R v Colacci, 2023 ABCJ 67

In the Alberta Court of Justice Citation: R v Colacci, 2023 ABCJ 67 Date: 20230524 Docket: 200542413P1 Registry: Lethbridge Between: His Majesty the King - and - Nichole Colacci Judgment of the Honourable J ustice P.G. Pharo Introduction [ 1 ] After an investigation into suspected drug trafficking over some months, the police executed a search warrant on a house in Fort Macleod, Alberta where Ms. Colacci resided. They found methamphetamine (meth), fentanyl, three rifles, cash and drug paraphernalia (together, the “Contraband”). Ms. Colacci was present, and there were two other women in the house at the time. Ms.

Colacci has been charged with possession for the purpose of trafficking, contrary to s5(2) of the Controlled Drugs and Substances Act regarding the meth and the fentanyl, violating a weapons prohibition order contrary to s117.01(1) of the Criminal Code , (the “ Code ” ), improper storage of firearms contrary to s86(1) of the Code , possession of firearms for a purpose dangerous to the public peace, contrary to s88 of the Code , possessing firearms without holding a licence, contrary to s91(2) of the Code , and possession of currency exceeding $5000 as proceeds of crime, contrary to s355(

a) of the Code . [ 2 ] Since Ms. Colacci was not found in actual physical possession of any of the Contraband, the Crown must rely on circumstantial evidence to prove its case. The Defence argues that the Crown has not proven beyond a reasonable doubt that Ms. Colacci was in possession of the drugs, weapons and cash, and also that the Crown has not proven beyond a reasonable doubt that the drugs were possessed for the purpose of trafficking, and not for personal use only. Background Facts [ 3 ] I find the following facts in this case:

1. Constable Williams-Freeman testified that the police set up a covert surveillance camera at the subject property on 10 th Street, Fort Macleod (the “House”). He was the affiant who applied for and obtained the search warrant. He testified that he reviewed video from the surveillance camera. He said he reviewed several hours of video from the camera for February 5, 2020. He noted vehicles stopping at the House for short durations. He also noted a high amount of foot traffic, that would go into the House for short times.

He also testified that he reviewed surveillance video for February 19, 2020 and February 23, 2020. That surveillance data also showed vehicular and foot traffic to the House for short durations. Constable Williams-Freeman could not identify any of the people in the video surveillance. 2. The police then obtained a search warrant pursuant to the Controlled Drugs and Substances Act to search the House. 3. A search of the House was organized on April 29, 2020, (the “Search”) by a number of police officers. The Search started at 5:52 p.m. of that day. 4. The House was a bungalow.

The master bedroom was immediately adjacent to the kitchen. There was a hallway closet between the kitchen and the master bedroom. A bathroom and a second bedroom were located right across the hallway from the master bedroom. There was a bedroom, a laundry room and bathroom in the basement, along with an unfinished living area. 5. Ms. Colacci had her motorhome parked in front of the House. 6. There were three people in the House at the time of the Search. Ms. Colacci had come out of the House at the beginning of the Search.

Laura Thiessen was found in the kitchen of the House, and Robin Hibbs was in the hallway when the police entered. 7. During the Search the police found a baggie containing 4.5 grams of fentanyl in the top cutlery drawer in the kitchen, six baggies and two containers of fentanyl with a total of 10.2 grams of fentanyl in a white zipper pouch inside a black purse in the kitchen, a baggie containing 7.8 grams of fentanyl in the middle drawer in the kitchen, and a baggie containing 2.1 grams of fentanyl in a Louis Vuitton bag on the kitchen floor underneath the kitchen table. 8.

With respect to methamphetamine, three grams were found in the top cutlery drawer in the kitchen, and 53.2 grams were found in a Ziploc bag in the top drawer next to the sink in the kitchen. 9. With respect to firearms, a loaded Model 64 Cooey semi-automatic .22 rifle was found in the hallway closet between the kitchen and the master bedroom, a Cooey Model 840 loaded .410 shotgun was found in the basement on a floating shelf, and a Browning Model A bolt action .22 rifle was found in two pieces underneath the kitchen sink. 10.

With respect to the cash, $2820 was found in the top cutlery drawer in the kitchen and $7250 was found in the middle drawer in the kitchen. There was $1110 cash in a red wallet, $1210 loose, and $1785 in a pink zipper pouch in the black purse found in the kitchen. 11.

A metal box (the Metal Box) containing 81 saline containers, two naloxone kits, seven vials of naloxone, 26 packages of ascorbic acid, one syringe, 42 spoons, a chequebook in the name of Dominic Colacci, four CPR masks, a craft heart, five condoms, two packages of lubrication, eleven .22 bullets and one shotgun round was found in the hallway closet. 12. A black Blaze functional digital scale was found inside a potato bin in the entry hallway. A functional silver digital scale was found in the middle drawer in the kitchen, and a black and silver digital scale was found on the kitchen table. 13.

Two long rifle pellet guns were found on the floor by the bed in the master bedroom. A pellet handgun was found on a basement living room shelf. 14. A silver LG cell phone (the Silver LG cell phone) was found on the kitchen table and was answered by Constable Clarabut. A black LG cell phone (the Black LG cell phone) was found on a table in the front yard, which was also answered by Constable Clarabut. Another black LG cell phone was found on the kitchen table, and a Huawei cell phone was found on the kitchen floor under the table, but these latter two phones were not entered into evidence. 15.

A piece of paper with handwritten notes on it (the “Scoresheet”) was found on the kitchen table. 16. With respect to identification documents, an expired passport and a birth certificate for Ms. Colacci was found inside a black and blue purse at the top of the bed in the master bedroom. Vehicle insurance documents in the name of Ms. Colacci were found at the end of the bed on the floor of the master bedroom. 17. There was a rent book receipt dated April 1, 2020, from Ms. Colacci, stating “$900 for rent, address of the House found on the kitchen table. 18.

A suitcase was found in the secondary bedroom on the main floor, and another suitcase with clothes was found in the basement bathroom. There was evidence of an additional sleeping area on the floor in the basement. There were a number of dogs in the House at the time of the Search. There was an adult pit bull like dog, with a number of puppies in the second bedroom on the main floor. These dogs reacted to the police when they entered to do the Search. There were also a couple of older poodles in the House as well. 19. Ms. Colacci was arrested when she came out of the house just before the Search.

She did not have any weapons, cell phones, drugs or paraphernalia on her when she was arrested. She was taken to the police station, where she was interviewed by the police and she gave a statement, which was entered into evidence (the Statement). The Relevant Law of Constructive Possession [ 4 ] It is the position of the Crown that Ms. Colacci is criminally responsible, and liable for the above charges because she

possessed the drugs, firearms and money set out above that were seized in the House. However, when arrested, Ms. Colacci had none ofthose things in her actual physical possession. Therefore, the Crown alleges that she was in constructive possession of them. The Crownstates that there is sufficient circumstantial evidence to establish that she had constructive possession of the Contraband. [5] It must be noted that possession is not the same as ownership. The charges allege that Ms. Colacci possessed theContraband, not that she owned it. The language of the Code, in s4(3), defines possession more broadly. [6] The term “possession” is defined in the Code as follows: 4

(3) For the purposes of this Act, 1. 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 anotherperson; and 2. where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall bedeemed to be in the custody and possession of each and all of them. [7] In this case, although the Defence concedes that Ms. Colacci lived in the House, it is argued that there is evidence that otherpeople also resided or were in occupation there.

The Defence points to the fact that there were in fact two other people, Laura Thiessenand Robin Hibbs, actually in the House at the time of the Search. There was also a suitcase in the second bedroom on the main floor,and another suitcase in the basement, along with what looked like a makeshift bed on the floor in the basement. Ms. Colacci said in herStatement that five other people lived with her, and seven or eight people had recently moved in or out. [8] In this case, to prove that she had possession, the Crown must prove that Ms.

Colacci had both sufficient knowledge andcontrol of the Contraband, to establish that she had constructive possession of it. [9] I will now review the relevant case law on the issue of constructive possession. [10] The Ontario Court of Appeal considered this issue in the case of R v Pham, (ON CA), [2005] OJ No 5127(Pham). In that case the accused was convicted of possession of cocaine for the purpose of trafficking when the drugs were found in anapartment recently occupied by her alone.

However, at the time of the search and seizure, the premises were only occupied by a maleperson, Nguyen, who had recently moved in. Surveillance showed activity consistent with drug trafficking at the apartment. Thecocaine was found in the bathroom in a cloth purse, and currency was found in a makeup bag. At the time of the search, Ms. Pham hadnot been at the apartment for some 32 hours. The trial judge found that Mr. Nguyen did not bring the drugs into the unit after she left,and he did not have the means to purchase the drugs. The trial judge found that Ms.

Pham had sufficient knowledge and control toconstructively possess the cocaine either personally or jointly with Mr. Nguyen. On appeal, the Ontario Court of Appeal agreed with thetrial judge. The Court of Appeal stated that Ms. Pham elected to use her home as a drug trafficking centre and was a key figure in thatoperation. She retained control of the apartment even when she was away. Both the purse and the bag containing the money were inplain view in the bathroom, which was a common area.

The purse and the makeup bag were consistent with the personal toiletries of theaccused, there was no evidence of men’s toiletries in the bathroom, and the main bedroom had women’s clothing, had ID documents inthe accused’s name and drug related packaging materials.

Because of all this, the Court of Appeal held that the circumstantial evidencesupported the only inference which was that the accused was aware of and participated in all that occurred in her home, and that she hadmuch more than a quiescent or passive knowledge of the drugs, as well as an element of control over them. [11] With respect to Alberta cases, Judge Kerby of the Provincial Court considered the issue of control in the case of R v Nguyen,2008 ABPC 286 (Nguyen PC). In that case, after conducting surveillance on a residence, the police obtained a search warrant andentered the residence. Mr.

Nguyen was found in the living room and was arrested. Cocaine, cash and ecstasy were found under thecouch in the living room, were seized from the residence. A cellphone was found near the cocaine. The phone rang and a caller asked tobuy drugs, and a second caller on the same phone mentioned Mr. Nguyen’s first name. After the police entered the residence, Mr.Nguyen tried to remove cash from his pockets. The Crown took the position that the only reasonable inference from the totality of theevidence was that Mr.

Nguyen was in possession of cocaine and ecstasy for the purpose of trafficking and that he had possession ofmoney obtained by crime. In contrast, the Defence took the position that the evidence did not establish that Nr, Nguyen had knowledgeand control of the drugs or cash beyond a reasonable doubt. Judge Kerby found him not guilty because he was not a permanent, orexclusive resident of the residence which was rented by someone else. Also, other individuals frequented the residence, and thecontraband was hidden. Therefore, there was no direct evidence of knowledge or control, or manual handling.

Judge Kerby found thatthe Crown did not prove knowledge and control beyond a reasonable doubt. [12] Judge Kerby went on to make this general statement: 57 A lawful tenant of a residence who has lawful control of the premises and has knowledge of illegal possession of drugs for thepurpose of trafficking by the occupant of the premises and fails to take steps to remove the drugs or person dealing in drugs from thepremises, and who in fact is providing a base of operations for the unlawful activity is in constructive possession of the drugs and is aparty to the unlawful activity of the occupant.

There being knowledge, consent and a measure of control. [13] Judge Kerby made these comments later in his judgment: 63 Constituent and essential elements of possession are knowledge and control in cases where the contraband is hidden therelationship of the accused to the location where the contraband is found becomes paramount. Knowledge of the hidden substance

cannot be inferred from mere occupancy. The test is not whether the Crown can prove possible or probable knowledge. Rather, the Crown must prove knowledge of the contraband (here cocaine, ecstasy and the cash found underneath the couch) beyond a reasonable doubt. While knowledge may be inferred from exclusive occupancy, Courts have recognized that it is unsafe to infer knowledge from non-exclusive occupancy.

Here there was no direct evidence of knowledge, the contraband was hidden, the residence was rented by another individual, other individuals frequented the residence, and the accused was not a permanent occupant. The circumstantial evidence cannot therefore support the finding that the accused had knowledge. No other evidence connected the accused to the contraband to allow one to infer knowledge or control.

After considering all of the circumstantial evidence as a whole and not just piecemeal I have concluded that such evidence, including the keys, the driver's licence, the cellphone and cellphone calls, does not allow the Court to infer knowledge of the contraband. 64 Control means power or authority over the object in question and is established by proof that the accused had the right to grant or withhold his consent to the storage of the object. Control may be derived from the status as a principle resident or occupant . However control cannot be inferred from mere knowledge and opportunity.

The Crown must establish the connection sufficient to prove that the accused, if he had knowledge of the contraband, also had the right or ability to grant or withhold his consent to the presence of the contraband. In this case I agree control could be established against resident if it could be established that she held the lease or was the owner of the residence.

However I find that having considered all of the circumstantial evidence I cannot find a sufficient connection between the accused and the premises or between the accused and the contraband from that evidence to compel an inference of control. [ 14 ] In the case of R v Nguyen , 2009 ABQB 234 ( Nguyen QB ), Nguyen, Miao, and Ta were charged with of possession of cocaine for the purpose of trafficking, possession of the proceeds of crime and weapons offences. After surveillance, a search warrant was obtained for a condominium. The search warrant was executed at 2:00 a.m.

Miao was the sole occupant at the time, and it appeared she had been sleeping in the master bedroom at that time. The police seized the following items: A baggie of powdered cocaine weighing 6 grams was found on the top shelf of the kitchen cupboard to the right of the microwave. Also found on that shelf were a plate with 3 pieces of loose crack cocaine on it. The pieces of cocaine weighed 14.3 grams, a cup or dish containing 27 grams of powdered cocaine, a digital scale with white residue on it, playing cards folded down the centre.

Fifteen 2 kg boxes of baking soda were found in the bottom left cupboard of the kitchen island. Five boxes of Ziploc bags were found in the bottom right cupboard of the kitchen island, as well as a bent playing card and a strainer with white residue on it. Ten individually wrapped baggies containing a total of 22.2 grams of crack cocaine were found on the top shelf of the door of the refrigerator in the kitchen. There was also a baggie containing 14.4 grams of marijuana found on this shelf.

Ten individually wrapped baggies containing a total of 22.2 grams of crack cocaine were found on the top shelf of the door of the refrigerator in the kitchen. There was also a baggie containing 14.4 grams of marijuana found on this shelf. One large sandwich bag containing 3 smaller sandwich bags containing crack cocaine was found on the door of the freezer portion of the refrigerator . This cocaine totalled 81.1 grams . A black leather bag in the kitchen cupboard to the right of the stove contained 3 handguns and ammunition .

In the spare room, police found a black duffle bag containing a handgun, ammunition, identification documents with respect to Mr. Nguyen, and three 1 kg bricks of powdered cocaine, and baggies. [ 15 ] In that case, Justice Graesser found that there was some documentary evidence that Miao resided in this condominium, but the strongest evidence was that she was the sole occupant at the time the search warrant was executed. However, there were men’s and women’s clothes there.

He found that the only conclusion consistent with the totality of the evidence was that Miao was a regular occupant of the condominium, and that it was her residence at that time. However, Justice Graesser found that she was not the only occupant or resident because of the finding of men’s clothing, the presence of Nguyen’s bag, and documents linked to Ta. [ 16 ] At paragraph 65 Justice Graesser reviewed the case law on constructive possession, and summarized it as follows: 1. This is a very fact specific area. 2.

Constructive possession under s. 4(3) of the Criminal Code can be and often is established by circumstantial evidence. 3. The inferences to be drawn from the circumstantial evidence must be reasonable. 4. An inference drawn which establishes an essential element of an offence must be the only reasonable inference that can be drawn. 5. The trier of fact must look at the totality of the evidence. 6. Constructive possession requires knowledge and control. 7. Control in the context of constructive possession means consent with the power to affect the location of the item. 8.

Occupancy can be evidence of possession. [ 17 ] Justice Graesser then went on to apply these principles to that case. [ 18 ] With respect to the issue of possession of the drugs in the condominium by the occupant Miao, Justice Graesser was satisfied beyond a reasonable doubt that the plain view contents of the refrigerator and freezer, once the doors are opened, are known to the residents of a dwelling house. As with the cocaine in plastic baggies in the refrigerator and the freezer, there was no apparent attempt to hide or conceal the cocaine on the top shelf of the kitchen cupboard.

There were many other items found in plain view which were identified as being consistent with packaging cocaine for sale and converting (or cooking) powdered cocaine into crack cocaine. The cocaine itself was on a top shelf, including a quantity of crack cocaine on a plate. There was no direct evidence that Miao knew that it was there, but it was in a location easily accessed and was not hidden in any way. It is necessary to review the totality of the evidence, and in particular what was observed by the police when they executed the search warrant .

There was an electronic scale with white powder on it in the cupboard. There were 16 pounds of baking soda in another kitchen cupboard. There was a large quantity of plastic baggies in the kitchen. There was dextrose. In the context of what was in plain view, and what was easily seen by any resident of the condominium , Justice Graesser stated that he could not imagine that Miao was unaware of the contents of the kitchen cupboard. He said that logic dictates that a resident would reasonably be expected to know what is in plain view and what is in commonly accessed areas

such as appliances and kitchen cupboards, and that there was no reasonable explanation to the contrary. As such, he said that this logic also established any required consent and control over these items.

Residents consent to the presence and control of items in plain view and in commonly accessed areas. [ 19 ] As noted above, the police also found a black leather bag in the kitchen cupboard to the right of the stove which contained three handguns and ammunition. [ 20 ] Justice Graesser referred to the doctrine of wilful blindness, which is described in the case of R v Briscoe , 2008 ABCA 327 by Justice Martin, who stated: It is important to keep in mind that the application of the wilful blindness doctrine focuses on the accused's state of mind.

Moreover, it applies where the accused not only had a suspicion, but virtually knew the critical fact, and intentionally declined to secure that knowledge. As explained by Glanville Williams ( at 159): A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realised its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness.

It requires in effect a finding that the defendant intended to cheat the administration of justice.

Any wider definition would make the doctrine of wilful blindness indistinguishable from the civil doctrine of negligence in not obtaining knowledge. [ 21 ] Justice Graesser then went on to say: 112 There was nothing in this bag to link it or any of the contents to any specific person, but as with the plate in the upper cupboard, the circumstances are such that the only conclusion I can reasonably come to is that Miao knew of the presence of the bag, and of its contents. 113 It is possible that Miao was merely aware of the bag itself, and had never opened it.

Perhaps she had nothing to do with the bag and was not curious about it. Perhaps she had been told by someone not to look in the bag. But with all of the surrounding circumstances, her failure to be specifically aware of the contents of it (if that were the case) could only be accounted for by wilful blindness.

With all of the other contents of the condominium of which she was aware, she must have known that the bag contained items linked to drug trafficking. 114 As such, I am satisfied beyond a reasonable doubt that Miao knew that the handguns and ammunition were in the bag in the cupboard in her kitchen. [ 22 ] In the case of R v Cantrill, 2011 ABQB 273 ( Cantrill ) the police had a residence under surveillance, then did a search. During the search, numerous items were seized including 489 grams of marijuana, over $8000 in cash, cell phones, packaging material and a loaded semi automatic handgun. Mr.

Cantrill was charged with possession for the purpose of trafficking, and possession of the other contraband. The evidence was that Mr. Cantrill rented the residence, paid rent, and had a key. The court found that he was the chief tenant, and other persons sublet from him. The police found 244.5 grams of marijuana in the cupboard under the sink in the bathroom.

Five baggies with marijuana residue in a drawer in the kitchen, a cell phone with text messages that potentially related to drug orders, two pages of a “score sheet” on the kitchen table, 244.8 grams of marijuana in a Safeway plastic shopping bag on a chair in the kitchen. The handgun and the cash were in a safe. Court papers in the name of Mr. Cantrill were located on the kitchen table. [ 23 ] Justice Mandersheid found Mr. Cantrill guilty of possession of the marijuana, following the reasoning of Judge Kerby in the Nguyen PC case.

Justice Mandersheid stated as follows: 85 There is some evidence on which I could infer that the marihuana found in the Safeway bag was in the possession of an unidentified female. Constable Parker testified that he observed a white female arrive at the Residence on May 20, 2009 and carry a white plastic grocery bag into the Residence. That could have been the marihuana recovered from the kitchen, sitting on a chair. Perhaps so, but if that is the case, then that does not exonerate the Accused.

I can and do infer that if any person felt comfortable leaving a substantial amount of marihuana in a common area of a house where it was very readily detected, then that meant the person who left the marihuana was comfortable and accepted that the persons who possessed the Residence would know of the existence of that marihuana. He then found as follows: 89 At best, the Accused is a tenant in control of the premises who took no steps to remove drugs or drug dealing from a premises he controlled: R. v. Nguyen .

There, Kerby P.C.J. concluded that a tenant in control of premises who permits unlawful activity may be found to have constructive possession of illegal drugs (para. 57). Here, the Accused was not entirely passive, as I have observed previously, he used marihuana in the Residence. 90 The Accused was a co-tenant. I can and do infer he knew of the activities within the Residence which were conducted openly. In particular, with respect to the Safeway bag which contained marihuana and which was openly placed on a chair in the kitchen of the Residence, I infer in parallel to R. v.

Nguyen that the Accused either knew what the contents of such bag was or was willfully blind to the presence of illegal narcotics: R. v. Briscoe . The Accused entered no evidence to counter that inference, or to indicate he did not know about the other marihuana located in the Residence, or the drug related paraphernalia, including the scales, grinder, and plastic bags .

Where evidence of illegal conduct is open or very readily observed, a logical inference is that the Accused knew what was going on. 91 Therefore, from the evidence, I conclude that the Accused had knowledge, control and had consented to the presence of the marihuana in the Residence.

The Crown has proven knowledge and control beyond a reasonable doubt, and I therefore find that the Accused was in possession of the marihuana contrary to Controlled Drugs and Substances Act, s. 5(2). [ 24 ] Justice Mandersheid in the Cantrill case, and Justice Graeser in the Nguyen QB case both followed Judge Kerby’s ruling in the earlier Nguyen PC case and these are binding authorities on me.

[25] In the more recent case of R v Nafke, 2019 ABPC 193 (Nafke), Mr. Nafke and his friend Azad, rented a condominium unit. Mr. Nafke was a lessee, along with Azad, and they both paid half the rent. The accused collected Azad’s share of the rent, combined itwith the accused’s share, and gave it to the landlord every month. It appeared that neither the accused nor Azad lived in the unit. Thepolice did surveillance on the unit, which showed that the accused went into the unit with a key multiple times. As a result, the policeobtained a search warrant, and 113.4 grams of powder cocaine were seized.

The accused admitted that he knew of the presence of thecocaine in the unit but stated all the drugs were brought into the unit by Azad. The accused testified that he had nothing to do with thecocaine, and he did not touch it. The surveillance showed that of 67 recorded entries into the unit, there were 50 occasions that theaccused appeared to use a key to unlock the door. There were five occasions when an unidentified male used a key to enter the unit. Judge Fradsham convicted him of possession for the purpose of trafficking.

Judge Fradsham found as follows: 39 However, in my view, the decisions of Judge Kerby, and Justices Graesser and Manderscheid, when read together, make it clearthat if a person was a tenant of premises, and had knowledge of the presence in the premises of a drug (in the case at bar, cocaine), and ifthat tenant also had sufficient control of the premises that he or she could have caused the substance to be removed, but failed to do so,then that tenant had, in law, sufficient control over the substance to constitute possession of that substance. 43 Mr.

Nafke did much more than passively acquiesce to the presence of the cocaine. He knowingly, intentionally, and activelyfacilitated its presence by providing one-half of the rent for the premises, by taking on the task of collecting the rent from the two co-tenants (himself and Azad), and by forwarding the rent each month to his sister (the lessor). Mr. Nafke could have caused the drugs to beremoved from the premises by refusing to pay his share of the rent until the drugs were removed. Mr.

Nafke had a significant measure ofcontrol over the premises because he was a co-tenant, he most often controlled the key (there is no evidence that there was another key),and also because Mr. Nafke could have caused the lessor to terminate the lease for non-payment of rent. The Application of Circumstantial Evidence in this Case [26] The Crown seeks to prove its case by circumstantial evidence. In the Supreme Court of Canada case of R v Villaroman, 2016SCC 33 (Villaroman), trial courts are given some direction as to how inferences are to be drawn from circumstantial evidence.

TheSupreme Court made it clear that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference thatsuch evidence permits. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the proof beyond areasonable doubt standard. A gap in the evidence may result in inferences other than guilt. However, those inferences must bereasonable given the evidence or the lack of evidence, assessed logically, and in the light of human experience and common sense.

When assessing circumstantial evidence, the judge must consider other plausible theories and other reasonable possibilities which areinconsistent with guilt. The Crown may need to negative these reasonable possibilities, but does not need to disprove every possibleconjecture which might be consistent with innocence. Other plausible theories or other reasonable possibilities must be based on logicand experience applied to the evidence or the absence of evidence, and not on speculation.

In assessing circumstantial evidence,inferences consistent with innocence do not have to arise from proven facts. [27] In the Pham case, the Ontario Court of Appeal adopted the following statement from the trial judge: If I am to convict on inferences of fact, I must be satisfied beyond a reasonable doubt that guilt is the only reasonable inference to bedrawn from all of the proven facts. In assessing inferences for each piece of evidence the reasonable doubt standard is not to be appliedeach time.

I am to consider the inference suggested against any other reasonable inference that can be drawn and attribute weightaccordingly. All of the evidence that I determine merits weight is then assessed on the reasonable doubt standard. Case Law referred to by the Defence [28] Justice Graesser stated in Nguyen QB that the issue of constructive possession is very fact specific to every case.

Whileultimately the specific facts of this case will dictate the result, it is helpful to study and contrast relevant factors considered in previousfactually similar cases, which I will do. [29] The Defence cited the case of R v Escoffery, (ON CA), [1996] OJ No 1106. The facts in that case were thatMr. Grey was convicted of possession of crack cocaine for the purpose of trafficking. His girlfriend, Ms. Escoffery, was convicted ofsimple possession. The police found the crack cocaine hidden in the master bedroom of Ms. Escoffery’s apartment.

When the policeexecuted a search warrant, they found a plastic bag containing 21 grams of crack cocaine hidden in a cassette player sitting on a dresserin the master bedroom. The police also observed men’s clothing and $240 cash in a drawer of the dresser. Another police officerdiscovered a plastic bag with .12 grams of crack cocaine hidden under a flower arrangement on a bedside table. He also saw boxes ofclothing, dishes and sheets in the closet, and both men’s and women’s clothing hanging in the closet.

On a shelf above the clothes rod hefound a black vinyl pouch containing a set of scales and personal papers belonging to Mr. Grey. The evidence was that Ms. Escofferyhad been living at this residence, but at the time of the search and seizure, the couple were in an intimate relationship, and Mr. Grey wasstaying at her apartment three or four nights a week, because it was close to a restaurant where he worked. At the time of the incident,Mr. Grey was planning to move in; the boxes in the closet were his, and he still maintained his own rented place somewhere else.

Ms.Escoffery denied any knowledge of the drugs found in her bedroom and said that a neighbour had given her the cassette player when hemoved. Several witnesses testified that during the day the door was unlocked, and several people would come in and out. Mr. Greytestified at the trial that the cash in the dresser drawer was his, as were the scales in the closet, which he used to measure ingredients atthe restaurant. However, he denied any knowledge of the cocaine seized from Ms. Escoffery’s apartment. The trial judge convicted Mr.Grey of possession of the cocaine for the purpose of trafficking. Mr.

Grey appealed to the Ontario Court of Appeal, which overturnedthe conviction. The Court of Appeal found that there was no direct evidence Mr. Grey knew about the cocaine, so the trial judge had toinfer knowledge from circumstantial evidence. The case against Mr. Grey rested principally on his regular occupancy of Ms. Escoffery’sapartment and on the presence of his clothing and other belongings in the bedroom where the cocaine was found. The court held thiswas not enough to infer knowledge to Mr. Grey because the drugs were hidden, the apartment was rented by Ms.

Escoffery, other peoplefrequented the apartment, and he was not a permanent occupant. I note that the case at bar is different because Ms. Colacci was clearly a

resident of the House, was the main tenant and the Contraband was in plain view in the kitchen drawers, or hallway closet, and not hidden, except for the Contraband in the two handbags in the kitchen. [ 30 ] In the case of R v Ammann , 2017 ABQB 784 ( Amman ), Ms. Amman was charged with possession for the purpose of trafficking methamphetamine, fentanyl, and GHB, as well as possession of cash knowing it was proceeds of crime. She was the sole occupant of the premises in question. There was police surveillance, which showed activity consistent with drug trafficking. The police saw a Mr.

Crossley bring a bag into the house. A search warrant was obtained. When the police entered the premises, they found two other people there, Mr. Crossley and Ms. Dyck. Mr. Crossley was at the kitchen table, Ms. Dyck was in the living room, and Ms. Ammann was in the hallway when the police entered. A large amount of meth and cash, a black Coach purse, a functioning digital scale, and two cell phones were found on the kitchen table. Two cell phones were also found in Mr. Crossley’s jacket. Sandwich and Ziploc bags, cash, and a baggie of meth were found in a pantry off the kitchen.

Two 500 ml bottles of GHB were found in the kitchen refrigerator. A gym bag containing 36.3 grams of meth, 2.8 grams of cocaine, $5000 cash, a large number of pills, digital scale, drug user kit, pepper spray and hundreds of empty baggies was found in the spare bedroom. There was an Aveda bag containing $1517 cash found in the pantry off the kitchen. Ms. Amman testified that she was not a drug dealer but was only a user. She said she bought drugs from Mr. Crossley.

She said that at the time of the search she was downstairs doing laundry, and when she had gone downstairs she did not see any drugs on the kitchen table. When the police came in the house to do the seizure, she said she came upstairs and was surprised to see the drugs, cash and paraphernalia on the kitchen table. She said the drugs in the gym bag, and the GHB were hers, but were for her own personal use. She said the cash in the gym bag was an under the table cash bonus from her employer. Ms. Dyck gave evidence that basically supported Ms. Amman’s evidence. Justice Feehan rejected Ms. Amman’s evidence.

He found that Ms. Ammann clearly controlled the premises, as the only permanent resident. She admitted having knowledge of the contents of the cash in the Aveda bag, as well as the drugs, paraphernalia and cash in the gym bag. She admitted that the GHB was hers. The judge found that Ms. Amman had knowledge and control over those substances and consented to them being on her premises. However, the testimony of Ms. Ammann and Ms. Dyck raised a reasonable doubt that she had knowledge of the drugs, cash and paraphernalia on the kitchen table, because she said that it was not there when she went downstairs.

In the end result, Justice Feehan found that Ms. Ammann possessed all the drugs in the house which were not on the kitchen table for the purpose of trafficking and convicted her of that. He also convicted her of the charge of possessing proceeds of crime, for the cash in the house that was not on the kitchen table. [ 31 ] In the case of R v April, 2017 SKPC 42 ( April) , Mr. April was residing in a home where a search warrant was executed. A number of individuals were found in the home, including Mr. April.

The police found, among other things, two bags containing meth located behind a baseboard in a bedroom on the main floor of the house. All the entrances to the house were barricaded. The police had to use a hand ram to break through the front door. Mr. April and Mr. Erickson were found in the house. The police also found a broken open cell phone, with the SIM card removed. Other cell phones, a tablet and plastic packaging and bear spray were found on the dining room table. Score sheets were found on the kitchen table.

A money counter was found in one bedroom and in another bedroom female clothes and personal effects were found. This was the bedroom where the meth was found, after a loose baseboard was removed. Another lady was found in the basement. There were papers in the name of Mr. Boylan in the basement, and in fact Mr. Boylan was arrested right outside the house after he was heard on the phone telling someone that “They are right outside. I saw them on the corner. You better get out.” Judge Anand embarked upon an analysis of the requirements of knowledge and control.

He relied on the Cantrill case and found that the presence of drug paraphernalia in the common areas of the house, where it could be seen by the accused, and the fortifications, led to the inference that he was aware of the probability of the presence of drugs in the house. The judge found that Mr. April either knew or was wilfully blind to the presence of drugs in the house, so the requirement for knowledge was satisfied. However, with respect to the issue of control over the drugs, the judge was not satisfied beyond a reasonable doubt that the only reasonable inference in that case was that Mr.

April was the person in charge of the drug stash, and knew exactly where it was, and was responsible for destroying the evidence on the phone. Since there was another reasonable inference that could be drawn from the evidence, the Crown had not established the requirement of control by Mr. April, so he was acquitted. Knowledge of the drugs was found; the problem was the question of control. It was not clear that Mr. April was the one in control of the residence. In the case at bar, the evidence is clear that Ms. Colacci had substantial control of the House.

Also, in the case at bar, the Contraband was in commonly accessed areas, in the kitchen, and as such any resident of the House would have knowledge of them. [ 32 ] In the case of R v Thompson , 2010 ONSC 2997 ( Thompson) the two accused, Mr. Thompson and Angela Sharp, were charged with possession for the purpose of trafficking of both cannabis and cocaine. The police executed a search warrant in the early morning hours on a two-story house with four occupants, including the two accused, and found them all asleep. The police found drugs in three separate locations in the house.

Susan Sharp was the mother of the accused Angela Sharp. Angela was the common law partner of the co-accused, Mr. Thompson. There were three bedrooms on the second story. Susan Sharp lived in one of the second-floor bedrooms, and she was essentially bedridden. There was also a child’s bedroom on that floor. The other second floor bedroom had been occupied by Angela and the co-accused Thompson, but after an infestation of bed bugs in that bedroom, those two moved out of it, and certain furniture, including the bed, was thrown out. The two accused moved downstairs where they slept on the couches or on the floor.

There was also a bedroom on the ground floor, where the fourth resident, Mr. Walker, lived. There was only one bathroom in the house, which was located on the second floor, and all four of the residents used it. With respect to the bedroom on the second floor that had been vacated, the evidence was that the two accused continued to use it as a changing room after they took a shower. They had most of their clothes upstairs in that room, and a smaller amount of clothes downstairs as well. Mr. Walker also used the upstairs shower, and he had access to that bedroom as well.

On the evening and night of the search, there had been a party. The evidence was that at one point fifteen or twenty guests from the party were in the back patio area. However, at the time of the search at about 3:00 a.m., all the guests had left, and the four residents had gone to bed. At the time of the search, the police found some digital scales in plain view on a dresser in the vacated upstairs bedroom, as well as 4 grams of marijuana seeds in a cup. They also found 14.5 grams of cocaine hidden inside a leather camera case on a shelf in a closet in that bedroom.

In the common area on the main floor, on the dining room table, in a cookie jar, the police found sixteen grams of hashish, and some marijuana. There was no evidence as to who the primary lessee of the premises was. The trial proceeded on the basis that all four adult occupants had the same legal status, namely as co-tenants. Justice Code acquitted the accused. He found that there was no evidence that the premises were under control of any particular occupant. It appeared they all had equal rights to use the premises. The cocaine in the camera case was well hidden.

There was no evidence of who owned the camera case. With respect to the scales and the marijuana on the dresser, they were visible to a user of the room. However, the judge ruled that it was not clear who had control over them. The drugs in the cookie jar were not in plain view, although they were not well hidden. Although the judge found that the three occupants of the main floor must have been aware of these drugs, again the issue was control and not knowledge. There was no direct evidence of drug trafficking by the accused. In the end, the judge found that the

circumstantial evidence left open the possibility that all the drugs belonged to Mr. Walker, and that he left the soft drugs in relatively open places, and that he carefully hid the more valuable hard drugs. The judge stated that if the accused had knowledge of the soft drugs, it was a rational possibility that their attitude was one of “mere indifference or passive acquiescence”. An acquittal was entered on all counts. This case is different that the case at bar in several ways. First, the evidence is clear that Ms. Colacci is the primary tenant in this case.

There is some evidence of involvement in drug trafficking by Ms. Colacci here. In her Statement she states she owns some of the drugs and is “middling”. Her conduct by spending long hours at the kitchen table where the phone, score sheet and scale were located also points to involvement in trafficking. The drugs here were not hidden, but in commonly accessed areas in the kitchen. Ms. Colacci’ s involvement in drug trafficking indicates more than mere indifference or passive acquiescence. [ 33 ] In the case of R v Janchevsky , 2012 ABPC 90 ( Janchevsky ) Mr.

Janchevsky was charged with possession for the purpose of trafficking when he was arrested in an apartment in Banff, when a search warrant was executed. The drugs, being ketamine, psilocybin, cocaine, ecstasy and meth were all found in Bedroom 1 in the apartment. At the time of the search, Mr. McKinley opened the door to the apartment. A young woman was found in Bedroom 2, and Mr. Janchevsky was laying on the floor. In Bedroom 1 the drugs were found in a drawer in a night table, inside a dresser drawer under clothing, and under the mattress. A score sheet was found in a backpack in the closet. Mr.

Janchevsky’s passport, Birth Certificate and Record of Employment were found in Bedroom 1. In Bedroom 2, some marijuana was found in the purse of the young woman; her cell phone rang frequently during the search, the cell phone contained drug related texts, there were some scales in a drawer, and white powder residue was found on a desk. There were four names on the lease of the apartment, being Mr. Traquir and Mr. Hatherall and two females. Mr. Janchevsky testified that he had been sleeping on a mattress on the floor of the living room for a few weeks. He said he knew there were drugs in Bedroom 1, and Mr.

Traquir and Mr. Hatherall occupied it and sold drugs from it. Mr. Janchevsky said he was a drug user and he bought drugs from Mr. Traquir. Mr. Janchevsky said he never went into Bedroom 1 and could not explain why his documents were discovered there. Judge Gaschler acquitted Mr. Janchevsky, mainly because the Crown could not show that he had control over the apartment. The contraband in Bedroom 1 was not in plain view. There was evidence that Mr. Janchevsky slept on a mattress in the living room. There was no evidence that Mr. Janchevsky was involved in drug trafficking in any way. Mr.

Janchevsky’s documents alone in Bedroom 1 were not sufficient basis to draw an inference that he had a degree of control over the contraband found in Bedroom 1, hence the acquittal. This case has many differences from the case at bar. Mr. Janchevsky was sleeping on a mattress in the living room and was not a tenant with control over the apartment, and certainly not a principal tenant. It is not clear that he had knowledge of the contraband. It was also not clear that he was involved with any of the drug trafficking activities in the apartment at all.

Case Law referred to by Crown Counsel [ 34 ] In the case of R v Lehner, 2020 ABCA 248 , surveillance showed that Ms. Lehner was observed at what the court called Residence A. It was a basement suite with one bedroom. When the police executed a search warrant, Ms. Lehner was in the residence with another woman. The police found cocaine in the kitchen, along with a scale, plastic baggies and other drug paraphernalia. They also found a purse containing Ms. Lehner’s ID. She said the other woman was not involved with drugs. The judge inferred that Ms.

Lehner resided there, and she knowingly possessed the cocaine for the purpose of trafficking. She was convicted. She appealed arguing that there was insufficient evidence to infer that she was the sole occupant, and that she had knowledge and control of the cocaine in the kitchen. She argued that the trial judge failed to eliminate other possible inferences that she shared the residence, or she was a mere visitor. The Court of Appeal dismissed that argument, saying that those theories were possible, but nothing on the record supported them, and they were speculative.

The Court said that her sole occupancy was the only reasonable inference to be drawn, so her appeal was dismissed. [ 35 ] Mr. Schellenberger’s case was argued at the same trial as Ms. Lehner’s, being part of the same investigation. He was observed at Residence B, which was a house with four bedrooms, three of which appeared to be occupied. The police searched this residence with a search warrant, after surveillance. He was present in the residence at the time of the search. A box with documents addressed to Mr.

Schellenberger were found in the master bedroom, and his driver’s licence was found in the master ensuite bathroom. Also found in the master bedroom were marijuana, a small amount of cocaine and four firearms in an open hockey bag on the floor at the foot of the bed. Ammunition was found in the bedroom and other places in the house. The trial judge inferred that Mr. Schellenberger resided at Residence B and that he knowingly possessed the drugs and guns therein. On appeal Mr.

Schellenberger argued that there were multiple reasonable inferences inconsistent with him possessing the drugs and guns, because there was no evidence of how many people occupied the residence, that there were three bedrooms that appeared to be occupied and no evidence as to who occupied them, and he was only seen there twice, but other people were also seen there.

He argued that other reasonable inferences were that the owner of the house occupied the master bedroom, he was just a guest and had no control over the contents of the residence, and unknown person put the guns in the residence, others under surveillance put the articles in the residence, he had just moved out and forgot his old documents, and that there was a new resident who had just taken over the master bedroom. The Court of Appeal found that there was no evidence to support the other inferences urged by Mr. Schellenberger, and that the trial judge had considered them, and rejected them.

The Court of Appeal found that the evidence in its totality did not support his alternate suggestions as being reasonable exculpatory inferences. The Court acknowledged that the line between plausible theory and speculation is not always easy to draw. The Court then referred to the Villaroman case, saying that the circumstantial evidence does not have to totally exclude other conceivable inferences, but that alternative

interpretations of the circumstances must be reasonable and not just possible. As a result, the Court of Appeal also dismissed Mr. Schellenberger’s appeal. The Interview of Ms. Colacci by the Police- the Statement [ 36 ] Shortly after she was arrested, Ms. Colacci was interviewed by Constable Gaudette and Constable Stafford at the Fort MacLeod RCMP detachment on April 29, 2020. The interview was videotaped and entered as an exhibit at the trial. Ms.

Colacci was first warned that she did not have to give a statement, and that whatever she said could be used as evidence against her, and given her Charter right to counsel, which she declined. She was not sworn to tell the truth before the interview. Since she did not testify at the trial, she was not cross-examined about the contents of the Statement.

[ 37 ] Although the Defence has conceded that Ms. Colacci resided in the House, the questions of how much control she had over the other occupants and residents, and how much knowledge she had of any drug trafficking in the House, is very much in dispute. I will summarize what Ms. Colacci said in the Statement with respect to those issues. [ 38 ] She said at the beginning of the interview “Ain’t nobody handed the warrant when you walked in my house”. She then proceeded to deny that she was a drug dealer. She then said “Ain’t no one find no dope and no drugs in my residence”.

She then admitted “That’s fucking two pellet guns on the floor in my bedroom”. When confronted about having weapons in her house, she said they were not hers. When asked how they got in her house, she said that “I have five people who live in my house”. She repeated that assertion shortly afterward. She then said “Listen those guns have been on my floor, I don’t even sleep in that room, do you know where I sleep at?

The kitchen table that’s where I sleep at and anybody will tell you I fucking sleep at the kitchen table.” When the police confronted her about the phone on the kitchen table that was constantly ringing, she said lots of people called her. [ 39 ] The police then suggested to her that she was selling drugs. She denied it.

When asked why people were phoning her, she said “I got a lot of friends, I owe money, people are looking for their fucking money.” The police suggested to her that people were phoning looking for drugs, she responded: Colacci: Just ‘cause they, yeah, just ‘cause I know people who can get dope doesn’t mean they’re calling me looking for dope. Police: So you’re passing them off to other people? Colacci: Yeah that’s right. Police: Oh, so, middling deals, then right? Colacci: Is that what it is? Police: Yeah Colacci: ...Is that what you call it? Police: Yeah Colacci: Then that’s what it is then. [ 40 ] Ms.

Colacci then stated that she had lived in the House since October 2019. She said that she was not the owner but had made a rental arrangement with the owner, JF, from British Columbia, who she said owed her money, and she was just about to start paying rent. She said she had nine dogs. She then said she had eight, and nine puppies. She also said there were two 16-year-old poodles, that she had for their whole lives. She said she had several conflicts with her neighbours about the dogs, where there were complaints about them being at large.

She said that she had put up a fence at the House, which she said the court had ordered her to do, but which annoyed her neighbours, because she had done so without getting a permit from the town. [ 41 ] Ms. Colacci then told the police she had an issue with someone called Blake. The narrative went as follows: Colacci: With Blake, Blake and I got along until he started beating on the guy that lives in my house... Police: Who’s the guy who lives in your house? Colacci: ...Little Mike... Police: Where’s he at?

Colacci: He was gone out with his girlfriend for the day and the night, he would beat Little Mike with a fucking acetylene torch... Police: Mmhmm Colacci: ...and then came back the next day or that night and tried to beat him up in my house again. I told him to get the fuck out of my house. He spit in my face, I punched him upside the head ... [ 42 ] Ms. Colacci told the police her boyfriend Kevin, who she called Bubba, was in jail. She said his stuff was in her garage, and some of his stuff was in the corner of the basement. She said she had five or ten people’s belongings in her garage.

She said she had several people move in and out. She said the number of people coming to her house was because she had seven or eight people move in. She also told the police that she was sick, and people would come and check on her and bring her stuff. [ 43 ] The police then asked Ms. Colacci how she was supporting herself. She said that she still had money in her possession.

She said that she had three and a half million dollars, and that just because she did not have a bank account or money in the bank did not mean that she did not have money. [ 44 ] When the police then confronted her about not telling the truth, Ms. Colacci said: Colacci: Fuck, I’m in here, I’m charge with ya, I didn’t never said I didn’t, I just said it ain’t all mine... Police: Never said you didn’t what? Colacci: I never said I didn’t fucking try, I never had no drugs in the house that didn’t all belong to me...

[45] She went on to say the drugs did not belong to the landlord but were not hers. [46] With respect to the money at the house, she said that her dogs got into a fight, and she borrowed the money from three peopleso she could take her dog to the vet. [47] The police then asked about the involvement of the other two people found in the house. Ms. Colacci said that Robin Hibbscleaned her house and took care of her dogs. She said that Laura Thiessen was her friend. [48] It is open to this court to accept some, none or all of this evidence. Assessing the Credibility of the Evidence of Ms. Colacci [49] As noted, Ms.

Colacci did not testify at the trial, but there is still exculpatory evidence from her in the Statement, namely thatshe denied being a drug dealer. Therefore, this Court must assess the credibility of her exculpatory statements. [50] Given that there are different versions as to what was going on in the House, the credibility of Ms. Colacci is pivotal to thedetermination of whether the Crown has proven each allegation.

In circumstances where the assessment of credibility is essential, theissue of credibility is subject to the rule of reasonable doubt and the Crown’s onus with respect to proof beyond a reasonable doubt. Accordingly, where different versions of the events are presented, it is not a matter of the Court picking one version over the other. Tofollow that approach would mean that the accused would have the onus of proving his or her innocence by presenting a more believableversion of events. That is not the accused’s obligation.

It is not a credibility contest between the complainant and the accused as to whohas the best or the more likely version of the events. It is whether the Crown has proven the case beyond a reasonable doubt: See: R vJHS, 2008 SCC 30 at paras 8-13 (JHS); R v CYL, 2008 SCC 2 at para 6 (CYL). [51] The Supreme Court of Canada has given trial courts some direction as to how to deal with such situations, in the case of R vW(D) (1991), (SCC), 63 CCC (3d) 397 (W(D)), where Justice Cory proposed a model charge to a jury where thequestion of the credibility of the accused was important for deciding the case.

The framework for jury instructions set out in W(

D) is: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [52] Steps 1 and 2 must be undertaken in the context of all of the evidence, cumulatively and not in isolation: R v JJRD (2006), (ON CA), 215 CCC (3d) 252 at para 53 (ONCA); R v Hoohing, 2007 ONCA 577 at para 15. [53] The purpose of the W(

D) approach is to ensure that the burden never shifts from the Crown to prove every element of theoffence beyond a reasonable doubt. As already stated, when faced with competing stories, the Court must not simply prefer one over theother: CYL, at paras 6-8. In other words, if after a careful consideration of all of the evidence, the Court is unable to decide whom tobelieve, it must acquit: JHS, at para 12, citing R v HCW (1991), (BC CA), 68 CCC(3d) 146 (BCCA).

If the Court isunable to resolve conflicting material evidence, it has a reasonable doubt as to guilt and must acquit: R v Hogg, 2013 PECA 11 (dissent),dissent adopted in R v Hogg, 2014 SCC 18. [54] In R v Ryon, 2019 ABCA 36 at para 51 (Ryon), as further refined in R v Achuil, 2019 ABCA 299, at para 18, the Courtproposed a four-part framework to incorporate all of the above: i.

The burden of proof is on the Crown to establish the accused’s guilt beyond a reasonable doubt and that burden remains on theCrown so that the accused person is never required to prove his innocence, or disprove any of the evidence led by the Crown; ii. In that context, if the accused’s evidence denying complicity or guilt (or any other exculpatory evidence to that effect) isbelieved, or even if not believed still leaves the jury with a reasonable doubt that it may be true, then the jury is required to acquit ; iii.

While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not acredibility contest requiring them to decide that one of the conflicting versions is true. If, after careful consideration of all the evidence,the jury is unable to decide whom to believe, they must acquit; and iv. Even if the jury completely rejects the accused’s evidence, or other exculpatory evidence, they may not simply assume theCrown’s version of events must be true.

Rather, they must carefully assess the evidence they do believe and decide whether thatevidence persuades them beyond a reasonable doubt that the accused is guilty. Mere rejection of the accused’s evidence (or otherexculpatory evidence) cannot be taken as proof of the accused’s guilt. [55] The Ryon court also stated that the application of W(

D) must always be contextual and responsive to the evidence in the case. [56] The determination of credibility of the accused is a complex task involving the court reviewing numerous aspects of thetestimony presented. [57] In considering credibility, the court is entitled to apply common sense and human experience in determining whether theevidence is credible and in deciding what, if any, use to make of it. The Drug Expert Evidence

[ 58 ] The Crown called an expert witness, Constable LeBlanc, to assist the Court in determining whether the meth and fentanyl found in the House were possessed for the purpose of trafficking. Constable Leblanc was qualified to give opinion evidence on the following topics: 1. Manner of Use; 2. Manner of Packaging; 3. Manner of Distribution; 4. Prices; 5. Consumption Patterns; 6. Paraphernalia; 7. Jargon or Common Street Terminology; 8. Practices and Habits of Users; 9. Practices and Habits of Traffickers; 10.

Observable Effect of Drugs [ 59 ] Constable Leblanc gave expert evidence at the trial, which will be referred to below. How Much Control did Ms. Colacci Have Over the House? [ 60 ] As the above case law illustrates, the amount of control the accused person has over the premises where the contraband is found, is an important factor in determining the degree of control the accused has over the contraband itself. The Defence concedes that Ms. Colacci was a resident of the House.

But the Defence also argues that it is a reasonable inference that there were other residents of the house, based on the fact that there were two other bedrooms, and clothes, bedding and personal effects in those places. In the Statement, Ms. Colacci said five other people lived in the House. She mentioned “Little Mike” as a resident, as well as her boyfriend, Bubba, or Kevin, but she said he was in jail. [ 61 ] The Defence suggests that it is a reasonable inference that Laura Thiessen lived in the House as well.

However, there is no evidence to support that, other than the fact that she was there at the time of the Search. In fact, there is evidence that Laura Thiessen did not live there. In her Statement, Ms. Colacci said there were five people who resided in the House, however she did not mention Laura Thiessen or Robin Hibbs as being among those residents. She did mention “Little Mike”, and her boyfriend, Bubba/Kevin, as residents as well. The evidence in the Statement was that when Ms. Colacci was asked about Laura Thiessen’s involvement, Ms. Colacci said that Laura Thiessen was her friend.

Constable Bieniewski testified that when he arrived at the House at the time of the Search, he thought that it was Ms. Colacci’s residence. He came to that conclusion because he said that he had been a general duty police officer for the last five or so months and had at least one interaction a month with Ms. Colacci during that time, and during that period he had known her to live at the House. When he went into the House, he said he saw Laura Thiessen in the kitchen. He testified that he did not believe Laura Thiessen lived there.

He said that he thought Laura Thiessen was living with a man somewhere else, either on 11 th Street or 22 nd Street. Constable Bieniewski said he knew that Laura Thiessen and her spouse were not living at the House at that time, but he was not sure where they lived. Based on this evidence, I am satisfied that Laura Thiessen was not living at the House at the time of the Search. [ 62 ] With respect to the other person found in the House at the time of the Search, Robin Hibbs, Ms. Colacci said in the Statement that Ms. Hibbs cleaned her house and took care of her dogs. Ms.

Colacci did not include her among the other residents she named in the Statement. Constable Bieniewski testified that he did not believe that Ms. Hibbs lived at the House, although he was not sure where she lived. He said he was not sure if she was still with her spouse, or if she was couch surfing. Based on this evidence it seems unlikely that Ms. Hibbs resided at the House at that time either. [ 63 ] The amount of control Ms.

Colacci had over the House, and the activities, such as drug trafficking that went on in the House, goes to the very question as to whether she is found in constructive possession of the Contraband. The following evidence points to Ms. Colacci having a substantial amount of control over the House: 1. In the Statement she said she had been in the House since October, so she had been there for about six months. 2. In the Statement, she refers to the House many times as “my house” or “my garage”. 3.

In the Statement when asked if she was renting she said the owner of the House JF owed her money, indicating that there was an arrangement between him and her to offset rent against the debt. She said that she was just about to start paying rent. This statement seems to be consistent with a rent receipt for April 1, 2020 which was found in her name on the kitchen table. This indicates that she negotiated a lease arrangement in her name alone with the owner of the House in exchange for a debt he owed her. 4. She occupied the master bedroom.

Her personal effects and identification documents were found in that bedroom. 5. She had at least 11 dogs in the House, including two old poodles, and a mother pit bull like dog, with eight puppies. It appeared from the evidence of Constable Champagne that the mother dog and puppies occupied the second bedroom on the main floor. It seems to me that it is unlikely that anyone would be willing to share a bedroom occupied by a mother dog and nine puppies.

6. The Statement indicates that Ms. Colacci had some disputes with her neighbours, as well as some legal problems about the dogs, and as a result she put up a fence around the House, presumably to keep the dogs from being at large. This again indicates that she must be the chief tenant to be allowed to do that work, and to be willing to undertake the costs of such an improvement. 7. She said in the Statement that she did not need to get a permit to put up the fence, because it was court ordered. This indicates that she was the one required to get permission to erect the fence. 8.

She was present in the House when the search and seizure took place. She said in the Statement that the other two women who were also there at that time, Laura Thiessen and Robin Hibbs, were her friend and housekeeper respectively, which implies that they did not live there. 9. In her Statement, Ms. Colacci described a fight with Blake, who she said she told to leave her house. She felt she had the power to tell other people, such as Blake to leave the House. [ 64 ] Based on all this evidence, I find that Ms.

Colacci can fairly be described as having the status of a principal or chief tenant of the House, as referred to by Judge Kerby in Nguyen PC case with a substantial amount of control over the House. [ 65 ] I found above that Laura Thiessen was not a resident, and that Robin Hibbs was unlikely to have been a resident, because there was little to no evidence that they were, beyond mere speculation. However, if I am wrong on that finding, which the Defence argues, it is not clear to me that it would make much difference, because of all the evidence that it was Ms.

Colacci who was the principal or chief tenant at the House, which would give her sufficient control to have constructive possession of the Contraband in any event. Can Knowledge by Ms. Colacci of the Drugs in the Kitchen Drawers be Inferred by Circumstantial Evidence? [ 66 ] It bears stating that the question to be determined in this case is not who owns the drugs, but whether Ms. Colacci can be said to possess them. [ 67 ] As noted, constructive possession has two components, control and knowledge.

Having dealt with the issue of control, I will now consider whether the circumstantial evidence in this case allows an inference that Ms. Colacci knew that there were drugs and other contraband in the kitchen drawers. [ 68 ] All the contraband drugs in this case were found in the kitchen. In her Statement. Ms. Colacci said that she slept at the kitchen table, although there was also evidence that she occupied the master bedroom, which was the bedroom right next to the kitchen. Her Statement that she slept at the kitchen table does not make sense to me, given her bedroom was right next door.

I accept her Statement to mean that she spent a lot of time at the kitchen table of the House, and perhaps many late nights. [ 69 ] Some of the drugs were found in the kitchen drawers, and some were found in two handbags, also found in the kitchen. I will first consider the drugs found in the kitchen drawers. [ 70 ] In the top cutlery drawer of the kitchen was found a baggie containing 4.4 grams of fentanyl, a large chunk of meth weighing 3 grams and $2828 of cash.

These things were in plain view when the drawer was opened. [ 71 ] In the top drawer next to the sink in the kitchen, there was found a Ziploc bag with chunks of meth, weighing 53.2 grams. This was in plain view when the drawer was opened. [ 72 ] In the middle drawer in the kitchen there was found a baggie containing 7.8 grams of fentanyl, $7,250 cash and a functional digital scale. These things were in plain view when the drawer was opened. [ 73 ] The case of Nguyen QB , decided by Justice Graesser, had somewhat similar facts to this case. In Nguyen QB cocaine was found on the top shelf of the kitchen cupboard.

Also found on that shelf were a plate with 3 pieces of loose crack cocaine on it. Ten individually wrapped baggies containing a total of 22.2 grams of crack cocaine were found on the top shelf of the door of the refrigerator in the kitchen. Ten individually wrapped baggies containing a total of 22.2 grams of crack cocaine were found on the top shelf of the door of the refrigerator in the kitchen. One large sandwich bag containing 3 smaller sandwich bags containing crack cocaine was found on the door of the freezer portion of the refrigerator.

Justice Graesser stated that it is necessary in these cases to review the totality of the evidence, and what was observed by the police when they executed the search warrant. The relevant evidence observed by the police in this case at bar is as follows: 1. There were many people coming and going to the House for short durations, consistent with drug trafficking. The evidence of this was given by Constable Williams-Freeman who testified that the police had installed a covert surveillance camera that showed the front door of the House. The constable would later review the camera recordings.

He said that the surveillance commenced on February 5, 2020, for about four hours on that day. The surveillance showed vehicles come the House, staying for short durations of about six minutes. During this time there was also a high amount of foot traffic coming to the house, with those people also staying for short durations. Surveillance was also done on February 19, 2020, with similar results. On February 23, 2020, there was again surveillance, but for two periods. The first period of surveillance was from 1:00 a.m. to 3:20 a.m.

Two vehicles were seen coming to the House, one staying 47 minutes and the other one staying for six minutes. The second period of observation that day was from 10:44 AM and 6 PM. During that period six vehicles came to the house, for short durations. Two people also came to the House on bikes during that time, also staying for short durations. It seems to me that vehicular traffic after 1 am in the morning is consistent with drug trafficking, and is corroborated by Ms. Colacci saying she “slept” in the kitchen, presumably meaning she was at the kitchen table into the early morning hours.

2. There were two cell phones on which people were calling, asking for drugs. Constable Clarabut testified that he picked up a SilverLG phone which was ringing on the kitchen table, next to where the receipt book was. The first call on this phone was at 6:53 pm, andthe caller asked for soft cocaine and hard cocaine. Three minutes later, another call came in asking for hard cocaine. Another call cameat 7:12 pm, by someone asking for fentanyl and meth. At 7:33 pm a call came from someone asking for meth. The next call was at 7:56pm saying he had 140 and asking him to come to the trailer park.

Constable Clarabut also found a Black LG phone just outside the frontdoor, on a glass table. He took calls on that phone as well. At 7:10 pm someone phoned asking for crack cocaine. At 7:22 pm he gotanother call. At 8:30 pm a call came in saying that he should get out of there because the cops were there. Constable Clarabut testifiedabout two other calls he took, one at 8:20 pm asking for cocaine, and one at 8:29 pm asking to talk to “Apples”, but he could not recallwhich phone they were on. I find these phone calls to be admissible under the principled hearsay rule.

The contents of the phone calls,and the number of them meet the requirements of necessity and reliability: see R v Baldree, 2013 SCC 35 , [2013] 2 SCR 520. It should be noted that none of these phone calls asked for Ms. Colacci by name. There was another Black LG cell phone on the kitchentable. Someone called on that phone and asked for Laura. There was a fourth Huawei cell phone found on the floor under the kitchentable. The expert Constable LeBlanc testified that a drug trafficker will often have two or three cell phones. 3.

Also on the kitchen table along with the Silver LG cell phone, there was what Constable Leblanc said was a score sheetdocumenting various drug transactions, and a functional digital scale. 4. There was also a functional digital scale in a potato bin in the hallway, close to the front door. 5. There was a hallway closet immediately between the master bedroom, and the kitchen, so Ms. Colacci would have had to walk by itmultiple times every day.

In that closet there was the Metal Box containing drug paraphernalia, including naloxone, which wouldaccording to Constable Leblanc have made it safer and more convenient to consume contraband drugs in the House. 6. The same hallway closet also contained a loaded .22 rifle standing in the corner, which was visible to anyone who looked in thecloset. It seems to me that the presence of a loaded firearm in such an easily accessible location is an indication that the occupants of theHouse felt they were in a potentially dangerous situation and at risk of imminent danger, such as being engaged in drug trafficking. 7.

There was another .22 rifle, in two pieces under the kitchen sink. The expert Constable Leblanc testified that drug traffickinginvolves an inherent risk and fear of being robbed and violence. He said that firearms are useful for protection against being robbed aswell as for collecting outstanding debts. 8. Ms. Colacci had two pellet guns on the floor by her bed. This is further evidence that she felt she needed protection, because shewas involved in a risky and dangerous business. [74] In the Nguyen QB case, Justice Graesser found that Miao was a resident, but not an exclusive one.

In that case, JusticeGraesser stated that he could not imagine that Miao was unaware of the contents of the kitchen cupboard. He said that logic dictates thata resident would reasonably be expected to know what is in plain view and what is in commonly accessed areas such as appliances andkitchen cupboards and that there was no reasonable explanation to the contrary. [75] There is further evidence of the knowledge of Ms. Colacci, as to the existence of the drugs, which is in her Statement. Thepolice suggested to her when they took her Statement that people were phoning her looking for drugs.

She responded by denying shewas selling but then said she knew people who were selling, so she would pass those callers on to them. The police suggested that meantshe was “middling “deals, and she agreed that she was. I accept this evidence from her as being true, as it was certainly against herinterest to admit it. [76] I note that Ms.

Colacci was the principal and chief tenant of the House, and she spent much of her time at the kitchen table,and the drugs in the kitchen drawers were all in commonly accessed areas of the kitchen. [77] Like in the Pham case and the Nguyen QB case, I find that the circumstantial evidence supports the only inference being thatMs.

Colacci was aware of and participated in the drug trafficking that occurred in the House, and that she had much more than aquiescent or passive knowledge of the drugs, as well as an element of control over them. [78] I find that the only reasonable inference to be drawn, based on this evidence is that Ms. Colacci knew that there was drugtrafficking going on in the House, and she also knew that there was meth, fentanyl and cash in the kitchen drawers, and firearms underthe sink and in the hallway closet.

I find there are no other reasonable inferences that can be drawn from this evidence. [79] Alternatively, if Ms. Colacci did not have actual knowledge, I find that she was wilfully blind to the existence of theContraband in the kitchen drawers, and she is fixed with that knowledge in any event: see R v Briscoe, 2008 ABCA 327. Can Knowledge by Ms.

Colacci of the Drugs and Contraband inthe Two Handbags be Inferred by Circumstantial Evidence? [80] The police found two handbags, each with contraband, in the kitchen during the search. [81] The Louis Vuitton bag (the “Vuitton Bag”) was found under the kitchen table and had nothing that identified its owner. Itcontained a baggie containing 2.1 grams of fentanyl. [82] There was also a black purse (the “Black Purse”) seized in the kitchen by Sergeant Campbell. He said it was in closeproximity to Laura Thiessen who he arrested in the kitche

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