R v Learning, 2019 SKCA 5

Court of Appeal for Saskatchewan Docket: CACR2824 Citation: R v Learning, 2019 SKCA 5Date: 2019-01-15 Between:Ronald Charles LearningAppellant AndHer Majesty the QueenRespondentBefore: Caldwell, Whitmore and Leurer JJ.A.Disposition: Appeal dismissedWritten reasons by: The Honourable Mr. Justice CaldwellIn concurrence: The Honourable Mr. Justice Whitmore The Honourable Mr. Justice LeurerOn Appeal From: 2016 SKPC 53 , 2016 SKPC 053, ReginaAppeal Heard: November 14, 2018Counsel: Matthew J. Schmeling for the Appellant Wade E. McBride, Q.C. for the Respondent Caldwell J.A.

I. introduction [1] Ronald Charles Learning appeals against his conviction on the charge of possessing cocaine for the purpose of trafficking,for which he received a nine-year sentence. He says the trial judge erred by finding him in possession of a substance that had beensecreted in a hidden compartment of the van he was driving [van] and by finding that the substance was cocaine. I would grant Mr.Learning leave to appeal but, for the reasons that follow, I would dismiss the appeal. II. background [2] The factual and procedural background of this matter are relevant to the two grounds of appeal raised by Mr.

Learning. Thefacts are best set out by the trial judge: 2. Mr. Learning was charged as a result of a lengthy police investigation into the transportation of cocaine from California intoCanada via the Saskatchewan/Montana border south of Val Marie, Saskatchewan. By way of background, Brock Palfrey, who resided inVernon, British Columbia, was the lead player in this trafficking scheme. T.N. was employed by Mr. Palfrey to transport cocaine fromCalifornia to the Saskatchewan border where the cocaine was then transferred to individuals who transported the cocaine to its finaldestination in Canada.

Although one of the Canadian couriers was caught by police in May, 2010, T.N.’s involvement in this scheme wasnot discovered by police until he was caught by American border officials on April 28, 2011. After speaking to both American andCanadian police, T.N. agreed to become a police agent. He was subsequently involved in two controlled drug transfers as an agentwhereby cocaine was delivered to a courier named Larsen. 3. The third and final delivery by T.N. as police agent took place at approximately 1:00 a.m. on October 1, 2011.

A few dayspreviously, at Palfrey’s direction, the agent had obtained 30 kilograms of cocaine from suppliers in California which he then turned overto police. After taking “possession” of the cocaine, the agent was in regular communication with Palfrey and believed that Larsen wouldbe the one receiving the cocaine at the border. However, the agent later discovered that the courier would be someone unknown to theagent.

The agent continued his communication with Palfrey, Larsen, and now the unknown courier by Blackberry PGP messaging andlater by texting on an inexpensive flip cell phone as the courier made his way to the meet site. During one of the communications withthe courier, the agent asked him to bring donuts (which the agent later gave to police) in order to verify his identity at the meeting place. 4. South of the Montana/Saskatchewan border, police officials gave the agent 30 kilograms of cocaine substitute (sham cocaine)which included 9 grams of actual cocaine and a tracking device.

While wearing an audio recording and transmission device, the agentproceeded to cross the border on an all terrain vehicle in order to meet the courier in this remote part of Saskatchewan. 5. Police had obtained a description of the vehicle which the courier would be driving and set up surveillance in a number oflocations as the courier’s vehicle made its way to the meet location near Val Marie, Saskatchewan and then to Salmon Arm, BritishColumbia where the vehicle was finally stopped by police. The first surveillance started in Medicine Hat, Alberta.

Police officers notedone occupant in the target vehicle when they first saw it entering Medicine Hat at 6:08 p.m. on September 30, 2011. This vehicle, whichwas a Ford Windstar minivan, was seen again at the Motel 6 at approximately 6:30 p.m. At this time, a member of the surveillance teamtook a photograph of the driver of the van. The photograph was entered as Exhibit P-8 in the trial. Police noted that the driver did notmatch Larsen’s description. Subsequently, the agent, in communicating with Palfrey, discovered that he was going to be meeting adifferent courier and passed this information on to police. 6.

The surveillance team observed the van attend the Medicine Hat mall where the driver entered Walmart and then returned to the

Motel 6 at approximately 7:00 p.m. At 9:08 p.m. the van was observed leaving Medicine Hat eastbound on Highway #1. It was seen again travelling westbound on Highway #1 and then turning south at Gull Lake, Saskatchewan at 10:50 p.m. making its way towards the American border. The van was again observed at 11:21 p.m. travelling southbound through Shaunavon which is situated north of Val Marie. 7. The courier eventually met the police agent in an abandoned farmyard a few miles north of the border.

The courier took possession of the sham cocaine and gave packages of pills and $10,000.00 cash to the agent for delivery into the United States. The agent observed that the pills and cash had been hidden in secret compartments in the van and that the sham cocaine was later placed in these same compartments. One of the compartments was located under the floor behind the front passenger’s seat. The other compartment was located under the centre console between the driver’s and front passenger’s seat. The agent noted that the compartments were accessed with a type of allen key. 8.

According to the agent, the night was very dark and the only light available during the transfer of drugs came from flashlights and the van’s interior lights. Police officers who were observing the transfer from hidden locations around the farmyard could see or hear the transfer taking place. Only two people were either seen or heard. In particular, Sgt. Topping could see headlights and two individuals moving around the vehicles. 9. During the meet the courier advised that he had been given poor directions and showed the agent a piece of map which he had been given.

The courier also spoke of having a bigger vehicle to transport larger amounts of drugs and to preferring hidden compartments which used hydraulics. He also advised the agent that he would be spending the night in Medicine Hat and that he was low on gas. After the exchange of drugs, which took approximately 30 minutes, the agent drove back into the United States and the courier left the farmyard. No one other than the driver was in the van. 10. According to Sgt.

Poulin, who was the officer in charge of co-ordinating the surveillance of the van after the exchange of drugs, officers were assigned to keep the van in sight at all times until it was intercepted. Various officers took turns following the van, including Calgary police officers who followed the van through Calgary. The driver of the van took very few breaks after he left the meet location except for the stops in Gull Lake and Medicine Hat which totalled five hours. 11. The Court heard testimony from several members of the surveillance team.

In particular, police saw the van turning into the Co- op Gas Station in Shaunavon at 3:42 a.m. As the gas station was closed, the van continued northbound. It was observed entering Gull Lake at 4:44 a.m. where it stopped at the gas station. This gas station was also closed and did not open until 6:00 a.m. The van stayed at the gas station until it opened and at 6:20 a.m. it was observed leaving Gull Lake westbound towards Medicine Hat. At 7:02 a.m. the van was seen at the intersection of Highways #21 and #1 and was again observed at the Motel 6 in Medicine Hat at 8:00 a.m.

At that time the driver was seen walking into the motel while carrying black bags. At 10:16 a.m. the driver was seen entering the van at the Motel 6 while carrying a black bag. He was seen leaving Medicine Hat at 10:34 a.m. travelling westbound on Highway #1. The van was seen again at 1:15 p.m. at the A & W drive-thru restaurant in Strathmore, Alberta. 12. While the van was being followed in British Columbia, police decided that the driver should be arrested in Salmon Arm, British Colombia.

At 7:20 p.m., when the van was stopped at a red light, officers surrounded it and arrested the accused who was the driver and sole occupant of the van. The van was seized and searched. The sham cocaine was located in the two hidden compartments which the agent had described. The hidden compartment beside the driver’s seat was located underneath a fake stereo. An allen key, ratchet and socket were located in the dash console. These tools were used by police to open the hidden compartments.

Also located in the van were four cell phones, a torn piece of a Saskatchewan map showing part of the route travelled and a circle around Shaunavon (Exhibit P-2), pills prescribed to the accused, the accused’s wallet and identification, $600.00 cash, A & W food wrappers and three energy drink bottles, one of which was empty. Police also located a receipt for a Blackberry Curve cell phone and SIM card which had been purchased with cash at Future Shop in Medicine Hat on October 1, 2011. 13.

A room receipt from the Motel 6 in Medicine Hat which showed that someone had paid cash for a room for the night of September 30, 2011 and registered under the name Ronald Learning was tendered as evidence. (Exhibit P-6) 14. The cocaine which the courier was expected to be carrying would have had a value of between 1.2 million and 2.3 million dollars, depending on how the cocaine was to be broken down and sold. Defence counsel admitted that possession of 30 kilograms of cocaine would have been for the purpose of trafficking. 15.

I accept Constable Sperlie’s expert opinion evidence that cell phones are used to conduct the drug trade and that these phones or their SIM cards are switched on a regular basis in order to avoid electronic surveillance. Traffickers also use “throw away” phones for the same reason. The expert noted that the risk of a courier being caught increased the longer that courier was on the road. Therefore, the goal of traffickers was to move the drugs quickly. He acknowledged that sometimes risks may be taken in order to keep the drugs moving.

I find that it is common sense that individuals with an interest in valuable cargo, legal or illegal, would normally want that cargo to be in safe hands during transport and protected from theft or from otherwise falling into the wrong hands. [ 3 ] At trial, Mr. Learning’s defence was that he had been unaware the van had been loaded with cocaine. He argued he had raised a reasonable doubt because it was possible that: (

i) someone else had picked up the sham cocaine south of Val Marie, Saskatchewan, and had hidden it in the van; (ii) that unknown person had driven the van to Medicine Hat, Alberta; and (iii) Mr. Learning had taken control of the van at Medicine Hat and had only driven from there to Salmon Arm, British Columbia. [ 4 ] As to procedural events, the offence occurred in October 2011. Counsel and the court had initially set the trial for June 2012. Thereafter, Mr. Learning shuffled through four different counsel and, in so doing, obtained four adjournments. Eventually, Mr.

Learning re-elected to Provincial Court and his trial there began on June 1, 2015. Each of Mr. Learning’s various counsel received disclosure from the Crown and, although Mr. Learning had played a lesser role in a large drug importation scheme, the disclosure was not insubstantial. But, the Crown’s disclosure package did not include notice to Mr. Learning of the Crown’s intention to produce a Certificate of Analyst [Certificate] as evidence at trial. Importantly, the Certificate certified that the substance found in the van was cocaine. Just prior to trial, the Crown provided Mr.

Learning with oral notice of its intention to adduce the Certificate.

[5] When the Crown sought to enter the Certificate as an exhibit at trial, Mr. Learning objected on the basis the Crown had notgiven reasonable notice of its intention to do so. The trial judge, reserving her decision on that issue, allowed the Crown to enter theCertificate as an exhibit for identification purposes only. The trial then proceeded for a few days but, prior to the completion of theCrown’s case, it was adjourned by consent to January 2016. Early in the adjournment, the Crown gave Mr.

Learning written notice of itsintention to produce the Certificate. [6] When the trial recommenced in January 2016, the Crown and Mr. Learning made submissions to the trial judge regardingthe admissibility of the Certificate. The trial judge ruled notice had not been reasonable, but she was nonetheless persuaded to allow theCrown to adduce the Certificate, saying the six-month adjournment had removed any prejudice and refusing to admit the Certificatewould bring the administration of justice into disrepute. III. issues [7] In his factum, Mr. Learning raises two grounds of appeal, alleging broadly that: (

a) the trial judge erred in law by admitting the Certificate; and (

b) the trial judge erred by misapprehending relevant evidence and otherwise by entering an unreasonable verdict not supportedby the evidence. IV. analysis A. Admission of the Certificate [8] Although the Controlled Drugs and Substances Act, SC 1996, c 19, has since been amended, at the time of Mr. Learning’sarrest s. 51(3) legally required the Crown to provide “reasonable notice” to him of its intention to produce the Certificate of analyst aspresumptive proof that the substance found in the van was cocaine.

By s. 51(3), a copy of the Certificate had to accompany the notice.Qualifying this requirement of reasonable notice, s. 51(3) also allowed for the exercise of judicial discretion to admit a certificate ofanalyst in the absence of reasonable notice or any notice. [9] On the facts of this case, the trial judge found the Crown had not provided Mr. Learning with reasonable notice of itsintention to produce the Certificate. The trial judge rejected both the oral advice to Mr. Learning’s counsel just prior to trial and thewritten notice to his counsel during the mid-trial adjournment as being reasonable.

Nonetheless, she exercised her discretion to allow theCrown to enter the Certificate as a full exhibit in the trial. Mr. Learning now takes issue with this result, saying the trial judge erred inthe exercise of her judicial discretion under s. 51(3) of the Controlled Drugs and Substances Act. [10] As the

section in question has been repealed, I will not dwell on what constitutes “reasonable notice” under its terms. It issufficient to understand that because a certificate of analyst operates as presumptive proof that a thing is a controlled substance, therebyobviating the need for the Crown to call an expert witness to testify to that end, the Crown must give reasonable notice of its intention toproduce such a certificate. The notice period allowed the accused to decide whether to require, subject to receiving leave of the trialcourt, the attendance of the analyst for the purpose of cross-examination.

It did not establish a strict requirement of reasonable notice inthe absence of which the Crown could not rely on a certificate. [11] While the section, when it was found in s. 9(3) of the Narcotic Control Act, RSC 1970, c N-1 (repealed), had been interpretedas requiring strict compliance by the Crown with a pre-trial notice requirement (see: R v Henri (1972), (BC CA), 9CCC (2d) 52 (BCCA)), subsequent amendments to its terms in 1997 under the Controlled Drugs and Substances Act (s. 51) opened twodoors: (

a) to mid-trial notice (see, for example: R v Nguyen, 1998 ABQB 905 at para 20, 231 AR 149), and (

b) to the exercise of broadjudicial discretion to admit a certificate in the absence of strict compliance by the Crown (see, for example: R v Leroux, 2003 BCPC 241at para 10).

In particular terms, s. 51(3) required reasonable notice of a certificate of analyst “before its production at trial”; whereas, s.9(3) of the Narcotic Control Act had required notice “before the trial.” Section 51(3) opened with the qualifying words “[u]nless thecourt otherwise orders”; whereas, s. 9(3) had had no such qualification. [12] While the discretion to admit a certificate of analyst in the face of non-compliance by the Crown is expressed without boundsin s. 51(3), in Bruce A. MacFarlane, Robert J.

Frater & Croft Michaelson, Drug Offences in Canada, loose-leaf (Rel 2018-4, Aug 2018)4th ed, vol 2 (Toronto: Thomson Reuters, 2018) at para 18:60.140, the authors observe that several factors were likely relevant to theexercise of that discretion: Section 51(3) is silent on the criteria for exercising this discretion. It seems clear, however, that Parliament expected trial judges toexercise the discretion not on an ambitious or whimsical basis, but on a principled one. What, then, are the principles or factors that atrial judge can properly take into account? Certainly, no exhaustive list is possible.

The relevant factors would include the following: • Was the accused prejudiced? • Was the accused misled as to the effect of the certificate or report? • Is there an “air of reality” to the objection raised respecting admissibility? • Was the notice sufficient to allow the accused to make an informed decision under s. 51(2) (cross-examination of the analyst) ands. 52(2) (cross-examination of the affiant)?

• At what point, if at all, did the accused (or counsel) bring concerns respecting service to the attention of the Crown or the court? • Would exclusion of the evidence bring the administration of justice into disrepute? (Emphasis in original) [13] On the record of this case, Mr. Learning conceded the Crown had provided verbal notice of its intention on the first day of thetrial and again in writing during the six-month adjournment of trial. This is important because this was not a case of a substantive failureto give notice (Mr.

Learning had twice received notice); rather, the trial judge found the two notices were not reasonable from a timingperspective in that Mr. Learning had not received the actual Certificate before the Crown had produced it at trial. Nonetheless, sheexercised her discretion to admit the Certificate into evidence, based principally on the lack of prejudice to Mr. Learning and the interestsof the administration of justice. [14] In impugning her decision to admit the Certificate, Mr.

Learning says s. 51(3) confers upon an accused a procedural“entitlement” or “right” and that it was “prejudiced” in his case by the Crown’s failure to comply with s. 51(3). His argument elevates thenotice requirement in s. 51(3) to an inviolate right, which is not in keeping with the language of s. 51(3) or the jurisprudence that haddeveloped since its enactment in 1997. Section 51(3) created an evidentiary rule, not a right or entitlement.

As the trial judge understood,s. 51(3) afforded trial judges the discretion to admit a certificate into evidence after weighing factors such as whether the accused hadbeen prejudiced or misled or had objected substantively to the admission of the certificate and whether the exclusion or admission of thecertificate would bring the administration of justice into disrepute. [15] In this case, Mr. Learning did not object to the Certificate being admitted into evidence on the basis of prejudice or anysubstantive ground, such as defect or unreliability, or on the basis that he had been misled. Rather, Mr.

Learning takes issue with the factthe Crown did not explain why it had failed to give reasonable notice under s. 51(3). However, it is not obvious to me why the absence ofan explanation would be of concern, unless there is some suggestion in the record of bad faith on the part of the Crown, unless thecircumstances have resulted in prejudice to an accused or have misled an accused, etc., or unless, in some other fashion, the admission ofthe Certificate would bring the administration of justice into disrepute. [16] In his appeal against the trial judge’s decision, Mr.

Learning says the Crown’s failure to provide reasonable notice affected hissubstantive rights at trial. He says his right to make full answer and defence was impaired because he was not aware of the Crown’s caseagainst him prior to trial. That is, it was unclear to him how the Crown would prove the nature of the substance found in the van wascocaine. I find little merit to this contention.

The Crown has for decades made use of certificates of analyst in drug prosecutions and,under the law of disclosure, the defence has an obligation to be proactive where it believes something might be missing from the Crowndisclosure package (see: R v Dixon, (SCC), [1998] 1 SCR 244 at paras 54–56; R v McAnespie, (SCC),[1993] 4 SCR 501). Furthermore, once the trial judge admitted the Certificate into evidence, Mr.

Learning took no objection to itsaccuracy or reliability, did not subpoena or apply for leave to cross-examine the analyst, and did not proffer any evidence to challenge theconclusion in the Certificate that the substance in the van was cocaine. Moreover, in his appeal, Mr. Learning has still not identified whathis cross-examination of the analyst would have or could have achieved, or made any assertion that the analyst’s findings were flawed inany way. [17] As to prejudice, the trial judge correctly noted Mr.

Learning had not proffered any evidence of prejudice to him as a result ofthe timing of the Crown’s notice. Nonetheless, she still assessed the circumstances and the record and concluded that any prejudice theremight have been had been mitigated by the effluxion of time during the adjournment when Mr. Learning had had a copy of theCertificate. There is no reason to set this finding aside. [18] Lastly, the trial judge concluded that the administration of justice would be brought into disrepute if the Certificate wereexcluded from evidence.

In the circumstances of this case, I am unable to take issue with the trial judge’s conclusion that the exclusionof the Certificate would have brought the administration of justice into disrepute. Mr. Learning had notice of the Crown’s intention toadduce the Certificate. Delivery of the Certificate itself occurred late-in-the-day and, therefore, was found unreasonable, but it resulted inno uncured prejudice to Mr. Learning given the adjournment. [19] A trial judge’s power under s. 51(3) to admit a certificate of analyst was discretionary; but, it was not without bounds.

As adiscretionary decision, this Court will review the trial judge’s decision to admit the Certificate to determine if, in light of the criteria thatbound the proper exercise of her discretion, the judge abused that discretion. This means we review the record and the decision made andask whether the trial judge erred in principle, disregarded a material matter of fact or failed to act judicially. We also look to see whetherthe result is so plainly wrong as to amount to an injustice.

We are only entitled to interfere where some such failing is present. [20] In this case, chiefly given the absence of evidence of any actual prejudice to Mr. Learning or of some actual impairment of hisright to make full answer and defence, I am unable to conclude the trial judge improperly exercised her discretion to admit the Certificateinto evidence. I would dismiss this ground of appeal. B. Is the verdict unreasonable? [21] Mr. Learning asserts the guilty verdict is unreasonable because the trial judge erred in her treatment of two aspects of theevidence.

First, he says she should not have accepted the police agent’s eyewitness testimony identifying him as the individual to whomthe agent had given the cocaine. Second, Mr. Learning says she failed to appreciate that gaps in police surveillance gave rise to areasonable doubt that it was him who had driven the van from Medicine Hat to Saskatchewan and back.

He then asserts that, by reasonof her misapprehension of this evidence, the trial judge failed to properly assess his theory that someone else had met with the policeagent, had taken possession of the cocaine, and had then driven the van with the cocaine back to Medicine Hat, where Mr. Learning hadtaken over driving while being wholly unaware he was transporting cocaine. [22] Contrary to Mr. Learning’s

interpretation, I do not read the trial judge as premising her conclusion that it was Mr. Learning towhom the agent had given cocaine on the police agent’s eyewitness testimony. To the contrary, she recognised the frailty of that

evidence and instead concluded it had been Mr. Learning on the basis that “the whole of the evidence points to no other reasonableconclusion other than that the accused was the courier who met with the agent.” Given the nature of the evidence, it may be taken thatthe verdict reveals the trial judge’s satisfaction that, in its totality, the circumstantial evidence supported an inference of guilt on the partof Mr. Learning and excluded all reasonable inferences other than guilt (see: R v Villaroman, 2016 SCC 33, [2016] 1 SCR 1000). [23] At the root of his appeal, Mr.

Learning has asked this Court to retry the case against him and reach different findings andinferences than the trial judge did on the circumstantial evidence adduced by the Crown. However, while an appellate court may re-examine and to some extent reweigh and consider the effect of the evidence when assessing whether a verdict is unreasonable, it is notfor the appellate court to pick apart the findings and inferences drawn by the trial judge (see: R v Villaroman at para 69).

Rather, thisCourt must determine whether it was unreasonable for the trial judge to have concluded that the evidence as a whole excluded allreasonable alternatives to guilt (see also: R v Youssef, 2018 SCC 49). As the Court in R v Villaroman explained: [55] A verdict is reasonable if it is one that a properly instructed jury acting judicially could reasonably have rendered: R. v. Biniaris,2000 SCC 15, [2000] 1 S.C.R. 381. Applying this standard requires the appellate court to re-examine and to some extent reweigh andconsider the effect of the evidence: R. v. Yebes, (SCC), [1987] 2 S.C.R. 168, at p. 186.

This limited weighing of theevidence on appeal must be done in light of the standard of proof in a criminal case. Where the Crown’s case depends on circumstantialevidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was theonly reasonable conclusion available on the totality of the evidence: Yebes, at p. 186; R. v. Mars (2006), (ON CA),205 C.C.C. (3d) 376 (Ont. C.A.), at para. 4; R. v. Liu (1989), 1989 ABCA 95 , 95 A.R. 201 (C.A.), at para. 13; R. v. S.L.R.,2003 ABCA 148; R. v. Cardinal (1990), 1990 ABCA 115 , 106 A.R. 91 (C.A.); R. v.

Kaysaywaysemat (1992), (SK CA), 97 Sask. R. 66 (C.A.), at paras. 28 and 31. [56] The governing principle was nicely summarized by the Alberta Court of Appeal in Dipnarine, [2014 ABCA 328, 316 CCC (3d)357] at para. 22. The court noted that “[c]ircumstantial evidence does not have to totally exclude other conceivable inferences” and that averdict is not unreasonable simply because “the alternatives do not raise a doubt” in the jury’s mind.

Most importantly, “[i]t is stillfundamentally for the trier [of] fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise adoubt.” [24] Importantly, the Court in R v Villaroman had earlier commented on the reasoning process in cases of circumstantial evidence,noting: (a) “The inferences that may be drawn from [an] observation must be considered in light of all of the evidence and the absenceof evidence, assessed logically, and in light of human experience and common sense” (at para 30). (b) “In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts” (at para35). (c) “The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it.

If thereare reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt” (at para35). (d) “[A] reasonable doubt, or theory alternative to guilt, is not rendered ‘speculative’ by the mere fact that it arises from a lack ofevidence. As stated by this Court in Lifchus, a reasonable doubt ‘is a doubt based on reason and common sense which must be logicallybased upon the evidence or lack of evidence’: para. 30 (emphasis added). A certain gap in the evidence may result in inferences otherthan guilt.

But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light ofhuman experience and common sense” (at para 36). (e) “When assessing circumstantial evidence, the trier of fact should consider ‘other plausible theor[ies]’ and ‘other reasonablepossibilities’ which are inconsistent with guilt” (at para 37). (f) “[T]he Crown thus may need to negative these reasonable possibilities, but certainly does not need to ‘negative everypossible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused’. …‘[O]therplausible theories’ or ‘other reasonable possibilities’ must be based on logic and experience applied to the evidence or the absence ofevidence, not on speculation” (at para 37; emphasis in original).

Drawing on all of this, the Court said (at para 38) that the “basic question” in such cases is “whether the circumstantial evidence, viewedlogically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.” [25] On this basis, the question for an appeal court in a case of circumstantial evidence is not whether there were other possibleexplanations for what happened.

The question is whether the trial judge unreasonably concluded that the evidence, when taken as awhole and when applying common sense, human experience and logic to determine the probability of outcomes, leads to only onereasonable conclusion, namely, that the accused committed the crime.

To paraphrase the Court in R v Villaroman (at para 69), while notevery trier of fact may inevitably have reached the same conclusion as the trial judge did in this case, her conclusion need only be areasonable one. [26] Coming at this question from another angle, the Court in R v Dipnarine (at paras 24–25) said the presence of competinginferences does not necessarily mean a finding of guilt is an unreasonable verdict.

Rather, if the trier of fact considers an alternativeinterpretation of the circumstances, taken as a whole, to be unreasonable or irrational, the trier of fact is not bound to give effect to thatalternative simply because it is impossible to exclude it entirely.

In concluding its analysis, the Court said: “The law does not requiresuch proof to absolute certainty: see R v Lifchus, (SCC), [1997] 3 SCR 320 at para 30.” [27] In my assessment, having regard to the principles set out in R v Villaroman, it was not unreasonable for the trial judge toconclude that the evidence as a whole excluded all reasonable alternatives to guilt. I say that for several reasons.

[28] First, as to the gaps in surveillance, I start from the proposition, built on the principles set out in R v Villaroman, that a gap insurveillance or an alleged flaw in a police investigation does not of itself necessarily give rise to a reasonable inference inconsistent withguilt. In appellate terms, the mere existence of such circumstances does not render a verdict unreasonable. In any case based oncircumstantial evidence, there will likely be an “evidentiary gap” at some point in the timeline. Here, Mr.

Learning suggests that, becausethe police surveillance of the van had not been continuous, it was not open to the trial judge to infer he had been the operator of the vanat all relevant times. I agree that gaps in the surveillance record opened the door to a possibility that Mr. Learning had not been the driverat all relevant times, but that is not enough.

To negate the inference of guilt sought by the Crown, an alternative, inconsistent explanationfor the circumstances must be such that, applying common sense, human experience and logic to determine the probability of outcomes,it is a reasonable inference to draw (see: R v Villaroman at para 36). [29] In this case, Mr. Learning’s alternative theory was that someone other than he had driven the van from Medicine Hat, Alberta,to a border crossing south of Val Marie, Saskatchewan, and back. As Mr. Learning developed the theory, Mr.

Palfrey—the individualwho had shipped the cocaine—was prepared to pay an innocent dupe $5,000 to drive a van loaded with cocaine from Medicine Hat toBritish Columbia. The dupe, of course, would be unaware of the cocaine. That is the sum of the theory. Moreover, it is a theory withoutsupporting evidence. [30] There was no evidence to suggest anyone else had driven the van or that the van might have been driven by more than oneindividual.

For its part, the Crown asserts this theory is itself flawed because the dupe, by reason of a $5,000 payment for at most a two-day trip, would have had to be wilfully blind to the fact he might be carrying illicit cargo. If that were made out, the Crown observes, thedupe would be fixed at law with knowledge of the illicit cargo and guilty of the offence. [31] Nonetheless, Mr. Learning correctly points out that the gaps in surveillance left open a possibility that he might not have beendriving at the times necessary to fix him with knowledge of the cocaine. This inference is also consistent with Mr.

Learning’s innocent-dupe theory. However, like the trial judge, we are not entitled to examine the evidence of gaps in the surveillance evidence in piecemealfashion (see: R v Stewart, (SCC), [1977] 2 SCR 748 at 759). Rather, as the trial judge well understood, a trier of factmust assess the whole of the circumstantial evidence to determine whether the alternative inference inconsistent with guilt is a reasonableone. Here, the trial judge did just that and found the inference sought by Mr. Learning did not have sufficient probability in the context ofthe whole of the evidence before her.

That is, she found it to be unreasonable. I find her assessment to be reasonable in the circumstancesof this case. Mr. Learning’s alternative theory is speculative at best. [32] Second, as to identification, the trial judge was clearly alive to and cautious about the frailties of the police agent’sidentification of Mr. Learning. In particular, she observed that, when considered in isolation, there were several reasons why the policeagent’s testimony might be unreliable. In fact, she said it would be “dangerous” to accept his identification evidence.

Nonetheless, thetrial judge was satisfied she had sufficient evidence that Mr. Learning had driven the van to the meet with the police agent and back andthereafter while it was under police surveillance. Nothing in the evidence, or by reason of the gaps in surveillance, even suggests thatsomeone else had been the driver. That is, there is nothing in the record that indicates the trial judge may have made a reversible error indrawing from the whole of the evidence the inference that Mr.

Learning had been the driver at all times. [33] In R v Villaroman, the Court noted that “it is fundamentally for the trier of fact to draw the line in each case that separatesreasonable doubt from speculation. The trier of fact’s assessment can be set aside only where it is unreasonable” (at para 71). In myassessment, while the Crown’s case against Mr.

Learning was not overwhelming, it was nonetheless reasonable for the trial judge toconclude that the circumstantial evidence as a whole, viewed logically and in light of human experience, excluded all reasonablealternatives to guilt. [34] In short, when I read the trial judge’s reasons as a whole and in the context of the evidence adduced and the arguments madeat trial, I am not persuaded she overlooked or failed to assess the probability of other potential explanations of the circumstances.

Rather,she directly addressed the alternative inferences raised in this appeal and, not unreasonably, rejected them. [35] Lastly, Mr. Learning ties the foregoing allegations together, arguing the trial judge incorrectly used her findings about the vanand its contents to find Mr. Learning had knowledge and control of the cocaine that was hidden in the van. Mr. Learning accepts, in hiswords, that the “[v]an was up to no good”; he simply takes issue with the transference of that conclusion to him by reason that he hadbeen driving the van when he was arrested.

This argument circles back to the earlier allegations because it leverages the weaknesses inthe identification evidence and the gaps in surveillance to contend that there is no direct evidence that Mr. Learning had driven the vanfrom Medicine Hat to the pick-up point south of Val Marie and back. At its heart, the argument alleges the trial judge improperlyreversed the onus of proof by presuming, in the absence of evidence to the contrary, that Mr.

Learning had knowledge of the cocainesimply because he had driven the van from Medicine Hat to Salmon Arm. [36] However, I do not interpret the trial judge’s reasons as shifting the onus of proof. True, the trial judge noted the reasoning inR v Nicholson, 2011 ABCA 218 at para 9, 510 AR 308, by holding that “[t]he finding of a prohibited item within a motor vehicle ownedand operated by an accused is prima facie proof of possession by the accused.” But, this does not speak to a finding beyond a reasonabledoubt.

Further, this followed on the trial judge’s self-instruction to the effect that “[t]he accused is not burdened with having to establishfacts which are inconsistent with guilt.” The argument also overlooks the trial judge’s ultimate conclusion, which was: 37. In

summary, the whole of the evidence points to no other reasonable conclusion other than that the accused was the courier whomet with the agent. In fact, I am convinced beyond a reasonable doubt that the accused had possession of cocaine for the purpose oftrafficking. He was in control of the cocaine as soon as he received it from the agent. Based on the conversation which he had with theagent and the manner in which the cocaine was concealed, the accused was well aware that he was receiving illicit drugs to transport toBritish Columbia.

He was also prepared for this task as he possessed numerous cell phones, had the tools required to open the hiddencompartments, and had energy drinks to keep him awake during his trip. (Emphasis added) That is, the trial judge did not rest her finding that Mr. Learning had knowledge or control of the cocaine on the misdeeds of the van;

rather, she found as an inferred fact based on the whole of the circumstantial evidence that Mr. Learning was the individual who had driven the van to the pick-up point, who had accepted the cocaine from the police agent, and who had hidden the cocaine in the van. As noted, that was a reasonable inference and it was not unreasonable for the trial judge to have rejected all other inferences inconsistent with guilt. V. conclusion [ 37 ] For the foregoing reasons, I would dismiss the appeal. “Caldwell J.A.” Caldwell J.A. I concur. “Leurer J.A.” for Whitmore J.A. per authorization I concur. “Leurer J.A.” Leurer J.A.