R. v. Simms, 2012 NSSC 200

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Simms, 2012 NSSC 200 Date: 20120515 Docket: CRH 345764 Registry: Halifax Between: Her Majesty the Queen v. Sean Robert Simms Judge: The Honourable Justice Glen G. McDougall Heard: March 19, 20, 22, 23, 27, 29 and April 11, 2012, in Halifax, Nova Scotia Oral Decision Rendered: May 15, 2012 Written Decision: May 23, 2012 Counsel: Angela Nimmo, for the Federal Crown David S. Green, for the Accused By the Court [Orally]: [ 1 ] The defendant, Sean Robert Simms, is accused of having had possession of cocaine for the purpose of trafficking.

The indictment reads: That on or about 22 July 2009, at or near Halifax, Regional Municipality of Halifax, Province of Nova Scotia, he did unlawfully have in his possession for the purpose of trafficking Cocaine, a substance included in

Schedule I of the Controlled Drugs and Substances Act , S.C. 1996, c. 19, and did thereby commit an offence contrary to Section 5(2) of the said Act . Factual Background [ 2 ] In the early morning hours of July 22, 2009 a joint Royal Canadian Mounted Police and Halifax Regional Police unit

conducted a search of premises located at 627 Pockwock Road, Upper Hammonds Plains, in the Halifax Regional Municipality, Province of Nova Scotia. The search was conducted pursuant to a warrant. The validity of the warrant was not challenged. [ 3 ] Access to the premises was by forced entry. When the police entered the home they found the accused Sean Simms, and a female friend, Rachel Nesathurai, together in an upstairs bedroom. Mr. Simms ’ son, Donovan, was found in another area of the house.

Donovan was about 16 or 17 years old at the time. [ 4 ] At the time the property was searched it was still under construction. A generator had to be used to supply electricity; water was supplied from a dug well located near the house. The accused was the registered owner of the property. He had acquired it from his grandmother, Jacqueline Cromwell, in 2005. [ 5 ] The construction of the house that the accused was found in on the morning of July 22, 2009 was first begun by the accused ’ s grandmother prior to its conveyance to him in 2005. Mr.

Simms testified that he continued construction on the house as financing became available to him. He did a lot of the work himself with the assistance of friends and on occasion he would hire people to do the work that required more expertise such as cabinetry work. It was still very much a work-in-progress on the morning of July 22, 2009 when the police Emergency Response or ‘ RAM ’ Team, so-called, arrived to secure the property to allow the search team to carry out its work. [ 6 ] Over the ensuing eight to ten hours a complete search of the interior of the house and attached garage area was conducted.

The area surrounding the house was also searched. A series of photographs depicting the interior and exterior of the house and surrounding property were entered as exhibits. [ 7 ] Aerial photographs and a video taken from a police helicopter along with survey and other property maps were presented in evidence. They showed the location and relative isolation of the Simms ’ property at the end of a very long driveway leading from the Pockwock Road. According to the testimony of Mr. Simms and others, there were no fences or barricades erected to prevent access to the property.

It is in an area that is frequented by snowmobilers, ATV operators along with fishermen and hunters. [ 8 ] The search of the premises and surrounding property was both extensive and thorough. It culminated in the discovery of a block of what was later analysed to be cocaine. In an Agreed Statement of Facts (Exhibit # 1) it was admitted that the accused was found in the premises located at 627 Pockwock Road (sometimes referred to as 629 Pockwock Road) and that the house and surrounding land was owned by him. It was also agreed that the substance discovered by Cst.

Garland Carmichael from under a brownish-coloured sod on the front lawn of the premises was cocaine. It was wrapped in clear plastic. A Certificate of Analyst with the Federal Department of Health was entered as an exhibit at trial. The object was weighed and found to contain 16.6 grams (of cocaine). Cocaine is included in

Schedule I of the Controlled Drugs and Substances Act , S.C. 1996, c. 19. Possession of cocaine for the purpose of trafficking is an offence according to

section 5, sub-section (2) of the CDSA . [ 9 ] A number of other items were seized from different areas of the house and garage. Det. Cst. David Li of the Halifax Regional Police Service was the assigned exhibits officer. He testified that he set up in the kitchen area and whenever one of the other officers located something of interest he would be summoned to the area of the house where the item had been located. Photographs were then taken and the item would then be placed in Det. Cst. Li ’ s custody after it had been marked for identification purposes by the officer who had located it. Det. Cst.

Li was responsible for its control and storage to ensure continuity. [ 10 ] A list of the items seized includes: 1. Canadian currency: ..... $ 1,650.00 2. Canadian currency:...... $ 3,900.00 3. Canadian currency:...... $ 805.00

4. Canadian currency:...... $ 450.00 Total ........... $ 6,805.00 [ 11 ] These stacks of cash currency were found in two separate drawers in the closet/bathroom area attached to the master bedroom where Mr. Simms and a female companion were first located upon entry by the police.

In addition to the foregoing the search team found: 5. 316 rounds of 9 mm ammunition; 6. 83 rounds of jacketed rifle ammunition; 7. 6 rounds of .303 federal rifle ammunition; 8. 14 rounds of 12 gauge ammunition; 9. 7 rounds of jacketed rifle ammunition; 10. a 30 round rifle magazine; 11. a 10 round rifle magazine; 12. 5 rounds of 5 gauge Winchester slugs; 13. a 9mm Glock handgun with a trigger lock stored inside a camouflage coloured case and found in a crawl space behind a fireplace insert in the master bedroom; 14. 3 rifles: (

i) an assault rifle with a trigger lock; (ii) a Lee Enfield rifle with trigger lock; (iii) a Savage lever action rifle with trigger lock; 15. a C-I-L “12 gauge” shotgun; 16. 2 pages from a day-planner one of which contained a list of names with numbers opposite. A number of entries had been previously scratched out.

[ 12 ] This particular sheet of paper was described by Crown witnesses and the Crown ’ s expert - Sgt. Gordon Vail - as a ‘ score sheet ’ that is used by drug traffickers to keep track of amounts owed by drug purchasers who buy on credit.

Also found: 17. a money counter 18. a lap-top computer 19. a handwritten note on Lakeview Hotel’s note pad paper intended for someone named ‘Shawn’ spelled - “S-h-a-w-n”- as opposed to the spelling used by the accused -“S-e-a-n.” The note read: Shawn This is what I have today one white I have more But my Girlfriend has Been with me for the past 5 days – The cost is $650.00 →Take your $200.00 and give her 450.00 Then if you want to give 1.2 or 1.3 for a $100.00 she will Buy it. sorry for Being late [ 13 ] The note was not signed. It was found by Cst.

James Bennett just inside the drawstring of a rolled up sleeping bag located above the garage door. Also found during the search: 20. an envelope addressed to S. Simms and J. MacDonald with handwritten numbers and other entries on the back; 21. a gold High School grad ring; 22. tin foil; 23. a brillo pad; 24. a clear plastic bag containing a white powder thought to be baking soda. [ 14 ] A digital scale was also found but was not tendered in evidence. The scale was not operational when first found. A cell phone was also seized.

It was not tendered as an exhibit but a photograph of it and an electronic read-out identifying the telephone number ‘ 902-292-8714' as belonging to the accused along with a read-out showing the last four incoming calls including one at 4:30 a.m. on July 22, 2009 from telephone number ‘ 209-9135' identified as ‘ Cristine C ’ and which had a call duration of 20 seconds.

This was tendered by the prosecution and marked as Exhibit # 45. [ 15 ] I do not think it is necessary to go through all the detail of where each and every one of these seized items were found in the house and by whom save for what I have already indicated previously. Suffice to say that all of these items were seized during the search of Sean Simms ’ residence beginning in the early morning hours of July 22, 2009 and concluding sometime early that same afternoon. The continuity of these exhibits has not been questioned by the defence. Expert Evidence [ 16 ] The Court heard from Sgt. Gordon D.A. Vail. Sgt.

Vail was called as an expert witness by the prosecution. Based on his extensive training and experience gained as a Royal Canadian Mounted Police officer for the past 22 years, the Court qualified Sgt. Vail as an expert in the “ production, packaging, pricing, quantities, jargon, paraphernalia, stash locations, distribution and use of cocaine, ” and as such entitled to express opinions in these areas.

[17] Sgt. Vail was present to hear the testimony offered by the first ten witnesses called by the prosecution. In his opinion, theamount of cocaine found on Mr. Simms’ property, weighing 16.6 grams, would not be for personal use. He was of the view that thisamount was consistent with what a drug trafficker would have to be broken down into smaller units and sold likely in what he called 20-rock or $20.00 equivalents. A $20.00 unit could weigh 0.2 grams but it could be sold in lesser amounts weighing as low as 0.1 grams allthe way up to 0.18 grams. According to Sgt.

Vail a 20-rock on the street would weigh approximately 0.15 grams. Sellers try to increasetheir profit margins by adding other substances to the drug, a process called cutting, or by ‘shorting the buyer’ by holding out theproduct at 0.2 grams when in reality it weighs less. Apparently there are no consumer protection laws protecting hapless buyers in thisnefarious, underworld market place. [18] Sgt. Vail was asked to consider all the evidence of what was gathered in and around the Simms’ residence as well as theevidence of Det. Cst.

Pam Green who described the appearance of Cristina Babin who arrived at the Simms residence around 5 o’clockin the morning of the search wearing a jacket over her pyjamas and having three $20.00 bills in one of her pockets; having a sicklyappearance, dilated pupils and appearing very thin and smacking her dry lips. Ms. Babin’s appearance was also noted by Cst. DavidLane of the RCMP, a lead investigator for the operation. [19] Sgt. Vail also heard the testimony of Mr. Robert Stevenson, an auditor with Canada Revenue Agency who testified that Mr.Simms only filed a tax return in 2005 and in 2009.

He did not file returns in 2006, 2007, 2008, 2010 nor for 2011, at least not up to thetime the reports were generated from the CRA computers on July 19, 2011. Mr. Simms reported gross income of $4,000.00 for thecalendar year 2009. He was entitled to a refund of $200.50 which was applied to a previous account balance owing of $451.94 leaving afinal debit balance of $251.44. [20] Mr. Simms would have had to file Income Tax Returns in order to claim Goods & Services Tax Credits or any Child TaxBenefits that he might have been eligible for. If Mr.

Simms had received any Employment Insurance Benefits or Social Assistance, theGovernment authority responsible for such payments would be required to provide confirmation of the amounts paid. No suchGovernment confirmations were issued to Mr. Simms during this five year period from 2006 to 2010. Mr. Stevenson indicated thatgambling and lottery wins, gifts, and income earned outside Canada from non-Canadian sources are non-taxable as income. [21] Based on the foregoing Sgt.

Vail was of the opinion that given all the evidence of the existence of the cocaine and associatedparaphernalia found at or near the Simms’ residence, and given the weight of the cocaine found under Mr. Simms’ front lawn, that being16.6 grams, the drugs were not for personal use but rather for distribution and sale. [22] Sgt.

Vail demonstrated a very keen awareness of the drug trade all the way from its production mainly in South Americancountries, to its importation into Canada by large criminal organizations and its subsequent distribution through networks comprised ofvarious middlemen, all the way down to street level vendors. It is an odious and despicable activity that preys on hapless victims whoselives are destroyed through addiction. [23] Sgt. Vail’s opinion is not, however, determinative of the case. It is for the Court to weigh all the evidence and to properlyconsider Sgt.

Vail’s opinion in deciding whether the Crown has proven each and every element of the offence beyond a reasonabledoubt. [24] After failing in its attempt to obtain a directed verdict, the Defence opted to call evidence. The Court heard from the accusedand six other witnesses called on his behalf. The Court is mindful that the accused does not have to prove his innocence. The burden ofproof remains on the Crown throughout. [25] The Court is also mindful of the requirements set out in the case of R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742.

Even if I do not believe the testimony of the accused and I am not left in reasonable doubt by it, I must still be satisfied based on theevidence I do accept that the accused is guilty of the offence beyond a reasonable doubt. While I might be highly suspicious of what wasgoing on at Mr. Simms’ residence, suspicion is not enough to support a conviction. If I am not convinced beyond a reasonable doubtthen I must acquit. [26] Mr. Simms and the witnesses called on his behalf provided explanations for many of the items seized during the police searchof his residence and surrounding property.

While I am not completely satisfied with the truthfulness of everything said by all the

witnesses, I am not prepared to say I do not believe anything they had to say. [ 27 ] What I do accept is that Mr. Simms, despite the fact that he has not reported or has under-reported his income over the past number of years, he does carry on a legitimate business plowing driveways during the winter, operating a towing service and dealing in used car parts. He also appears to deal mainly in cash and, on occasion, extends credit to customers who might not have sufficient funds on hand to immediately pay for the service or product provided. Like most small business operators Mr.

Simms keeps track of what he is owed. His might not be a very sophisticated method, but I suspect he is not the only small business operator who keeps track of such things on scraps of paper or on the back of envelopes. [ 28 ] I feel I should comment, however, on the testimony of Shawn David who was called by the defence to testify in regard to the handwritten note to someone named ‘ S-h-a-w-n ’ on Lakeview Hotels notepad paper. Mr. David was himself convicted of drug trafficking in the past.

His distinct recollection of this note being handed to his friend, Sean Smithers, by some unknown female while they were all gathered having a few beers at Sean Simms ’ place the evening before the police search occurred leaves me with some skepticism at to its veracity. Mr. David was extremely vague on other details of what took place that evening. He could not describe this female with any real clarity nor could he even recall where he later dropped off his friend Sean Smithers after they left the gathering to go home. Perhaps he had had a few too many beers. I ’ ll leave it at that.

But I will say that his testimony did little to raise any reasonable doubt as to the accused ’ s guilt in this matter. Analysis [ 29 ] In order to prove the guilt of the accused the Crown must prove, beyond a reasonable doubt, that he had possession of the illegal substance.

Section 2 of the CDSA incorporates the meaning of “ possession ” set out in

section 4 , sub-section (3) of the Criminal Code . In order to prove possession the prosecution does not have to establish actual possession. It is sufficient to show that the person “ 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; [ 30 ] The evidence must disclose some element of knowledge and control of the drugs by the accused. While there is a considerable amount of evidence linking the accused to the cocaine, not the least of which is the fact that it was found concealed on his property, the case for the prosecution relies mainly on circumstantial evidence.

The fact that there was cash found on the property; the fact that there were sheets of paper with names and numbers next to them which could be interpreted as score sheets; the fact that there was a small amount of baking soda which is sometimes used to convert cocaine into crack cocaine; the fact that there was a piece of tin foil and a brillo pad found in the garage; the existence of the note intended for “ S-h-a-w-n ” on Lakeview Hotel ’ s note paper which could evidence some type of drug purchase (or contraband cigarettes if one was to accept the accused ’ s possible

interpretation of what the author of the note might have been referring to when the words “ one white ” were used); the fact that a digital scale was found, albeit not in working order; the fact that a money counter was located in the house; the fact that there were a number of rifles and one handgun, most with trigger locks, along with a considerable amount of ammunition found; the fact that someone showed up at the Simms ’ residence at 5 o ’ clock in the morning dressed in pyjamas, looking thin and sickly with dry lips and dilated pupils and having $60.00 on her person consisting of three $20.00 bills; and, finally, the impression that someone who had reported little, if any, income for a number of years prior to and immediately after the police search on July 22, 2009 somehow had the financial ability to proceed with construction of a fairly elaborate house; all of which when considered as a whole raises a strong suspicion that the accused might be involved in some sort of nefarious and illicit trade. [ 31 ] Suspicion, however, is not enough.

It is tempered by the fact that the police investigators failed to find anything to directly connect Mr. Simms to the drug that was found on his property; a property that any number of people could have had access to. There is no fingerprint evidence linking him to the drugs. There was no evidence of any cocaine residue on the digital scale they found on the premises. The scale was not even in working order. There was no evidence of any utensils or pots or glass containers that had been used to cook the cocaine to convert it into crack.

There was no evidence of what was found on the laptop computer and the memory sticks seized from the residence of the accused that would link the owner to drug trafficking.

[ 32 ] Furthermore, explanations were offered both by the accused and the various witnesses called by the defence that supported the accused ’ s contention that he had other sources of legitimate cash income. Indeed, Mr. Simms only infraction might be his failure to comply with the reporting requirements of the Income Tax Act. I use the word “ might ” because it is not certain if he even had to report. As Mr. Stevenson stated he would not have to file an income tax return if his income did not exceed a certain minimum amount in any given year. I would urge Mr.

Simms, if he has not fulfilled his legal requirements for reporting income under the Income Tax Act , to remedy that situation as soon as possible. Conclusion [ 33 ] After listening to and reviewing all the evidence presented in this case, both from the Crown and the Defence, I am not persuaded beyond a reasonable doubt that the accused, Sean Robert Simms, has been proven guilty of possession of cocaine for the purpose of trafficking. I therefore find him not guilty. [ 34 ] Mr. Simms, you are about to be allowed to leave. You will be free to go but first let me caution you.

If you pursue legitimate business ventures and carry out your civic responsibilities and obligations as a Canadian citizen to report any and all income earned from those sources, you will not only be a contributing member of society but also a proper role model for your children and others in your family as well as your community in general. However, if you are involved in any unlawful activities and should you persist in doing so, I would suspect, Sir, that it is only a matter of time before you are caught. The choice is yours. I urge you to follow the right path. McDougall, J.