan: Whats up Mr. Russell: I have 10 for you if you can come get them. I am just making supper; Mr. Russell: Do you want them Morgan: Yes 4 sure. Bit I will b a hour Mr. Russell: Ok (texts 5469, 5472, 5488, 5490, 5491 page 261-262) June 24, 2016 with Morgan: Morgan: Hey bud Mr. Russell: Not a thing. Not until Monday around noon. (texts 7458, 7459, page 307) Monday, June 27, 2016 with Morgan: Morgan: Whats up Mr. Russell: Not a thing. Buddy sold them in Lunenburg for more money

Morgan: Fuck Mr. Russell: I am calling around. The one person i was getting some from moved to the city. The next gaurenteed (sic) ones won’t be until the 4th (texts 8244, 8246, 8247, 8260, pages 325-326) [ 40 ] Johna Cox testified that in the exchange with Mr. Russell on June 19, 2016 she was looking for Hydromorphone from Mr. Russell: Johna: I got enough for 6 that’s it Mr. Russell: I am only getting what you want. I need all the money I can .... Johna: ok koo I’m happy with 6 Mr.

Russell: Good. see you tomorrow (texts 5717-5720, page 267) The next day, Monday, June 20, 2016: Johna: were (sic) at exit 13 Johna: by irving Mr. Russell: Ok. Be right there Johna: ok Johna: I’m in a little grey car. it’s by nscc Mr. Russell: Ok (texts 6221, 6222, 6224, 6227, 6229, 6233, pages 278-279) On June 25, 2016 when Ms. Cox said she was looking for Hydromorphone: Johna: good good.. are you getting anything Monday Mr. Russell: Should have.

If buddy doesn’t part with them to the guy in Lunenburg (texts 7586, 7592, page 310) On Sunday, June 26, 2016: Johna: hey there save me at least 10 Johna: make sure I have enough this time.. Mr. Russell: Ok. If he doesn’t sell them to the guy in Lunenburg Johna: ok hope not (texts 7920, 7922, 7933, 7939, page 318) Then on Monday, June 27, 2016, after Ms. Cox makes contact several times: Mr. Russell: Sorry. I was busy and didn’t have the phone on. I haven’t heard from Murry yet. Mr. Russell: Buddy sold them to his friend in Lunenburg Johna: omg bill. fuck sakes can ya fine me something 8s Mr.

Russell: I will be looking for sure ... Johna: even if ya fine me some 8s Mr. Russell: I will do my best (texts 8229, 8249, 8250, 8255, 8278, 8278, pages 325-326) On June 19, 2016:

A phone number: Hey its nat did u have any left or they gone? Mr. Russell: They are gone (texts 5725, 5733, page 267) On Monday, June 20, 2016: Jerrome: Hey bud, just thought I’d check in. Anything looking good for this afternoon Mr. Russell: Nothing yet b probly later. i should have 20 or 25. (text 6031, 6037, page 274) [ 41 ] Constable Munro identified the number in the messages identified as “Murray” to be Murray Heath. Constable Munro knew the telephone number. On Monday, June 20, 2016: Murray: You get rid of those did you? Mr. Russell: No. I had my phone turned down. Yes, i still have them.

Murray: Ok cool I’ll find out how many she wants. She got cash Mr. Russell: Great. Need all i can get (Texts 6098,6103, 6104, 6105, Pages 275-276) [ 42 ] On June 27, 2016 Mr. Russell texts Murray: “Ok. Waiting for you” (text 8254, page 326) On June 20, 2016 there is an exchange with a Glen: Glen: Right on Dud how many Mr. Russell: Don’t know. I have to take her to drug store and get them. Then she will figure out how many they need to keep for a month and i get the rest. Mr. Russell: Around 75 to 100 Mr. Russell: I am in town and have 80 or 90 Glen: Oh ok u going home or staying in town Mr.

Russell: I will be in town for awhile. Not sure for how long. Glen: Oic ok i want all of them ok Glen: So can u wait in town for me Mr. Russell: I have 90. Yes i will wait There are further texts as to where to meet and then: Glen: Hi im at the superstore now if u want to meet here Mr. Russell: That is great. I have to go there anyway Mr. Russell: Be right there (texts 6126, 6130, 6131, 6188, 6189-6191, 6194, 6196, 6199, 6217, 6235, 6237, 6238, pages 276-279) [ 43 ] During this exchange with Glen Mr. Russell mentions having to “go meet a woman” (text 6219, page 278).

This is at the same time that he is arranging to meet Ms. Cox. [ 44 ] Mr. Russell’s responses have to be viewed in light of the evidence from Constable Munro that Mr. Hebb picked up his prescription for Hydromorphone on Mondays. The police surveillance showed that both on Monday, June 20 and Monday June 27, 2016 after Heath and Hebb returned home, Heath went to Mr. Russell’s home. The next Monday would be July 4, 2016. The conversations with Ms. Cox, Morgan, and others are centered around Mondays. [ 45 ] There is an exchange with Wayne Oickle on June 26, 2019 which Mr. Oickle testified was in relation to Viagra.

Wayne: u want any blues on tuesday Mr. Russell: How many Wayne: 130

Mr. Russell: Yup (text 7807, 7810-7812, page 315-316) [ 46 ] Corporal Kutcha provided expert opinion that the texts showed the type of guarded language, coded language consistent with a multi-commodity street level trafficker in controlled drugs. Corporal Kutcha offered the opinion that after hearing the testimony and reading the text messages that the 18 12 mg capsules of Hydromorphone were possessed for trafficking.

Corporal Kutcha also testified that 9mg Hydromorphone is blue in colour. [ 47 ] The evidence is circumstantial and the Crown must prove beyond a reasonable doubt that the only rational inference that can be drawn from the evidence is that the accused is guilty ( R. v. Griffin , 2009 SCC 28 , para. 33 ). [ 48 ] Both the evidence of Mr. Oickle and Ms. Cox defied reason. Mr. Oickle first said that “Blue Bags” referred to Viagra and then to cigarettes and then he did not seem to know. Cross-examination of Mr. Oickle was devastating to his credibility. [ 49 ] Ms. Cox’s assertion that she kept asking Mr.

Russell for Hydromorphone pills although she never got any from him was not credible. Her credibility suffered a mortal blow when she fell asleep on the witness stand. [ 50 ] The exchange of texts between Mr. Russell and Ms. Cox on June 20, 2016 where Ms. Cox asks for Hydromorphone, Mr. Russell agrees to supply her, and a place to meet is arranged can lead to no other rational inference than Mr. Russell agreed to meet with her to supply her Hydromorphone. Also, Ms. Cox says, “make sure I get enough this time” which leads to no other rational inference than she had gotten Hydromorphone from Mr.

Russell on a prior occasion. [ 51 ] The exchanges with Glen, Murray, Morgan and others also lead to no other rational inference other than that Mr. Russell had Hydromorphone for the purpose of trafficking. [ 52 ] I find Mr. Russell guilty of possession of Hydromorphone for the purposes of trafficking on June 27, 2019. (

b) Trafficking in Cannabis Marihuana on June 26, 2016 [ 53 ] To find Mr. Russell guilty of trafficking in Cannabis Marihuana, the Crown must prove beyond a reasonable doubt that: (1) that Mr. Russell trafficked in a substance; (2) that the substance was Cannabis Marihuana; (3) that Mr. Russell knew that the substance was Cannabis Marihuana; and (4) that Mr. Russell intentionally trafficked in Cannabis Marihuana. [ 54 ] Corporal Kutcha gave opinion evidence that a text exchange between Mr. Russell and a person named Gerry on June 26, 2016, was in relation to Marihuana.

However, Corporal Kutcha was only qualified to give opinion evidence in relation to Hydromorphone, not Marihuana. Therefore, I cannot be satisfied beyond a reasonable doubt that the exchange with Gerry was in relation to trafficking in Marihuana. [ 55 ] In his statement Mr. Russell admits to going “up and got her cuz she’s been in a car accident and they won’t give her” (lines 141-142 of statement). He denies selling “weed” (line 132). It is not clear from the statement what exactly the substance was or whether anything was bought or sold. [ 56 ] I therefore find Mr.

Russell not guilty of trafficking in Cannabis Marihuana on June 26, 2016. (

c) Possession of Cannabis Marihuana on June 27, 2016 [ 57 ] To find Mr. Russell guilty of possession of Cannabis Marihuana the Crown would have to prove beyond a reasonable doubt that

(1) Mr. Russell was in possession of a substance; (2) that the substance was Cannabis Marihuana; and (3) that Mr. Russell knew that the substance was Cannabis Marihuana. [ 58 ] There was about a gram of Cannabis Marihuana found in a kitchen drawer in Mr. Russell’s home when it was searched by police on June 27, 2016. The house was rented (statement of Mr. Russell) and he shared the house with his common law partner. It was agreed that the substance was Cannabis Marihuana. [ 59 ] The Crown submits that I should find that the Marihuana was in the joint possession of Mr. Russell and his common law partner pursuant to s. 4(3) (

b) of the Criminal Code :

(3) For the purposes of this Act, (

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. [ 60 ] To prove joint possession the Crown must prove that Mr. Russell had some measure of control over the Marihuana. Constable Munro found the Marihuana in a drawer in a plastic container with a cover on it. I do not have any evidence that Mr. Russell had any control over the Marihuana, the contents of the drawer or anything in the kitchen. There are other rational, reasonable inferences that can be drawn. Mr.

Russell’s partner may have had complete control over the Marihuana. [ 61 ] Therefore I find Mr. Russell not guilty of possession of Cannabis Marihuana on June 27, 2016. Conclusion: [ 62 ] I find Mr. Russell guilty of possession for the purposes of trafficking in Hydromorphone on June 27, 2016, not guilty of trafficking in Cannabis Marihuana on June 26, 2016 and not guilty of possession of Cannabis Marihuana on June 27, 2016.

Lynch, J.