R v Pilkington (C), 2016 MBCA 80

Citation: R v Pilkington (C), 2016 MBCA 80 Date: 20160811 Docket: AR15-30-08318 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin Madam Justice Diana M. Cameron BETWEEN: HER MAJESTY THE QUEEN ) Z. Jones ) for the Appellant ) Respondent ) J. A.

Hyman ) for the Respondent- and - ) ) Appeal heard:COLLEEN PILKINGTON ) June 13, 2016 ) ) Judgment delivered: (Accused) Appellant ) August 11, 2016 On appeal from 2015 MBQB 2, 313 ManR (2d) 51 CAMERON JA Introduction [1] The accused has appealed both her conviction and her sentence, the latter requiring leave to appeal. [2] Her conviction appeal is in relation to ten counts of possession of a controlled substance for the purpose of traffickingunder section 5(2) of the Controlled Drugs and Substances Act, SC 1996, c 19 (CDSA), and one count of possession of proceeds of crimeunder

section 354 of the Criminal Code of Canada. The evidence forming the basis for the charges was seized as a result of theexecution of a search warrant at her residence, issued pursuant to

section 11 of the CDSA, as well as a search incident to her arrest. [3] In support of her appeal, she argues that the trial judge erred in dismissing her motion to cross-examine the affiant,who swore the Information to Obtain a Search Warrant (the ITO).

She also argues that the trial judge improperly applied the analysisfound in R v W(D), (SCC), [1991] 1 SCR 742, in that, after having rejected her testimony regarding her lack ofknowledge of most of the controlled substances, the trial judge did not consider whether the Crown had proved that she possessed themfor the purpose of trafficking. [4] For the reasons that follow, I would dismiss her conviction appeal and her application for leave to appeal sentence.

Facts [5] Relying on the information of two confidential informants, police obtained and executed a warrant to search theresidence of the accused and her now-deceased common-law spouse (the spouse). As a result of that search, police seized more than1,500 pills (primarily

Schedule 1 controlled substances) from the residence. [6] In particular, police located seven pill vials containing oxycodone, alprazolam, temazipam and morphine secreted in avase in the living room. In the dining room, they found a bag containing three pill vials with oxycodone, lorazepam, hydromorphone andone baggie containing diazepam. A number of papers that contained writing on them were also found in that bag. The Crown expertwitness later identified these as score sheets. On the kitchen counter, police located a number of empty pill vials, as well as one thatcontained 50 oxycodone pills.

Further, in another bag found in the kitchen, police located $12,400 cash, most of which was bundled. Also in that bag were eight pill vials that contained diazepam, doxepin, morphine, codeine, alprazolam, oxycodone, morphine and 11empty pill vials. All of the pill vials, except for two, had the labels removed.

[ 7 ] Upon her arrest, the accused was found to have eight pill vials in her purse, with the labels removed. Four of the vials contained a total of 77 morphine pills, three contained 88 oxycodone and one contained one diazepam pill. She also had $3,125 on her person. A further 744 oxycodone pills were found in the centre console of her spouse’s vehicle that she had been driving just prior to her arrest. Trial Proceedings [ 8 ] The accused brought a motion to cross-examine the affiant who swore the ITO.

It was her contention that the ITO did not contain sufficient facts to satisfy the issuing judge that the information provided by two confidential informants was reliable enough to provide reasonable and probable grounds to believe any offence-related evidence would be located in the residence. The trial judge dismissed the motion. [ 9 ] The accused also filed a notice of motion alleging a breach of

section 8 of the Canadian Charter of Rights and Freedoms . The basis for this motion was that information in the ITO was insufficient to show the reasonable and probable grounds required in order to grant the warrant. She also argued that the manner in which the search was conducted was unreasonable. This motion was not pursued during the trial. [ 10 ] As part of its case, the Crown called a retired police officer to provide expert testimony regarding the trafficking of pharmaceuticals in Winnipeg, including the packaging, the score sheets and the distribution of pharmaceuticals.

He also provided expert testimony regarding proceeds of crime. [ 11 ] The accused testified. She said that she had a prescription for, and lawfully possessed, the morphine found in her purse at the time of her arrest. She maintained that it was for her own personal use. She denied any knowledge of the oxycodone or diazepam located in her purse and said that, just prior to his arrest, her common-law husband had put something in her purse.

She also denied any knowledge of the oxycodone that was located in the centre console of her spouse’s vehicle. [ 12 ] The accused categorically denied knowledge of any of the substances found in the house, including the morphine. She denied that the papers seized were score sheets. Rather, she maintained that they were fundraising tallies for her son’s football team, and calculations that her husband asked her to make regarding the potential purchase of a hotel beverage room.

She agreed that the money found in the bag in the kitchen was hers, but claimed that she came into possession of it as a result of holding yard sales and participating in research studies. Her explanation for the empty pill vials found in the bag with the money and the substances was that she was a hoarder, and that she saved the pill vials. She further explained that it was her practice to remove the labels from her prescription pill vials for safety reasons. [ 13 ] Two of the accused’s friends also testified. The first said that it was the habit of the accused to save pill vials.

This witness said that the accused gave her a box of empty pill vials after she was arrested. However, the witness said that the box of pill vials was stolen from her garage just prior to the trial. The second friend testified that he had a prescription for oxycodone, and that it was his practice to remove the labels from the prescription pill vials for security purposes. Both witnesses testified that the accused had, in the past, held successful yard sales. [ 14 ] The trial judge disbelieved the evidence of the accused and convicted her.

She sentenced the accused to a total of 30 months’ incarceration and made other ancillary orders, including forfeiture of the controlled substances, cash and other items seized. She fixed the victim surcharge at $1,100. Grounds of Appeal [ 15 ] The accused appeals her conviction on two grounds. First, the accused alleges that the trial judge erred in refusing to allow her to cross-examine the affiant who swore the ITO; second, that the trial judge erred in her application of the test in W(D) .

Cross Examination of the Affiant [ 16 ] Regarding the first ground, the accused contends that the trial judge erred by refusing to allow cross-examination of the affiant regarding the lack of corroboration of the information provided by two confidential informants. The accused also asked that she be allowed to cross-examine the affiant regarding the failure of the affiant to state the informants’ motivation for providing the information.

She argues that the refusal to allow cross-examination of the affiant resulted in her being unable to challenge the validity of the search warrant. [ 17 ] In this case, it is uncontroverted that it was the information provided by a first informant, Informant A, which substantially provided the reasonable and probable grounds prerequisite to the search warrant.

Included in this information was that: • Informant A had known the accused and her spouse for a number of years and had been at their residence on several occasions. • Both the accused and her spouse admitted to Informant A that they sold prescription pills to dealers in the city. • Informant A had attended the residence of the accused within hours of the application for a search warrant and saw hundreds of prescription pills. • Informant A had recently observed the spouse selling prescription pills at a hotel in the city. • Informant A observed the accused running what appeared to be a dial-a-dealer operation by driving to meet clients and Informant A observed her make hand-to-hand deals of prescription pills. • Informant A observed the accused and her spouse with several bundles of cash estimated between $5,000 and $10,000.

• Informant A was also able to describe the various prescription pills being sold by the spouse, as well as their relative strengths andthe prices. • Informant A was able to describe the exterior of the residence of the accused, the vehicles they had been driving, and was able toidentify them in photos provided by the police. [18] The second informant, Informant B, was untested.

In my view, the information that Informant B provided is bettercharacterized as independent confirmation of some of Informant A’s assertions, rather than the main justification for the existence ofreasonable and probable grounds. [19] Whether or not to allow cross-examination of an affiant is a discretionary decision. In R v Grant, (SCC),[1993] 3 SCR 223 at 251, the Supreme Court of Canada confirmed that the review of a search warrant is governed by the analysis set outin R v Garofoli, (SCC), [1990] 2 SCR 1421.

That is, a decision to allow or disallow such cross-examination should “notbe interfered with on appeal except in cases in which it has not been judicially exercised” (at p 1465). Additionally, the Supreme Courthas repeatedly stated that discretionary decisions are entitled to deference, and are only to be disturbed if the trial judge misdirectshimself, or if the decision is so clearly wrong as to amount to an injustice.

See R v Bellusci, 2012 SCC 44 at paras 17-18, [2012] 2 SCR509; R v Regan, 2002 SCC 12 at para 117, [2002] 1 SCR 297; Canada (Minister of Citizenship and Immigration) v Tobiass, (SCC), [1997] 3 SCR 391 at para 87; R v Handy, 2002 SCC 56, [2002] 2 SCR 908. [20] In reaching her decision, the trial judge correctly stated the law. That is, the accused must satisfy the court that cross-examination is necessary to make full answer and defence. Also, a basis must be shown for the view that the cross-examination willelicit testimony tending to discredit one of the preconditions to the authorization.

See Garofoli at p 1465; and R v Pires; R v Lising, 2005SCC 66 at para 3, [2005] 3 SCR 343. [21] Next, she engaged in an assessment of the reliability of the information provided by Informant A in light of the “totalityof the circumstances”, including how compelling the information was regarding the criminal offence, the credibility of the source andwhether the information was corroborated (R v Debot, (SCC), [1989] 2 SCR 1140 at 1168). [22] The trial judge denied cross-examination of the affiant on the basis that there was ample evidence regarding thereliability and credibility of Informant A, including an eight-year history as a confidential informant for the affiant.

She also relied onthe detailed nature of the information provided by Informant A. She noted that some of the information from Informant A wasbuttressed by information in the ITO that was independently sourced by the affiant concerning the accused, her spouse and the propertyin issue. [23] I see no error in the trial judge’s decision to not allow cross-examination of the affiant. Detailed, firsthand informationof criminal activity, such as that provided by Informant A, can be compelling.

See R v Wiley, (SCC), [1993] 3 SCR 263at 275; and R v Deol (RS), 2006 MBCA 39 at para 16, 205 ManR (2d) 104. [24] Additionally, Informant A was proven to be reliable, as opposed to an anonymous or untried informant. As was statedby Mainella J (as he then was) in R v Pilkington (C) (No 1), 2013 MBQB 79, 290 ManR (2d) 109, “when dealing with a proveninformant, there are no special concerns as to the degree of detail of the information or its confirmation by police” (at para 58).

Also seeR v Beauregard (1999), (QC CA), 136 CCC (3d) 80 at 83 (Qc CA). [25] I disagree with the accused’s contention that, because the only information that was independently sourced by theaffiant was available to any member of the public, it was not sufficient to corroborate Informant A’s information. The accused arguesthat something unique, such as a description of the interior of the accused residence, should have been provided by the affiant to showthe reliability of the information. This is the same argument that she made in Pilkington (No 1).

As was stated by Mainella J in that case(at para 55): The obligation of an affiant is to make full and frank disclosure of material facts. See Araujo [2000 SCC 65, [2000] 2 SCR 992] at para.46. Detective Murphy was not obligated to investigate irrelevancies or disclose them, if known.

As Blair, J.A., explained in R. v.Nguyen (D.V.) (2011), 2011 ONCA 465 , 281 O.A.C. 118; 273 C.C.C. (3d) 37; 2011 ONCA 465: [51] The obligation on applicants for a search warrant is not to commit the error of material non-disclosure. “Materiality” is somethingthat bears on the merits or substance of the application rather than on its form or some other inconsequential matter: R. v. Land (1990), (ON SC), 55 C.C.C. (3d) 382 (Ont. H.C.), per Watt, J., at p. 417.

There is no obligation on applicants to anticipate,and to explain away in advance, every conceivable indicia of crime they did not see or sense and every conceivable investigative stepthey did not take at the time in order to counter the creative arguments of able defence counsel on a review hearing many months oryears after the event. ... [26] Mainella J concluded by rejecting the accused’s argument that the informant should have provided details of the interiorof the residence to show that he or she had recently been in it, on the basis that such evidence was inconsequential.

The same reasoningapplies equally in this case. I would also add that the absence of independent confirmatory evidence not generally available to the publicdoes not of necessity undermine the reliability of the informant’s information regarding the commission of a crime. [27] Regarding the motivation of the informants, the affiant swore in the ITO that Informant A did not receive a financialreward and did not receive or expect judicial consideration. Absent evidence that raises a concern about the motives or reliability of theinformant, I see no reason to further delve into the motives of this informant.

As noted in Pilkington (No 1) at para 61, quoting R v

Melenchuk (

R) et al (1993), (BC CA), 24 BCAC 97, “it is not the motive of the informer which is critical but thereliability of the information supplied by him” (at para 24). [28] I agree that no information was given regarding Informant B’s motivation.

However, as I earlier stated, the informationprovided by this informant was merely confirmatory in nature and not the substantive basis for the issuance of the search warrant. [29] Finally, I would observe that, even if the accused had shown there to have been a weakness due to the absence ofevidence confirmatory of the information provided, “Weaknesses in one area may, to some extent, be compensated by strengths in theother two” (Debot at p 1168).

As noted, this was a proven informant who had established credibility and reliability, and who gavedetailed, firsthand information. [30] Thus, the accused has not shown that the trial judge misdirected herself, or that her decision to dismiss the request tocross-examine the affiant was so clearly wrong as to amount to an injustice. In my view, there is no basis to interfere with herdiscretionary decision. Failure to properly conduct the W(

D) analysis [31] The accused argues that the trial judge failed to properly apply the W(

D) analysis in that, after having rejected theevidence of the accused and having found that it did not leave her with a reasonable doubt, she did not consider “whether she wasconvinced beyond a reasonable doubt of the guilt of the accused on the basis of the balance of the evidence which she did accept.” [32] The accused submits that, even if the Crown proved that the accused possessed the controlled substances, it did notprove beyond a reasonable doubt that she possessed them for the purpose of trafficking. [33] In support of her position, she states that the trial judge did not make any credibility findings that would suggest that shedid not believe the testimony of her two friends.

She maintains that the evidence of these witnesses undermined the evidence of theexpert witness, who testified that the use of prescription pill vials without labels is, among other methods, one way that drug dealerspackage them for sale. This was one of the indicia that formed the expert witness’s opinion. [34] The manner in which evidence can be considered in the application of the test in W(

D) is a question of law. Therefore,the standard of review is correctness. See R v Jaw (SG), 2008 NUCA 2 at para 54, 432 AR 297; R v Vuradin (F), 2011 ABCA 280 atparas 46-49, 515 AR 25; R v Liberatore (MV), 2010 NSCA 82 at para 9, 299 NSR (2d) 53; and R v McIntosh (JG), 2010 ABCA 352 atparas 2-3, 493 AR 254. [35] In circumstances such as this, an appellate court will review the reasons of the trial judge to satisfy itself that the trialjudge did not err by allowing the burden to shift away from the Crown simply because the accused was not believed.

This error wasdescribed by Binnie J in R v JHS, 2008 SCC 30, [2008] 2 SCR 152, as the “‘credibility contest’ error” (at para 9). As he explained, “Themain point is that lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt” (atpara 13). [36] Near the commencement of her analysis, the trial judge described the issue to be decided.

She said: Well, the evidence overwhelmingly demonstrates to me that the prescription drugs found at 696 College Avenue in the console of [thetruck the accused was driving], and in the plastic bag inside the accused’s purse (other than that one vial of morphine), were drugs whichwere possessed for the purposes of trafficking. None of the evidence presented by the defence disputes this. Counsel agree that the soleissue with respect to counts 1 to 10 is whether the accused had knowledge of the existence of the drugs.

The accused asserts that she didnot. [emphasis added] [37] Contrary to the above, trial counsel for the accused (not the same as in the appeal) did not explicitly agree that the soleissue with respect to counts 1 to 10 was whether the accused had knowledge of the existence of the controlled substances.

Indeed, at thetrial, counsel for the accused urged the Court to find that the evidence of the Crown expert witness, which went directly to the issue ofpossession for the purpose of trafficking, should be given no weight. [38] The accused argues that the above misstatement by the trial judge demonstrates that she did not consider whether theevidence of the Crown was sufficient to prove beyond a reasonable doubt that the purpose of the possession of the substances was fortrafficking.

I disagree. [39] In my view, the comments made by the trial judge were in direct response to the main submission made by theaccused’s counsel in his closing argument. After reviewing some of the evidence provided by the accused, he said: So she has raised a defence. She has basically argued that the drugs that were in her possession [the morphine] were lawfully obtainedand we say that we’ve proven that beyond a reasonable doubt and there was no intention to sell those lawfully obtained drugs.

And thedrugs that weren’t either in her knowledge or control were not hers and presumably they were [the spouse’s] or somebody else’s.

[ 40 ] As earlier stated, the trial judge did not believe the accused’s contention that she had no knowledge of any of the controlled substances found in her home, or in the vehicle she had been driving, and no knowledge of the oxycodone found in her purse. The trial judge gave many cogent reasons for rejecting the accused’s testimony, including the fact that her explanations for various matters were mostly inconsistent. [ 41 ] In particular, the trial judge rejected the accused’s assertion that she was a hoarder, and that was why she kept the empty pill vials.

In the trial judge’s view, the evidence that she was a hoarder was internally inconsistent with the other evidence that she had regular yard sales and successfully sold many of her possessions. [ 42 ] Regarding the removal of labels from the pill vials, the trial judge said: [The accused] took great pains to explain that she was very worried about anyone knowing about the fact that she took medication. She claimed not even her good friends knew she was on medication until these charges were laid. However, [the first witness called by the accused] certainly was aware that she took medication.

Her reason for taking the labels off the prescription vials made no sense. She said she did this because she didn’t want anyone to see what medication she was taking if she were taking it in a public place such as a bar. If someone is afraid of being seen taking medication, why would they take it in a bar? A prescription label cannot be read at a distance of more than a few feet away. I find this entire explanation to border on silly. [ 43 ] I agree that the trial judge did not reject the testimony of the accused’s friends. Rather, she carefully reviewed the evidence and found that it did not make a difference.

I agree. That is, the explanations provided by the accused’s friends were not necessarily inconsistent with the testimony given by the expert. A person can be hoarding vials and removing labels for many reasons, some of them being for the purposes described by the expert witness. In the same vein, a person can legally possess a controlled substance for one reason but, at the same time, possess it for an illegal reason, such as to sell it.

The fact that the trial judge did not outright reject the testimony of the accused’s friends does not mean that she failed to consider whether the evidence given by the Crown expert witness proved beyond a reasonable doubt that there was possession for the purpose of trafficking. [ 44 ] That the trial judge was cognizant of the accused’s arguments regarding the expert witness was evidenced by the fact that she reviewed them in her reasons.

However, at the end of the day, she concluded: All in all, then, I am satisfied the Crown has proved all of the elements of possession of the drugs, including knowledge of their existence and an intention to traffic . As for the issue of whether the money was proceeds of crime, I find that the accused’s evidence on this does not leave me with a reasonable doubt. When I turn to the evidence presented by the Crown, including [the expert witness’s] opinion, I am satisfied that this charge has also been proved beyond a reasonable doubt.

With respect to [the expert witness’s] opinion, I can say that I would be able to come to my own conclusion that the money was proceeds of crime based on those aspects of his testimony concerning typical practices of trafficking in drugs, including pharmaceuticals.

I am satisfied that [the expert witness’s] knowledge is substantial and sufficient to be able to testify reliably about practices in trafficking illegal substances, including pharmaceuticals. [emphasis added] [ 45 ] From the above passage, it is clear that, despite the arguments of the accused, the trial judge accepted the opinion of the expert witness.

The fact that she did not dissect his evidence, or categorically dismiss each argument of the accused in her reasons, does not mean that she did not consider the expert evidence in the context of the evidence as a whole. [ 46 ] It is important to remember that the trial centered on inferences to be drawn from what was, for the most part, physical evidence.

This included the sheer quantity of the controlled substances involved (well over 2,000 pills), the manner in which they were stored, the lack of prescriptions for any of the controlled substances found in the house or the vehicle and the lack of a prescription for the oxycodone found in the accused’s purse. A large amount of bundled cash was stored in the same bag as some of the controlled substances. Score sheets, admittedly in the accused’s handwriting, were stored with some of the controlled substances.

The proximity of controlled substances to the score sheets and the bundled cash was also a factor to consider. The fact that some empty vials were found stored with the cash and substances, and that the labels were removed from most of the pill vials seized, formed only part of the totality of the evidence relied on by the expert in forming his opinion. In my view, the evidence overwhelmingly supported the conclusion of the trial judge that the accused possessed the substances for the purpose of trafficking.

[ 47 ] The reasons of the trial judge show that she fully understood the factual context of the case and the legal issues raised. Her comment that the “sole issue” was whether the accused had knowledge of the controlled substances, while misspoken, must be considered in the context of the totality of her reasons and in the context of the record, the issues, and the submissions of counsel at trial. See R v Vuradin , 2013 SCC 38 at paras 12-13 , [2013] 2 SCR 639 .

Read in that context, the trial judge did not err by failing to consider whether the Crown had proven its case beyond a reasonable doubt despite her rejection of the testimony of the accused. Sentence [ 48 ] The accused applies for leave to appeal one aspect of her sentence, being the imposition of a victim surcharge in the amount of $1,100, on the basis of hardship. The trial judge addressed this issue, finding the accused had income and assets, so that it would not be appropriate to waive the victim surcharge. I would dismiss her application for leave to appeal in this regard.

Decision [ 49 ] For all of the above reasons, I would dismiss the accused’s conviction appeal and deny leave to appeal the imposition of the victim surcharge. JA I agree: JA I agree: JA