R. v. Cox, 2021 NSSC 369

SUPREME COURT OF Nova Scotia Citation: R. v. Cox , 2021 NSSC 369 Date: 20211021 Docket: Bridgewater No. 501598 and 501647 Registry: Halifax Between: Her Majesty the Queen in the Right of the Province of Nova Scotia Plaintiff v. Kaz Henry Cox Defendant Judge: The Honourable Justice Diane Rowe Heard: September 14, 15, 16, 17 and 24, 2021, in Bridgewater, Nova Scotia Oral Decision: October 21, 2021 Counsel: Leonard MacKay, for the Federal Crown Rick Woodburn, for the Provincial Crown Kaz Cox, self-represented Defendant Orally by the Court: [ 1 ] In the evening of August 21, 2019 Mr.

Kaz Cox was driving on a highway near Bridgewater, Nova Scotia. He drove by a surveillance point and was observed by a police officer to be driving erratically. The officer contacted his colleagues, who joined in locating Mr. Cox while he was driving along local roads. [ 2 ] Mr. Cox was eventually stopped by a uniformed RCMP officer in Nineveh, which is a quiet rural area , and arrested. This stop was the first step in an ensuing investigation that began with determining whether Mr.

Cox was driving while impaired and then resulted in his indictment on numerous charges pursuant to the Controlled Drugs and Substances Act, SC 1996, c.19 , and the Criminal Code, RSC 1985, c.C-46 . [ 3 ] Mr. Cox was initially indicted on 15 counts, with the charge of impaired driving withdrawn by the Crown during the trial. Mr. Cox is acquitted of that charge.

The remainder of the charges allege breaches of the Court’s prohibition and probation Orders and contravention of the law for possession of a prohibited firearm while prohibited under order and possession of drugs for the purposes of trafficking. [ 4 ] The indictment begins with two charges that Mr. Cox contravened s. 5(2) of the Controlled Drugs and Substances Act (the CDSA ).

The first charge is for the possession of cocaine for the purpose of trafficking with the second for possession of hydromorphone, also for the purpose of trafficking. [ 5 ] There are then a series of 12 charges made pursuant to the Criminal Code concerning the possession of a firearm, specifically in relation to possession and transport of a Remington sawed-off pump action shotgun located in the vehicle that Mr. Cox was driving that evening.

They are as follows: 1) That he was in the possession of a prohibited weapon without holding a license to possess it (s. 91(3)); 2) That he was in possession of the weapon for a purpose dangerous to the public peace (s. 88(2)); 3) That Mr. Cox was in breach of s. 12(

a) of the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations, contrary to s. 86(2) of the Criminal Code of Canada ; 4) That Mr. Cox was an occupant of a motor vehicle in which he knew there was at that time a firearm, under s. 94(2);

5) That Mr. Cox did, without lawful excuse, transport the weapon in a careless manner s. 86(1); 6) That he possessed a prohibited firearm with readily accessible ammunition capable of being discharged in the firearm and was not the holder of an authorization or licence, contrary to s. 95(2); and 7) That Mr.

Cox possessed a firearm, knowing that he was not licensed for its possession, contrary to s. 92(3)(a). [ 6 ] The remaining five charges set out that he had contravened, both a Prohibition Order issued by the Provincial Court on June 26, 2013, and the terms of a Probation Order made February 14, 2019, as follows: 8) That Mr.

Cox had in his possession a firearm in contravention of the Prohibition Order made pursuant to s. 109(1) of the Code , contrary to s. 117.01(3); 9) That he had in his possession ammunition in contravention of the Prohibition Order made pursuant to s. 109(1) of the Code , contrary to s. 117.01(3); 10) That Mr.

Cox had contravened the terms of the Probation Order by failing to keep the peace and be of good behaviour, contrary to s. 733.1(1) of the Code ; 11) That he had contravened the Probation Order by failing without a reasonable excuse to comply with the Order to not possess any firearms, contrary to s. 733.1(1); 12) That he had contravened the Probation Order by failing without a reasonable excuse to comply with the Order to not possess any firearms, contrary to s. 733.1(1). [ 7 ] The identity of the accused, that the accused was driving the vehicle, the time, dates, places, and jurisdiction were established and were uncontested. [ 8 ] The Crown provided four (4) witnesses, with one expert witness and offered Mr.

Cox its expert firearm witness for his cross- examination. [ 9 ] Mr. Cox chose to represent himself in the proceeding, and engaged in cross-examination of all Crown witnesses. He was not a witness, as is his right. The burden is on the Crown to prove its case. [ 10 ] Mr. Cox requested that the Crown disclose any tracking information that law enforcement may have collected on the vehicle he had been driving at the time of his arrest. The Crown’s response, supported by the evidence of Sergeant Allison, was that a tracking device was installed on that vehicle, pursuant to a warrant, after Mr.

Cox’s arrest on August 21, 2019. The Court finds that this would not be relevant in relation to this proceeding concerning Mr. Cox. [ 11 ] Mr. Cox advanced challenges to the admissibility of certain Crown evidence based on sections 7, 8, 9, 10(

a) and (b), and 11(

a) and (

b) of the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (UK), c.11 in an earlier hearing in this Court. In the March 4, 2021 decision addressing the subject matter of the blended voir dire , the Court concluded that the evidence obtained by law enforcement upon its investigation of the vehicle that Mr. Cox was driving and also gathered in the course of his subsequent detention, were obtained in a manner that was in keeping with the law and Charter compliant. This evidence was entered by the Crown at trial. Background [ 12 ] Corporal Ted Munro testified that on August 21, 2019 he was at a check point, engaged in surveillance.

His evidence was that he observed Mr. Cox’s vehicle driving in an erratic manner, swerving across the centre line and fog line on the edge of the pavement of a two lane highway, and twice coming onto the curb. He followed the vehicle for about a kilometre. Based on his experience as a police officer, Corporal Munro assessed the manner of driving as indicating impairment. [ 13 ] Corporal Munro was in plain clothes, in an unmarked vehicle. He was at that time a police officer with 15 years experience. He radioed police, to inform them of his concern and observed Mr.

Cox turning into a driveway, waiting and then proceeding back onto the roadway. [ 14 ] Constable Giffin was informed by radio dispatch of the vehicle that was driving erratically. Constable Giffin was in uniform, and in a marked vehicle. Upon locating the vehicle, he then followed it and also observed the car “jerking back and forth”. He recognized Mr. Cox as the driver. Upon flashing his lights, Mr. Cox pulled his vehicle over and Constable Giffin approached. [ 15 ] Constable Giffin’s evidence was that he smelled alcohol on speaking with Mr.

Cox and, based on his police experience and training, suspected he was impaired. Mr. Cox informed Constable Giffin that he was driving without a license. The police officer requested that Mr. Cox remove a black satchel he was wearing before getting out of the vehicle. This was left in the front seat. [ 16 ] Constable Giffin read the alcohol screening demand. Mr. Cox complied and “blew a warn” for alcohol. Constable Giffin advised Mr. Cox that this was a breach of Mr. Cox’s probation and that the vehicle would be seized, with a 7 day driving suspension to be imposed immediately. He arrested Mr.

Cox for breaching the peace and for failing to be of good behavior, which is a condition of his probation, and placed him in the police vehicle. [ 17 ] Mr. Cox was read a caution at that time, as well as informed of his right to counsel. Mr. Cox did not indicate that he wanted counsel at that time but did want to use his cell phone to contact the mother of his child to advise her he was arrested. Constable Giffin brought Mr. Cox’s cell phone from the car for Mr. Cox’s use and the call was made, after Mr. Cox gave him the password to unlock it for use. On the initial caution, Mr.

Cox said he “did not know” if he wanted to call a lawyer and “not have anyone to call” and the

Constable told him he could change his mind at any time and contact with a lawyer would be arranged. [ 18 ] Constable Giffin observed that Mr. Cox was lethargic and suspected that a substance other than alcohol might be a source of the degree of impairment observed. Constable Giffin then made a DRE demand and Mr. Cox was willing to comply. [ 19 ] While this was occurring, Corporal Munro and Sergeant Allison arrived at the scene. Corporal Munro observed that Mr. Cox was in Constable Giffin’s vehicle and was informed that Mr.

Cox was under arrest. [ 20 ] A tow truck was called by the RCMP to remove the vehicle from the road, and bring it to impound. [ 21 ] Constable Giffin then left the scene of the arrest, with Mr. Cox, to drive him to the Bridgewater Police station, where a police evaluator would perform the DRE. Constable Giffin stated that he took a short route to the station and that Mr.

Cox appeared to fall asleep immediately. [ 22 ] After Constable Giffin left the scene, Corporal Munro and Sergeant Allison proceeded to ensure that the vehicle was secure before the third party tow operator appeared. [ 23 ] In the front seat, a black nylon satchel was found, with other items. These items included: a digital weigh scale, a notebook with calculations of money owed and paid by persons within it, an empty cigarette pack with a small baggie within, close to $6000 in cash both rolled and in a stack in an envelope, and various handwritten notes with addresses and codes.

There was also a skull face mask, and a ball cap in the vehicle. [ 24 ] In the back seat of the vehicle, an opened box of Budweiser was visible through the window. A leather jacket was under the box and when the box was lifted by the police officer, the jacket moved revealing a gun under the jacket. A gray hoodie jacket was also in lower part of the back seat. [ 25 ] The gun was a Winchester shotgun, sawed-off, with a modified grip attached for action.

On examination, Sergeant Allison and Corporal Munro discovered the shotgun was loaded, with two shells of live ammunition, with one in the magazine and one slug cartridge loaded in the chamber. The safety was engaged. Additional live ammunition was found in the pockets of the gray hoodie. [ 26 ] This information was relayed by radio to Constable Giffin, who was still transporting Mr. Cox to Bridgewater. On arrival at the police station and while Mr.

Cox was still in the vehicle, Constable Giffin advised him that he was being arrested for possession of a prohibited weapon and repeated the basis for the arrest, inclusive of the weapons. Mr. Cox was advised of his right to retain counsel,and Mr. Cox indicated “not at this time.” [ 27 ] Mr. Cox was then administered a DRE. The results of the DRE were referenced by Constable Giffin in his evidence as positive, but as I do not have direct evidence from the DRE evaluator of the results, this statement will not be given any weight. [ 28 ] Constable Giffin requested to perform a strip search of Mr.

Cox, which was refused. I find that Mr. Cox was then given a blanket, and brought to a cell to sleep. The water to the cell was turned off, to ensure that no flushing of any items would take place. [ 29 ] The cell contained a concrete bunk. No other member of the police dealt with Mr. Cox that evening. [ 30 ] Corporal Munro had collected the material evidence from the vehicle. Photographs of the items and the locations that they were located in within the vehicle were produced for the Court and entered as evidence. He had taken swabs of the digital scale, which tested positive for cocaine.

Corporal Munro had also tested a baggie found on the location. [ 31 ] The following morning, on August 22, 2019, Mr. Cox was brought to an interview room and spoke with Sergeant Allison. A videotape of Mr. Cox’s interview was entered into evidence, after it was found on a voir dire to be admissible, as the Crown satisfied the Court it had met the burden of proof for voluntariness of the statements. Mr. Cox was aware he was being videotaped, and gestured to the camera. [ 32 ] In the video interview, Mr.

Cox does not deny that there was a shotgun in the vehicle, or assert he had no knowledge of the shotgun in the vehicle. He begins by first denying that the shotgun was loaded and then states, “There were two shells in that shotgun” and then, “there was nothing in the chamber”. It appeared in the video interview that Mr.

Cox did not equate that two ammunition shells in the gun equated to “ammunition as loaded in the gun”, unless a shell was in the gun’s chamber, cocked and set for discharge. [ 33 ] He states to Sergeant Allison that, “there was two in the tube and a fucking hoodie in there that had a bunch of shells in a pocket. All those red shells like a scatter shot” as well as what he refers to as, “a couple fucking heavy duties in this fucking chamber”. He does deny in the video that he would have used the firearm when he was arrested by police the prior evening. [ 34 ] Sergeant Allison informed Mr.

Cox in the interview that the police found the shotgun, eight beer remaining in the beer box, scales that tested positive for cocaine, and a lot of cash. [ 35 ] Mr. Cox states, at one point in the interview, that he is a personal user of cocaine and informs Sergeant Allison, “that’s why I have my scales. That’s why mine are going to test positive for cocaine.

Because nobody I know has any scales.” His statement is that he uses his scales to make sure he isn’t shorted when he makes a personal purchase. [ 36 ] He indicates that he was tired, not impaired by drugs or alcohol, but partying too hard over the prior days and exhausted. [ 37 ] Sergeant Allison at one point in the interview notes there is a little book that was found with a “countdown” that he states, “It looks like a score sheet” with Mr. Cox replying, “It’s not a score sheet. Well you could call it a score sheet. It’s exactly what you just said, when I get paid.” [ 38 ] Mr.

Cox confirmed to Sergeant Allison that the vehicle was not his, and stated that the money was all the money he possessed,

and that he carried it with him and needed it back. [ 39 ] On the video recording, the Court observes that, at the end of the interview, Mr. Cox appears to shove or push a small item between the table and the wall, after Sergeant Allison has left the room, and just before Mr. Cox leaves the room. [ 40 ] It was Corporal Munro’s evidence that he saw this action that day, as he was observing the interview while it was taking place on a video monitor when he was in another room.

Sergeant Allison is seen on the video re-entering the room, requesting gloves. [ 41 ] Corporal Munro testified that he recovered a small bag, which was tested for drugs. Mr. Cox was being transferred from the Cookville Detachment to the Burnside Central Correctional Centre. Based on the recovery of this item, Corporal Munro advised the Burnside facility that he suspected Mr. Cox had drugs on his person and Mr. Cox was placed in an observation cell. [ 42 ] The Crown offered Captain MacEachern, a corrections officer at the Central Correctional facility in Burnside, as a witness. It was his evidence that, after Mr.

Cox had a body scan on arriving at the facility on August 22, 2019, it appeared there was something in his body cavity. Mr. Cox was then placed in a health unit cell for 24 hour observation in keeping with the dry cell protocol. [ 43 ] The Crown established that the dry cell protocol for contraband required that:

a) The cell is investigated and searched before a prisoner entered it;

b) Prisoner isolated, with food brought to them by staff;

c) Continuous video recording of prisoner for duration while in cell;

d) Prisoner checked every 15 minutes by staff;

e) Prisoner is dressed in a hospital safety gown;

f) Toilet water turned off;

g) Prisoner required to do two bowel movements, which were searched;

h) Body scan after two clear bowel movements required prior to joining general population;

i) Search of cell must occur while body scan is occurring;

j) All clear before removal from cell to the general population. [ 44 ] On Mr. Cox’s second bowel movement while he was in the dry cell, he was brought to the body scan. While he was being scanned, a search of the cell revealed a cellophane wrapped tube of drugs, commonly called a “prison pack” at 2:30 pm. [ 45 ] Mr. Cox had the video in its entirety as part of Crown disclosure. The Crown chose not to enter the video in deference to privacy concerns for Mr. Cox and offered to tender it in the course of Mr. Cox cross-examining Captain MacEachern at any time.

It was not viewed by the Court. [ 46 ] Captain MacEachern’s evidence was that he viewed the video footage of Mr. Cox as it was taken while he was in the dry cell. He stated that it can be observed that Mr. Cox places something in the bag that his breakfast was provided in and places it on the shelf before his second bowel movement. His first bowel movement took place about 12 hours before, at 2:30 am. [ 47 ] Captain MacEachern was equivocal on whether the video showed that Mr.

Cox expelled or did not expel anything from his body, as he was covered by a blanket throughout the majority of the time. [ 48 ] Captain MacEachern could not confirm what was or was not in the bag and whether there was a prison pack that was eventually found. He did confirm that cellophane wrap can be a part of meals delivered in a dry cell, such as breakfast delivered in a bag with muffins or other items. [ 49 ] Captain Ryan Finley, also a correctional officer at the Burnside facility, gave evidence concerning Mr. Cox’s dry cell observation. [ 50 ] Captain Finley stated that when Mr.

Cox completed his second bowel movement, it was his task to do a contraband search of the cell. This occurred while Mr. Cox was being strip searched and his feces searched, as he proceeded to another body scan. It was during the contraband search that Captain Finley found a plastic wrapped object with white powder and materials in it, approximately the size used for placement in a rectum, in the breakfast bag. [ 51 ] Neither Finley or MacEachern indicated that Mr.

Cox was caught interfering with the video camera at any time, or observed to be removing an object from his body. [ 52 ] Captain Finley’s evidence was that this cellophaned bag was placed in an evidence bag, and secured. Corporal Munro then obtained the bag and the contents were unrolled and photographed. [ 53 ] The photographs of the cellophaned wrapped package were put before the Court. They appear to be a clump of small pills, mixed with an amount of white powder and a reddish substance.

Corporal Munro had the “prison pack” sent for analysis to Health Canada and the contents were confirmed as hydromorphone, cocaine and phenacetin. [ 54 ] The evidence of the police officers engaged in the initial stop was detailed and corroborated by each officer on the scene and

the officers engaged in Mr. Cox’s video interview in Bridgewater. I found that the correctional officers were also quite detailed in their responses and forthcoming on cross-examination by Mr. Cox.

Their evidence was very consistent and credible. [ 55 ] The Crown’s evidence was a mix of material evidence, direct evidence and expert opinion evidence. [ 56 ] The Crown offered Corporal David Lane as an expert and he was qualified by the Court to give his expert opinion in the area of unlawful possession of cocaine and hydromorphone, and unlawful possession for the purposes of trafficking the substances, including trafficking methods and trends, prison packs, methods to avoid detection and cash currency. His Curriculum Vitae and area of expertise was provided to Mr. Cox in advance.

There was no objection made to his qualification. [ 57 ] Corporal Lane noted that 8.5 grams of cocaine were recovered from the prison pack, which is wrapped for placement in the rectum, as well as the digital scales that were positive for cocaine. The evidence included a sawed-off shotgun and further, hydromorphone pills were present in the pack, and there was $5760 in cash that was located in the envelope in a stack, plus approximately $275 in cash rolled.

The small digital scales were also noted, typically part of the tools used by a dealer, not by a person purchasing a controlled substance. [ 58 ] It was Corporal Lane’s opinion that the notebook and notes setting out balances were consistent with his experience of a “score sheet” maintained by dealers, although he did concede that he did not know that was the case with this notebook and was surmising based on his experience. [ 59 ] Corporal Lane indicated that the collection of evidence gathered in the investigation of Mr.

Cox would be consistent with his education and with his experience concerning the drug trade in Nova Scotia, typical of a person engaged in street level cocaine trafficking. Corporal Lane was credible and balanced in admitting areas that he could not speak to with certainty.

I am placing some weight to his evidence, but am aware that his opinion is offered as just a part of the totality of the Crown’s evidence and is not conclusive in itself. [ 60 ] The leather jacket, the sawed-off shotgun with a pump handle modification add on, and the ammunition, were brought into Court and entered as evidence. [ 61 ] In regard to the sawed-off shotgun, the Certificate of Analysis by NWest, the National Weapons Enforcement Support Team, was made by Sergeant Lawrence Peyton of the RCMP on Oct 11 , 2019, and indicated that the Winchester 1300 shotgun was sawed-off to a barrel length of 415 mm.

The modification of the shotgun to the shortened length brings it within s. 84(1) of the Criminal Code as a prohibited weapon, as it was sawed to less than 457 mm. [ 62 ] Sergeant Peyton also testified on cross examination that the shotgun was fully functional and is a firearm that is capable of causing serious bodily injury or death. He was engaged in discharging the weapon. [ 63 ] The NWest Certificate also indicated that there were two items of ammunition found in the gun, a 12 gauge slug, and a Winchester 12 gauge shot cartridge. Sergeant Peyton confirmed on cross-examination by Mr.

Cox that the slug was engaged in the chamber, and could be fired. His evidence corroborated the evidence of Sergeant Allison, who had given evidence concerning his pulling back of the pump action of the gun and experience of seeing the chamber loaded, as was also evidenced by Corporal Munro’s photograph of the action being partially pulled back to expose the cartridge [ 64 ] The Crown entered the affidavit of John Parkin, August 27th 2019, the Chief Firearms Officer NS under the Canada Firearms Program, as evidence that Mr.

Cox does not possess a Possession and Acquisition License issued under the Firearms Act and did not on August 21, 2019. [ 65 ] A copy of Judge Alan Tufts’ Prohibition Order, dated May 9, 2014, was provided to the Court. It ordered that Mr. Cox was prohibited from possessing any prohibited firearm or restricted weapon for life and also prohibited from possession of ammunition until 2023. [ 66 ] The Probation Order, issued by the Provincial Court, pursuant to s 731 of the Criminal Code , and dated February 14, 2019 was to be effective until May of 2020 and these were put before the Court. It provides that Mr.

Cox was to “keep the peace and be of good behavior” with other specific conditions, including that Mr. Cox was not to have in his possession any weapons, firearms, or ammunition. [ 67 ] Further evidence was tendered to the Court, that comprises the certificate results of drug analysis by Health Canada of items seized and entered as evidence by the Crown. [ 68 ] They comprise of the following, produced by Health Canada:

a) Canada Certificate of Analyst dated September 6, 2019, confirming cocaine on the baggie found in the empty cigarette pack;

b) A Certificate of Analyst, dated September 13, 2019, with a result of cocaine, phenacetin, benzocaine and caffeine on the digital scales.

c) A Certificate of Analyst, dated September 17, 2019, finding hydromorphone, cocaine, phenacetin (prison pack);

d) A Certificate of Analyst, dated September 9, 2019, indicating cocaine on the baggie obtained in the interview room. Law [ 69 ] As was indicated earlier, the burden of proof rests with the Crown to prove all the elements of the offences in the indictment. That proof may be provided by either direct or circumstantial evidence led by the Crown. [ 70 ] The accused may seek to disprove the evidence, contradict the evidence, or offer evidence that may lead to a reasonable doubt

concerning the Crown’s evidence. If there is a reasonable doubt, then a conviction can not be made. [71] The law concerning reasonable doubt is outlined in the three branch test set out in R. v. W.(D.), (SCC), [1991]1 SCR 742.

In sum, it requires the trier of fact to determine first, if the evidence of the accused is believed, there must be an acquittal.Second, if the Court does not believe the testimony of the accused, but is left in reasonable doubt by it, there must be an acquittal.Thirdly, even if the Court is not left in doubt by the evidence of the accused, it must be asked whether, on the basis of the evidencewhich is accepted, the Court is convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [72] Cory J., speaking for the majority in R. v.

Lifchus, (SCC), [1997] 3 S.C.R. 320, summarized the principles ofreasonable doubt: 36 ...

It should be explained that: ∙ the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, thepresumption of innocence; ∙ the burden of proof rests on the prosecution throughout the trial and never shifts to the accused; ∙ a reasonable doubt is not a doubt based upon sympathy or prejudice; ∙ rather, it is based upon reason and common sense; ∙ it is logically connected to the evidence or absence of evidence; ∙ it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and ∙ more is required than proof that the accused is probably guilty -- a jury which concludes only that the accused is probably guilty mustacquit. [73] Justice Arnold in R. v.

Percy notes at para 108, specifically in regard to circumstantial evidence, as outlined by the SupremeCourt of Canada in R. v. Villaroman, 2016 SCC 33 that: [108] Justice Cromwell went on to contrast the approach to exculpatory circumstantial evidence to that governing inculpatoryevidence, citing Martin v. Osborne (1936), 55 C.L.R. 367 (H.C.), at p. 375, where the court stated that “[i]n the inculpation of an accusedperson the evidentiary circumstances must bear no other reasonable explanation” (emphasis in original).

The court explained that“according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would beaccompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed” (emphasis omitted).

Justice Cromwell commented that this idea — “that to justify a conviction, the circumstantial evidence, assessed in light of humanexperience, should be such that it excludes any other reasonable alternative” — was a helpful way of describing the line betweenplausible theories and speculation” (para. 41). [74] Proof beyond a reasonable doubt is beyond a probability, but it is less than an absolute certainty. The evidence, taken as awhole, must be considered, weighed and applied to the elements of the offence against this standard.

In this case, it is the totality of thewitnesses’ evidence, with the video evidence, physical evidence, drug analysis, the Orders and the expert evidence to be analyzed,weighed and balanced. [75] If reasonable doubt exists in regard to one element of an offence charged, then there must be an acquittal of the accused. Uponmy review of the evidence presented to the Court, and on considering whether the Crown has met its burden in proving the elements ofthe various offences which Mr. Cox is charged with beyond a reasonable doubt, then I conclude the Crown has done so.

Analysis [76] To begin, the breach of the term of the Probation Order to “fail without reasonable excuse to keep the peace and to be of goodbehaviour” was proven by the Crown. Mr. Cox ‘s defence to this is that the Crown is not able to prove the elements of the offence in theindictment beyond a reasonable doubt. [77] Mr. Cox argued that his initial arrest for breach of his probation for failure to keep the peace and be of good behaviour was inrelation to suspected impairment while driving a motor vehicle.

He submits that as he was not charged for impairment, then he could notbe in breach of the “good behaviour” portion of the probation order as he had only blown a “warn” or a statutory provincial offence. Healso submits that his arrest was unlawful as the Crown had not proven he was impaired at the time of arrest, thereby challenging thecredibility of the officers, specifically in regard to the evidence gathered in the investigation.

In support of this position, he calledattention to the Crown withdrawing the charge in the indictment of impaired driving at the conclusion of its case before the Court. [78] However, the test for lawful arrest is whether the state had reasonable and probable grounds for the arrest, not whether itestablished beyond a reasonable doubt that the accused was guilty of the charge which initiated the stop. Corporal Munro and ConstableGiffin observed erratic driving. Mr. Cox blew a warn for alcohol, which resulted in the impound of the vehicle for public safetypurposes. [79] Mr.

Cox also raised in defence to this charge that, as he was driving without a licence that he couldn’t have had a regulatorysuspension. Constable Giffin stated in his evidence that Mr. Cox told him on the initial arrest that he was driving without a license.However, then Mr. Cox was both driving in breach of the legal requirement for persons to drive with a license, and with the presence ofalcohol to a level requiring a penalty in law. This was evidence of a failure to keep the peace and be of good behavior.

No reasonableexcuse for breaching the Order that could give rise to a reasonable doubt was in the evidence before the Court.

[ 80 ] Then, the terms of the Prohibition Order and the Probation Order both contain express prohibitions for Mr. Cox to possess any prohibited weapon for life, and prohibitions on possessing ammunition. The charges concerning breach of these two Orders are proven beyond a reasonable doubt by the Crown, as are the charges involved with contravention of the Criminal Code and the possession of the firearm and ammunition. [ 81 ] Section 4(3) (a)(ii) of the Criminal Code provides that: For the purposes of this Act,

a) A person has anything in possession when he has it in his personal possession or knowingly . . . (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 another person; . . . [ 82 ] Mr. Cox was proven to be driving a car, with an unlicensed sawed off shotgun in the back seat under a jacket, that was loaded with two cartridges of ammunition, with additional ammunition shoved in a hoodie, all in his personal control and with his knowledge.

The evidence also clearly indicates transport in a careless manner. [ 83 ] He acknowledged possession of the weapon and ammunition on the video statement, and it was witnessed by the police officers. A sawed off shotgun, with a modified grip to assist the pump action, is objectively a dangerous weapon. [ 84 ] The modification to shorten the gun’s muzzle brought it within the definition of a prohibited weapon. Further the lack of adherence to regulations concerning the transport of the firearm was evident. [ 85 ] Mr.

Cox did not establish a reasonable excuse for his possession of the firearms and ammunition, in contravention of the Probation Order, which may have afforded a defence to the two charges of breach of

section 733.1(1) of the Code . [ 86 ] The charge pursuant to Section 88(2) requires a consideration of three elements: 1. Whether the accused possessed a weapon. 2. That the accused knew that what was possessed was a weapon. 3. That the accused had the weapon for a purpose dangerous to the public peace. [ 87 ] The Crown has established the first two elements. The third requires consideration of the evidence, more broadly. As the evidence established, the gun had ammunition in the magazine and the chamber. It was loaded, though with a safety in place.

It was placed in the back seat of the vehicle and readily handled, with additional ammunition loose and available. [ 88 ] Corporal Lane’s expert opinion indicated that a common feature of the drug trade is the use of weapons in the course of trafficking, and for violent purposes. [ 89 ] It is reasonable to conclude that the gun was placed in this fashion in the back seat, loaded, in reach of the driver for an intended use. An alternative purpose that could give rise to a reasonable doubt is not made out.

I find that the Crown has proven, on the evidence, that the accused had the weapon for a purpose dangerous to the public. [ 90 ] Finally, in regard to the first two counts in the indictment, concerning charges for the possession of cocaine and hydromorphone for the purposes of trafficking, I have considered the elements of the offences as set out in the Controlled Drugs and Substances Act section 5(2) . There are four elements that the Court must be satisfied the Crown has proven beyond a reasonable doubt: 1. That the accused was in possession of a controlled substance. 2.

That the substance was a controlled substance listed in the Controlled Drugs and Substances Act . 3. That the accused knew the substance was a controlled substance. 4. That the accused had possession of the controlled substance for the purpose of trafficking in it. [ 91 ] Again, I refer to section 4(3) of the Criminal Code regarding the definition of possession. [ 92 ] In regard to the first count, concerning the possession of cocaine for the purpose of trafficking, there are more than one indices that Mr. Cox was in possession of cocaine.

Cocaine is a controlled substance under the Controlled Drugs and Substances Act . Mr. Cox acknowledged in the video evidence that he was in possession of cocaine, from time to time, and characterized this possession as purchases of small amounts for personal use, rather than sale. [ 93 ] The Court finds that the first three elements of the charge are proven beyond a reasonable doubt. [ 94 ] The fourth element, that the possession of cocaine was for the purposes of trafficking, requires the Court to balance and weigh the Crown’s evidence, including physical, video, and witness evidence in its totality.

To traffic, pursuant to the Controlled Drugs and Substances Act , means to sell, administer, give, transfer, transport, send or to deliver a controlled substance. [ 95 ] The scales with cocaine residue were also characterized by Mr. Cox in the video statement as part of this personal use. The

score sheets were alternately accepted in the interview as score sheets, or notation for personal accounting. [ 96 ] A prison pack with 8.5 grams of cocaine within it was located in the pack found in Burnside. Corporal Lane’s evidence was that this is a threshold amount for a small dealer.

He also expressed that it was highly dangerous for a purchaser to weigh a purchase when buying a controlled substance from a dealer. [ 97 ] The Crown submits that the physical evidence of cocaine, in the baggie collected from the evidence room, the bag in the empty cigarette pack, and the 8.5 grams of cocaine in the prison pack, when coupled with the opinion evidence of Corporal Lane concerning general aspects of drug trafficking in Nova Scotia are compelling in its totality, and constitute both direct and circumstantial evidence that Mr. Cox engaged in drug trafficking.

Crown submits that it is has established a reasonable inference that the prison pack came in with Mr. Cox to the Burnside Facility and requests that the Court make an inference based on totality of the evidence that intention to traffic. [ 98 ] In the video statement entered as evidence, pursuant to the voir dire on admissibility, Mr. Cox indicates that he did consume a controlled substance, specifically cocaine, for personal use only.

He states that the scales with drug residue on it were used by him to weigh and measure his own purchases, to ensure that he was buying the correct weight. [ 99 ] In cross examination of Constable David Lane, Mr. Cox disputed whether it was reasonable to find it was proof that the notebook, either alone or in conjunction with the small scraps of paper with passwords and notations, were for a business use associated with drug trafficking.

Corporal Lane was not challenged on his opinion that the amount of drugs in the prison pack, both hydromorphone and cocaine, were typically indicative of an amount kept for trafficking purposes. Corporal Lane’s evidence was that both the hydromorphone and cocaine would be valuable commodities when brought into in a prison. This was not disputed on cross examination, either. [ 100 ] Mr. Cox, acting in his own defense, sought to establish a reasonable doubt in regard to the charge of possession for the purposes of trafficking, both in regard to the hydromorphone and cocaine. Mr.

Cox asks the Court to speculate that there may be other unknown persons or circumstances that gave rise to the finding of the prison pack. [ 101 ] It would be unreasonable to find that the prison pack was not in Mr. Cox’s possession throughout, as no other reasonable conclusion can be made on the evidence before me. [ 102 ] On a consideration of the totality of the evidence concerning Mr.

Cox’s arrest, with the progression of observation escalating on his arrival at the Burnside Correctional facility, I do not find that there is a logical and plausible alternative for the presence of the prison pack to create a reasonable doubt. As a result, the Court finds that the Crown has proven, beyond a reasonable doubt, that Mr. Cox possessed, and transported the prison pack, containing both controlled substances into the Burnside facility. ( R. v. Villaroman , 2016 SCC 33 ). [ 103 ] I also refer to the decision of Justice Boudreau, in R. v.

Emmerson 2014, NSSC 225 as similar precedent for a finding of guilt on a charge of possession of a controlled substance for the purposes of trafficking, in connection with prison packs discovered in a correctional facility in Nova Scotia. Conclusion [ 104 ] For the foregoing reasons, I find that the Crown has proven, beyond a reasonable doubt, the elements for unlawful possession of a restricted firearm, and breach of the probation and prohibition orders. Mr.

Cox is guilty of counts 4 through 15, as set out in the indictment. [ 105 ] I also find the Crown has proven, beyond a reasonable doubt, the elements for possession of cocaine and hydromorphone for the purposes of trafficking, and find that Mr. Cox is guilty of the offences set out at counts 1 and 2 of the indictment. [ 106 ] This concludes my decision on the matter. Rowe, J.