R. v. Hickey, 2022 NSSC 235

SUPREME COURT OF Nova Scotia Citation: R. v. Hickey , 2022 NSSC 235 Date: 20220812 Docket: CRH No. 500238 Registry: Halifax Between: Her Majesty the Queen v. Phillip Hickey TRIAL DECISION Judge: The Honourable Justice Christa M. Brothers Heard: Written Decision: June 6, 7 and, 8, 2022, in Halifax, Nova Scotia August 12, 2022 Counsel: Jill Hartlen and Maile Graham-Laidlaw, for the Crown Eugene Tan, Maeve McCave and Marin Kwa, for the Defence By the Court: [ 1 ] Mr. Hickey is charged on a one count indictment. The indictment charges the accused as follows: On or about November 14, 2018, at or near Dartmouth, Nova Scotia, Phillip Hickey did unlawfully possess a substance included in

Schedule 1 of the Controlled Drugs and Substances Act , to wit: cocaine, for the purpose of trafficking contrary to Section 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 . Background [ 2 ] A kilogram of cocaine was found in the accused’s garage, inside a “shop vac”. He denies knowledge of the cocaine and provided viva voce evidence that other people had access to his home. Mr. Hickey was originally charged with multiple co-accused. He advanced a Charter application to exclude evidence, including the evidence obtained via a search of his home. Mr.

Hickey’s rationale for exclusion was that evidence had been obtained in breach of his co-accused Charter rights. As stated in R. v. Colegrove, 2022 NSSC 132 : 315 Phillip Hickey has filed an application for relief that depends on the outcome of Mr. Colegrove's application. He submits that if the court finds that Mr. Colegrove's Charter rights were breached and that the Donnacona interceptions should be excluded from

evidence at Mr. Colegrove's trial, it would bring the administration of justice into disrepute if the Crown were permitted to use the sameevidence against him. Mr. Hickey submits that without the Donnacona interceptions, there is no evidence connecting him to Mr.Colegrove. 316 Mr. Hickey seeks one of two remedies: (1) an order excluding any and all unlawfully obtained evidence as a consequence of any violations of the Charter against either Mr.Colegrove or Mr.

Hickey; or (2) an order staying the proceedings against him on the basis that it would be an abuse of process to permit the Crown to rely onevidence that has been found to have been obtained in breach of his co-accused's constitutional rights. [3] While the Donnacona interceptions were excluded as evidence against Hickey, no stay of proceedings was granted and thematter continued to trial. [4] To obtain a conviction, the Crown must prove beyond a reasonable doubt that Mr. Hickey was in possession of the kilogram ofcocaine for the purpose of trafficking.

After considering the viva voce and demonstrative evidence entered at trial, and putting theaccused’s testimony through the proper W(

D) analysis, I am left with no reasonable doubt that he is guilty of the offence as charged. Iexplain below. Presumption of Innocence and Burden of Proof [5] The most important principle in this matter, as in all criminal cases, is the presumption of innocence that stays with theaccused throughout (R. v. Starr, 2000 SCC 40, and R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320).

The presumption ofinnocence persists unless or until the Crown proves beyond a reasonable doubt that the accused is guilty of the offence as charged, or ofan included offence. [6] There is absolutely no burden on the accused to prove his innocence. The accused does not have to prove anything, and thisnever changes. The Crown must prove each element of the offence beyond a reasonable doubt. [7] Reasonable doubt is based on reason and common sense arising from the evidence or absence of evidence. Reasonable doubtis closer to absolute certainty than to a probability.

Thinking the accused is probably guilty or likely guilty is not enough. A reasonabledoubt is not an imaginary or frivolous doubt, or a doubt based on sympathy for, or prejudice against, those involved in the proceeding. [8] The Crown led evidence concerning the drug found in the accused’s residence, including the quantity, packaging, and thestreet value. There was also evidence of an encrypted cell phone and password found in the home.

The accused testified in his defence.In this case, the accused's denial puts credibility at the forefront. [9] In this situation, I am guided by the decision of the Supreme Court of Canada in R. v. W. (D.), (SCC), [1991] 1S.C.R. 742. Here the instruction in considering evidence in such cases is: 1. If the evidence of the accused is believed, he must be acquitted; 2. If the evidence of the accused is not believed, but the evidence still raises or leaves a reasonable doubt, he must be acquitted; and, 3.

Even if the evidence of the accused does not raise a reasonable doubt, he must be acquitted if a reasonable doubt is raised by otherevidence that is accepted.

In order to convict, the evidence that the court does accept must prove his guilt beyond a reasonable doubt. [10] The Crown's case rests on the testimony of officers who were involved in the arrest of the accused and the search of the home;an expert witness who testified that the evidence found in the home was consistent with possession of the cocaine for the purpose oftrafficking; and physical evidence located in the home. [11] This decision hinges on the credibility and reliability of the accused's evidence as well as the Crown's evidence, includingcircumstantial evidence, and the inferences that can be drawn from that evidence.

It is not a matter of who I believe, but of whether,based on all the evidence or absence of evidence, the Crown has proved its case beyond a reasonable doubt. It is not, however, acredibility contest. [12] I must not apply the standard of proof beyond a reasonable doubt piecemeal to the individual items or categories of evidence. Iapply it to the final evaluation of whether guilt is proven (R. v. Ménard, (SCC), [1998] 2 S.C.R. 109). [13] I have considered the totality of the evidence. I recognize I need not believe or disbelieve all of a witness's testimony.

I canbelieve none, part, or all of the evidence (Novak Estate, Re, 2008 NSSC 283). Evidence Statement of Admissions [14] During the course of trial, the accused made several admissions. These are contained in two Statement of Admissions madepursuant to s. 655 of the Criminal Code. The first is reproduced below: Statement of Admissions #1 1. Phillip Hickey was arrested at 16:46 on November 13, 2018, immediately after exiting 5518 Stoneham Court, Halifax, NS,and while walking towards his vehicle;

2. The following items were seized from Phillip Hickey’s person during this arrest: • $100 dollar bills (x7) • $50 dollar bills (x18) • $20 dollar bills (x12) Total $1840 dollars (in wallet). The money will be exhibited at trial by Cst. Robert Pretty, on consent; • A baggie containing 12 fentanyl pills (from pocket). Continuity is admitted. The Health Canada certificate of analyst is attached as proof of substance was an analogue of fentanyl. The pills will be exhibited at trial by Cst. Robert Pretty, on consent; • Keys that opened the door at 5518 Stoneham Court; 3.

Immediately after Phillip Hickey’s arrest the RCMP cleared 5518 Stoneham Court and no one was present inside the residence. The scene was maintained until the search warrant was executed the next day and, besides the clearing event by police, no one entered or exited 5518 Stoneham Court between Phillip Hickey’s arrest and the execution of the warrant; 4. The RCMP executed a search warrant on 5518 Stoneham Court on November 14, 2018. During the search a number of physical items were located and seized by the RCMP. Continuity is admitted and a selection of these items will be exhibited at trial by Cst.

Robert Pretty, on consent; and, 5. A kilogram of cocaine was located inside a chip bag, inside a shop vac, inside the garage at 5518 Stoneham Court. Continuity is admitted. The Health Canada certificate of analyst is attached as proof the substance was cocaine. The cocaine will be entered by Cst. Robert Pretty on consent. [ 15 ] Attached to this signed Statement of Admissions, is the Certificate of Analyst from Health Canada confirming the substance seized from 5518 Stoneham Court is cocaine at the level of 89% purity. [ 16 ] The second statement provided as follows: Statement of Admissions #2 1.

On November 13, 2018, the Federal Serious and Organized Crime unit of the RCMP observed the following while on surveillance: a. At 0902 hrs, a white Chevrolet Silverado pick-up truck arrived at 5518 Stoneham Court, Halifax, Nova Scotia (“the residence”). Frank Rocco OSSO and an unknown female exited the vehicle and walked toward the residence, each carrying a black bag. b. At 0934 hrs OSSO returned to the white Chevrolet Silverado parked at the residence and placed a black bag inside the vehicle. c. At 0937 hrs OSSO walked toward the residence with nothing in hand. d.

Seconds later, OSSO and the unknown female returned to the White Chevrolet Silverado and departed from the residence north on Sentinel Square. 2. Phillip Hickey was present in the residence throughout the time period described above. 3. The white Chevrolet Silverado was surveilled throughout the same day, November 13, 2018, and was observed driving straight to Digby, NS from Phillip Hickey’s residence, only taking restroom/food breaks. 4. At 1600 hrs on November 13, 2018, officers assisting in the takedown of Operation Hackberry were tasked to keep an eye on Phillip Hickey’s residence (the same as above).

Officers Campbell and MacEachern were the first to arrive. They parked behind Hickey’s vehicle (black Hyundai Elantra) across the street. The following was observed: a. An unknown while male approximately 30 years old entered the residence for a period of approximately ten (10) minutes. b. At 1640 hrs the unknown white male left the residence and got into a black Ford f150 and left the area. c. At 1645 hrs Phillip Hickey left the residence and walked towards his vehicle.

Testimony [ 17 ] The following is a review of the testimony presented at trial. [ 18 ] Constable Robert Pretty of the RCMP was the assigned exhibit custodian for the search of the accused’s residence at 5518 Stoneham Court. He testified to being in the home for 3 - 4 hours. He said the residence was lived-in, containing men’s clothing and no women’s clothing. [ 19 ] Cst. Pretty located, photographed, and logged a number of exhibits from the search including: $1,840.00 in cash found on Mr.

Hickey; photo albums with $100, $50 and $20 dollar bills; 12 fentanyl pills on the accused’s person; empty cannisters with labels such as Pledge, Gillette shave cream, and Mug root beer with false bottoms for storage; a hard plastic container with magnetic attachments; a Samsung phone; paper with passwords marked on it used to unlock the Samsung phone; a plastic wrapped brick of cocaine in a chip bag inside a shop vac located in the garage; and several pieces of used packaging found next to the shop vac.

[ 20 ] There was no calculation of how much money was contained in the photo albums, but the albums appeared to be arranged with newer bills in the front and older bills in the back. [ 21 ] The empty cannisters were not evaluated for any substances or traces of substances. [ 22 ] Cst. Pretty familiarized the court with the layout of the residence, including the entry and exit points in the home and the location of the garage. [ 23 ] Corporal LaPlante of the RCMP testified next.

He was part of the Operation Hackberry investigation and was tasked with searching the Samsung phone, which was located on the premises in the living room on a coffee table next to a lounger chair by the television. Cpl LaPlante said he is usually given an image of the phone when he searches the contents but that was not possible in this case. Instead, he performed a manual search on the actual device. To open the phone, he used a password which was written on a piece of paper found in the accused’s kitchen. This password enabled access to the device. Cpl.

LaPlante catalogued his interaction with and search of the phone, photographing and taking screen shots of those interactions. [ 24 ] Cpl. LaPlante accessed the encrypted messages on the phone. There were several all dated November 13, 2018. The messages were as follows: 4523BRU To: billy November 13, 2018 8:28:05 Testing 4523BRU@ENCRYPTEDSMARTP... To: scollope Nov 13, 2018, 9:20 AM Test … 4523BRU@ENCRYPTEDSMARTP... To: billy Nov 13, 2018, 9:28 AM Testing … billy To: 4523BRU@ENCRYP TEDSMARTPHONE.NET Re: Nov 13, 2018, 10:12 AM Hey sorry was sleeping … scollope To: 4523BRU@ENCRYP TEDSMARTPHONE.NET

Nov 13, 2018, 12:50 PM Testing here … billy To: 4525BRU@ENCRYP TEDSMARTPHONE.NET Re: Nov 13, 2018, 1:08 PM How did u like the work bro?? Tell me when driver has to come down he sleeping there tonight has to leave at 6am so Before 8pm please … Compose From: 4523BRU@ENCRYPTEDSMART... To: Subject: We will have your paper to him shortly 4523BRU@ENCRYPTEDSMARTP... To: billy Re: Nov 13, 2018, 4:31 PM Next time he comes down can you send a chocolate sample to show some customers I will pay for it [ 25 ] While this review of the phone was all completed outside a Faraday cage, the phone was already offline when Cpl.

LaPlante began his work. That is, the phone was not connected to the internet. This was to ensure that no one could perform a remote wipe of the phone. [ 26 ] Sergeant Tyler Nelson, the expert called by the Crown, spoke more about these text messages in his testimony. What is important here is that access to this Samsung phone was not possible without the passwords found in the home. The same piece of paper also contained the email contacts listed. [ 27 ] Corporal Christopher Dodge is a member of the RCMP and was involved as part of the surveillance and take down team for Operation Hackberry. When Cpl.

Dodge arrived, the accused was already under arrest. Cpl. Dodge recalled there being no one other than Hickey on the premises at the time of the arrest. As part of the search team, Cpl. Dodge searched two closets, the living room, the kitchen, and the garage at 5518 Stoneham Court. [ 28 ] Cpl. Dodge located the Samsung phone that was searched by Cpl. LaPlante on the side table in the living room. He found the one kilogram of cocaine in the garage in a chip bag inside the shop vac. He described the entrances and exits to the garage. There was a door from the garage into the home and the bay door to the outside.

The garage was described as being in use with a car parked in the garage bay. In the area of the shop vac was garbage and similar packaging to that used to wrap the kilogram of cocaine. This packaging was located in the garbage bags. [ 29 ] Nothing drew Cpl Dodge’s attention to the shop vac except for his experience that drugs are often hidden in unusual places. When the shop vac was opened, he saw the chip bag. He felt the bag and described it as hard with something heavy in it. [ 30 ] On cross-examination, Cpl Dodge was questioned about the layout of the home.

He was asked about the patio doors at the back of the home on the first and second level. This was seemingly done to draw the courts attention to the fact that there were multiple access points to the home.

[31] Sergeant Phillip Joudrey was the fourth witness for the Crown. He is a member of the RCMP and was involved in OperationHackberry. Sgt. Joudrey confirmed his involvement in the surveillance of Frank Osso. He recounted a time in May 2018 when he wassurveilling Osso and lost him, but then found him at Hickey’s residence at 5518 Stoneham Court. His truck was in the garage, and hewas in the driveway of the accused’s home. Sgt.

Joudrey’s understanding was that Osso and Hickey were friends, and both were thesubject of this investigation. [32] The Crown’s final witness, Sergeant Tyson Nelson, underwent a qualifications voir dire and was qualified to give expertevidence in the following areas: SGT. TYSON NELSON PROPOSED AREA OF EXPERTISE: In relation to drug trafficking and drug networks: • Roles, relationships, hierarchy, and distribution of profits; • Communication (common slang or jargon, coded languages, guarded language, use of encrypted devices, encryptedcommunication apps (e.g.

Wickr) and other encrypted forms of communication); • Methods of financing and payment; • Movement of drugs and currency: • Enforcement; and, • Use of counter-detection techniques In relation to cocaine: • Its purity, forms, and use; • For trafficking, its availability/market, packaging, pressing, cutting, and pricing. [33] The defence did not cross-examine Sgt. Nelson on the voir dire and conceded his qualifications as an expert. At the conclusionof the voir dire, I determined that Sgt. Nelson’s evidence met the test in R. v. Mohan, (SCC), [1994] 2 SCR 9.

Theevidence was relevant and necessary, there was no exclusionary rule, and Sgt Nelson is a properly qualified expert. He testified on thevoir dire as to his understanding of an expert’s duty to provide independent assistance to the court by way of objective unbiased opinion.He recognized that his role was to be impartial, and not to act as an advocate for either party. [34] Despite Sgt. Nelson being employed by the RCMP, I was satisfied that he understood his duty to the court and was willing andable to give independent, impartial evidence. [35] Sgt. Nelson has worked for 16 years with the RCMP.

He has been qualified as an expert in many proceedings, testifying ondrug trafficking matters including: jargon, packaging, pricing, storage, paraphernalia used, use of electronics, and other aspects of thetrade. Sgt. Nelson has extensive experience dealing with confidential informants involved in the drug trade, as well as experience withsearch warrants in drug matters, including cocaine investigations. [36] Sgt. Nelson’s 36-page curriculum vitae was exhibited and details his extensive work in the area. [37] Sgt. Nelson provided an overview of the cocaine distribution process, from source to end user.

He explained that cocaine ismade from the coca plant which is grown in Columbia, Peru, and Bolivia. Those three countries produce 99.9% of the cocainedistributed around the world. The coca plant is put through a chemical process in labs in these countries and converted into powdercocaine. The cocaine is then compressed into one-inch thick, one-kilogram bricks and, in most cases, when it is compressed, there willbe an indent or stamp on the cocaine itself. This stamp, which is a type of branding, indicates where the cocaine came from, and whichcartel made it.

Most of the cocaine that comes into Canada directly from the source countries comes in at between 97-99% purity. Afterthe cocaine is compressed, it is usually wrapped with plastic, some tape, and some more plastic. Usually, the packaging gets quite thickbecause cocaine breaks down when it comes into contact with humidity or water. The cocaine located in the accused’s home waspackaged in this way. [38] When the cocaine gets into Canada, it typically costs anywhere between $12,000 to $24,000 per kilogram. Most of the cocainecomes in through British Columbia, Ontario, and Quebec.

If it comes in through Halifax, it is not distributed here. It goes from here toQuebec or Ontario, where it is put into warehouses. It then may be transported back here to be sold. The cocaine goes to a high-levelimporter who flips most of it to high level traffickers within Canada. At this point, the cocaine stays in the same form at the 97 – 99%purity level. As the cocaine goes down through the levels of traffickers, it starts being “cut” or “stepped on”.

The traffickers take thecocaine out of the original packaging, break it back down into powder, and mix in other white powders that look like cocaine but cost alot less. The powder mixture is then compressed back into one-kilogram blocks, so that it continues to look like it came directly from thesource country. This process happens all the way down to the street level, with the cocaine being cut over and over again. By the timethe drug reaches the street, the purity may be as low as 1 – 5%. [39] As the cocaine passes down to mid-level traffickers, the one-kilogram block may be broken down into smaller amounts.

At thispoint, digital scales, packaging, and related paraphernalia will appear. Once the cocaine is broken down from the one-kilogram bricks, itis easier to cut the product and reduce the purity. Typically, the higher the purity of the cocaine, the higher the trafficker is in the drugtrafficking hierarchy. Usually at mid-level in Halifax, the purity will be between 30-60%.

[ 40 ] I placed no weight on the references to mid-level and high-level trafficking in reaching my conclusions and this evidence did not factor in any way into any inferences I have drawn. That is, while the evidence was an interesting review of drug trafficking from plant to end user, the Crown’s attempt to characterize the accused as a high level or mid-level trafficker does not assist in determining the essential elements of the offence as charged. The evidence on this point was more prejudicial than probative of an essential element before me. [ 41 ] Sgt.

Nelson reviewed some of the items located during the search of the accused’s home, including containers filled with elastics, which he said are often used to secure bundles of cash, and false bottom containers, which he testified are used to transport small amounts of cocaine or pills. He also reviewed the magnetic, waterproof box, which he called a “transport box”, and noted these types of containers are used to transport goods under a car, or under the hood of a car, or other vehicle. [ 42 ] Sgt. Nelson reviewed the photo albums containing cash.

He admitted that he had never seen such a collection of bills as being an indicia of drug trafficking. [ 43 ] When asked about the $1,840.00 found on Mr. Hickey at the time of his arrest, Sgt. Nelson did not suggest that this amount of cash was, in and of itself, indicative of trafficking. He noted, however, that drug trafficking is a cash business. [ 44 ] Sgt. Nelson examined the Health Canada Certificate of Analyst and noted that the kilogram of cocaine located in the garage was tested and is 89% pure cocaine. Sgt. Nelson gave the opinion that this is an extremely high level of purity. Sgt.

Nelson further said the typical street user would purchase one gram while a kilogram would come from a source country. He testified that the price to purchase one kilogram of cocaine in 2018 would be between $50,000.00 and $65,000.00. Sgt. Nelsen testified that the kilogram of cocaine was vacuum sealed and packaged with many layers to ensure that it was waterproof. [ 45 ] When asked by the Crown how one kilogram of cocaine relates to personal use, Sgt.

Nelson replied, “It doesn’t.” He explained that one gram of cocaine is what street users will typically buy, and a dose of cocaine is 0.15 – 0.3 grams at the maximum. That amount produces a high of four to six hours. One gram is about five doses, and at four hours between doses this amount would keep someone high for 20 hours. [ 46 ] Sgt. Nelson also examined the various packaging materials found in the search of the home at Stoneham Court. He testified that the materials were all consistent with the plastic packaging which would have been vacuum sealed around the cocaine. [ 47 ] Sgt.

Nelson’s opinion was that the items located in the home were consistent with items that would be possessed by persons who had cocaine for the purpose of trafficking. However, Sgt. Nelson indicated the photo album with cash in it was not something he had seen cash stored this way except as part of a collection. He testified that this evidence was not necessarily consistent with drug trafficking.

Incidentally, the photo album contained a $2.00 bill which is consistent with the album being used for collection purposes rather than as a storage method for cash obtained through drug trafficking. [ 48 ] I did not give any weight to any evidence given by Sgt. Nelson about indicia of high level versus medium level and street level trafficking other than as it relates to the evidence retrieved from 5518 Stoneham. That is, whether a person is a “high level” or “mid level” trafficker is not an essential element.

However, this evidence was probative to explain the objects and other evidence adduced and located by the police in their search of the accused’s home. Otherwise, the evidence was merely anecdotal and lacking in probative value to the essential elements of the offence as charged. ( R. v. Sekhon, 2014 SCC 15 ) Philip Hickey [ 49 ] Mr. Hickey testified in his own defence. He has resided at 5518 Stoneham Court for the last seven years. He rents the attached three storey townhouse from his cousin. He lives alone. In 2018, Mr.

Hickey was working in demolition for an environmental company removing mould and asbestos, and performing other such demolition work. He had been doing this type of work for 18 years. [ 50 ] At the time in 2018, Mr. Hickey was living alone, but his 15-year-old daughter came and went from the home. He would have some friends and some co-workers at his home on occasion. The two people who were closest to him at the time were his daughter and Frank Osso. He had been friends with Mr. Osso for 11 to 12 years. They met between 2011 – 2013 when Mr. Hickey had his hair cut by Mr. Osso, who was a barber.

They are both single fathers and their daughters are friends. [ 51 ] When asked if he had to be home for someone to have access to his home, Mr. Hickey testified that he and Mr. Osso had access to each other’s houses and would “look out for each other.” Mr. Osso would call and say he was going to drop by and borrow the whipper snipper out of the garage or borrow something out of the house. He would go in and do it and leave. Mr. Osso could enter the townhouse at Stoneham Court without calling beforehand, but he only did so on rare occasions. Mr. Hickey estimated that Mr.

Osso might enter his home while he was not present maybe 5 – 6 times over the course of a year. [ 52 ] Mr. Hickey was asked to think back to a point in time between November 12 and 14, 2018. He recalled this time period because he had surgery scheduled and he was in the process of purchasing a vehicle. He recalled Mr. Osso and Mr. Osso’s girlfriend came over the morning of Tuesday, November 13, 2018. It was Mr. Osso’s birthday, and they were dropping off decorations so Mr. Hickey could decorate the townhouse for a celebration scheduled for later that evening. Mr.

Hickey thought he saw the couple between 8:30 am – 9:30 am. Mr. Osso showed up with coffee and they spent some time in the home talking. The decorations were dropped off and Mr. Hickey gave Mr. Osso his birthday present. Mr. Osso and his girlfriend were to return to the residence that evening to attend the party. [ 53 ] Mr. Hickey said it was typical for him to leave the door unlocked if he knew Mr. Osso was coming over. Mr. Osso would enter and come up the stairs to where Mr. Hickey would be. [ 54 ] Mr. Hickey was asked about the entry points to the garage.

He said there is the garage bay door, and a door inside the garage leading into the home. He said that a key is needed to unlock the garage bay door from outside and pull it up. Once inside the garage, the door into the rec room has no lock.

[ 55 ] Mr. Hickey had planned later that day to purchase a 2014 Blue Chrysler 4-door vehicle for $4,600.00. He had sold his car on the previous Thursday to his daughter’s mother and had decided to purchase the Chrysler on Friday. He was returning to Dave Horne Automotive on Tuesday to pick up the car and finalize the purchase. The purchase of the Chrysler was completed between 2:30 p.m. and 3:00 p.m. His plans for the rest of the day were to register the vehicle at Access Nova Scotia and go to the insurance company. He said the weather changed and “got nasty” so he decided to go home instead. [ 56 ] Mr.

Hickey testified that the cost of the plates, the registration, and the insurance would have been between $800.00 - $900.00. This would account for some of the cash found on his person at the time of his arrest. [ 57 ] Mr. Hickey was scheduled for a hernia operation at the Dartmouth General Hospital the next morning at 9:00 a.m. He testified that in preparation for the surgery, he went out and bought 12, 80 mg pills of fentanyl. He said he was told that the pain would be high for the first 4 - 5 days after the surgery. He decided to purchase those pills “on the street”. [ 58 ] Mr.

Hickey testified concerning the photo albums found in his home. He said he had been collecting the money for a long time, as an educational fund for his daughter. He started collecting the money in 2004 or 2005. He testified that his father-in-law gave him this idea. He would add money whenever he acquired those larger bills. He would attend flea markets here and there and buy the money from coin dealers. Mr. Hickey said he never counted the cash but thought he had between $8,000 and $9,000. [ 59 ] Mr. Hickey further testified that he had a general interest in antiques and old items.

When he would be doing demolition work, his employer would allow him to take items from sites for his collections. He referred to a room in his home which contained collections of memorabilia such as hockey magazines, cards, papers, cellular phones, Royal Doulton figurines, and the like. Mr. Hickey testified that the cannisters with the fake bottoms were purchased at a flea market because he found them unique and odd. He stated he had no specific purpose for them. It was put to Mr. Hickey by his counsel that the suggestion had been made that those containers could be used to conceal drugs.

When asked if he had a response to that suggestion, Mr. Hickey said, “No.” [ 60 ] The accused denied that the phone seized from a side table in his living room belonged to him. He said he does not know where it came from. He testified that he had his own personal phone and another phone for photographs, but the Samsung was not his. Mr. Hickey testified to having no knowledge of the phone with encrypted messages. He also said he had no knowledge of the piece of paper with passwords on it. He did not recognize the passwords or the handwriting on the paper. [ 61 ] Mr.

Hickey testified that he was shocked when he was arrested and charged, because he had no knowledge of the cocaine in his home. [ 62 ] The accused testified that he had the shop vac which contained the cocaine since 2013 – 2015, and that he would use it to clean out his garage. He had no knowledge of the cocaine found in the vacuum. He testified that he acquired the vacuum while on a job doing renovations to the courthouse.

He denied trafficking in cocaine and had no knowledge of where the cocaine found inside the shop vac in his garage came from. [ 63 ] The accused testified that on November 13, 2018, between Frank Osso’s visit in the morning and when he was arrested at around 5:45 p.m., someone dropped by his home to visit him at 4:30 p.m. He could not say who it was. This person stayed for about 30 minutes. [ 64 ] On cross-examination, Mr. Hickey testified that he left his home at approximately 10:00 a.m on November 13, 2018. He went to complete the transaction for the purchase of the car. He was back home between 2:00 – 2:30.

He drove a rental car to the dealer to pick up the car. He drove the rental car back home while his friend drove the new Chrysler to his home for him. Mr. Hickey then left his residence, intending to return the rental car before the rental company closed at 6 p.m. Before he was arrested, his plan for after he returned the car was to put up the decorations for the party, which was supposed to start between 7:00 – 7:30 p.m. Mr. Hickey said when the decorations were dropped off, Osso and his girlfriend put the decorations upstairs in the spare bedroom but then he corrected his evidence and said he placed them there.

They consisted of balloons, streamers, and other such decorations. [ 65 ] The accused agreed that prior to Frank Osso coming to his home in the morning, he was watching television in his living room between 8:30 - 9:00 a.m. [ 66 ] Mr. Hickey was cross-examined on his hernia surgery and the purchase of fentanyl for pain. He did not raise concerns with his doctor about adequate pain medication for his surgery and instead decided to purchase illegal substances. He indicated that he asked someone he knew who sold cannabis if they knew where he might find the pills.

He refused to provide additional details but said he does have a specific recollection. This evidence did not play a role in my ultimate decision concerning the charge before the court. At most, it is only evidence of prior potential criminal activity which has no probative value other than an attempt at admitting bad character evidence which this court will not permit. Mr. Hickey was not charged in relation to his possession of the fentanyl pills. [ 67 ] Mr.

Hickey testified that the bottomless cannisters never made it to the memorabilia room because they were an impulsive purchase. [ 68 ] The accused recalled having coffee before Frank Osso and his girlfriend Jennifer arrived on the morning of November 13, 2018. He denied seeing the paper with the passwords on it at that time. He said he never saw that paper before with the passwords and he did not see anyone place the paper there.

Despite the Samsung phone being in the living room, next to the chair and on a side table where he was watching television, he said he never saw it before or on that day. [ 69 ] The accused recalled another person dropping by the home to say hi at around 4:30 pm, by the name of Mike. He thought he was making something to eat when Mike arrived. He said he and Mike stayed downstairs, never going to the second or third floor. [ 70 ] Mr. Hickey testified that he might have turned the television on after he got back from purchasing the car at around 2:30 or 3:00 pm.

[71] The accused testified that his garage was well used in the summer months. He agreed that he had recycling bags in the garagebut denied routinely taking them out. He said he would usually let them build up, unless the hockey team or Girl Guides came by tocollect them. Once he had amassed quite a few bags, he would put them in his truck to return them to the recycling depot. Afterextensive cross-examination, the accused acknowledged that he would be in his garage once every week or week and a half.

He said hewas in the garage more frequently in the summer months than in the winter, and that he could miss a random bag of garbage withwrapping in it since he would not go in his garage often. [72] Mr. Hickey says he still has the same shop vac, and it is located in the same spot. He denied that he checks inside it to makesure there is nothing in it that he had not placed inside himself. [73] The accused continued to deny any knowledge of the phone, password, and cocaine found in his residence. He said “I havenothing to say. I don’t know what to say to these accusations”.

He then laughed quietly and seemingly nervously. He denied knowledgeand said he was in “awe” over this. He denied the Samsung was his phone. [74] The accused tendered a receipt from Dave Horne Automotive Ltd. supporting his testimony that he purchased a 2014 Chryslerfor $4,600 taxes included on November 13, 2018. Legislation [75] Section 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 makes it an offence to possess for the purpose oftrafficking a substance included in, inter alia,

Schedule I. This offence is simple possession with an added mental element of an intentionto traffic. "Traffic" is defined as follows at s. 2(1): traffic means, in respect of a substance included in any of the Schedules I to V, (

a) to sell, administer, give, transfer, transport, send or deliver the substance, (

b) to sell an authorization to obtain substance, or (

c) to offer to do anything mentioned in paragraph (

a) or (b), otherwise than under authority of the regulations. (traffic) [76] It is without dispute that the term "traffic" covers a vast number of ways that a controlled substance can move between people.The definition includes to give or deliver. Crown’s Position [77] The Crown argues that all the circumstantial evidence adduced at trial leads to no other reasonable conclusion than that Mr.Hickey is guilty of the offence charged. They argue his evidence is not to be believed and that the circumstantial evidence isoverwhelming in this case. Defence Position [78] The defence argues that Mr.

Hickey has given evidence which raises a reasonable doubt. They argue that even if his evidencedid not do so, the Crown’s evidence falls short of proving each of the constituent elements of the charged offence beyond a reasonabledoubt. The defence argues there is a lack of sufficient evidence that Mr. Hickey had knowledge of the cocaine in his residence. Law and Analysis [79] The following cases set forth the law and elements to be proved in the prosecution of an offence under s. 5(2) of the CDSA. Thecourt in R. v. Young, 2022 BCPC 88, provides a helpful recitation of the law: Possession 62

Section 2 of the CDSA adopts the definition of possession found at s. 4(3) of the Criminal Code, which states: Possession

(3) 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 benefit of himself or of another person;and (

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall bedeemed to be in the custody and possession of each and all of them. 63 Culpable possession may therefore may be personal (or actual), joint, or constructive (See R. v. Pham, (ONCA), at para. 14, affirmed 2006 SCC 26; and R. v. Morelli, 2010 SCC 8 at para 15.). Personal or actual possession was not argued here,and my analysis will focus on constructive and joint possession.

64 Constructive possession occurs where the substances are found in a location over which the accused has some element of control.Unlike personal possession, the Crown is not required to prove the accused manually handled the drugs (See R. v. Strickland,2011 BCPC103, at para. 36 citing R. v. Fisher, 2005 BCCA 444 para. 24). Although the drugs are not actually on the accused, the law deems theaccused to be in possession by virtue of s. 4(3)(a)(

i) and (ii) of the Code. 65 The requirements to find constructive possession were set out by Justice Fish at para 17 of Morelli : [17] Constructive possession is established where the accused did not have physical custody of the object in question but did have it "inthe actual possession or custody of another person" or "in any place, whether or not that place belongs to or is occupied by him, for theuse or benefit of himself or of another person" (Criminal Code, s. 4(3)(a)).

Constructive possession is thus complete where the accused:(1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that placebelongs to him, and (3) intends to have the object in the particular place for his "use or benefit" or that of another person. 66 To prove joint possession, the Crown must show that someone other than the accused had possession of the prohibited substancewith the accused's knowledge and consent, and that the accused had some measure of control over it (Fisher at para 24). 67 The last element of possession requires proof of control over the object in the place (Pham, at para 15).

Knowledge 68 In Aiello v. R, (SCC), the Supreme Court of Canada affirmed Martin, J.A., (Regina v. Aiello, (ON CA)), where he defined "knowingly" to mean the accused was aware of, or reckless, or wilfully blind to, the possession or custodyof the substance in the place and did not act through ignorance, mistake, or accident. This may be inferred from the surroundingcircumstances. 69 Wilful blindness is further explained in R. v. Briscoe, 2010 SCC 13: [21] Wilful blindness does not define the mens rea required for particular offences.

Rather, it can substitute for actual knowledgewhenever knowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicionis aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. SeeSansregret v. The Queen, (SCC), [1985] 1 S.C.R. 570, and R. v.

Jorgensen, (SCC), [1995] 4 S.C.R. 55.As Sopinka J. succinctly put it in Jorgensen (at para. 103), "[a] finding of wilful blindness involves an affirmative answer to the question:Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?" (emphasis added) Knowledge of the Nature of Drug Possessed 70 In trafficking, importing, and possession cases the Crown is not required to demonstrate that the accused knew he or she possessed(or was importing or trafficking in) the very prescribed drug identified in the indictment; provided the accused knew the drug was anarcotic - for example, the actual drug involved is cocaine whereas the accused believed it to be hashish (See R. v.

Burgess, (ON CA); R. v. Blondin, (BC CA); R. v. Kundeus, (SCC)). J.A.

Brooke in Burgess stated atpara. 2: [We] are all of the opinion that in these circumstances where the evidence is clear and consistent only with the conclusion that theaccused knew the substance that he had in his possession was indeed a drug the possession of which was contrary to the statute, the factthat he mistakenly believed the drug to be hashish rather than opium is of no moment . . . 71 The Crown must prove using either direct or circumstantial evidence, or a combination of both, that the drugs were jointly orconstructively possessed, knowledge of the prohibited nature of the drugs and that it was possessed for the purpose of trafficking beyonda reasonable doubt.

Here, the court has heard only circumstantial evidence as was pointed out by counsel for the accused. 72 The defence called a single witness, Mr. Young. The Crown adduced no out-of-court statement or acknowledgement by Mrs.Young that she stored, or directed to be stored, the cocaine in the master bedroom safe, or knew of its existence. No witness testified tohaving observed Mrs. Young store or deal with the cocaine. The Crown relies on circumstantial evidence to prove the knowledgeelement of constructive or joint possession. Accordingly, I must be satisfied beyond a reasonable doubt that Mrs.

Young's guilt is theonly reasonable conclusion that can be drawn from the totality of the evidence (See R. v. Villaroman, 2016 SCC 33, para.55). 73 The evidence does not have to exclude entirely other conceivable inferences, but such alternatives must not raise a reasonabledoubt. In Villaroman, Cromwell J., referenced the rule in Hodge's Case… [80] In R. v. Pham, 2005 CarswellOnt 6940 (Ont. C.A.), the Ontario Court of Appeal reviews the law with regards to constructivepossession and proof of trafficking under s. 5(2) of the CDSA.

As in this case, that case rested on proof of constructive possession notactual possession. The court stated: 12 The issue at trial was whether the appellant had knowledge and control of the cocaine found in the bathroom and therefore had itin her possession. 13

Section 2 of the Controlled Drugs and Substances Act, S.C. 1996 C.19 adopts the definition of "possession" in subsection 4(3) ofthe Criminal Code. That

section reads: 4(3) 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 benefit of himself or another person; and (

b) where one of two or more persons with the knowledge and consent of the rest has anything in his custody or possession, it shall bedeemed to be in the custody and possession of each and all of them. 14 Section 4(3) of the Code creates three types of possession: (

i) personal possession as outlined in section 4(3)(a); (ii) constructive possession as set out in section 4(3)(a)(

i) and section 4(3)(a)(ii); and (iii) joint possession as defined in section 4(3)(b). 15 In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledgewhich extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. See R. v.Caldwell (1972), 1972 ALTASCAD 33 , 7 C.C.C. (2d) 285 (Alta. C.A.); R. v. Escoffery (1996), (ON CA), 28O.R. (3d) 417 (Ont. C.A.) [hereinafter R. v. Grey]. 16 In order to constitute joint possession pursuant to section 4(3)(

b) of the Code there must be knowledge, consent, and a measure ofcontrol on the part of the person deemed to be in possession. See R. v. Terrence, (SCC), [1983] 1 S.C.R. 357 (S.C.C.); R.v. Williams (1998), (ON CA), 40 O.R. (3d) 301 (Ont. C.A.); R. v. Barreau (1991), (BC CA), 19W.A.C. 290 (B.C. C.A.) and R. v. Chambers (1985), (ON CA), 20 C.C.C. (3d) 440 (Ont. C.A.). 17 The element of knowledge is dealt with by Watt J. in the case of R. v. Sparling, [1988] O.J. No. 107 (Ont. H.C.) at p. 6: There is no direct evidence of the applicant's knowledge of the presence of narcotics in the residence.

It is not essential that there be suchevidence for as with any other issue of fact in a criminal proceeding, it may be established by circumstantial evidence. In combination,the finding of narcotics in plain view in the common areas of the residence, the presence of a scale in a bedroom apparently occupied bythe applicant, and; the applicants apparent occupation of the premises may serve to found an inference of the requisite knowledge. The court of appeal decision in R. v. Sparling, [1988] O.J. No. 1877 (Ont.

C.A.) upheld the above passage as being sufficient evidence toinfer knowledge. 18 The onus is on the Crown to prove beyond a reasonable doubt, all of the essential elements of the offence of possession. This canbe accomplished by direct evidence or may be inferred from circumstantial evidence.

In Chambers, supra at 448, Martin J.A. noted thatthe court may draw "appropriate inferences from evidence that a prohibited drug is found in a room under the control of an accused andwhere there is also evidence from which an inference may properly be drawn that the accused was aware of the presence of the drug." … 21 The trial judge found that the 9.8 grams of cocaine were in the apartment before the appellant left the unit on March 3, 2003.

Herelied on the evidence of the surveillance officers that Nguyen was in the unit on March 3rd and 4th as the various persons were seencoming and going, and that he was still there at the time of the police entry. In his words: I would have to speculate given the evidence before me to find that he left the unit at a point after the accused did, and later returned. Ifind he did not personally bring the cocaine in after the accused left. 22 That Mr. Nguyen left the unit and returned with the drugs in question (or that someone else brought them in), and therefore thatthe cocaine was not in Ms.

Pham's possession on March 5th, is an argument raised by defence counsel, not on the basis of any evidencebut merely as a speculative consideration. In R. v. Jenner (2005), 2005 MBCA 44 , 195 C.C.C. (3d) 364 (Man.

C.A.) atparagraph 16, this type of approach was dealt with as follows: The accused's argument is found not on attempting to rebut the evidence tendered by the crown, but on raising questions and issues thatalthough valid in a rhetorical sort of way add nothing to the issues that the trial judge had to address, and the manner in which he did so.Such a manner of attack was dealt with by this court in R. v. Drury (L.W.) et al (2000), 2000 MBCA 100 , 150 Man. R. (2d) 64,

(2000) M.B.C.A. 100. Huband J.A. addressed the issue as follows (at paragraph 92): This is a question that only the accused Drury could answer, but he elected not to testify. Raising the question and inviting the court tospeculate as to the answer does nothing to overcome the body of evidence which overwhelmingly points to guilt. 27 Whether someone is in possession of something pursuant to section 4(3) of the Code is a question of fact to be determined on theevidence based on the inferences to be drawn in each case.

The difficulty in determining the sufficiency of the evidence required tosupport an inference of possession is aptly demonstrated in the contrasting decisions of R. v. Sparling and R. v. Grey mentioned earlier. [81] Much of the evidence proffered by the Crown in this case is circumstantial. The court in R. v. Villaroman, 2016 SCC 33, considered the use of circumstantial evidence and the range of reasonable inferences that can be drawn from it.

The Supreme Court ofCanada explained that there is “a special concern inherent in the inferential reasoning from circumstantial evidence” that the trier of fact“may unconsciously ‘fill in the blanks’ or bridge gaps in the evidence to support the inference that the Crown invites it to draw” (para.26). In order to convict, I must be satisfied beyond a reasonable doubt that the accused’s guilt is the only rational inference that can bedrawn from the circumstantial evidence. Put simply, I cannot and must not jump to unwarranted conclusions. I must look to otherreasonable inferences other than an accused’s guilt.

I must look to other “plausible theories” or “other reasonable possibilities” which areinconsistent with guilt, as long as these are based on logic and experience and not on speculation (R. v. Comba, (ON

CA), 1938 O.R. 200 (Ont. C.A.), R. v. Baigent, 2013 BCCA 28, R. v. Bagshaw, (SCC), 1972 S.C.R. 2, and R. v. Murphy,2022 NSCA 26). The court in Villaroman, supra stated: 37 When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonablepossibilities" which are inconsistent with guilt: R. v. Comba, (ON CA), [1938] O.R. 200 (Ont. C.A.), at pp. 205 and 211,per Middleton J.A., aff'd (SCC), [1938] S.C.R. 396 (S.C.C.); R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11 (B.C.C.A.), at para. 20; R. v. Mitchell, [2008] QCA 394 (S.C.C.), at para. 35.

I agree with the appellant that the Crown thus may need tonegative these reasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational orfanciful, which might be consistent with the innocence of the accused": R. v. Bagshaw (1971), (SCC), [1972] S.C.R. 2(S.C.C.), at p. 8. "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to theevidence or the absence of evidence, not on speculation. 38 Of course, the line between a "plausible theory" and "speculation" is not always easy to draw.

But the basic question is whether thecircumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other thanthat the accused is guilty. [82] In R. v. Al-Amiri 2017 NLTD(G) 35, the court provides some helpful guidance on constructive possession and circumstantialevidence: 32 With respect to the first two means of establishing possession, the Crown refers to the decision of the Supreme Court of Canada inR. v.

Morelli, 2010 SCC 8 (S.C.C.) in which Justice Fish stated that knowledge and control are essential elements in order to establishboth personal possession and constructive possession. Justice Fish described these two essential elements as follows at paragraphs 16 and17: 16 On an allegation of personal possession, the requirement of knowledge comprises two elements: the accused must be aware that he orshe has physical custody of the thing in question and must be aware as well of what that thing is. Both elements must co-exist with an actof control (outside of public duty): R. v.

Beaver, (SCC), [1957] S.C.R. 531 (S.C.C.), at pp. 541-42. 17 Constructive possession is established where the accused did not have physical custody of the object in question but did have it "in theactual possession or custody of another person" or "in any place, whether or not that place belongs to or is occupied by him, for the useor benefit of himself or of another person." (Criminal Code, s. 4(3)(a)).

Constructive possession is thus complete where the accused: (1)has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that placebelongs to him, and (3) intends to have the object in the particular place for his "use or benefit" or that of another person. … 35 The Crown refers to the British Columbia Court of Appeal's decision in R. v. Fisher, 2005 BCCA 444 (B.C.

C.A.), at paragraph47, in which Smith, J.A. stated: ... an accused person may be convicted solely on the basis of circumstantial evidence provided the evidence is consistent with theaccused "having committed the act" and is "inconsistent with any other rational conclusion". … 51 In considering the type of evidence required to establish guilt, I have considered the comments of Burrage, J. of this Court atparagraph 62 of Dunn, Burrage, J. reviewed case law and listed some of the considerations bearing on the assessment of circumstantialevidence of possession: While the cumulative import of the circumstantial evidence is to be assessed, considerations which have been shown by the foregoingauthorities to bear on this assessment include: 1.

Whether the contraband in question is in plain view, or whether it is hidden. 2. The proximity of the accused to the contraband in question. 3. Whether there are items belonging to the accused in proximity to the contraband in question. 4. The reaction of the accused when first confronted. 5. The connection of the accused to the place in which the contraband is found. 6. The credibility of the accused, in circumstances where the accused testifies.

This list is not exhaustive, and an assessment of the evidence may entail a consideration of some, or all, of the above considerations. [83] With all of this in mind, I turn specifically to the case before me. [84] Section 5(2) of the CDSA makes it an offence to possess a controlled substance for the purpose of trafficking. There is nochallenge here to the Certificate of Analyst and I accept that the substance seized from 5518 Stoneham Court was cocaine. There is noevidence that the cocaine was located on Mr. Hickey’s person. The allegation is that he was in constructive possession of the substance.

The Crown must prove that the accused: • Was in possession of a controlled substance – here jointly or constructively;

• Knew or was willfully blind to the fact that the substance was cocaine; and, • Had joint or constructive possession of the substance for the purpose of trafficking. [ 85 ] The relevant evidence which is offered to support the Crown’s position includes: 1. $1,840.00 in cash found on Mr. Hickey 2. 12 fentanyl pills 3. Cash in the photo album 4. Bottomless cannisters 5. Magnetic waterproof box 6. Encrypted phone 7. Passwords which gave access to the encrypted phone 8. Cocaine 9. Empty packaging materials [ 86 ] The Agreed Statement of Admissions #1 indicates what was found in the accused’s home.

Statement of Admissions #2 indicates that aside from a brief visit in the morning, Frank Osso was not in the home, and only one other person (an unidentified male) was present for a short time while the accused was home. [ 87 ] What is left is a straightforward case. The questions are: 1. Did Hickey possess the cocaine? 2. Did he possess the cocaine for the purpose of trafficking? [ 88 ] I accept Mr. Hickey’s evidence with regards to the photo albums containing the money in predominantly $100, $50, and $20 denominations.

At the very least, his evidence raises a reasonable doubt in my mind that these bills are evidence of drug trafficking. He testified that he collected this money for his daughter’s education fund, adding to it as he went. The album is organized from older to newer bills and does have the indicia of a collection over time. It was found in a tote with other memorabilia and Christmas items. Furthermore, Sgt. Nelson indicated that he has never seen cash used in the drug trafficking trade organized in this fashion. It is not consistent with drug-related monies. [ 89 ] As for the $1,840.00 in his wallet, Mr.

Hickey said this was money for the related costs associated with his purchase of a new car including registering the vehicle and insurance. I accept this evidence. Also, Sgt, Nelson indicated that this amount of cash alone was not indicative of money used in the drug trafficking business. [ 90 ] The next item is the one-kilogram brick of cocaine. While there is an admission that the cocaine was found in Mr. Hickey’s home, he denies any knowledge of it being in there.

However, the cocaine, combined with the encrypted phone located in his living room on a table next to the chair he sat in while watching television that day and the paper with the passwords found in open view on his kitchen counter, deprives his denial of credibility. The phone was located next to the remotes for the television he admitted that he was watching on November 13, 2018. [ 91 ] Although Mr. Hickey testified that Frank Osso was in his garage previously and that Mr. Osso would sometimes enter Mr. Hickey’s house when he was not there, this evidence has not raised a reasonable doubt in my mind.

Throughout his cross-examination, Mr. Hickey was reluctant at times to answer questions. Does Frank Osso’s presence on a few occasions give rise to a reasonable doubt as to whether Mr. Hickey had control over his premises? No. Not in my assessment of all the evidence taken collectively. [ 92 ] Mr.

Hickey even said he never checks the shop vac, even now, despite a kilogram of cocaine having previously been found in it that he says he knew nothing about. [ 93 ] The accused was never charged with the possession of fentanyl, and I make no findings with respect to that aspect of the evidence offered by the Crown. [ 94 ] Knowledge and control are the elements at issue in this case. This is a circumstantial case and I have concluded that the only reasonable inference to be drawn from the evidence is that Mr.

Hickey had control and possession of the cocaine for the purposes of trafficking. [ 95 ] The phone and the cocaine go hand in hand. These are items connected to the drug trade. There were multiple messages sent to and from the phone on November 13, 2018. Frank Osso did not have possession of the phone as it was in Mr. Hickey’s residence. No one was in the home for any real length of time that day except for Mr. Hickey. Frank Osso had only been in the home that morning. Mike was only downstairs shortly and never alone. To accept Mr.

Hickey’s denial, one would have to accept that: (1) he never saw the garbage of packaging materials – materials consistent with how cocaine is packaged to ensure it is waterproof and sealed; (2) he did not know the cocaine was in his home; (3) he did not see a phone that would have been right in front of him as he watched television; and (4) he did not notice passwords on his kitchen counter. All of these items should have commanded some attention. Mr. Hickey’s evidence flies in the face of reason.

His denials are further undermined by the fact that the phone was sending and receiving messages throughout that day.

[ 96 ] The evidence of Sgt. Nelson made it clear that this phone was set up with passwords and preprogrammed with contacts, and that this is consistent with drug trafficking. I accept his evidence. [ 97 ] The value of the cocaine is significant, as is its purity. This is a significant asset. When cut, a kilogram of cocaine yields anywhere between $90,000 - $120,000. Is it reasonable that the person in possession of the premises would not know of its existence?

The idea is even less plausible considering the encrypted phone; the evidence of messages being sent and received in a manner consistent with drug trafficking; and the phone being protected by passwords that were found on a piece of paper in the kitchen. [ 98 ] The looseleaf paper with the passwords on it lists the “Password to open” and designates specifically what is a zero and what is a letter O.

It then lists “my email” with a combination of letters and numbers as the email. [ 99 ] There are time stamps that appear on the phone which make it possible that Frank Osso could have been in the home at the time the phone sent and received some of the earlier messages that day. However, the phone continued to send and receive messages while Frank Osso was en route to Digby and back. [ 100 ] The phone was found in what appears to be a small television room at Mr. Hickey’s residence. The room is large enough to contain a television and stand, couch, chair, coffee table, and side table.

The lounger chair is positioned right next to the side table where the phone was found. It stretches credulity that a person sitting in that chair would not notice a strange phone that did not belong to them. [ 101 ] A more detailed review of the Samsung phone is warranted. The encrypted phone had the following apps in the screen: mail, Device security manager, emergency wipe, encrypted-notes, calendar, gallery, clock, my files, secure ecc, calculator, camera, contacts and settings. [ 102 ] Access to the encrypted messages was obtained upon entering the password listed on the paper found on the kitchen counter.

The encrypted messages – eight in total - were all from November 13, 2018. A message was sent at 4:31 pm. This message indicated: “Next time he comes down can you send a chocolate sample to show some customers I will pay for it”. [ 103 ] The messages before that were from 4523BRU to billy at 8:28:05 a.m. saying “Testing” and a response from FQM505 to 4523BRU at 10:12:04 a.m. saying “Hey sorry was sleeping” [ 104 ] A message was started but never finished or sent.

It was from 4523BRU with no recipient and no subject and the text said, “We will have your paper to him shortly”. [ 105 ] Then another text from billy to 4523BRU at 1:08 p.m. stating: “How do you like the work bro??

Tell me when driver has to come down, he sleeping there tonight has to leave at 6 am so before 8 pm please” [ 106 ] The two contacts on the phone were “ billy FQM505…” and “scollope” . [ 107 ] The time-line of November 13, 2018 is helpful to situate oneself in relation to the phone evidence and what reasonable inference can be drawn from that evidence. [ 108 ] At 8:28 a.m. an encrypted message on the Samsung phone is sent from 4523BRU to billy which reads “Testing”. At 9:02 a.m. Frank Osso arrives at the home with a woman and they bring coffee and some bags into the home. Mr.

Hickey was in the residence at the time. Osso and the female go into the home and proceed upstairs. They are not met downstairs by Mr. Hickey, who knew they would be coming. While Osso was still in the home with Mr. Hickey, a message is sent from the phone at 9:20 a.m. from 4523BRU to scollope and it says “Test”. At 9:34, Osso leaves with his female friend and a black bag . Mr. Hickey is still in the residence. At 9:37 a.m., Osso departs the home in a white Chevrolet Silverado. Mr. Hickey leaves the home at around 10:00 a.m.

At 10:12 a.m., an encrypted message is sent from billy to 4523BRU which says, “Hey sorry was sleeping”. At 12:50 p.m. a message from scollope to 4523BRU is sent which states, “Testing here”. At 13:08 p.m., a message from billy to 4523BRU that states, “How did u like the work bro? Tell me when driver has to come down he sleeping there tonight has to leave at 6 am so before 8 pm please” [ 109 ] Mr. Hickey returns to 5518 Stoneham between 2:30 and 3:00 p.m. Officers tasked with assisting on the takedown arrive at the home at 4:00 p.m. They begin observations.

At approximately 4:30 p.m., an unidentified male enters the home. He and Mr. Hickey do not go upstairs. At 4:31 p.m., a message is sent from 4523BRU to billy which reads, “Next time he comes down can you send a chocolate sample to show some customers I will pay for it”. At 4:40 p.m., ten minutes after his arrival, the unidentified male leaves Mr. Hickey’s residence. Mr. Hickey leaves the home at 4:45 p.m. and is arrested at 4:46 p.m. with $1840.00 of cash, 12 fentanyl pills and house keys on his person. [ 110 ] This is not a similar factual scenario as found in R. v. Murphy, 2014 NSCA 91 .

There is clear evidence that the accused resided alone in the home where all of the evidence was seized. [ 111 ] Mere occupancy is generally not enough to establish knowledge for the purpose of possession: R. v. Roberts , 2020 NSCA 20 ; R. v. Allison, 2016 ONSC 3073 ; and R. v. Murphy , supra . But here, we have the combination of a kilogram of cocaine kept in a shop vac located in a garage used by the owner more throughout the summer months, but also in the fall months. The garage is small and contains used packaging materials similar in type to that used on the kilogram of cocaine.

Garbage is usually stored in the garage and taken out by Mr. Hickey, who does say he misses garbage days from time to time. There is an encrypted phone located on a side table next to the television remotes where Mr. Hickey regularly watches television, and where he watched television on the date of his arrest. The phone was sending and receiving messages on November 13, 2018 when Hickey was home. The phone can only be accessed with a particular password written down on a paper located in the kitchen.

[ 112 ] There is no other rational conclusion other than that Hickey was in constructive possession of the cocaine, and furthermore, that he possessed the cocaine for the purposes of trafficking. A one-kilogram brick of cocaine with an 89% purity level is not for personal use. The purity and quantity prove beyond a reasonable doubt that the cocaine was possessed for the purpose of trafficking. I reject Hickey’s meagre attempts to feign a lack of knowledge of these items in his home. I do not accept what seemed to be an attempt to advance a third-party suspect defence. As the Court of Appeal stated in R. v.

Ritch and Sparks, 2022 NSCA 52 : 158 When the defence of third party suspects is advanced at trial, the question for the trier of fact is whether, on the evidence as a whole, the possible involvement of the third party raises a reasonable doubt about the guilt of the accused.

All third party suspect evidence needs to do is raise a reasonable doubt. [ 113 ] The Court of Appeal continued at para 160: The claim that another individual perpetrated the offence, raising a reasonable doubt about the accused's involvement, may be "overwhelmingly defeated by the evidence pointing to the accused as the perpetrator". [ 114 ] Mr. Hickey’s evidence that Frank Osso occasionally entered his home without his knowledge does not raise a reasonable doubt.

On the day at issue, the cocaine was located in the home and the encrypted messages about drug trafficking were being sent and received when Frank Osso was driving to and from Digby. Furthermore, the evidence of Mr. Hickey that a man named Mike was in his home briefly at 4:30 pm does not raise a reasonable doubt as to his possession and knowledge of the cocaine, the encrypted phone and passwords given that this man was in Mr. Hickey’s presence for the brief time hi was in the home and they never left the downstairs area. [ 115 ] I am satisfied that the Crown has proved its case beyond a reasonable doubt.

Conclusion [ 116 ] The Crown has proved the essential elements of the offence. I convict Mr. Hickey of possession of cocaine for the purposes of trafficking contrary to s. 5(2) of the CDSA . Brothers, J.