Docket: CACR2286 B.L. Appellant - v. -, 2013 SKCA 125

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 125 Date: 2013-11-18 Between: Docket: CACR2286 B.L. Appellant - and - Her Majesty the Queen Respondent Restriction on Publication: In accordance with s. 110 of the Youth Criminal Justice Act , neither the name of B.L. nor any other information that would identify him shall be published. Coram: Richards C.J.S., Klebuc and Ottenbreit JJ.A. Counsel: Susan Ryan for the appellant via teleconference Wade McBride for the respondent Appeal: From: Provincial Court Heard: November 18, 2013

Disposition: Appeal dismissed (orally) Written Reasons: November 21, 2013 By: The Honourable Chief Justice Richards In Concurrence: The Honourable Mr. Justice Klebuc The Honourable Mr. Justice Ottenbreit Richards C.J.S. I. introduction [ 1 ] B.L. was convicted of possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19. [ 2 ] B.L. had been found riding in the rear seat of a vehicle. A grocery bag of cocaine was stashed under the front seat, near his right foot. He had a small amount of cocaine in his pocket.

It was packaged in a fashion similar to the cocaine in the grocery bag. B.L. also had over $600 of cash on his person. The denominations of the bills comprising that sum were consistent with the amounts paid for cocaine at the street level. [ 3 ] B.L. appealed his conviction and contended that it was not reasonable. We dismissed the appeal following argument. These reasons track those given orally in the court room. II. the evidence [ 4 ] On September 20, 2012, the police in La Ronge received information that led them to be on the lookout for a particular GMC Jimmy.

Two officers, Constables Ackerman and Ingleby, located the Jimmy. Constable Ackerman recognized the driver and could see there was someone sitting in the backseat. However, because the rear windows of the vehicle were tinted, he could not identify the passenger. [ 5 ] The two officers pulled in behind the Jimmy to initiate a stop. They exited their vehicle and approached it. While he was walking toward the Jimmy, Constable Ackerman heard it being put into gear and observed the vehicle start to slowly pull away. He ran up beside the vehicle, banged on the window and removed his revolver from its holster.

The driver of the Jimmy stopped immediately, put his hands in the air and looked toward the backseat. [ 6 ] B.L. was the only passenger in the vehicle. He was sitting in the backseat. Constable Ackerman knew him to be in breach of release conditions and so removed him from the Jimmy, put him prone on the ground and arrested him. From his vantage point outside the Jimmy, Constable Ackerman saw a package of white powder on the floor of the vehicle near where B.L. had been seated. [ 7 ] Constables Ackerman and Ingleby then looked under the passenger-side front seat of the Jimmy. They found a plastic grocery bag.

The bag contained four packages of cocaine. One of the packages was made up of a number of smaller bags of the drug. [ 8 ] Constable Kenny later found a small bag of cocaine in B.L.’s pocket. It was packaged in the same manner as the small bags of cocaine found in the grocery bag. [ 9 ] Constable Nichol seized $660 from B.L. It was comprised mostly of $20 bills but also contained some $50 bills.

An expert testified that these denominations were consistent with what would be received by a street level trafficker in that, on the street, one-half of a gram of cocaine would sell for $40 to $50 and one gram would sell for $80 to $100. III. the trial decision [ 10 ] B.L. was charged with possession of cocaine for the purpose of trafficking. He proceeded to trial in the Provincial Court. [ 11 ] The trial judge found B.L. guilty and provided brief oral reasons. First, the judge reviewed the evidence and, in so doing, emphasized three considerations.

The first was the location of the bag of cocaine under the front seat near B.L. In this regard, the judge explained as follows: … Well, it seems to me, Ms. Ryan, that your argument would be a lot stronger had he not been located sitting in the backseat. If he’d have been sitting in the front seat.

It seems obvious from the testimony of the police, which I accept, that that bag that contained the narcotics was shoved in from the backseat as opposed to from the front seat, and where he is seated the way Constable I think it was Ingleby described, he -- the -- the person he sees in the backseat is seated in the centre of the backseat. That would put the bag -- the grocery bag with drugs by his right foot, and that is -- is -- to me is fairly strong evidence why he’s sitting in the backseat.

And in relation to both individuals in the car, he is the one who is physically closest to the drugs. [ 12 ] Second, the judge noted the similarity between the packaging of the cocaine found in B.L.’s pocket and the cocaine found under the seat. He said this:

The next point that I think is really important is that he is searched, and they find a package of cocaine, albeit only one gram, but withvery similar packaging to everything else that there’s photographs of in exhibit, oh the exhibit number anyways, the book of photographs,the packaging appears to me to be virtually identical. [13] Third, the trial judge noted the cash found in B.L.’s possession. He commented in this way: Next is $660, and it would appear from looking at the photograph and from my recollection of the testimony of the police officers thatit’s in twenties, mostly twenties and fifties.

I can see a ten for sure in the -- in the photograph. The officer Constable Graves testified that that’s consistent with the sale of -- of narcotics. [14] In the end, the judge found B.L. guilty and expressed his conclusion as follows: And I agree the test to be applied is not it’s a rational inference. The burden is on the Crown to prove knowledge and control beyond areasonable doubt.

When I look at all of the evidence with the accused in the backseat, the drugs were found essentially by his right foot,drug packaging with cocaine is found on his person when he’s being searched at the detachment together with the $660 in cash, I -- I dobelieve that possession has been proven beyond a reasonable doubt. [15] That done, the trial judge went on to note the definition of possession in the Criminal Code and to comment on the possibility thatthe driver of the Jimmy and B.L. had been in joint possession of the cocaine.

B.L. agrees that, in so doing, the trial judge set out analternate basis on which he was prepared to enter a conviction. IV. analysis [16] B.L. submits that the evidence as a whole did not warrant a finding of guilt. In other words, he contends that the verdict reached bythe trial judge was unreasonable. In this regard, B.L. stresses that he was not the owner or driver of the Jimmy and that the driver beganto pull away from Constables Ackerman and Ingleby after initially stopping at their signal.

He says these facts suggest that the cocainewas owned by the driver and that they thus raise a reasonable doubt about his guilt. [17] It is, of course, not within the province of this Court to simply take its own view of the evidence and to re-make the decision of thetrial judge from the ground up. The governing standard of review demands more deference than that. The question is not whether thisCourt agrees with the trial judge. It is whether a properly instructed trier of fact, acting judicially, could have reasonably reached afinding of guilt in light of the evidence advanced at trial. See: R. v.

Yebes, (SCC), [1987] 2 S.C.R. 168; R. v. Biniaris,2000 SCC 15, [2000] 1 S.C.R. 381. [18] In our view, the answer to that question is “yes.” Four aspects of the evidence are crucial in this regard. The first is the location ofthe drugs found under the front seat near where B.L.’s right foot would have rested while he rode in the back of the Jimmy. The secondis the similarity in packaging between the cocaine found in B.L.’s pocket and some of the cocaine found in the grocery bag stashed underthe seat.

The third is the significant amount of cash—made up of denominations consistent with drug trafficking—found on B.L.’sperson. The fourth is the packet of cocaine found on the floor of the Jimmy near where B.L.’s feet had been positioned. [19] The fact that the Jimmy was not owned or driven by B.L. and the fact that the driver began to pull away after being stopped by thepolice do not, individually or in combination, make his decision unreasonable. Considering the evidence as a whole, the trial judge wasentitled to find B.L. guilty as charged. V. conclusion [20] B.L.’s appeal must be dismissed.

His conviction was not unreasonable.