Docket: CACR2388 Jonathan Michael Mah Appellant - v. -, 2014 SKCA 135

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 135 Date: 2014-12-23 Between: Docket: CACR2388 Jonathan Michael Mah Appellant - and - Her Majesty the Queen Respondent Between: Docket: CACR2389 Paige C. Desbiens Appellant - and - Her Majesty the Queen Respondent Coram: Klebuc, Whitmore and Ryan-Froslie JJ.A.

Counsel: Pab Chetty for the Appellants Wade McBride for the Respondent Appeal: From: CR 15 of 2013, J.C. of Prince Albert Heard: October 30, 2014 Disposition: Set aside guilty verdict of possession of property obtained by crime; all other conviction appeals dismissed; sentence appeals dismissed Written Reasons: December 23, 2014 By: The Honourable Mr. Justice Whitmore In Concurrence: The Honourable Mr. Justice Klebuc The Honourable Madam Justice Ryan-Froslie

Whitmore J.A. I. Introduction [ 1 ] The appellants, Paige Desbiens and Jonathan Mah, were convicted of three charges after trial: possession of Cannabis resin [resin] for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , SC 1996, c 19 [the CDSA ]; possession of Cannabis marihuana [marihuana] for the purposes of trafficking, also contrary to s. 5(2) of the CDSA ; and possession of Canadian currency in excess of $5000 obtained as a result of committing an indictable offence, contrary to s. 354 and s. 355 of the Criminal Code , RSC 1985, c C-46 [the Code ]. [ 2 ] Mr.

Mah was sentenced to 18 months incarceration for each charge, to be served concurrently. Ms. Desbiens was sentenced to a conditional sentence of two years less one day for each charge, also to be served concurrently. [ 3 ] Mr. Mah and Ms. Desbiens appeal their convictions on the basis that the trial judge erred in law, and also reached an unreasonable verdict. They also seek leave to appeal their respective sentences on the basis that the sentences are too harsh. II. Background [ 4 ] On August 29, 2012, Prince Albert police officers were conducting surveillance on the appellants’ house in Prince Albert.

The surveillance commenced at approximately 10:00 p.m., and during the period of surveillance two cars came to the residence. One vehicle came and left within a few minutes and the other vehicle parked and remained at the residence. [ 5 ] A search warrant was issued for the residence that authorized the police to search for cocaine and marihuana. [ 6 ] At approximately 11:00 p.m. the police entered the residence. They determined that both Mr. Mah and Ms. Desbiens were in the residence as were Brandon Yeomans, Corey Morin and Dustin Korecki.

The police found approximately 30 g of marihuana, almost 1 kg of resin, and $7585 in cash. [ 7 ] Mr. Mah and Ms. Desbiens were jointly charged as indicated above. III. The Decision Below [ 8 ] In her decision, the trial judge inventoried the drugs, the drug-related items, and the moneys that were seized: [8] Cst. Chester located two baggies of marihuana in the kitchen cupboard, weighing 30 grams (P-1), a sample of which was analyzed (P-16). He located a piece of paper inside a white sunglasses case on the kitchen counter which he believed to be a score sheet (P-2).

He located another score sheet in a day planner on the kitchen counter (P-3) and two score sheets inside another day planner on the kitchen counter (P-4). [ 9 ] On top of the kitchen counter, he located inside a white shopping bag an open box of sandwich baggies (P-5), two functioning digital scales (P-6), and a baggy containing 7.1 grams of marihuana (P-7). [ 10 ] He located a small amount of resin on the kitchen counter beside the microwave, which was analyzed to be resin (P-8). [ 11 ] A food saver wrap with the words “Rock Star” written on it was located under the kitchen table (P-9).

Another score sheet (P-10) was located on the kitchen table. Toward the end of the search, the police found 989 grams of resin in the kitchen, half in a plastic bag on the seat of a chair pushed under the table, and half on the floor under the table (P-15). A 5.3 gram sample was sent for analysis to prove it was resin (P-14). [ 12 ] In the basement, a small amount of resin weighing 2.3 grams was found on the floor in the laundry room (P-11).

In the basement bedroom, which Mah admitted at trial was the bedroom in which he and Desbiens occupied, the police located a ziplock freezer bag on the bed containing particles of marihuana (P-12). They located a food saver wrapping with particles of marihuana in a cardboard box situated in the laundry room (P-13). [ 13 ] A series of photographs were entered as evidence (P-18), which included three stashes of cash. The total sum of $7585, in varying amounts of currency, was seized (P-21). Mah had $2820 on his person. Between the box spring and mattress of [the] basement bedroom, the police located cash of $2830.

In the closet in the basement bedroom, inside a baggy within a set of female jean shorts was the sum of $1935. [ 14 ] Photos numbered 22 and 23 of Exhibit P-l8 show a box of 123 small vials with caps, about 1.5 to 2.0 inches long. They were empty and appeared to not have been used. On cross-examination, Cst.

Chester confirmed he saw no beads in the vials or in the vicinity of these vials. (Crown Factum pp. 49–50) [9] The trial judge accepted expert evidence to the effect that the amount of marihuana seized was a nine and one-half day supply for two heavy users and that marihuana is usually purchased one ounce at a time, as it is readily available and dries out quickly.

The amount of resin seized was estimated by the expert to be a 166-day supply for two heavy users and is an amount consistent with being in possession for trafficking purposes. [10] Corey Morin, age 19 at the time of trial, testified on behalf of the appellants. He had previously made a statement to the police on September 12, 2012, and was further interviewed by the police on September 25, 2012. There were numerous inconsistencies between what Mr. Morin had told the police in his statement and in the interview and in his testimony at trial.

[11] At trial, Mr. Morin testified the resin was his and was given to him by a friend and that he was to pay his friend $8000 for the resin. He testified he had taken the resin to the appellants’ residence and sold a gram or two to Brandon Yeomans for $40. He further testified the resin was hidden on a chair pushed under a table when the police came and that one of the digital scales was his. He was, however, unable to identify which of the digital scales was his or where he had put it. Mr.

Morin testified that he had not been charged with possession of marihuana, but in cross-examination conceded that he had been so charged. [12] In his statement to the police, Mr. Morin claimed he rented a room from the appellants, while in the interview he told the police he resided with his parents. During the interview, he told the police the brick of resin cost $1500 to $2000 and that it was about a one week supply. He denied ownership of any of the digital scales at that time. [13] The trial judge did not find Mr.

Morin to be a credible witness. [14] Brandon Yeomans, a 19-year-old friend of the appellants, testified he had purchased a 1994 Cadillac Eldorado from Ms. Desbiens for $4000 cash and had driven the Cadillac to the appellants’ residence that evening. In cross-examination, he stated that he had purchased it earlier in the month, but had lost the bill of sale. He said that he bought two or three grams of resin from Mr. Morin that evening and had paid Mr. Morin $30 for it. [ 15 ] The trial judge did not accept the evidence of Brandon Yeomans either.

In response to his testimony, the trial judge stated the following: [31] He said that he watched Morin weigh out the resin that he bought from Morin. He threw the resin into the laundry room when he heard the commotion when the police arrived. Because I do not accept Morin’s testimony that he owned the resin, I find [Yeomans’s] evidence on this point to not be credible, either. [32] Furthermore, I do not accept [Yeomans’s] testimony that he gave Desbiens $4000 cash in mid-August for purchasing the Cadillac.

There was no Cadillac parked in front of the residence that evening, only a Ford Taurus. [Yeomans’s] testimony that he drove the Cadillac to the residence that evening is inconsistent with the observations of Cst. Chester, whose evidence I do believe. (p. 54) [ 16 ] The appellant, Mr. Mah, testified that neither he nor his common law spouse, Ms. Desbiens, owned the drugs or the related paraphernalia found by the police.

With respect to the money found in the residence, he said he keeps cash on him because he does not trust banks, he won some money at the casino, and he keeps large sums of money on hand to buy and sell vehicles. Mr. Mah also testified that Mr. Morin rented a room from him. With respect to the 123 glass vials and the baggies the police seized based on their being used for the purpose of trafficking, Mr. Mah explained that the glass vials were purchased because Ms. Desbiens was going to store beads in them for the making of moccasins, although he conceded Ms.

Desbiens never did purchase any beads and there were never any beads in the residence. He testified the little baggies were used for his children’s snacks. [ 17 ] The trial judge found that Mr. Mah’s story, with respect to the money he had on him, changed between his examination-in-chief and cross-examination. The trial judge did not believe his exculpatory evidence and convicted the appellants on the three counts. Ms. Desbiens did not testify. IV. Issues [ 18 ] The appellants raise the following issues for this Court to consider: (

a) Did the trial judge err in admitting the 989 g of Cannabis resin into evidence? (

b) Did the trial judge err in her assessment of the credibility of the defence witnesses? (

c) Did the trial judge err by making erroneous findings of fact? (

d) Did the trial judge err by failing to properly consider the law of joint and constructive possession? (

e) Were the sentences imposed demonstrably unfit or the result of an error in principle? A. Did the trial judge err in admitting the Cannabis resin into evidence? [ 19 ] The appellants do not question the validity of the search warrant, but they argue the resin seized by the police was not admissible and the trial judge erred in admitting it. Their submission is based upon two grounds: i. the resin was not referred to in the search warrant; and ii. the resin was not in plain view. i.

The resin was not referred to in the search warrant [ 20 ] The trial judge dealt with this objection by referring to s. 489 of the Code : [2] … Defence entered a copy of the search warrant as Exhibit D-4 at trial, and as a preliminary objection in final argument, argued that the 989 grams of resin ought to be excluded as admissible evidence at trial because the search warrant only referred to Mah having in his possession cocaine and marihuana. However, s. 489(1) of the Criminal Code provides the full answer to that objection.

The police are entitled to seize, in addition to the things mentioned in the search warrant, any thing that has been obtained by, or used in the commission of an offence or afford [ sic ] evidence in respect of an offence. Such a large amount of resin hidden under the kitchen table and on the floor would cause an officer to believe on reasonable grounds of an offence committed [ sic ]. In this trial, the validity of the search warrant itself was not challenged by defence. Thus, the resin is properly admitted into evidence.

(Crown Factum p. 47) [21] While the search warrant had been authorized under s. 11(6) of the CDSA and the trial judge did err in referring to the Code asauthorizing the search resulting in the seizure of the resin, the error made no difference. The wording in s. 489 of the Code issubstantively the same as in s. 11(6) of the CDSA and, therefore, the same considerations would apply.

In the circumstances I find itappropriate to apply s. 686(1)(b)(iii) of the Code, known as the curative proviso, which reads as follows: Powers 686(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminallyresponsible on account of mental disorder, the court of appeal … (

b) may dismiss the appeal where … (iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided infavour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred …. [22] In R v Sekhon, 2014 SCC 15 at para 53, [2014] 1 SCR 272, the Supreme Court explained the application of this provision: [53] As this Court has repeatedly asserted, the curative proviso can only be applied where there is no “reasonable possibility that theverdict would have been different had the error … not been made” (R. v.

Bevan, (SCC), [1993] 2 S.C.R. 599, at p. 617,aff’d in R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 28). Flowing from this principle, this Court affirmed in Khan that thereare two situations where the use of s. 686(1)(b)(iii) is appropriate: (1) where the error is harmless or trivial; or (2) where the evidence isso overwhelming that, notwithstanding that the error is not minor, the trier of fact would inevitably convict (paras. 29–31). [23] The trial judge’s reliance on s. 489(1) of the Code, rather than s. 11(6) of the CDSA, is a harmless error.

Thus, this is anappropriate application of s. 686 of the Code. ii. The resin was not in plain view [24] The appellants submit that the trial judge was precluded from admitting the resin into evidence. They argue a search warrantauthorized pursuant to s. 11(6) of the CDSA permits the seizure of items, other than those described in the search warrant, only if theyare in plain view of the officer conducting a lawful search, and then only if the officer believes, on reasonable grounds, that the itemshave been obtained by or were used in the commission of an offence.

This is often referred to as the “plain view doctrine” (see: R vSpindloe, 2001 SKCA 58 , 2001 SKCA58, 154 CCC (3d) 8). [25] Sections 11(6) and 11(8) of the CDSA are as follows: Seizure of things not specified 11(6) A peace officer who executes a warrant issued under subsection (1) may seize, in addition to the things mentioned in the warrant, (

a) any controlled substance or precursor in respect of which the peace officer believes on reasonable grounds that this Act has beencontravened; (

b) any thing that the peace officer believes on reasonable grounds to contain or conceal a controlled substance or precursor referredto in paragraph (a); (

c) any thing that the peace officer believes on reasonable grounds is offence-related property; or (

d) any thing that the peace officer believes on reasonable grounds will afford evidence in respect of an offence under this Act. … Seizure of additional things 11(8) A peace officer who executes a warrant issued under subsection (1) or exercises powers under subsection (5) or (7) may seize, inaddition to the things mentioned in the warrant and in subsection (6), any thing that the peace officer believes on reasonable grounds hasbeen obtained by or used in the commission of an offence or that will afford evidence in respect of an offence. [26] In this case, the search was conducted under the statutory authority of the CDSA and thus, in my opinion, the “plain view doctrine”does not apply.

When conducting a search pursuant to a valid search warrant and authorized by s. 11(6) of the CDSA, a peace officer ispermitted pursuant to s. 11(8) to seize, in addition to the items listed in the warrant, “any thing” he believes on reasonable grounds relatesto the commission of an offence. There is no requirement that the additional items be in “plain view” and the Crown is not required toestablish the components of a “plain view” seizure (see R v Frieburg, 2013 MBCA 40 at para 67, 299 CCC (3d) 254). [27] In this case, there is no dispute the search of the residence was authorized by the warrant.

The warrant entitled the officers to enterthe residence and search for and seize marihuana and cocaine. Therefore, whether the resin was “hidden” or not is irrelevant. In anyevent, it is an exaggeration to say the resin was hidden, as a portion of it was on a chair in the kitchen and the chair was pushed under thekitchen table. The remainder was on the floor under the table. It was not “hidden.” The police were authorized to look under the table and

on the chair for marihuana and cocaine. That the resin was not enumerated in the warrant is immaterial. They found it where they were empowered to search. [ 28 ] I would dismiss this ground of appeal. B. Did the trial judge err in her assessment of the credibility of the defence witnesses? [ 29 ] The appellants submit the trial judge dismissed Mr. Morin’s testimony by saying he was not credible, and then dismissed Mr. Yeomans’s testimony on the basis she disbelieved Mr. Morin. The appellants submit the trial judge made only a short statement about Mr.

Mah’s evidence and failed to state which evidence she did accept, thus resulting in a palpable and overriding error. [ 30 ] In her reasons, the trial judge highlighted the contradictions and frailties in Mr. Morin’s testimony: (

a) he admitted to being a friend of Mr. Mah and testified he did not want Mr. Mah to go to jail; (

b) he gave differing locations as to where he left the resin that he had said was his; (

c) his evidence at trial differed from his statement to the police and a later interview; and (

d) his statement and his testimony also differed on the price he said he paid for the resin, on his place of residence, and on his ownership of a digital scale. [ 31 ] The trial judge explained why she did not believe Mr. Morin. In my view, her conclusion that Mr. Morin was not credible is reasonable and is supported by the evidence. Simply put, Mr. Morin’s story changed on so many points that he lacked any credibility whatsoever. [ 32 ] I now turn to the appellants’ submission that the trial judge committed a palpable and over-riding error in dismissing Mr.

Yeomans’s evidence on the basis that she did not believe Mr. Morin. [ 33 ] Mr. Yeomans testified he bought a car from Ms. Desbiens which he drove to the residence that evening. In cross-examination, he stated he had lost the bill of sale. He also testified he had purchased two or three grams of resin from Mr. Morin. [ 34 ] In addressing Mr. Yeomans’s credibility, the trial judge indicated she did not believe Mr. Morin owned the brick of resin and, thus, she did not accept Mr. Yeomans’s testimony that he had purchased some resin from Mr. Morin.

This is a reasonable conclusion. [ 35 ] In addition, the trial judge did not accept Mr. Yeomans’s testimony that he gave Ms. Desbiens $4000 cash for the purchase of the Cadillac. In her reasons for disbelieving Mr. Yeomans, the trial judge stated she accepted the evidence of Cst. Chester that there was no Cadillac parked in front of the residence that evening, only a Ford Taurus and a Mustang. This, however, was a mischaracterization of Cst. Chester’s testimony. [ 36 ] Cst. Chester testified only that he observed someone driving a Mustang arrive at the residence that evening and then leave.

He also saw a Ford Taurus which arrived and stayed. There was no mention of a Cadillac one way or the other. [ 37 ] While the trial judge may have made a mischaracterization of the evidence in determining the Cadillac was not parked in front of the appellants’ residence, in my opinion that does not affect her finding of credibility. The trial judge, on the whole of Mr. Yeomans’s testimony, disbelieved him. There is evidence to support this conclusion, and the conclusion is reasonable. In any event, whether there was a Cadillac parked outside the appellants’ residence or not or whether Mr.

Yeomans drove there in a Cadillac or not has no material bearing on the guilt or innocence of the appellants: see R v Lohrer , 2004 SCC 80 at para 2 , [2004] 3 SCR 732. [ 38 ] I now turn to the evidence of Mr. Mah. The trial judge’s assessment of Mr. Mah’s credibility, however, discloses a misapprehension of the evidence. In her

summary of Mr. Mah’s evidence, the trial judge had the following to say: [40] Crown challenged Mah that he testified in chief that the approximately $2000 in his pocket was money from Casino winnings. Mah’s explanation for that inconsistency was that he only won $600 to $800 at the Casino. The rest was from under the mattress. If this story were believable, Mah should have had a total of between $2780 and $2980 on his person. That is close to the sum of $2820 that the police found on Mah.

The problem is that Mah told two completely different stories between examination-in-chief and cross-examination by Crown. (Crown Factum, pp. 56–57) [ 39 ] This statement by the trial judge is inaccurate. Mr. Mah’s testimony that he won approximately $700 at the casino is as follows: A … Like, I was at the casino the night before, and I was playing on a bunch of, like, penny machines and stuff like that.

And I won 400 on one, 200 on the other, you know, a hundred here. … A I said, the night before I got raided, I was up at the casino, and I was playing a bunch of little penny machines and, like, I played Fort Knox and Quick Hits, and, like, I was playing -- like, I was even playing -- I even played the Smoke Signals and won $200 on the Smoke Signals. So I -- but, like, to know exactly how much money was in my pocket, I -- I don’t know. Like -- (Transcript p. 149) [ 40 ] At no point did Mr. Mah testify that all of the money found on him when he was arrested was a result of his winnings at the casino.

[ 41 ] The trial judge’s misapprehension may well have come about as a result of an exchange between her and the Crown. The trial judge stated that she missed the Crown’s earlier question regarding casino winnings. The Crown responded, “He’s earlier testified that the $2,820 money in his pocket was from casino winnings” (p. 169). [ 42 ] Mr. Mah immediately attempted to correct the Crown on this point and then stated the following: THE WITNESS: No, I said the $2,820 underneath the mattress was to pay rent.

The $2,830 was money -- like I said, I had -- I didn’t know how much money I had in my pocket exactly, because I won at the casino, a couple hundred here and there, and I already had money on me. That’s what I said earlier. [ 43 ] The Crown attempted to clarify the issue and Mr. Mah continued: “I didn’t win $2,800 at the casino, exactly. I only won, like, maybe six to $800 at the casino that night.” [ 44 ] It is evident the trial judge misapprehended the evidence. While the trial judge is in a unique position to assess a witness’s credibility, her analysis of Mr.

Mah’s credibility as to the money in his possession appears to turn on her incorrect finding that Mr. Mah had contradicted himself, and thus discloses a palpable and overriding error in relation to the proceeds of crime charge. [ 45 ] In R v Gagnon , 2006 SCC 17 , [2006] 1 SCR 621 , the Supreme Court stated the following: 20 Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.

That is why this Court decided, most recently in H.L. [ H.L. v Canada (Attorney General) , 2005 SCC 25 , [2005] 1 SCR 401], that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected. [ 46 ] The trial judge’s error with respect to the amount of money in Mr. Mah’s possession only goes to the third count on the indictment, the charge of having possession of property obtained by crime contrary to s. 354 and s. 355 of the Code . Because of this error, it is uncertain what amount of money can be attributed to being the proceeds of crime.

As the offence the appellants have been charged with is possession of proceeds in excess of $5,000, a new trial is necessary to determine what amount of the cash found in the appellant’s house is a proceed of crime. [ 47 ] With respect to the other counts, the trial judge reviewed Mr. Mah’s testimony in some detail and pointed out numerous inconsistencies. [ 48 ] Mr. Mah testified that he and Ms. Desbiens had purchased 123 glass vials to put beads in for Ms. Desbiens’s beading project, but no beads were found in the house and Mr.

Mah testified in cross-examination that they had not purchased any beads and that he had never seen her do any beadwork in the two years they had lived together. [ 49 ] Mr. Mah also testified that he kept large sums of money on him because

a) he did not trust banks,

b) he used money to purchase used cars, and

c) he had money to pay the bills. However, the evidence disclosed that he had a bank account and a debit card and used both. [ 50 ] The trial judge did not accept the evidence of Mr. Mah that he was not aware of the 1 kg brick of resin, the marihuana, or the digital scales in the residence. [ 51 ] The trial judge’s misapprehension regarding the evidence surrounding Mr. Mah’s casino winnings did not affect her conclusion with respect to the charges of possession of marihuana and resin for the purpose of trafficking.

There was ample evidence for a properly instructed jury to find the appellant guilty of possession for the purpose of trafficking and there is no reason to interfere with that conclusion. C. Did the trial judge err by making erroneous findings of fact? [ 52 ] The appellants submit that certain findings of fact were made without dealing with evidence that supported the defence’s position. [ 53 ] In my view, this submission is without merit.

While a trial judge is not required “to discuss all the evidence on any given point or answer each and every argument of counsel” ( R v Vuradin , 2013 SCC 38 at para 17 , [2013] 2 SCR 639 ), the trial judge did give a fairly thorough review of the evidence. [ 54 ] Findings of fact by the trial judge are to be treated with deference by this Court. That the appellants provided an innocent explanation for some of the incriminating evidence, which explanation was not accepted by the trial judge, is not a reason to overturn the trial judge’s decision.

The trial judge’s reasons for not accepting the testimony of the defence witnesses are reasonable. [ 55 ] The trial judge based her findings that the documents described as score sheets were in fact score sheets. The Crown proffered expert evidence to this effect. The other alleged “mistakes” highlighted by the appellants simply make no difference to the result. In light of the overwhelming evidence, whether Mr. Mah was in the basement or the living room when Cst. Chester entered the house is of no importance; neither is whether “Rock Star” is a name for a type of marihuana.

The findings of the trial judge are supported by the evidence and are reasonable. D. Did the trial judge err by failing to properly consider the law of joint and constructive possession? [ 56 ] The appellants submit the Crown must establish that they had constructive possession of the substances in the home, which entails

meeting the requirements outlined in R v Morelli , 2010 SCC 8 , [2010] 1 SCR 253: [17] … where the accused did not have physical custody of the object in question, but did have it “in the actual possession or custody of another person” or “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” ( 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 place belongs to him, and (3) intends to have the object in the particular place for his “use or benefit” or that of another person. [ 57 ] The appellants further maintain that circumstantial evidence can be used to impute knowledge and control for the purposes of possession, but only if there is no other rational inference that can be drawn from the proven facts.

In support of their argument, they cite R v Piscitelli , 2010 SKQB 209 at paras 31 to 46 , 368 Sask R 13. [ 58 ] The appellants argue if there is a reasonable alternative explanation, then the Crown’s case cannot be conclusive. [ 59 ] The trial judge correctly outlined the elements of possession, noting that joint possession requires knowledge, consent, and control. She referred to R v Switucka , 2009 SKQB 260 , 336 Sask R 311, and found the elements of possession for the resin and the marihuana were satisfied as regards both appellants.

She found the appellants guilty of both possession for the purpose of trafficking in resin and in marihuana and provided the following reasons: [44] On the facts as I have found them here, the only reasonable inference to be drawn is that Mah and Desbiens had joint possession of the marihuana and resin. They were the only persons with control of the drugs and paraphernalia. Marihuana was found in their bedroom and kitchen. Resin was found in their kitchen. Used plastic bags with marihuana were found in the basement laundry room and basement bedroom.

Cash was stashed under their mattress and among female clothing in their bedroom closet. The expert evidence of Cst. Carter is that the vials can be used to place small amounts of resin in them. The box of vials and almost one kilogram of resin, along with two sets of digital scales, were in the kitchen. The knowledge, consent and measure of control over the drugs by both accused is to be inferred by the evidence. It is the only reasonable inference to be drawn.

I find that Desbiens and Mah are guilty of both counts 1 and 2. (Emphasis added, Crown Factum pp. 59–60) [ 60 ] In my view, there is no error in her analysis. It is simply unbelievable that the appellants were unaware of the large quantity of resin in the kitchen of their home along with two digital scales. The trial judge’s conclusion that the appellants were guilty of possession for the purpose of trafficking in resin and marihuana is reasonable and supported by the evidence. V.

Sentence Appeals [ 61 ] The appellants contend the sentences imposed are demonstrably unfit or are the result of an error in principle. The appellants do not specify whether they are challenging Ms. Desbiens’s sentence, Mr. Mah’s sentence, or both. [ 62 ] Ms. Desbiens’s 24-month conditional sentence was the result of a joint submission.

Although the imposition of a sentence as a result of a joint submission imposed following a trial is not entitled to the same deference typically accorded to joint submissions on sentences following a guilty plea, the trial judge in this case took into account not only the joint submission, but also considered whether the sentence was appropriate under the circumstances. [ 63 ] Ms. Desbiens’ lack of criminal record, her acknowledgement of responsibility, and her obligations to her own child and to Mr.

Mah’s children all weighed in her favour and were taken into account by the trial judge. [ 64 ] Furthermore, the sentence is within the range of sentences in similar circumstances: see R v Dinh , 2012 SKCA (SentDig) 35; R v Shawile , 2012 SKCA (SentDig) 8; R v Randell , 2011 SKCA (SentDig) 34; R v Walker , 2011 SKCA (SentDig) 15; R v Fiddler , 2010 SKCA (SentDig) 41; and R v Von Hagen , 2008 SKCA (SentDig) 38. [ 65 ] While the sentence may be longer than conditional sentence orders given by this Court in roughly similar circumstances for offences of possession of drugs for the purpose of trafficking, it is not so much longer as to offend the principle of parity or to be otherwise demonstrably unfit.

Nor does the sentencing decision disclose an error in principle. I would dismiss Ms. Desbiens’s appeal from sentence. [ 66 ] Mr. Mah was sentenced to a term of 18 months incarceration on all three counts to be served concurrently. At trial, Mr. Mah’s counsel suggested that a conditional sentence was appropriate for Mr. Mah as well. The trial judge specifically noted that an incarceral sentence was required in the circumstance because of Mr.

Mah’s criminal record, his prior refusal to follow conditions imposed in previous conditional sentence orders, his refusal to take responsibility for these offences, and his high risk to reoffend. The trial judge also noted the deterrence factor and Mr. Mah’s desire to profit from his illegal activities.

There is no suggestion that the trial judge over- emphasized certain factors or under-emphasized others. [ 67 ] Moreover, an 18-month sentence of incarceration falls within the range of appropriate sentences for possession for the purpose of trafficking: see R v Fahselt , 2013 SKCA (SentDig) 32; R v Belyk , 2014 SKCA (SentDig) 9; R v Chickeness , 2013 SKCA (SentDig) 15; and R v Chinh , 2013 SKCA (SentDig) 14. [ 68 ] The sentence imposed on Mr. Mah is well within the range of sentences imposed in relatively similar circumstances.

The fact that I would set aside the conviction for possession of the proceeds of crime does not affect the sentences for the charges that remain. [ 69 ] I would dismiss Mr. Mah’s appeal from sentence.

VI.

Conclusion [ 70 ] I would set aside the verdicts of guilty with respect to the third count, being possession of proceeds of Canadian currency, knowing it was obtained or derived directly or indirectly as a result of the commission of an offence punishable by indictment, contrary to s. 354 and s 355 of the Code , and order a new trial for both appellants on that charge. [ 71 ] I would dismiss the appeals from conviction with respect to possession for the purpose of trafficking Cannabis resin and Cannabis marihuana. [ 72 ] I would grant leave to the appellants to appeal their respective sentences, and would dismiss the sentence appeals.

DATED at the City of Regina, in the Province of Saskatchewan, this 23rd day of December, 2014. “Whitmore J.A.” Whitmore J.A. I concur. “Klebuc J.A.” Klebuc J.A. I concur. “Ryan-Froslie J.A.” Ryan-Froslie J.A.