R v Montague-Mitchell, 2018 SKCA 78

Court of Appeal for Saskatchewan Citation: R v Montague-Mitchell , 2018 SKCA 78 Date: 2018-10-03 Docket: CACR2939 Between: Her Majesty the Queen Appellant And Christopher Montague-Mitchell Respondent Docket: CACR2972 Between: Christopher Montague-Mitchell Appellant And Her Majesty the Queen Respondent Before: Richards C.J.S., Ottenbreit and Schwann JJ.A. Disposition: CACR2939 – appeal allowed; CACR2972 – appeal dismissed Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Mr.

Justice Ottenbreit The Honourable Madam Justice Schwann On Appeal From: 2017 SKPC 32 , Saskatoon Appeal Heard: January 16, 2018 Counsel: Wade McBride for the Appellant Brian Pfefferle for the Respondent Richards C.J.S. I. Introduction [ 1 ] This appeal concerns charges laid against Christopher Montague-Mitchell in relation to alleged drug trafficking activity. [ 2 ] The police observed Mr. Montague-Mitchell in a parking lot participating in what they believed to be a drug transaction. He was arrested for trafficking in methamphetamine and cocaine and for being in possession of the proceeds of crime.

On his arrest, Mr. Montague-Mitchell was found to have keys to the door of a nearby apartment where drugs and cash were discovered. This led the police to lay a further charge of possession of methamphetamine for the purpose of trafficking and a further charge of possession of the proceeds of crime. [ 3 ] Mr. Montague-Mitchell was tried in Provincial Court. The trial judge convicted him of the two offences relating to the parking lot transaction observed by the police. He was acquitted on the charges concerning the apartment because the trial judge was not persuaded Mr.

Montague-Mitchell’s knowledge of the drugs and cash located there had been proven beyond a reasonable doubt. [ 4 ] Both Mr. Montague-Mitchell and the Crown appeal to this Court. Mr. Montague-Mitchell submits his convictions should be overturned because the trial judge reversed the burden of proof during the course of his analysis and improperly admitted opinion evidence. He also contends the convictions were unreasonable. The Crown, on the other hand, argues the trial judge erred in law by failing to consider whether Mr. Montague-Mitchell was wilfully blind to the presence of the drugs and cash in the apartment.

It contends his acquittals should be set aside and a new trial ordered with respect to the apartment-based charges. [ 5 ] I conclude that, as explained below, Mr. Montague-Mitchell’s appeal must be dismissed and the Crown’s appeal allowed. II. factual background [ 6 ] In early 2016, the Saskatoon Integrated Drug Enforcement Street Team was investigating the suspected drug trafficking activities of Wayne Mills. [ 7 ] On April 1, 2016, the police had Mr. Mills’s home under surveillance. At 8:51 p.m., they observed an unknown male get into the driver’s seat of Mr. Mills’s truck. Mr.

Mills got into the passenger seat. [ 8 ] Constables Blades and Graves followed the truck downtown. At 9:06 p.m., it stopped in a parking lot directly south of 525 24 th Street East. About a minute or two later, Mr. Montague-Mitchell walked into the parking lot from 24 th Street East and attended at the passenger-side window of the truck. He remained there for what Cst. Graves described as the better part of two minutes. Constables Blades and Graves believed they had witnessed a drug transaction. [ 9 ] At 9:11 p.m., Mr. Mills’s truck left the parking lot. It was stopped and Mr. Mills was arrested.

The police seized a number of items from the truck including approximately 1.35 ounces of cocaine, approximately 2.5 ounces of methamphetamine, a can of bear

spray, a cellphone and a backpack containing scissors, a box of sandwich baggies, inositol powder (an adulterant), baggies tied withelastic bands and $60 CAD. [10] Meanwhile, Mr. Montague-Mitchell left the parking lot on foot, returning the same way he had come into it. He was arrested at 24th Street East, near the building located at 311 6th Avenue North and charged with trafficking. [11] Mr. Montague-Mitchell was searched incidental to arrest. The following items were found in his possession: a BlackBerry, aniPhone, $2,770 CAD and $100 USD, a set of keys, an e-cigarette and a wallet.

The cash seized was in three separate bundles, wrappedwith elastic bands. [12] Constable Graves had been involved in another investigation that he felt might be related to the matter involving Mr. Montague-Mitchell. It concerned a man named Brandon Lincoln who had been arrested and who had provided an address of 403–311 6th Avenue North. Constable Graves decided to try the keys seized from Mr. Montague-Mitchell at 311 6th Avenue North because it wasnear where Mr. Montague-Mitchell had first been seen. [13] One of the keys opened the main front door to 311 6th Avenue North.

None of the remaining keys opened apartment 403.However, there was a mailbox key on the set seized from Mr. Montague-Mitchell. It would not open the mailbox for apartment 403 but itdid open the mailbox for apartment 405. Inside that mailbox was a letter addressed to Brandon Lincoln. Constable Graves then tried theother keys in the door for apartment 405. One of the keys opened the door. No one was inside the apartment. The police then locked theapartment and sought a search warrant. [14] A search warrant was executed on apartment 405 in the early hours of April 2, 2016.

The police found a duffel bag lying onthe floor of the bedroom. It was unzipped but the investigating officer could not directly see what was inside it. When the bag was pulledopen, it was found to contain $26,650 CAD, packaged in four bundles. A brown satchel was also sitting on the floor of the bedroom ofapartment 405. It contained two bags of methamphetamine, each weighing approximately one ounce, along with a zip-lock bag of anadulterant.

Corporal Marciniuk testified that the zip-lock bag containing adulterant appeared to be very similar to the zip-lock bagscontaining cocaine and methamphetamine that had been seized from Mr. Mills’s truck. He noted that the colouring, shape and size of thebags and tabs at the tops of the bags appeared to be the same or similar. Corporal Marciniuk also acknowledged that sandwich bags arecommonly used by drug traffickers. [15] Mr. Montague-Mitchell testified at the trial. He indicated that he had been studying power engineering in Kindersley.

He stated that he was in the process of arranging an apartment at 1208–311 6th Avenue North, because he was going to be in Saskatoonwhile doing distance learning. This apartment was in the same building where his friend, Brandon Lincoln, lived and where the drugsand cash were found. [16] Mr. Montague-Mitchell testified that, on the day in question, he had left his new apartment to meet his girlfriend at a theatre.He said he was walking by Mr. Mills’s truck when the passenger asked for a cigarette.

He had shared a cigarette with the passenger and then walked back in a northerly direction (away from the theatre) to 24th Street East. He denied any drug transaction had occurred. [17] Mr. Montague-Mitchell explained the cash in his pockets by saying he carried cash to avoid the effects of an automatic $800monthly withdrawal from his bank account. He said the key ring and keys belonged to Mr. Lincoln. Mr. Montague-Mitchell testified thathe and Mr. Lincoln were childhood friends from Scarborough, Ontario who, until just recently, had not seen each other since high school,approximately seven or eight years.

He said the two had had a chance meeting at a Saskatoon restaurant and, sometime afterward, Mr.Lincoln had texted to say he was going back to Ontario for Easter and asked whether he could drop his keys off with Mr. Montague-Mitchell. The purpose for this, according to Mr. Montague-Mitchell, was to allow anyone wanting access to Mr. Lincoln’s apartment tosimply contact him so that he could let them in. Mr. Montague-Mitchell professed to have thought nothing of this and had not ascertainedwhen Mr. Lincoln would be returning. [18] Mr.

Montague-Mitchell denied ever having access to apartment 405 himself or knowing what was in it. III. the trial decision [19] The trial judge delivered a written decision now cited as 2017 SKPC 32. [20] The trial judge began by noting that a formal agreement as to admissions had narrowed the issues before him to two. The firstwas whether Mr. Montague-Mitchell had conducted a drug sale with Mr. Mills. The second was whether Mr.

Montague-Mitchell, in law,had been in possession of the cash and drugs found in the apartment. [21] The trial judge then reviewed the testimony of each of the witnesses, including that of Mr. Montague-Mitchell. He nextsummarized the law with respect to the legal meaning of trafficking and possession, the principles governing proof by circumstantialevidence and, finally, the dictates of R v W.(D.), (SCC), [1991] 1 SCR 742. [22] Turning to the two charges grounded in the alleged sale of drugs to Mr. Mills, the trial judge found Mr. Montague-Mitchellguilty as charged.

In this regard, he had little difficulty disbelieving Mr. Montague-Mitchell’s account of what had happened in theparking lot and little apparent difficulty concluding the offences had been proven beyond a reasonable doubt. [23] The trial judge wrote that he “unequivocally” did not believe Mr. Montague-Mitchell’s version of events and went on torecount the various gaps, inconsistencies and problems with Mr. Montague-Mitchell’s evidence that had led him to this conclusion. Thetrial judge summarized his findings as follows: [107] The following is accepted by the Court:

a) Mills, a suspected drug trafficker was followed to a remote location in downtown Saskatoon later in the evening;

b) within 1 to 1 1/2 minutes the accused walked down the alley directly to the Mills vehicle;

c) he attended to where Mills was situate and interacted with him for approximately three minutes;

d) both parties immediately left the area thereafter;

e) the manner and duration of the meet was consistent with a drug transaction;

f) the accused was arrested immediately carrying two different cell phones consistent with what a drug trafficker would possess;

g) the accused possessed $2,770.00 Canadian cash and $100.00 American, sums which he could not reasonably explain;

h) the money was bundled in a manner consistent with a drug transaction;

i) the accused could not reasonably explain his presence in this location at this time, other than for an arranged meet; and

j) Mills was followed from the meet and found to be in possession of methamphetamine and cocaine, consistent with values attributed to the cash found on the accused, according to the Expert Opinion Report. [108] In all the circumstances, the evidence leads to no rational conclusion but that the accused trafficked in methamphetamine and cocaine and that the monies found in his possession were proceeds of this crime. [ 24 ] Turning to the charges involving the cash and drugs found in the apartment, the trial judge indicated that he did not accept Mr.

Montague-Mitchell’s account of how he had come into possession of the keys to the apartment and said the only logical inference to be drawn was that Mr. Montague-Mitchell was a “trusted associate of the occupant”. He went on to conclude, as well, that the only rational inference to be drawn from the evidence was that Mr. Montague-Mitchell had the keys to the apartment “knowing full well” that Mr. Lincoln used it as a stash house. [ 25 ] The trial judge then stated that, in order to convict Mr. Montague-Mitchell, he had to be satisfied beyond a reasonable doubt that Mr.

Montague-Mitchell had control and knowledge of the drugs and cash. He ultimately acquitted Mr. Montague-Mitchell by writing as follows: [118] In short, there is nothing in the evidence against the accused that can reasonably elevate the requirement of knowledge of the drugs and cash beyond suspicion and speculation. Mere knowledge that the apartment was a stash house is not enough to equate to knowledge that these drugs and cash were present at the time of seizure, with nothing more. Thus, he cannot be said to have been in constructive or joint possession of same. IV. analysis [ 26 ] As indicated earlier, Mr.

Montague-Mitchell appeals his convictions for trafficking and possessing proceeds of crime. The Crown, for its part, appeals the acquittals on the charges of possession for the purpose of trafficking and possession of the proceeds of crime. I will deal first with Mr. Montague-Mitchell’s appeal and then with the Crown’s appeal. A. Mr. Montague-Mitchell’s appeal [ 27 ] Mr. Montague-Mitchell advances three main arguments as to why his convictions should be set aside: (

a) the trial judge reversed the onus of proof; (

b) parts of Cst. Graves’s testimony were inadmissible opinion evidence; and (

c) the verdicts were unreasonable. 1. Was the onus of proof reversed? [ 28 ] Mr. Montague-Mitchell submits the trial judge erred by requiring him to provide an explanation for his presence in the parking lot where the meeting with Mr. Mills took place and for why he was in possession of the cash found on his person. This argument is a reference to parts of paragraph 107 of the trial judge’s decision where, in listing the evidence and considerations that had led him to conclude Mr. Montague-Mitchell had trafficked in methamphetamine and cocaine, the trial judge wrote as follows: The following is accepted by the Court: …

g) the accused possessed $2,770.00 Canadian cash and $100.00 American, sums which he could not reasonably explain; …

i) the accused could not reasonably explain his presence in this location at this time, other than for an arranged meet[.] [ 29 ] I am not persuaded by this argument. The trial judge was fully alert to the proper burden of proof in the case before him. At paragraph 90 of his decision, he made express reference to the principles set out in R v W.D. and wrote as follows: …

(

a) if the accused is believed then an acquittal must enter; (

b) if the accused is not believed but the Court nonetheless is left in reasonable doubt by such evidence, then the Court must acquit; (

c) if neither of the foregoing apply, the Court must then consider whether, on the evidence as a whole that the Court does accept,the Court is left in reasonable doubt as to the guilt of the accused. [30] Then, after having examined Mr. Montague-Mitchell’s testimony in detail and finding he could not believe it, the trial judgestated, at paragraph 106, “[h]aving rejected [Mr. Montague-Mitchell’s] evidence, the Court must now turn to the balance of the evidenceto determine whether the Crown has proven all elements of the offences beyond a reasonable doubt.” It was only after all of this that thetrial judge went on to make the comments found in paragraphs 107(

g) and (

i) now said by Mr. Montague-Mitchell to reveal a reversal ofthe onus of proof. [31] Seen in the context of the trial judge’s decision as a whole, paragraphs 107(

g) and (

i) cannot be reasonably read as meaningthat, in order to avoid conviction, the trial judge required Mr. Montague-Mitchell to explain how he came into possession of the cash andwhy he was in the parking lot. Rather, although perhaps not expressed as elegantly as might have been possible, the trial judge’scomments clearly mean he found there was nothing in the evidence from which he could draw any reasonable inference other than thatMr. Montague-Mitchell had sold drugs to Mr. Mills and was in possession of the proceeds of the sale. [32] This line of Mr. Montague-Mitchell’s argument must fail. 2.

Were parts of Constable Graves’s evidence inadmissible? [33] As noted above, Mr. Montague-Mitchell contends his convictions were unreasonable. One of the reasons why they are said tobe unreasonable is that the trial judge mishandled an aspect of Cst. Graves’s testimony by allowing the Constable to improperly provideexpert opinion evidence. This issue is more properly seen as free-standing and separate from the question of the reasonableness of theconvictions and, therefore, I will approach it on that basis. [34] Constable Graves was one of the officers who followed Mr.

Mills’s truck downtown and observed the alleged drug sale in theparking lot. He testified that he had considerable experience working with drug crimes, having spent just under six years with theSaskatoon Drug Enforcement Street Team. This had included three-and-a-half years of undercover operations purchasing drugs from thestreet level to the multi-ounce level as well as time spent as a lead investigator, surveillance coordinator, exhibit handler and filemanager. [35] Constable Graves indicated that he had given expert testimony nine or ten times in court.

However, he was not presented tothe trial judge as an expert and no request was made to qualify him as such. Rather, the prosecutor simply took Cst. Graves through hisaccount of what he had observed in conducting the surveillance of Mr. Mills. Constable Graves was then asked to recount the details ofMr. Montague-Mitchell’s arrest and what had happened in respect of the keys found in Mr. Montague-Mitchell’s possession. [36] Mr. Montague-Mitchell objects to the aspect of Cst. Graves’s testimony wherein the Constable was asked for his assessmentof what he had seen taking place in the parking lot.

The relevant part of the transcript reads as follows: Q So you talked -- you mentioned a short meet at -- I just want to go back to that, about two minutes, you indicated that it was a littlelonger than a typical street level transaction that you’ve witnessed in the past, but I wonder if you could just elaborate a little bit on whatyou meant by that and what you believed had just occurred in that parking lot? A Sure.

So from just taking from past files and it also being part of being an operator and purchasing drugs at both levels, typically streetmeets, like buying 40 to $80 worth of product or, you know, under -- anything under a hundred dollars, they’re quick transactions. Thecustomer is in and out, the money’s -- it’s a small amount of money, so it’s easy to count, easy to show the person. So especially if it’s aregular customer, I mean there’s usually not any type of business relationship or anything like that, right. It’s a quick sale. It’s nodifferent than going to a store, being first in line and getting in and out.

Transactions that take longer, typically, the higher level of drugsand money being exchanged, so it takes time to, you know, essentially who -- the purchaser of the drugs is going to look at it, you know,even eyeballing it, seeing if it’s what it should be, and then money being counted out typically. So a person’s counting 40, you know,you’re counting a few thousand dollars now, so these -- transactions take a little bit longer. Lots of times in those, too, there’s usually alittle bit of time spent at the end in arranging, you know, a next meet or how long it’s going to be until the next reload.

So there is a moreof a -- business -- or setting up of the next meet. Q So, and based on your training and experience as a drug officer, a slightly longer meet, like what you witnessed here, would be moreindicative of something higher than a street level transaction? A That’s right. (Emphasis added) [37] I accept that, in this part of his testimony, Cst. Graves offered an opinion about the nature of what had transpired between Mr.Montague-Mitchell and Mr. Mills. He did not simply relay observed facts. He used those facts as the basis for drawing an inference thatthe length of time Mr.

Montague-Mitchell had spent at the window of the truck was indicative of a drug transaction at something higherthan street level. As a result, his testimony on this point should not have been admitted unless it fell within an exception to the basicprecept that witnesses may only testify to facts within their knowledge and observation. [38] The only exception applicable in the circumstances here is the so-called “lay opinion evidence” rule.

It was explained in R vGraat, (SCC), [1982] 2 SCR 819 [Graat], where the Supreme Court upheld a trial judge’s decision to allow witnesses tooffer their opinions as to whether Mr. Graat’s ability to drive a vehicle had been impaired. The Court explained that lay witnesses mayoffer opinions where they are “merely giving a compendious statement of facts that are too subtle and too complicated to be narrated

separately and distinctly.” I do not propose to review the body of case law that has grown up around Graat. Suffice it to say that Cst.Graves’s opinion about the kind of drug transaction he believed he had observed was not the sort of “compendious statement”contemplated by Graat. When he offered the opinion in question, Cst. Graves had just finished testifying as to the length of time Mr.Montague-Mitchell and Mr. Mills had interacted. In light of that, it was not necessary for him to describe the length of the transaction byreference to street-level, and other, drug transactions.

The opinion he offered was not merely an economical way of conveying subtle orcomplicated information. [39] In the end, therefore, I conclude Mr. Montague-Mitchell is correct in suggesting this aspect of Cst. Graves’s testimony shouldnot have been admitted.

Its admission was, consequently, an error of law that should lead to a new trial unless, as the Crown submits, thisis an appropriate case to apply s. 686(1)(b)(iii) of the Criminal Code. [40] Section 686(1)(b)(iii) provides that, even if a trial judge has made an error of law, a court of appeal may dismiss an offender’sappeal if it is of the opinion no substantial wrong or miscarriage of justice has occurred. This so-called curative provision can be invokedin two situations. The first is in respect of harmless errors or errors of a minor nature having no impact on the verdict.

The secondconcerns errors which have prejudiced the accused and would justify a new trial but where, nonetheless, the evidence overall is sooverwhelming that a conviction would have been inevitable. See: R v Khan, 2001 SCC 86 at para 26, [2001] 3 SCR 823; R v Sekhon,2014 SCC 15 at para 53, [2014] 1 SCR 272. [41] In my opinion, s. 686(1)(b)(iii) should be applied here because the admission of the opinion evidence in question had noimpact on the trial judge’s decision to convict Mr. Montague-Mitchell. It was, ultimately, a harmless error.

In this regard, let me beginby noting that the admission of the opinion had no negative or prejudicial impact on how Mr. Montague-Mitchell’s counsel conductedthe trial. No exception was taken to Cst. Graves’s testimony, either at the time the question in issue was asked of Cst. Graves orsubsequently in the written submissions counsel filed after the trial. Indeed, counsel asked Cst. Graves a number of questions about thedepth of the Constable’s experience with the drug trade and then tried to leverage that experience to Mr.

Montague-Mitchell’s advantage.The following excerpt from the transcript is illustrative: Q Okay. Now, you never located any score sheets or weapons on the accused during your arrest or with -- with respect to your team, theynever located any weapons on him, his person; correct? A Like on -- Q Mr. Montague-Mitchell -- A No. Q -- during the arrest. Okay. You agree with me that this bear spray has become a real common tool for people to have in the drug trade;is that right? You’ve probably seen that?

A I would say that on -- to answer that, I would say that weapons and -- and a lot of that, especially when you’re dealing with multiple --like with a high clientele rate as in street level drugs, you know the 40 to the hundred dollar range because you’re dealing with so manypeople, they’re unpredictable. When you do get higher up into, you know, people who you’re doing business transactions with, then itbecomes a little bit, you know, it would become lower, like less of a need for that.

Q The -- the -- the use of weapons is a common thing, though, during takedowns, though, you noted that in your previous investigations,I take it; right? A Sorry? Q Use of -- like presence of weapons in -- in dwelling houses and on people when you take them down? A It’s -- it’s common, yeah. [42] I appreciate that counsel’s failure to object at trial to the introduction of inadmissible evidence does not necessarily mean theissue of admissibility cannot be successfully raised on appeal. See: R v Chambers, (SCC), [1990] 2 SCR 1293 at 1319–1320.

Nonetheless, failure to object to such evidence can be instructive with respect to the seriousness of the error in question and hencethe possible use of the curative clause. See: R v Jaw, 2009 SCC 42 at para 44, [2009] 3 SCR 26. This is the case here. There is nosuggestion of any sort that Cst. Graves’s testimony took defence counsel by surprise or had a negative or compromising impact on howhe conducted the trial. [43] In any event, the real point about the application of s. 686(1)(b)(iii) in this case is that the trial judge did not rely on Cst.Graves’s opinion about the meaning of the interaction between Mr.

Montague-Mitchell and Mr. Mills in coming to his decision toconvict Mr. Montague-Mitchell. This requires some elaboration. [44] Mr. Montague-Mitchell contends the trial judge accepted Cst. Graves’s opinion and, in this regard, he relies on paragraph 28of the trial judge’s decision.

There, the trial judge wrote as follows: The two to three minute meet was, in Graves’ view, longer than a typical low level street deal involving small quantities of drugs.Generally, longer drug transactions involve the sale of higher levels of drugs which need to be examined and the larger amount of cashcounted. [45] This is a mischaracterization or misunderstanding of paragraph 28. It is not an acceptance or endorsement of what Cst. Gravessaid on the witness stand. Rather, it is merely a neutral

summary of the Constable’s testimony presented in the same way as, forexample, the

summary of Mr. Montague-Mitchell’s testimony – testimony that was ultimately expressly rejected by the trial judge. Inother words, the trial judge structured his decision so as to first recount the testimony given by each witness and to then decide what

parts of that testimony to accept or rely on in coming to his conclusions. At paragraph 28, he was doing no more than recounting thenature of Cst. Graves’s evidence. He was not accepting it. [46] The trial judge’s only other arguable reference to, or reliance on, the impugned part of Cst. Graves’s evidence is found in therecitation of the factors that led him to find Mr. Montague-Mitchell had trafficked and was in possession of the proceeds of crime. Thatpart of his decision was quoted above at paragraph 23. There, the trial judge referred to “

e) the manner and duration of the meet [being]consistent with a drug transaction”. [47] At first blush, there might seem to be some basis for thinking this conclusion about the manner and duration of the meet beingconsistent with a drug transaction was based on the opinion offered by Cst. Graves and hence that the Constable’s opinion influenced thetrial judge’s conclusions. However, several considerations displace any such concern. [48] First, the key aspect of Cst. Graves’s opinion was the level of the drug transaction he believed he had observed, i.e., that heperceived the transaction to have been higher than a street-level deal. Significantly, paragraph 107(

e) does not say the manner andduration of the meet was consistent with a higher-level drug transaction. It says only that the manner and duration of what had happenedwere consistent with a drug transaction – full stop. [49] Second, and to repeat, Cst. Graves’s opinion was to the effect that the duration of the interaction between Mr. Montague-Mitchell and Mr. Mills was indicative of “something higher than a street level transaction”. But, of course, Mr. Montague-Mitchell wascharged with trafficking, not with trafficking at something higher than street level.

In other words, the “level” of his trafficking wasirrelevant to his guilt or innocence in the sense that it was not something the Crown had to prove in order to secure a conviction. [50] Third, it is important to note the testimony of Cst. Blades, the other officer who observed the goings-on in the parking lot. Asthe following excerpt from the transcript reveals, his evidence (to which no exception is taken) more closely underpins what the trialjudge said in paragraph 107(

e) of his decision than does the impugned opinion of Cst. Graves: Q I’ll stop you there before you go any further -- A Sure. Q -- and just ask you, you said you believed a drug transaction had occurred; can you tell me a little bit about what it was that youobserved that led you to believe that you had just witnessed a drug transaction? A Well, basically just the -- Q What factors? A -- meeting in an open -- or sorry, in a parking lot behind a building, that time of day, Wayne’s vehicle driving in, the male walking inand meeting him, and the short duration of the meet.

We also had information that Wayne was being reloaded with drugs in thedowntown area by unknown black males. So, basically, that’s why -- [51] In the end, therefore, I conclude that, although Cst. Graves should not have been permitted to tender an opinion about thelength of the interaction between Mr. Montague-Mitchell and Mr. Mills being consistent with a higher-level drug sale, the admission ofthat opinion was ultimately of no consequence to the convictions entered by the trial judge. 3. Were the convictions unreasonable? [52] Section 686(1)(a)(

i) empowers this Court to set aside a conviction if it determines a conviction to be unreasonable or notcapable of being supported by the evidence. The test in this regard is well known. As explained in R v Yebes, (SCC),[1987] 2 SCR 168 at 185, the question is whether the verdict was one that a properly instructed trier of fact acting judicially couldreasonably have rendered. In determining whether to allow an appeal on the basis that a verdict is unreasonable or cannot be supportedby the evidence, a court of appeal must re-examine and, to some extent, reweigh and consider the effect of the evidence.

See: R v W.(R.), (SCC), [1992] 2 SCR 122 at 131. An appellate court may not interfere with the findings of fact made and inferencesdrawn by a trial judge unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. See: R v Clark, 2005 SCC2 at para 9, [2005] 1 SCR 6. [53] Mr. Montague-Mitchell advances a number of arguments under the “unreasonable verdict” banner. I will deal with each ofthem. [54] First, Mr. Montague-Mitchell strongly emphasizes that none of the police witnesses actually saw a hand-to-hand transactionbetween him and Mr. Mills. This is true.

The police surveillance vehicle was situated relative to Mr. Mills’s truck in such a way thatCsts. Graves and Blades were looking at the rear and driver’s side of the truck. They could see Mr. Montague-Mitchell leaning in to thepassenger-side window of the truck but were not able to observe what he and Mr. Mills did with their hands. On this point,Mr. Montague-Mitchell relies on R v Liban, 2010 ONCA 329 [Liban]. [55] This argument has little merit. The Crown’s case would self-evidently have been stronger if Csts. Graves and Blades had seena hand-to-hand transaction.

However, the fact they did not directly witness such a transaction does not mean Mr. Montague-Mitchell’sconvictions were unreasonable. It means only that the Crown’s case was less compelling than it might have been otherwise. The Libandecision relied on by Mr. Montague-Mitchell is readily distinguishable from the circumstances at hand. There, the appellant had beenconvicted of trafficking in crack cocaine in a hand-to-hand transaction with an undercover officer.

He had been arrested immediatelyafter the alleged transaction but nonetheless he was not in possession of the marked bill that the undercover officer supposedly gave himto pay for the drugs. Nor was he in possession of the baggie containing the larger piece of crack from which he was said to have brokenoff a piece to give to the undercover officer. All of this, combined with the fact that none of the officers who testified had actuallyobserved the alleged hand-to-hand transaction, led the Court of Appeal for Ontario to set aside the conviction as being unreasonable.

These facts, obviously, are very different from those underpinning this appeal. Liban certainly does not stand for the proposition thatdirect evidence of a hand-to-hand transaction is necessary to prove a conviction for trafficking. [56] Mr. Montague-Mitchell also points to what he says were deficiencies in the police investigation. More particularly, hecomplains in his factum that the driver of Mr. Mills’s truck was never arrested or identified and that the police apparently made noattempt to confirm his, i.e., Mr. Montague-Mitchell’s, relationship with Mr. Mills.

This is said to raise unanswered questions aboutwhether the driver might have put the drugs in the truck. In oral argument, Mr. Montague-Mitchell’s counsel also raised concerns aboutthe fact that Mr. Mills’s house had not been searched. This, according to counsel, engages an issue about whether Mr. Mills had his ownsupply of drugs and hence did not need to make a purchase from Mr. Montague-Mitchell. [57] In my view, none of these concerns establish that Mr. Montague-Mitchell’s convictions were unreasonable. He had noentitlement to have the charges against him investigated in any particular fashion.

In this regard, I agree with the views expressed by theCourt of Appeal for Ontario in R v Darwish, 2010 ONCA 124, 252 CCC (3d) 1, when discussing demands for further investigation thathad been made prior to trial. Those views are also applicable here: [30] An accused also does not have a constitutional right to direct the conduct of the criminal investigation of which he or she is thetarget. As Hill J. put it in R. v. West, [2001] O.J.

No. 3406, [2001] O.T.C. 711 (S.C.J.), at para. 75, the defence cannot, through adisguised-disclosure demand, “conscript the police to undertake investigatory work for the accused”; see, also, R. v. Schmidt, 2001BCCA 3 , [2001] B.C.J. No. 3, 151 C.C.C. (3d) 74 (C.A.), at para. 19. That is not to say that the police and the Crown shouldnot give serious consideration to investigative requests made on behalf of an accused. Clearly, they must. However, it is the prosecutorialauthorities that carry the ultimate responsibility for determining the course of the investigation.

Criminal investigations involve the useof public resources and the exercise of intrusive powers in the public interest. Responsibility for the proper use of those resources andpowers rests with those in the service of the prosecution and not with the defence. [58] There are obviously situations where inadequacies in police investigations cause prosecutions to fail. However, this arisesfrom the Crown’s inability to establish the elements of the offence beyond a reasonable doubt, not from the inadequacy of theinvestigation per se.

More particularly, in a prosecution based on circumstantial evidence, as here, a failure to conduct an appropriatelythorough investigation might put the Crown in a position where it is unable to negative all of the reasonable alternatives to an inferenceof guilt. But, again, this does not mean a finding of not guilty can flow directly from the shortcomings in the investigation. It mustnecessarily be a function of the evidence presented to the trial judge. [59] In light of Mr.

Montague-Mitchell’s submissions, it must also be noted that, in a circumstantial evidence case like this one,the competing possible theories or reasonable possibilities must be based on logic and experience applied to the evidence or lack thereof.The Crown does not have to negative “every possible conjecture, no matter how irrational or fanciful, which might be consistent with theinnocence of the accused”. See: R v Villaroman, 2016 SCC 33 at para 37, [2016] 1 SCR 1000. [60] Mr. Montague-Mitchell goes on to suggest his convictions were unreasonable because they were based on misunderstandingsof the evidence.

I will briefly and individually consider each of his concerns in this regard. Before embarking on that journey, I wish tounderline that, at the end of the day, the test for an unreasonable verdict demands an assessment of the cumulative effect of all of theevidence. To use the words of Finch C.J.B.C. in R v Robinson, 2003 BCCA 353 at para 40, 176 CCC (3d) 23, “[i]t is not a piecemealevaluation.” [61] To begin, Mr. Montague-Mitchell takes issue with the trial judge’s conclusion, at paragraph 107(

f) of his decision, that thefact Mr. Montague-Mitchell was carrying two cellphones was “consistent with what a drug trafficker would possess”. Mr. Montague-Mitchell says this is inconsistent with the expert opinion evidence of Cst. Ferguson who, in cross-examination, testified as follows: Q You’ve already indicated the cell phones. Often times, people would use kind of cheaper, throw away cell phones, registered insomeone else’s name; correct? A Yes.

Q And a mid to high level drug trafficker wouldn’t be registering cell phones in their own name if they’re going to be using it for thedrug trade, typically; correct? A Not typically, no. [62] However, Mr. Montague-Mitchell overlooks or ignores Cst. Ferguson’s evidence in re-examination. There, he said this: Q My friend suggested to you that typically drug phones -- drug dealers use, you know, lower grade flip phones types -- those types ofthings.

One question I just have is, is it -- would it be well-known to -- to drug traffickers that secure smart phones are more difficult forpolice to access than your typical simple flip phone? A They are. And the more -- higher degree of -- of phone you’re getting, if you’re going to a PGP, they’re fairly expensive. You can onlytalk to people that are also on the PGP network, again, which is why it’s -- it would be a known person to that individual.

Q Something like an iPhone or a BlackBerry would be more a secure phone, more difficult to -- to access the content of that phone forpolice than a flip phone with no passcode? A It -- yes. Yeah. [63] The impugned statement of the trial judge refers only to the number of cellphones in Mr. Montague-Mitchell’s possession.That number (two) was, as per the testimony of Cst. Ferguson, consistent with what a drug trafficker might have in his possession and,therefore, the trial judge did not misinterpret the evidence in coming to his finding.

Further, to the extent the trial judge’s finding mightbe seen as necessarily also being a comment on the kind or quality of cellphone in Mr. Montague-Mitchell’s possession, Cst. Ferguson’s

testimony on re-examination provided the judge with a basis for concluding such phones were nonetheless still consistent with what might be found in the possession of a trafficker. [ 64 ] Mr. Montague-Mitchell also contends the trial judge failed to consider evidence about the weapons carried by drug traffickers. He was not in possession of a weapon when arrested and suggests this indicates he was not a trafficker given the following testimony of Cst.

Ferguson: Q Those individuals dealing with street level traffickers, in your experience, typically will use, for personal protection, weapons, and often possess weapons even guns, knives, and bear spray; correct? A Yes, violence is involved in drug trafficking, so I found that the lower you go to the street level, the more weapons you will find on a person when they’re carrying it. And that’s because that they’re meeting people that they don’t know. [ 65 ] Two points must be noted here. First, Cst. Ferguson did not testify that traffickers, even street-level traffickers, always carry weapons. Second, Cst.

Ferguson’s evidence was that “the lower you go to the street level” the more prevalent weapons become. This is significant because Cst. Ferguson also testified that he believed Mr. Montague-Mitchell to be a mid-level trafficker, not a street-level trafficker. Accordingly, it was open to the judge to place no significance one way or the other on the fact Mr. Montague-Mitchell was not carrying a weapon. [ 66 ] Mr. Montague-Mitchell’s third concern about the trial judge’s handling or understanding of the evidence relates to the fact that Mr. Mills had been under police surveillance for some days. If Mr.

Montague-Mitchell was a higher-level dealer supplying Mr. Mills then, so goes the submission, the police should have made previous observations of Mr. Montague-Mitchell supplying Mr. Mills. In this regard, Mr. Montague-Mitchell refers to the following part of Cst. Ferguson’s testimony: Q Typically, methamphetamine, because it’s synthetically made, not unlike steroids or other drugs that are synthetically made, an individual purchasing off a higher member of the food chain will typically have a relationship with a specific supplier; correct?

A Yes, it’ll be a known person usually, a known relationship between the two. Q Fair enough. And -- and if they find a good one that’s able to meet their needs, they tend to return to the same supplier; correct? A Yes, as long as the supplier can still supply the demand. I have seen higher level traffickers use more than one supplier. It’s also about the best price -- Q Mmhmm. A -- for the -- for the drug, so. [ 67 ] This testimony reveals there is no flaw in the trial judge’s appreciation of the evidence. Constable Ferguson does not say a street-level trafficker like Mr.

Mills will always have only one supplier and, more importantly, he did not say anything about how often street-level traffickers, or Mr. Mills in particular, would typically contact a higher-level trafficker to have their inventories replenished. [ 68 ] Mr. Montague-Mitchell’s fourth and final concern about the trial judge’s handling of the evidence concerns the trial judge’s description of the location where the transaction took place as being “remote”. He questions how a parking lot in downtown Saskatoon can be characterized in this way and suggests the trial judge somehow misapprehended the evidence.

I agree that the trial judge’s choice of the word “remote” in this context was perhaps somewhat misplaced. Nonetheless, a parking lot, as opposed to a street or curbside location, is nonetheless to some extent out of the way or removed from the usual flows of traffic and people. In the circumstances, this is all the trial judge can be fairly taken to have intended by his use of the word “remote”. There is no risk that he failed, in substantive terms, to understand the nature of the place where the transaction took place. [ 69 ] By way of conclusion, I am unable to give any effect to Mr.

Montague-Mitchell’s arguments on the unreasonable verdict issue. It is possible that, on the evidence adduced, a different judge might have arrived at a different conclusion. But, that is not the question before this Court. The question is whether the convictions were verdicts that a trial judge, acting judicially, could reasonably have reached on the basis of the whole of the evidence. In my opinion, they were. A. The Crown’s appeal [ 70 ] The Crown advances several arguments in support of its effort to set aside the trial judge’s acquittals of Mr.

Montague- Mitchell on the charges relating to the drugs and cash found in the apartment. I find it appropriate to deal only with the submission to the effect that the trial judge erred in law by failing to consider the doctrine of wilful blindness when coming to his conclusions. [ 71 ] Mr. Montague-Mitchell was, as noted, charged with being in possession of the drugs and cash found in apartment 405. Sections 4(3) (

a) and (

b) of the Criminal Code define possession. They read as follows: (

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 be deemed to be in the custody and possession of each and all of them.

[72] The concept of possession involves both control and knowledge. The Crown must prove both beyond a reasonable doubt inorder to secure a conviction. The trial judge in this case had little difficulty finding control because of the keys to the apartment found inMr. Montague-Mitchell’s possession. The real issue, as he saw it, was knowledge. [73] The knowledge required to found a conviction for possession has two dimensions: knowledge of the presence of the item inissue and knowledge of what might be called the criminal nature of the item.

Thus, for example, in R v Morelli, 2010 SCC 8, [2010] 1SCR 253, the Supreme Court stated that possession requires an accused to have knowledge of “the character of the object” and to“knowingly” put or keep the object in a particular place (para 17). See also: Morris Manning, Q.C. & Peter Sankoff, Manning, Mewett &Sankoff: Criminal Law, 5th ed (Markham, Ont: LexisNexis, 2015) at 1375 and 1377. The concept of knowledge, for purposes of theCriminal Code, has been characterized in the case law as something extending “beyond mere quiescent knowledge”.

See: R v Pham(2005), (ON CA), 203 CCC (3d) 326 (Ont CA) at para 15. [74] That said, it is not necessary for the Crown to prove actual knowledge in order to secure a conviction for possession. This isbecause wilful blindness can substitute for knowledge. See: R v Spencer, 2014 SCC 43 at para 84, [2014] 2 SCR 212. [75] The nature of wilful blindness was explained as follows by Charron J. in R v Briscoe, 2010 SCC 13 at para 21, [2010] 1 SCR411: Wilful blindness does not define the mens rea required for particular offences.

Rather, it can substitute for actual knowledge wheneverknowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion isaroused 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 in original) [76] In this case, the trial judge concluded Mr. Montague-Mitchell’s actual knowledge of the presence of the drugs and cash in theapartment had not been proven.

He explained this finding as follows: [117] In the Court’s view however, knowledge of the presence of the drugs and cash therein has not been proven beyond a reasonabledoubt, for the following reasons:

a) there was no physical or forensic evidence found proving that the accused had ever been inside the apartment;

b) he testified he had a suite in the building. The police never checked with the landlord or tried any other suites with the keys foundon the accused to establish whether or not this could be true;

c) the keys connected to the building were for suite 405 - not a confined space such as the safe in Switucka where access wouldequate logically to knowledge;

d) the drugs and cash were not in plain view able to be seen by simply opening the front door and looking in, but rather were in aseparate bedroom;

e) the drugs and cash were not seen until the search warrant was executed the next day. Even if they had been seen on April 1, thereis no evidence or inference that could be drawn that the accused was in the suite that day, or ever;

f) there is no evidence that the keys found relating to suite 405 were unique such that they could not have been duplicates. Indeed,the letter in 405’s mailbox was addressed to Lincoln suggesting, logically, that he would have keys and continued access to the suite; and

g) although the baggies found on Mills appeared to match the cut pattern and colour strip of the baggies found in the brown satchelin the apartment, this is not a sufficient nexus to draw the necessary inferences. Baggies are commonly used for packaging by all drugtraffickers according to Constable Ferguson. How they may be cut was not dealt with in the evidence.

The accused, as a mid-leveltrafficker may well employ similar packaging independent to what appeared to be in the satchel. [77] As noted earlier in these reasons, the trial judge then summarized and concluded his thinking by writing “nothing in theevidence against [Mr. Montague-Mitchell] that can reasonably elevate the requirement of knowledge of the drugs and cash beyondsuspicion and speculation.

Mere knowledge that the apartment was a stash house is not enough to equate to knowledge that these drugsand cash were present at the time of seizure, with nothing more.” [78] In my respectful view, there was an important legal oversight in this part of the trial judge’s analysis. That oversightconcerned the question of whether Mr. Montague-Mitchell had been wilfully blind. [79] The underpinnings of the trial judge’s error are found at paragraphs 109–113 of his decision.

There, he wrote as follows: [109] The suite at 405, 311 - 6th Avenue North was an obvious stash house according to the criteria explained by the expert, ConstableFerguson. [110] How the accused came into possession of the keys relating to this suite has not been accepted by the Court.

The only logicalinference then to be drawn, according to the expert evidence, is that the accused would be a trusted associate of the occupant. [111] The only evidence of the identity of the occupant relates to Brandon Lincoln, a long time friend of the accused. [112] The accused took no steps to contact Lincoln when the arrest went down. If the accused were no more than an unwitting dupe, he

surely would have raised a great hue and cry upon being charged for a crime of such significance, particularly, when, by his own admission, he had previously served jail time for drug offences. [113] The only rational inference to be drawn from all of this evidence is that the accused had the keys in relation to the apartment knowing full well that Lincoln used it as a stash house. (Emphasis added) [ 80 ] These findings required consideration of the question of whether Mr. Montague-Mitchell had been wilfully blind to the presence of drugs and cash in the apartment. The apartment was an obvious stash house, Mr.

Montague-Mitchell was a trusted associate of the occupant of the apartment, Mr. Montague-Mitchell had keys to the apartment and Mr. Montague-Mitchell knew full well that the apartment was being used as a stash house. The trial judge may or may not have concluded, in light of these factual findings and the rest of the evidence, that Mr. Montague-Mitchell had been wilfully blind to the presence of the drugs and cash. However, he was nonetheless obliged to consider that question. [ 81 ] Mr.

Montague-Mitchell, for his part, does not suggest the issue of wilful blindness does not arise from the facts as found by the trial judge. Rather, he contends the trial judge must be taken to have known the law and, hence, must be taken to have considered and rejected the possibility that he, Mr. Montague-Mitchell, was wilfully blind to the presence of the drugs and cash. In my view, this is not a fair reading of the trial judge’s decision. He made no reference, passing or otherwise, to wilful blindness and there is nothing about the structure or content of his decision to suggest he was alert to the issue.

In short, it is quite clear that the trial judge gave no consideration to the concept of wilful blindness. [ 82 ] Before concluding on this point, I should note that the Crown did not expressly ask the trial judge to consider the doctrine of wilful blindness in its written submissions at the conclusion of the trial. (There were no oral submissions.) On its face, and at least in theory, this raises a possible concern about whether allowing the Crown’s appeal on the basis of a failure to consider wilful blindness somehow amounts to putting Mr.

Montague-Mitchell in a double jeopardy situation or, in effect, compromises trial fairness. See: R v Patel , 2017 ONCA 702 at paras 58–61 , 356 CCC (3d) 187; R v Nguyen , 2008 SKCA 160 at para 42 , 240 CCC (3d) 39. This, however, is not a controlling consideration for two reasons. First, Mr. Montague-Mitchell does not suggest it is inappropriate for the Crown to raise wilful blindness as an issue and he does not suggest there is any unfairness or prejudice in the Crown advancing wilful blindness as a ground of appeal.

Second, the concepts of actual knowledge and wilful blindness are such basic and closely-related notions that it could have been fairly expected that the trial judge, given his findings of fact, would or should have turned his mind to the issue of wilful blindness on his own initiative. [ 83 ] In the end, therefore, I respectfully find that the trial judge erred in law by failing to consider the question of whether Mr. Montague-Mitchell was wilfully blind to the presence of the drugs and cash in the apartment. V. conclusion [ 84 ] I conclude that Mr.

Montague-Mitchell’s appeal must be dismissed and the Crown’s appeal must be allowed and a new trial ordered with respect to the charges concerning the possession of the drugs and cash found in the apartment. “Richards C.J.S.” Richards C.J.S. I concur. “Richards C.J.S.” for Ottenbreit J.A. as per authorization I concur. “Schwann J.A.” Schwann J.A.