R. v. Palmer, 2019 NLSC 139

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Palmer , 2019 NLSC 139 Date : July 18, 2019 Docket : 201705G0142 Her Majesty The Queen v. Dan-el Palmer Before: Justice Vikas Khaladkar Reasons for Judgment Given Orally Place of Hearing: Gander, Newfoundland and Labrador Dates of Hearing: May 22-23, 2019 Date of Oral Judgment: July 18, 2019

Summary: The Accused, Mr. Dan-el Palmer, is found guilty of possession for the purposes of trafficking in Cocaine, Oxycodone and Morphine and trafficking in Cocaine and Oxycodone pursuant to section 5(2) of the Controlled Drugs and Substances Act . The Accused’s presence during the purchase of the drugs by his co-accused, Mr. Daina Eric Cuff, and his active involvement in driving the vehicle used to transport the drugs, satisfied the requirement that the Accused be found to be in possession and control of the drugs for the purposes of attributing guilt. Even though the Crown’s case against the Accused was circumstantial no inference, other than guilt, was capable of being drawn.

Appearances: Adam B. Joyce Appearing on behalf of the Crown Jeffrey H. Slade Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Prokofiew, 2012 SCC 49; R. v. Phelan, 2013 NLCA 33; R. v. Lifchus, (SCC), [1997] 3S.C.R. 320; R. v. Starr, 2000 SCC 40; R. v. Wall, 2012 NLCA 67; R. v. Bonassin, 2008 NLCA 40; R. v. Morelli, 2010 SCC 8; R. v.Russell, 2011 BCCA 277; R. v. Terrence, (SCC), [1983] 1 S.C.R. 357; R. v. Arason (1992), (BC CA), 21 B.C.A.C. 20, 78 C.C.C. (3d) 1 (C.A.); R. v. Barreau (1991), (BCCA), 9 B.C.A.C. 290, 15 W.C.B. (2d) 42 (C.A.); R. v. Provost, 2011 ONCA 437; R. v.

Beals, 2011 NSCA 42; R. v. Hung, (ON CA), [1946] 3 D.L.R. 111, 85 C.C.C. (3d) 552 (Ont. C.A.); R. v. Fisher, 2005 BCCA 444; R. v. W. (D), (SCC),[1991] 1 S.C.R. 742 STATUTES CONSIDERED: Controlled Drugs and Substances Act, S.C. 1996, c. 19; Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Khaladkar, J.: INTRODUCTION [1] The police, for some time, had the Accused’s co-accused, Mr. Daina Eric Cuff under surveillance for trafficking in Cocaineand other drugs. They had obtained various judicial authorizations in order to track his cellphone usage and text messages.

They wereable to track his movements by means of the location of his cellphone. The Accused became a suspect when he was seen in his co-accused’s vehicle with the co-accused on April 17, 2016. At that time the Accused was driving the co-accused’s vehicle. [2] On April 27th, 2016 the Accused and the co-accused were tracked and followed from the town of Glenwood, Newfoundlandand Labrador to an Ultramar gas station on Kenmount Road in the city of St. John’s, Newfoundland and Labrador. [3] At the time the Accused resided in Lewisporte, Newfoundland and Labrador and the co-accused resided in Glenwood.

Both ofthese towns are fairly close to Gander, Newfoundland and Labrador, which in turn is about a three and one-half hour drive from St.John’s. [4] The Accused and co-accused met with a known drug dealer at the Ultramar station for a total of 35 minutes. When the drugdealer left, the vehicle was moved to the Golden Phoenix restaurant on Kenmount Road. While there another male got into the vehiclewith the Accused and co-accused.

After a few minutes the male left and the Accused and co-accused immediately returned to the townof Gander via the Trans-Canada Highway – where they were stopped and arrested for trafficking in drugs. [5] The Accused and co-accused’s vehicle contained a locked briefcase. The briefcase contained over $14,000 in cash made up of$100 and $50 bills, 775 grams of Cocaine in a vacuum sealed package, cash currency envelopes, 80 Morphine pills, 300 Oxycodonepills, 2 cellphones, and digital scales with white powder on them.

Inside the vehicle were found a can of bear spray, an extendable batonand a pellet handgun. [6] At the beginning of the trial it was conceded by Defence Counsel that the quantity of drugs was sufficient to trigger thepresumption that the possession was for the purposes of trafficking and that no witness would be necessary to prove that fact. The issueto be decided was whether or not the Accused had knowledge and control sufficient to justify a conviction for possession for thepurposes of trafficking or trafficking. [7] Cocaine, Morphine and Oxycodone are all substances included in

Schedule I of the Controlled Drugs and Substances Act, S.C.1996, c. 19 (“CDSA”). A “controlled substance” is defined in

section 2 of the CDSA as meaning “a substance included in

Schedule I, II,III, IV or V”. [8] The Accused was charged with possession of controlled substances: Cocaine, Oxycodone and Morphine for the purposes oftrafficking, contrary to section 5(2) of the CDSA. In addition, the Accused was charged with trafficking in Cocaine and Oxycodonepursuant to section 5(1) of the CDSA. He pleaded not guilty to all of these offences and a trial was conducted.

[ 9 ] I have concluded that the Crown has proven the charges against the Accused beyond a reasonable doubt. I find that the Accused either had knowledge of the drugs found in his co-accused’s vehicle or that he was willfully blind to it. I find that by assuming control over the vehicle in which these drugs were being transported, he also exerted control over the drugs that were in them.

This satisfies the tests for possession for the purposes of trafficking as well as trafficking. [ 10 ] The following are my reasons for arriving at these conclusions starting, initially, with a review of the evidence adduced at trial. THE EVIDENCE PRESENTED AT TRIAL [ 11 ] The Accused testified. He hails from Saint John, New Brunswick. However, like many others, he married a spouse who is originally from Newfoundland and Labrador. Not surprisingly, they ended up returning to Newfoundland and Labrador where he was promised a job by his co-accused, Mr. Cuff. [ 12 ] The Accused is a labourer.

However, due to a work-related injury he is now relegated to doing light duty work. He and his wife arrived in Newfoundland and Labrador in October, 2015. His wife was friends with the co-accused’s wife, and the Palmers stayed with the Cuffs for a time while they were arranging to find their own place. The Palmers found a place to live in Lewisporte commencing January 1st, 2016. [ 13 ] The Accused worked for Mr. Cuff, for a time, at his driveway sealing business. [ 14 ] The Accused suffered a back injury in January, 2016 and was unable to work again until March of that year. According to the Accused, Mr.

Cuff suffered from sleep apnea. He needed someone to keep him awake while driving. The Accused accompanied Mr. Cuff to St. John’s a few times, commencing in the month of March, 2016. [ 15 ] The Accused testified that he drove into St. John’s with Mr. Cuff in March, 2016 and they went to a pet store to pick up some meal worms. Mr. Cuff met up with someone right by the pet store. The Accused testified that the person Mr. Cuff met up with might have been Mr. Mike Smith. They met in the truck, in the Accused’s presence, for perhaps 10-15 minutes. The Accused was in the front passenger’s seat. Mr. Cuff and Mr.

Smith were both in the back seat of Mr. Cuff’s truck. The Accused testified that he wasn’t paying attention to what was going on, he was just “playing on the phone and stuff”. He claims that he didn’t overhear anything. After the meeting concluded they returned to Glenwood. [ 16 ] By April 17, 2016 the Accused had done a couple of trips into St. John’s with Mr. Cuff. On that date he was called by Mr. Cuff to go on another trip. The Accused drove, Mr. Cuff slept most of the way. The Accused testified that the purpose of the trip was “none of my business. I don’t ask people a lot of questions”. Mr.

Cuff “woke up in St. John’s to do his thing. I just went in for the drive”. Mr. Cuff’s business was “nothing to do with me”. [ 17 ] On April 27th, 2016 the Accused and Mr. Cuff made another trip into St. John’s, where they met up with Mr. Smith again. They met in the same area as they had met on April 17th – the Ultramar gas station on Kenmount Road. The Accused estimated the meeting between Mr. Cuff and Mr. Smith to have lasted for 15–20 minutes. However, they were under police surveillance at the time and the police officers testified that the meeting lasted for 35 minutes.

In cross-examination the Accused agreed that he wasn’t paying attention to the time and that the meeting could have lasted for 35 minutes. [ 18 ] The Accused noticed that the lid of a briefcase in the back seat was opened while Mr. Cuff and Mr. Smith were in the back. This was the third time that Mr. Smith had been in the vehicle with him and Mr. Cuff. [ 19 ] The Accused agreed that he had spent, perhaps, over an hour in the truck over the course of three meetings while Mr. Cuff and Mr. Smith conversed. Despite that, the Accused says that he did not know what they were talking about at all.

He put forward three explanations for his lack of knowledge: that he is half-deaf, that he doesn’t involve himself in other people’s business and he wasn’t paying attention to what they were saying and doing. [ 20 ] I heard evidence from a number of police officers including Cst. Graham Dawe, who acted as the lead investigator in this matter. Much of their testimony concerned the investigation into Mr.

Cuff’s drug dealings and the surveillance operation that was set up in order to apprehend him in the act of possessing and trafficking in illicit drugs. [ 21 ] The police had obtained judicial authorizations to intercept telephone and data recorder transmissions. They monitored Mr. Cuff’s cellphone to track his movements. [ 22 ] Mr. Cuff, the Accused and Mr. Smith were under police surveillance when they met at the Ultramar gas station on Kenmount Road in St. John’s, Newfoundland and Labrador. [ 23 ] The evidence of the Accused is in contrast to the evidence of Cst.

Skinner who was conducting surveillance at the scene. Cst. Skinner testified that the dome light in the half-ton truck was on and he saw all three persons inside the truck interacting. I accept Cst. Skinner’s evidence and reject that of the Accused. Mr. Smith got into the truck while the Accused was its only occupant – Mr. Cuff was inside the service station at the time. This was the Accused’s third meeting with Mr. Smith in the half-ton truck. The Accused’s explanation that he was a mere, uninterested bystander is self-serving and not believable.

He knew exactly what was going on or was being willfully blind to what was plainly happening. [ 24 ] The drugs were in a briefcase that was located within arm’s reach of the Accused. The briefcase was closer to the Accused than it was to his co-accused. It was located within the cab of the half-ton truck. [ 25 ] The Chevy Silverado truck in which they were traveling was followed from St. John’s to Gander, where it was stopped and the Accused and Mr. Cuff were arrested. [ 26 ] Found in the vehicle, in a locked briefcase and on Mr. Cuff’s person were the following items:

i. Over $14,000.00 in cash; ii. 775 gm of cocaine; iii. Cash currency envelopes; iv. Morphine pills (80 tablets); v. 2 bottles of Oxycodone pills (300 tablets); vi. Digital scales; vii. Calculator; viii. Bear spray; ix. An extendable baton, and; x. Hand pellet gun. [27] The value of the drugs seized was about $90,000. THE ONUS AND STANDARD OF PROOF [28] The Accused is presumed to be innocent until the Crown has proven, beyond a reasonable doubt that he is guilty of the offenceswith which he has been charged. The onus is on the Crown to prove the Accused person’s guilt and never shifts.

I am required toconsider the whole of the evidence and must be convinced, before making a finding of guilt, that the Crown has met its onus andestablished the Accused’s guilt beyond a reasonable doubt. (See R. v. Prokofiew, 2012 SCC 49 and R. v. Phelan, 2013 NLCA 33). [29] In R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320 the Supreme Court of Canada quantified the meaning of proofbeyond a reasonable doubt – while it does not involve proof to an absolute certainty, it is not proof beyond any doubt nor is it animaginary or frivolous doubt. [30] In R. v.

Starr, 2000 SCC 40 the Supreme Court of Canada characterized proof beyond a reasonable doubt as being much closerto absolute certainty than to the civil standard of a balance of probabilities. THE POSITIONS OF THE PARTIES THE CROWN [31] The Crown submitted that the Accused should be convicted. Mr. Joyce submitted that the drug transaction took place in theAccused’s presence over the course of 35 minutes in the interior of the cab of a half-ton truck. He argued that the Accused had to knowwhat was going on and, if he didn’t, that he was willfully blind to what was going on.

He says that the Accused’s evidence was notcredible and that it was self-serving. Mr. Joyce argues that the Accused had the requisite knowledge and that he had control over thedrugs. He says that all of the elements of the offences charged have been proven. THE DEFENCE [32] The Defence argued that the narcotics were in a locked briefcase over which the Accused had no control. The briefcase hadtwo combination locks. There were no fingerprints belonging to the Accused found on or in the briefcase. No narcotics were found onthe person of the Accused.

He argued that the Crown’s case is circumstantial since nothing was observed by the police being exchangedbetween Mr. Smith and Mr. Cuff. The Defence argued that the Accused was forthright and honest about the meeting with Mr. Smith. He says that there is no evidence that the Accused had any control over the contraband narcotics. THE ELEMENTS OF THE OFFENCE [33] Further to section 4(1) of the CDSA no person is allowed to possess a substance in Schedules I, II or III. [34] Possession imputes “knowledge” and “control”. R. v. Wall, 2012 NLCA 67 and R. v.

Bonassin, 2008 NLCA 40 stand for theproposition that the three components of possession include: i. Knowledge of the item; ii. Intention or consent to have possession of the item, and; iii. Control over the item. [35] These cases instruct us to interpret and apply these foundational elements so as to address the particular circumstances ofpossession in different contexts. [36] The term “possession” is defined in

section 2 of the CDSA as having the same meaning as “possession” as defined in section4(3) of the Criminal Code, R.S.C. 1985, c. C-46, which states as follows: Possession - For the purposes of this Act,

(

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

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

b) where one or two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, itshall be deemed to be in the custody and possession of each and all of them. [37] The definition contemplates three types of possession: personal possession, constructive possession and joint possession. PERSONAL POSSESSION [38] Personal possession involves control and knowledge. The requirement of knowledge requires that the accused be aware ofbeing in physical custody of the thing in question, and must also be aware of what that thing is. (See R. v. Morelli, 2010 SCC 8).

CONSTRUCTIVE POSSESSION [39] Constructive possession requires that the accused have knowledge and some measure of control over the item to be possessed. (See R. v. Wall). JOINT POSSESSION [40] In R. v. Wall, the Court of Appeal held that joint possession required the elements of knowledge, consent and a measure ofcontrol on the part of the person deemed to be in possession. It is not necessary that the Crown prove actual physical control over theitem in question but, rather, that he had some means of power or authority over the item. (See R. v. Russell, 2011 BCCA 277). [41] In R. v.

Terrence, (SCC), [1983] 1 S.C.R. 357 the Supreme Court of Canada held that an “essential element ofpossession under s. 3(4)(

b) of the Criminal Code is a measure of control on the part of the person deemed to be in possession…”. [42] In R. v. Arason (1992), (BC CA), 21 B.C.A.C. 20, 78 C.C.C. (3d) 1 (C.A.) the British Columbia Court ofAppeal held that control did not require any proprietary interest in the item be established. [43] Knowledge can be proven by both direct and circumstantial evidence, or from reasonable inferences drawn from the totality ofthe evidence presented. (See R. v. Barreau (1991), (BC CA), 9 B.C.A.C. 290, 15 W.C.B. (2d) 42 (C.A.); R. v. Provost,2011 ONCA 437 and R. v. Beals, 2011 NSCA 42). [44] In R. v.

Hung, (ON CA), [1946] 3 D.L.R. 111, 85 C.C.C. (3d) 552 (Ont.

C.A.) it was held that “… where oneof two persons has opium in his custody or possession, another who knows that fact, even though he has no measure of control over it,but nevertheless co-operates with the person who has such custody in an effort to prevent detection …” does have possession. [45] I will need to determine whether the Accused knew about the existence of the drugs and, if so, whether the driving of the truckis tantamount to sufficient cooperation to bring him within the definition of personal, constructive or joint possession of the controlleddrugs.

ANALYSIS [46] The evidence presented at trial establishes that the Accused accompanied, as a driver, Mr. Cuff on a number of very quick tripsfrom Glenwood to St. John’s. On each such occasion the Accused drove from Lewisporte to Glenwood in his own vehicle and, then,proceeded to take on the responsibilities of a driver for Mr.

Cuff. [47] I am satisfied that on April 28, 2016 the Chevy Silverado half-ton truck was full of drug paraphernalia – both within the cab andwithin a locked briefcase that was in plain view in the cab. [48] The Accused was present when a known drug dealer entered the Chevy Silverado half-ton truck for a period of 35 minutes onApril 27, 2016. [49] Neither constructive possession nor joint possession require proof of manual handling of the illicit drugs. (See R. v. Fisher,2005 BCCA 444). [50] The Accused would have me believe that he made at least three rapid-fire trips to St.

John’s with the co-accused to buy mealworms on one occasion and to pay for driveway sealer on another. Coincidentally, they met up with the same person, Mr. Smith, eachtime and spent prolonged periods with him in the cab of the half-ton truck. [51] The Accused spent a total of an hour in the cab of a half-ton truck with Mr. Smith, but the Accused says his suspicions werenever aroused. He never asked Mr. Cuff what was going on, he merely minded his own business and spent time on his telephone texting

with his wife the entire time. [52] I find the Accused’s evidence incredible and self-serving. It is not worthy of belief. It is inconceivable that a person in theAccused’s situation would not know, after the first trip, that something was seriously amiss. No one makes a four-hour drive fromGlenwood to St. John’s to pick up meal worms that could have been purchased in Gander – 15 minutes distant. No one makes a four-hour trip to St. John’s to pay for driveway sealant when he could have put a cheque in the mail or transferred funds by electronic means.

I am satisfied that no driveway sealant was ever picked up – so the trip was not made to transport driveway sealant that had beenpurchased. [53] On each such trip to St. John’s the parties met with Mr. Smith, talked for some time and drove back to Gander. [54] On each trip Mr. Cuff met with Mr. Smith in the back seat of the half–ton truck. Each time the Accused was present. Mr. Cuffand Mr. Smith discussed matters for extended periods of time.

Yet the Accused would have me believe that he heard nothing of whatwas being discussed because it was not his business and he is half-deaf. [55] The Accused indicated in Court that he had hearing issues. However, on the stand he had no difficulty hearing counsel’squestions and responding to them. I rather suspect that he had no difficulty hearing what Mr. Cuff and Mr. Smith had to discuss either. [56] The Accused’s position that he heard nothing of what was said, and that he had no idea what was going on has no air of reality. He is either complicit in the transaction or he is willfully blind to it.

In either case I find that the Accused had knowledge that a drugtransaction was being conducted. And by agreeing to take control of the vehicle and drive Mr. Cuff to and from St. John’s, he had defacto possession and control of the drugs and related paraphernalia. [57] I do not believe the Accused. His position that he spent over an hour with Mr. Cuff and Mr. Smith but remembers nothing ofthe conversations that took place, or the actions of these individuals while they were in his presence, is untenable. Any reasonableperson would have had substantial misgivings after the first trip.

His evidence does not raise, in my mind, a reasonable doubt. I haveconsidered, in accordance with the Supreme Court of Canada’s direction in R. v. W. (D), (SCC), [1991] 1 S.C.R. 742whether, despite not believing the Accused, his evidence leaves me with a reasonable doubt. It does not do so. And on a view of all ofthe evidence, I am satisfied beyond a reasonable doubt that the Crown has proven all of the essential ingredients of the offences charged. [58] I do not find that the Accused was a principal in the enterprise or even that he obtained any substantial pecuniary benefit from it.

I do find, however, that he provided a service to a person involved in possession for the purposes of trafficking drugs, that such servicewas in furtherance of the business of trafficking drugs and that the Accused was willfully blind to what was going on around him. [59] Although the case against the Accused was circumstantial, there is no other inference to be drawn from the evidence other thanthe Accused’s participation in a drug trafficking enterprise. The alternative explanations given for the trips into St.

John’s arenonsensical and have no merit. [60] I find the Accused guilty of counts all counts in the Indictment. The definition of “traffic” in

section 2 of the CDSA includesthe transportation of substances. Since I have found that the Accused drove the truck in which the

Schedule I drugs were beingtransported, I must also find him guilty of trafficking. _____________________________ Vikas Khaladkar Justice