R v Kernaz, 2019 SKCA 37

Court of Appeal for Saskatchewan Docket: CACR3076 Citation: R v Kernaz , 2019 SKCA 37 Date: 2019-04-25 Between: Her Majesty the Queen Appellant And Nicholas Gregory Kernaz Respondent Before: Caldwell, Schwann and Barrington-Foote JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Barrington-Foote In concurrence: The Honourable Mr. Justice Caldwell The Honourable Madam Justice Schwann On Appeal From: Provincial Court, Regina Appeal Heard: April 5, 2019 Counsel: Stephen Jordan for the Appellant Thomas Hynes for the Respondent Barrington-Foote J.A. I.

Introduction [ 1 ] The respondent, Nicholas Kernaz, was tried in Provincial Court on a charge of possession of methamphetamine and cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , SC 1996, c 19 [ CDSA ], and possession of proceeds of crime over $5,000, contrary to s. 354(1) (

a) and s. 355 (

a) of the Criminal Code . He was convicted only of simple possession of methamphetamine and cocaine. The Crown appeals the acquittal for possession for the purposes of trafficking and conviction on the lesser included offence of simple possession. [ 2 ] For the reasons that follow, I would allow the appeal. II. Background [ 3 ] Mr. Kernaz was arrested after parking a borrowed vehicle outside a house on Pasqua Street in Regina. The police searched both Mr. Kernaz and the vehicle. They found 3.92 g of methamphetamine in Mr.

Kernaz’s pocket and a pipe and a small container containing 26.3 g of cocaine in the console of the vehicle. They also found, among other things, $7,760 in Canadian currency, another pipe, small amounts of marijuana, methamphetamine and cocaine, six cell phones, scales, baggies, three guns and ammunition elsewhere in the vehicle. [ 4 ] The Crown led evidence from a police officer who was qualified as an expert in relation to drugs and drug culture. It was his opinion the drugs were possessed for the purpose of trafficking and the cash was the proceeds of crime.

The accused testified, and denied ownership of any of the items located in the vehicle except the methamphetamine in his pocket and the cocaine, cash and pipe found in the centre console. He admitted to a serious drug addiction and said he intended to cook the cocaine into crack cocaine, smoke the crack and snort the methamphetamine. [ 5 ] Mr. Kernaz also testified that he intended to share these drugs. He made several relevant admissions. He said he was going to use the methamphetamine for “partying with girls”.

After stating he was going to convert the cocaine to crack at the house on Pasqua Street with “the girl”, he answered the following question: Q Okay. And you were going to share it with her? A I was planning on it, yes. He later also said this about his plan to snort the methamphetamine: A … that was my intended form of doing the meth. When you snort it, you get a similar effects as doing MDMA. And I had plans with the girl to snort some meth, and hang out. Q And you were going to give the meth to the girl? A I was going to do it with her. Q So she was going to do the meth you provided to her?

A Yes, I wasn’t expecting any money or anything like that from her for it though. [ 6 ] Both counsel addressed the effect of these admissions in their closing arguments. The Crown submitted Mr. Kernaz’s

admissions that he intended to share both the methamphetamine and the cocaine with other people made out the offence of possession forthe purpose of trafficking for both drugs. Defence counsel submitted his client said there was “a possibility of sharing it” and noted it canbe trafficking to give drugs to someone else. He then said that “nothing really had been agreed upon” and that giving the drugs was “justone possibility”. III. Trial Decision [7] In her oral reasons, the trial judge briefly reviewed the police evidence about stopping a vehicle driven by Mr. Kernaz andfinding drugs. She then outlined Mr.

Kernaz’s testimony as to how he acquired the vehicle on the day of the offence, where he drove andwhat he did. She then made the following finding of fact: “He then drove to a house … where he intended to smoke crack with a friend,but was arrested when he parked at the residence”. [8] The trial judge then reviewed evidence as to what was in the vehicle and Mr. Kernaz’s explanation as to how he acquired themoney at some length. Having done so, she found she did not accept Mr. Kernaz’s evidence, and was not left in doubt by it.

She describedhim as “quick and glib” and said his evidence “sounded contrived and rehearsed”. She noted inconsistencies in his evidence and, afterfurther analysis of certain aspects of that evidence, commented as follows: “These anomalies in Mr. Kernaz’s evidence lead me toconclude that he was not truthful and also remove any doubt I might otherwise have had”. [9] Immediately after this statement, the trial judge said she would turn to her analysis of the evidence she accepted. She referredfirst to Mr. Kernaz’s admission of possession of the methamphetamine in his pocket and the cocaine in the console.

She reviewedevidence of what the police saw both before they stopped Mr. Kernaz and when they searched the vehicle. That evidence led her toconclude she could not infer the other drugs and paraphernalia associated with trafficking that were found in the vehicle were subject tohis use and control. She concluded Mr. Kernaz was in possession of the drugs he admitted were his, but not the scales, bags or other itemsin the car, including the other drugs. [10] The trial judge next dealt with whether Mr. Kernaz was in possession for the purpose of trafficking.

She reviewed evidenceabout the amount of methamphetamine he possessed, and the presence of sealable bags and scales that could be used for trafficking. Shenoted the residue on the scales was not tested and commented that, as a result, the scales were not decisive as to what Mr. Kernaz intendedto do with the methamphetamine. She then held as follows: For these reasons I find Mr. Kernaz guilty of possession of methamphetamine, but not possessing it for the purpose of trafficking. In thisregard I am not satisfied that Mr.

Kernaz’s evidence that he intended to share his meth with the woman at some point constitutestrafficking. There was no settled plan and no evidence of any person willing to share the drug with him. It was his hope perhaps, but nothis purpose in possessing the methamphetamine. [11] The trial judge then dealt with the possession of cocaine issues. She noted the evidence relating to the amount he held and thatitems consistent with both trafficking and consumption were present. She did not refer again to the evidence that he would cook thecocaine with another person. IV.

Analysis [12] The Crown submits the trial judge either applied the wrong legal test as to possession for the purpose of trafficking or did notcorrectly apply the legal test to the facts. It notes the definition of traffic in the CDSA includes give. It submits the case law demonstratesthat where the accused admits he intends to share a controlled substance in his possession with others, he possesses it for the purpose oftrafficking. The Crown says the trial judge erred when she convicted Mr. Kernaz of simple possession, as he intended to share bothcontrolled substances with others. [13] Mr.

Kernaz submits the Crown’s argument, properly framed, is that the trial judge erred in law by applying the wrong legal testfor trafficking or that the trial judge misapprehended or failed to consider all relevant evidence on the issue of trafficking. It isMr. Kernaz’s position the trial judge applied the correct legal test and considered all the evidence. He submits the trial judge’s reasons,when read as a whole, demonstrate she rejected his evidence entirely, including his testimony that he was going to share his drugs.

Heargues those findings of fact, including as to credibility, are not subject to review on appeal as they are not tainted by an error of law. [14] In my respectful opinion, the Crown is correct. Section 2(1) of the CDSA provides as follows:

Definitions 2(1) In this Act … traffic means, in respect of a substance included in any of Schedules I to V, (

a) to sell, administer, give, transfer, transport, send or deliver the substance … . [15] There is ample authority for the proposition that give in this

section includes sharing with others, including for social purposes,regardless of whether the accused will receive anything in return. In R v Rogalsky (1975), (SK CA), 23 CCC 2d 399(Sask CA) [Rogalsky], the accused said he purchased the cannabis in his possession for his own use, but would comply with the etiquetteamong drug users that one does not use drugs in the presence of others without offering to share. The trial judge held that the fact hepossessed the drugs for his own use but would share them constituted trafficking under the Narcotic Control Act, RSC 1970, c N-l(repealed).

The relevant definition of traffic was identical to that in s. 2(1) of the CDSA. Although the conviction under the NarcoticControl Act was not appealed, the Court of Appeal noted that the accused was guilty of that offence, but not the offence of possession ofLSD for the purpose of trafficking under the Food and Drugs Act, RSC 1970, c F-27 (repealed), as that Act’s definition of trafficking didnot contain the word give.

[16] I note, by comparison, the decision in R v Beek, 2014 BCSC 971 [Beek]. In that case, the accused said he would sometimesshare his cocaine with others at parties and on other occasions would not. The Crown argued his admission, that he was willing to sharecocaine with others and might do so with the cocaine he possessed, was sufficient to make out the offence. Justice Butler commented thatin many circumstances sharing the drugs will constitute trafficking and that “in some circumstances having a proven intention to share ordeliver drugs will meet the definition” (at para 59).

However, he found – in my view correctly – that the mere possibility that an accusedmay share a controlled substance while using it himself does not constitute possession for the purpose of trafficking. [17] In R v Taylor (1974), (BC CA), 17 CCC (2d) 36 (BCCA) [Taylor], the accused and five friends pooled theirmoney and the accused purchased hashish (cannabis resin) in bulk, with the intention they would share it in equal portions.

His appealfrom conviction of possession for the purpose of trafficking was dismissed, with Carrothers J.A. commenting as follows (at 41): The gravamen of the charge of trafficking is possession plus the intent or purpose of physically making the hashish available to others,regardless of ownership.

The simple fact that it was economic for the purchase price to be collected in advance from the potential users ofthe narcotic and a bulk purchase made, thereby vesting in such users some claim to ownership and title and even a deemed joint possessionby them, does not alter the nature of the physical act of giving, delivering or distributing the narcotic to another or others, which in itselfconstitutes the offence. (Emphasis added) [18] This reasoning was approved in R v O’Connor (1975), (BC CA), 23 CCC (2d) 110 (BCCA) [O’Connor](leave to appeal to the SCC refused, (1975), 23 CCC (2d) 110n), where that Court sat five judges to fully consider the reasoning in Taylor.In O’Connor, the accused possessed drugs purchased with his wife’s knowledge and consent using funds from a box in which they bothdeposited money for joint expenses.

They were both drug users and the accused was carrying them home for their joint use. The Court ofAppeal upheld his conviction of possession for the purpose of trafficking. [19] The approach adopted in Rogalsky, Taylor and O’Connor has been frequently applied. R v Ward, 2007 SKPC 142 [Ward], andR v Munro, 2003 SKPC 49, 231 Sask R 259 [Munro], demonstrate its application in Saskatchewan. In Ward, the accused possessed asmall amount of marijuana that he purchased with the intention of sharing it with a friend.

In Munro, the accused told police he and others,who had recently arrived at his home, “were just going to roll a joint” and that the others had not paid him because he was “a generousguy” (at para 5). The same approach is demonstrated in R v Menzies, 2017 BCSC 389 at paras 33–34, and R v Elliott, 2016 BCSC 393 atparas 47–51. [20] The facts in this case – assuming the trial judge accepted Mr. Kernaz’s admissions as true – are distinguishable from Beek, andfall on the Taylor–O’Connor side of the line. Mr.

Kernaz did not say he was a generous soul who might share his ill fortune with others.He said he intended to share these drugs and was parked outside the very house where he intended to do so. If the trial judge concluded itwas necessary, at least in the circumstances of this case, to prove there was a settled plan with a third person who was prepared to sharethe drugs, it is my respectful opinion that she erred in law. [21] Indeed, Mr. Kernaz did not suggest otherwise. Rather, he submits that the trial judge rejected the evidence as to his intentions.With respect, I do not agree. As counsel for Mr.

Kernaz noted, the passages in the trial judge’s reasons, emphasized by the Crown, cannotbe read in isolation. The correct approach was summarized by Cromwell J. in R v Villaroman, 2016 SCC 33, [2016] 1 SCR 1000, wherehe noted as follows: [15] … it is important to remember that a trial judge’s reasons for judgment should not be “read or analyzed as if they were an instructionto a jury”: R. v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 525.

Rather, the reasons must be “read as awhole, in the context of the evidence, the issues and the arguments at trial, together with ‘an appreciation of the purposes or functions forwhich they are delivered’”: R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397, at para. 16, citing R. v. R.E.M., 2008 SCC 51, [2008] 3S.C.R. 3, at para. 16; see also R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 11. [22] The foundation for Mr. Kernaz’s argument is that the trial judge rejected all of his evidence. He emphasizes the trial judge’sfinding of fact that he was not truthful.

He submits that the impugned language about settled plans and willing participants is properlyunderstood as an imperfect expression of the trial judge’s conclusion that she did not believe him. [23] With respect, that is not a fair reading of the reasons as a whole. The finder of fact may accept some, all or none of the evidenceof a witness. That is so in relation to a witness who is found to lack credibility. The trial judge’s reasons demonstrate that is what occurredin this case. It is, in my view, clear the trial judge accepted Mr.

Kernaz’s evidence that he had possession not only of themethamphetamine in his pocket, but the cocaine and the pipe in the console. Further, as noted above, she expressly found that he “drove toa house … where he intended to smoke crack with a friend …”. That statement is entirely unambiguous and can only be explained on thebasis that she believed his evidence that he intended to share. [24] The trial judge nonetheless concluded that his intention to share his drugs did not make out the offence.

I conclude that shefollowed the path suggested by the submission by defence counsel that “nothing really had been agreed upon” and that giving drugs was“just one possibility”. That submission reflected an erroneous view of the law. There is no need for an agreement. V. Conclusion [25] In the result, the learned trial judge erred in law. The conviction for simple possession of methamphetamine and cocaine andacquittal on the charge of possession for the purpose of trafficking are set aside.

A verdict of guilty of possession of methamphetamine andcocaine for the purpose of trafficking pursuant to s. 5(2) of the CDSA shall be entered. The matter shall be remitted to the trial judge forsentencing. “Barrington-Foote J.A.”

Barrington-Foote J.A. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Schwann J.A.” Schwann J.A.