R. v. Chisholm, 2015 NSSC 329

SUPREME COURT OF Nova Scotia Citation: R. v. Chisholm,2015 NSSC 329 Date: 2015-11-18 Docket: Antigonish , No. 391779 Registry: Antigonish Between: HER MAJESTY THE QUEEN v. JOSEPH ALEXANDER CHISHOLM Defendant ORAL DECISION Judge: The Honourable Justice N. M.

Scaravelli Heard: May 13, May 14 and June 18, 2015, Antigonish, Nova Scotia Oral Decision: November 18 th , 2015 Counsel: Jill Hartlen, for the Crown Laura McCarthy for the Accused Orally By the Court: [ 1 ] Joseph Alexander Chisholm stands charged with possession of a controlled substance N-methyl-3, 4- methylenedioxyamphetamine (MDA) for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act (CDSA). [ 2 ] Mr.

Chisholm is also charged with four counts of possession of controlled substances contrary to section 4(1) of the Controlled Drugs and Substances Act , namely: Methamphetamine, N-dimethyltryptamine, Psilocybin, and Ketamine. [ 3 ] The Crown has the burden of proving the elements of these charges beyond a reasonable doubt, namely: 1. The substances named in the indictment are controlled substances included in schedules I and III of the Controlled Drugs and Substances Act. 2. Mr. Chisholm knowingly had possession of the controlled substances at the time set out in the indictment. 3. Mr.

Chisholm’s purpose of possessing the substance MDA was to traffic in that substance. CONTROLLED SUBSTANCES [ 4 ] Section 51(1) of the Controlled Drugs and Substances Act provides that a certificate or a report prepared by an analysist under section 45(2) is admissible in evidence and, in the absence of evidence to the contrary, is proof of the statements set out in the certificate.

POSSESSION [ 5 ] Section 4(3) of the Criminal Code provides that a person has anything in his possession when he has it in his personal possession or has it in any place, whether or not that place belongs to or is occupied by him for the use or benefit of himself. TRAFFICKING [ 6 ] Trafficking is defined in

section 2 Controlled Drugs and Substances Act and includes: to sell, transfer or transport. “To sell” includes having a substance in your possession for sale and distribution. “To transport” means to carry a substance in order to distribute

it to others. EVIDENCE [ 7 ] In the late evening of March 4 th , 2011, three members of the RCMP acting on information provided by a confidential human source, travelled to downtown Antigonish in an unmarked police vehicle seeking to arrest Mr. Chisholm for selling drugs. At approximately 12:45 am on March 5 th , 2011 Mr. Chisholm was located on a downtown sidewalk and was arrested for possession for the purpose of trafficking. He was wearing a hooded sweatshirt and carrying a backpack at the time. [ 8 ] Mr. Chisholm was searched incident to his arrest.

Located in his jeans pocket was a bag containing 26 capsules of a powered substance. A baggie was located inside his wallet containing a small amount of a powdered substance. A search of his backpack at the RCMP detachment revealed a bag containing approximately 120g of a powdered substance as well as $25 in cash. [ 9 ] Samples from each of these items seized were forwarded for analysis. Certificates of Analysis determined these substances as the drug MDA. [ 10 ] After placing Mr.

Chisholm in the cell, the RCMP obtained a search warrant and conducted a search of his bedroom located in a residence he occupied with his mother and his younger brother. Located in Mr. Chisholm’s bedroom were two bags of powdered substances (58g and 59g) and 56 capsules of a powered substance. Samples from each of these substances were forwarded for analysis and were similarly certified as containing the drug MDA. [ 11 ] Small amounts of other substances found in Mr.

Chisholm bedroom were subsequently tested and certified as Methamphetamine, Dimethyltryptamine, Psilocybin and Ketamine. [ 12 ] Most of the drugs seized in Mr. Chisholm’s bedroom were located in a locked green metal box. Mr. Chisholm had the key to this box in his possession at the time of his arrest. [ 13 ] In addition to the drugs seized, the RCMP also located in the bedroom two digital scales, empty pill capsules, empty gram baggies and a pipe. $1900 in cash was located in Mr. Chisholm’s bedroom dresser drawer.

This money consisted of mostly $20 bills. [ 14 ] Constable Curtis Kuchta was qualified as an expert witness to give opinion evidence regarding the packaging, distribution, use, value and sale of MDA. He was not involved in the investigation of this case. Constable Kuchta was given a hypothetical that was generally consistent with the evidence given at trial including the amounts of MDA found on a person as well as the amount located in his bedroom together with the other drug paraphernalia. In

summary, Constable Kuchta was of the opinion that the amount of MDA found on the person alone, was sufficient to establish that person was in possession for the purpose of trafficking. His opinion was only strengthened by the amount of MDA and other drug paraphernalia located in that person’s bedroom. [ 15 ] Under cross-examination as to the possibility of personal use of the MDA in these amounts, Constable Kuchta testified this was unlikely as the quantity of MDA would have amounted to a four year supply.

Moreover, the empty capsules, baggies and scales were consistent with a trafficker as opposed to a user. [ 16 ] Mr. Chisholm testified on his own behalf. His defence is essentially that the MDA seized by police was for his personal use and that he did not intend to traffic. Proof beyond a reasonable doubt in the context of credibility has led to the so called “W.D.” test where the Supreme Court of Canada instructed the trial court that it must acquit an accused in three situations.

The first, if the trial judge believes the accused; secondly, if the trial judge is left with a reasonable doubt based on the evidence of the accused; and thirdly, even if the evidence of the accused is not believed, but there is reasonable doubt as to guilt based on all the evidence. [ 17 ] Other than exhibiting his knowledge of drugs, Mr. Chisholm was not a credible witness. He was evasive, unresponsive and argumentative during his testimony. Mr.

Chisholm began his evidence by stating that the videotaped statement given to police was not accurate, that portions were missing, the statement was edited and the RCMP offered to drop charges if he became “a rat.” He wanted the video replayed even though the statement was admitted following an earlier voir dire where Mr. Chisholm elected not to call evidence. [ 18 ] Mr. Chisholm referred to himself as a recreational drug user with a high tolerance for drugs. He estimated consuming approximately 25 capsules of MDA every weekend. Other than odd jobs for family, Mr.

Chisholm acknowledged he was unemployed during his stay in Nova Scotia, having travelled from British Columbia. When asked on direct testimony to explain the number of $20 bills located in his bedroom, his response was “all money looks the same to me”. When asked in direct to comment on the exhibits containing empty capsules, his response was that “people use them to make food.” When his counsel showed him several of the exhibits containing substances tested positive for the MDA, Mr.

Chisholm denied these substances were MDA stating the texture of the samples or the color of these substances contained in the exhibits was not consistent with MDA. [ 19 ] In response to relevant questions on cross-examination, Mr. Chisholm generally replied that he either did not remember or stated his outright refusal to answer questions. Mr. Chisholm did not remember how he acquired the scales or whether he brought them from British Columbia. He did not remember if he had 120g of MDA in his backpack when arrested. He did not remember if he placed the substance in his backpack.

He did not remember having any capsules with powered substance on his possession at the time. [ 20 ] Having acknowledged that the contents located in the green box were his, Mr. Chisholm refused to answer questions as to when they were obtained or who he obtained them from. He refused to answer whether he purchased the drugs in capsule form and refused to explain why he would have been carrying such a quantity of drugs with him at the time he was arrested.

Having described himself as a weekend user of MDA with a high tolerance, he testified he was not using or under the influence of drugs the weekend he was arrested and searched. FINDINGS

[ 21 ] I am satisfied that the substances seized were the substances set out in the indictment and certified by Certificates of Analysis. There was no credible evidence to the contrary. [ 22 ] I am satisfied that Mr. Chisholm knowingly had possession and control of these substances. He had MDA on his person and in his backpack at the time of his arrest. More quantities of MDA and the other substances named in the indictment were located in the bedroom he occupied and over which he had control. [ 23 ] As a result I find Mr.

Chisholm guilty of unlawfully possessing the substances set out in the indictment contrary to section 4(1) of the CDSA. [ 24 ] In terms of the charge of possession for the purpose of trafficking, the crown is not required to prove purpose by direct evidence which is seldom available in charges of this nature. [ 25 ] In this case I have considered all of the evidence including the quantity and circumstances surrounding the seizure of the drug MDA as well as possession of drug paraphernalia. I do not believe that Mr. Chisholm possessed MDA for his personal use.

Having considered the whole of the evidence, I find there is no other rational conclusion but to find that the crown has proven, beyond a reasonable doubt, that Mr. Chisholm’s intention in possessing the MDA on the date in question was to make the drug available to others and I find him guilty of possession for the purpose of trafficking. Scaravelli, J.