R v McCorriston, 2019 SKCA 121

Court of Appeal for Saskatchewan Docket: CACR3115 Citation: R v McCorriston, 2019 SKCA 121Date: 2019-11-18 Between:Kaitlinn McCorristonAppellantAndHer Majesty the QueenRespondentBefore: Richards C.J.S., Barrington-Foote and Tholl JJ.A.Disposition: Appeal dismissedWritten reasons by: The Honourable Mr. Justice Barrington-FooteIn concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice ThollOn Appeal From: 2018 SKPC 10 , 2018 SKPC 010, KindersleyAppeal Heard: November 5, 2019Counsel: Dhugal Whitbread for the Appellant Wade McBride, Q.C., for the Respondent Barrington-Foote J.A. I.

Introduction [1] On February 9, 2018, Kaitlinn McCorriston was found guilty by a judge of the Provincial Court of Saskatchewan ofpossession of fentanyl, methamphetamine and cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs andSubstances Act, SC 1996, c 19. She was sentenced to 30 months incarceration on each count, to be served concurrently. Ms. McCorristonhas appealed her conviction and seeks leave to appeal her sentence. [2] For the reasons that follow, I would dismiss Ms. McCorriston’s conviction appeal and deny leave to appeal her sentence. II.

Background [3] On August 24, 2016, RCMP officers executed a warrant to search a mobile home [trailer] in Kindersley occupied by Ms.McCorriston and Jesse Ouimet. [4] Ms. McCorriston was not present. Mr. Ouimet – who would ultimately plead guilty to the same offences and to a relatedfirearms offence – was arrested on site. Small quantities of fentanyl, methamphetamine, MDA, marijuana and cocaine were found on hisperson.

The police seized a surveillance video recorder, drug paraphernalia, four digital scales, zippered plastic bags, scoresheets, a laptop,a BlackBerry tablet, a rifle, throwing knives, five cellular phones, $1,695 in cash, and additional fentanyl, methamphetamine and cocaine. [5] The drugs found on Mr. Ouimet’s person and in the trailer included a total of 10.5 grams of cocaine, 11.3 grams ofmethamphetamine and 23.5 tablets of fentanyl. There was evidence that Mr. Ouimet used drugs and that Ms. McCorriston was a heavydrug user.

RCMP Constable MacLeod, who was qualified to give expert evidence on drug usage and trafficking, testified that a heavierdrug user would use up to two grams of cocaine, six fentanyl tablets and one gram of methamphetamine per day, and that some use more.It was Constable MacLeod’s opinion that these drugs are readily available and that users generally would not risk having such amounts forfear of being accused of possession for the purpose of trafficking.

However, he also agreed the quantity found was not a significant surplusfor a typical drug user and that he was not aware of the availability of these drugs in Kindersley to the same extent as when he offeredgeneralizations about availability in his report. [6] The police reviewed the surveillance videos on the video recorder, which were taken by cameras located inside and outsidethe trailer. The videos showed multiple visits of short duration by third parties to a camper located near the trailer. They also foundnumerous text messages on one of the seized cellphones.

Some of those messages were to or from a person called “We-man” and a “Kitty”and a “K”. Constable MacLeod explained selected text messages and testified that it was his opinion they related to drug trafficking. [7] Mr. Ouimet did not confirm that the cellphone from which the text messages were recovered belonged to him. He said he didnot remember the messages. There was no evidence Ms. McCorriston had a cellphone or what number she might have used. Mr. Ouimetdid confirm that “We-man” was his nickname, that “Kitty” was a nickname he had given to Ms.

McCorriston, and that references to “K”in his phone directory and text messages were to Ms. McCorriston. There was also evidence from one Thomas Robbie that both Mr.Ouimet and Ms. McCorriston were involved in illicit sales of methamphetamine, fentanyl and cocaine and that he had personallypurchased drugs from Ms. McCorriston. Mr. Robbie testified that Ms. McCorriston had said she was “like a pharmacy”. [8] The trial judge found that the Crown had proved beyond a reasonable doubt that Ms. McCorriston and Mr. Ouimet wereacting in concert in a common enterprise to traffic in illicit drugs on August 24, 2016.

He reached that conclusion on the basis of thenature, quantity and quality of the drugs seized, the other items seized, the surveillance recordings, Constable MacLeod’s opinion, theviva voce evidence of Mr. Ouimet and Mr. Robbie, and the text messages which he concluded were between Mr. Ouimet, Ms.McCorriston and others. He concluded the drugs found on Mr. Ouimet’s person and in the trailer were possessed jointly by Mr. Ouimetand Ms. McCorriston for the purpose of trafficking.

III. Grounds of Appeal [ 9 ] In her factum, Ms. McCorriston submitted that the text messages should not have been admitted, as there was no evidence there was a warrant authorizing a search of the cellphone. Her counsel served the Crown with notice pursuant to The Constitutional Questions Act, 2012 , SS 2012, c C-29.01 , alleging that Ms. McCorriston’s rights pursuant to ss. 7, 8 and 11(

d) of the Charter of Rights and Freedoms had been infringed, including by the search of devices and the use of electronic conversations purported to have arisen from the devices. Ms. McCorriston also submitted that the trial judge should not have relied on evidence of drug trafficking before August 24, 2016, as the evidence demonstrated that Ms. McCorriston had moved from the trailer on August 23 and was no longer part of a joint enterprise with Mr. Ouimet. [ 10 ] At the hearing of this appeal, Ms.

McCorriston’s counsel advised that he had abandoned both the Charter arguments – which had not been raised at trial – and the argument based on the evidence that Ms. McCorriston had moved from the trailer. Counsel identified four remaining grounds of appeal relating to the conviction: (

a) The trial judge erred in law by admitting the evidence of the text messages when the interception of those messages was not authorized by or pursuant to

Part VI of the Criminal Code . (

b) The trial judge erred in law by relying on the content of the text messages to conclude that messages to and from “K” were messages to and from Ms. McCorriston. (

c) The trial judge made a palpable and overriding error by finding that Ms. McCorriston possessed fentanyl, as there was no evidence that the certificates of analysis which disclosed the presence of fentanyl related to an item that had been seized. (

d) The trial judge misapprehended Constable MacLeod’s evidence as to the availability of methamphetamine, fentanyl and cocaine in the Kindersley area. [ 11 ] I will address each of these grounds of appeal in turn. As to the appeal of sentence, Ms. McCorriston submits that if her appeal of the conviction for possessing fentanyl for the purpose of trafficking is dismissed, her sentence is not demonstrably unfit. She does not allege an error in principle. In the result, given my conclusion as to the conviction appeal, it is not necessary to deal further with the sentence appeal. IV. Analysis A.

Did the trial judge err in law by admitting the evidence of the text messages when the interception of those messages was not authorized by or pursuant to

Part VI of the Criminal Code ? [ 12 ] This argument turns on the meaning of “intercept” in s. 183 of the Criminal Code , which provides as follows: “intercept” includes listen to, record or acquire a communication or acquire the substance, meaning or purport thereof[.] [ 13 ] Ms. McCorriston argues that searching a cellphone for a text message is caught by this definition. Her counsel correctly acknowledged that the majority judgment in R v Jones , 2017 SCC 60 , [2017] 2 SCR 696 [ Jones ], addressed this issue.

The Supreme Court of Canada there concluded that “[t]he word ‘intercept’ denotes an interference between the sender and recipient in the course of the communication process” (at para 69) and accordingly did not extend to text messages seized from a Telus account associated with Mr. Jones’ co-accused. The Court held that those historical text messages were lawfully seized by means of a production order under s. 487.012 (now s. 487.014) of the Criminal Code . [ 14 ] Ms.

McCorriston submitted that this Court should distinguish Jones on the basis that, here, we are not concerned with historical text messages intercepted by a telecommunications provider, but text messages stored on a cellphone. In her view, we should follow the path described in Abella J.’s dissenting judgment. [ 15 ] With respect, I do not agree that Jones can be read as limited to production orders. Searching a cellphone for text messages that have been sent or received is not an interception pursuant to s. 183 . For that reason, authorization pursuant to

Part VI of the Criminal Code is not required. This view of

Part VI does not, as Ms. McCorriston says, unduly compromise privacy interests. The police must have prior authorization to search a cellphone they have found in the course of a search, unless that search is incidental to an arrest and the conditions specified in R v Fearon , 2014 SCC 77 , [2014] 3 SCR 621, have been met. If the search warrant does not provide specific authorization to search the cellphone, they must obtain a separate warrant under s. 487 before doing so: see R v Vu , 2013 SCC 60 at paras 48–49 , [2013] 3 SCR 657. [ 16 ] In the result, the trial judge did not err by admitting the text messages.

B. Did the trial judge err in law by relying on the content of the text messages to conclude that messages to and from “K” were messages to and from Ms. McCorriston? [ 17 ] Ms. McCorriston submitted that permitting evidence of the content of the text messages to prove that she was the “K” who sent and received text messages, which to a significant degree were introduced through leading questions put to Mr. Ouimet by the Crown,

constituted “bootstrapping”. As noted above, Mr. Ouimet did not confirm that the cellphone was his and did not recall sending or receiving the text messages. [ 18 ] However, the content of the text messages was not the only evidence relevant to the identification of “K”. The trial judge was entitled to consider that content together with other evidence which supported the conclusion that Ms. McCorriston and Mr. Ouimet were together trafficking illicit drugs at the trailer. That evidence included the video recordings and the evidence of Mr. Robbie that they both trafficked in these substances at that location.

Further, Mr. Ouimet confirmed that his nickname was “We-man” and that Ms. McCorriston’s nickname was “Kitty” and that references to “K” were to Ms. McCorriston. It was open to the trial judge to determine, based on the evidence as a whole, that Ms. McCorriston was “K”. [ 19 ] In the result, the trial judge did not err by relying on the content of the text messages. C. Did the trial judge make a palpable and overriding error by finding that Ms.

McCorriston possessed fentanyl, despite a lack of evidence that the certificates of analysis which disclosed the presence of fentanyl related to an item that had been seized? [ 20 ] Ms. McCorriston submitted that the only evidence of a connection between the certificates of analysis which disclosed the presence of fentanyl and the items found on Mr. Ouimet and in the trailer was Exhibit P-1.

That exhibit lists, among other things, the exhibit numbers of the photographs of the items seized; the location where the item was found; the identification number on the envelopes submitted for analysis; the certificate number for the Certificates of Analyst, which were entered as exhibits; and the results of the analysis. Exhibit P-1 was not admitted for the truth of its contents, but as a guide for the Court. [ 21 ] The Crown led evidence from Constable Pearson, referring to Exhibit P-1, which specifically linked two of the exhibited photographs to certificate numbers.

The Crown then proposed to Constable Pearson to “shorten this up”. Constable Pearson confirmed that the certificate numbers listed in one column on Exhibit P-1 related to the exhibit numbers of the photographs listed in another column of Exhibit P-1. The certificates were then tendered as exhibits, which the Crown – in response to a question from the trial judge – confirmed were “sequential certificate numbers as per P-1”.

The trial judge then repeated the phrase “[s]equential certificate numbers as per P-1”. [ 22 ] In the result, Constable Pearson adopted the contents of Exhibit P-1, which established the connection between the exhibited photographs of the items seized and the certificates of analysis. Those certificates identified cocaine, methamphetamine and fentanyl with caffeine. The evidence, therefore, was that of Constable Pearson. Accordingly, the trial judge did not err by relying on the link between the exhibit numbers of the photographs and the certificate numbers shown in Exhibit P-1. D.

Did the trial judge misapprehend Constable MacLeod’s evidence as to the availability of methamphetamine, fentanyl and cocaine in the Kindersley area? [ 23 ] Ms. McCorriston submitted that the trial judge misapprehended Constable MacLeod’s evidence as to the availability of methamphetamine, fentanyl and cocaine. Constable MacLeod said ready availability was one reason drug users did not keep excess supplies on hand. Constable MacLeod acknowledged that his experience as to availability was from a larger urban centre and that he was not as familiar with the Kindersley area.

The trial judge dealt with that evidence as follows: [12] Concerning the drugs found, the marijuana (4.1 grams), MDA (2 grams), and oxycodone (1 tablet) were all consistent with personal use.

The remaining drugs - 10.5 grams of cocaine (7.5 in residence - 3 on Ouimet), 11.3 grams of methamphetamine (5 grams on Ouimet and 6.3 in residence) and 23.5 tablets of fentanyl (12 on Ouimet and 11.5 in residence) were consistent with possession for the purpose of trafficking. [13] In cross-examination, Constable MacLeod conceded that his experience was based in and around Saskatoon and not Kindersley and that it would be conceivable that a heavy user could have such amounts of cocaine, methamphetamine and fentanyl for personal use.

His view however, was that such drugs are generally readily available and that users would not risk carrying such amounts for fear of being accused of possession for the purpose of trafficking. [ 24 ] This passage confirms that the trial judge was aware of the foundation for Constable MacLeod’s opinion, including his limited knowledge of the Kindersley area. The trial judge was entitled to consider Constable MacLeod’s evidence of availability, in the context of the other evidence relevant to the question of whether Mr. Ouimet and Ms.

McCorriston were engaged in a joint drug trafficking operation and that these drugs were in their possession for that purpose. [ 25 ] With respect, the trial judge’s reasons do not disclose a misapprehension of this evidence. Nor do they disclose a palpable and overriding error of fact. V. Conclusion [ 26 ] For these reasons, Ms. McCorriston’s appeal from her convictions is dismissed and leave to appeal her sentence is denied. “Barrington-Foote J.A.” Barrington-Foote J.A. I concur. “Richards C.J.S.” Richards C.J.S.

I concur. “Tholl J.A.” Tholl J.A.