R. v. Francis and Quiring

2006 BCSC 1619 R. v. Francis and Quiring IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Francis and Quiring, 2006 BCSC 1619 Date: 20061101 Docket: X066103 Registry: New Westminster Between: Regina And Christine Anne Francis and David John Edward Quiring Before: The Honourable Madam Justice E.A. Arnold-Bailey Reasons for Judgment Counsel for the Crown: Frank Polak Counsel for Ms. Francis: Counsel for Mr. Quiring: David Gable Ronald Coumont Date and Place of Trial: July 25, 26, 27, 28, October 3, 2005, April 24, 25, June 16 and September 7, 2006 New Westminster, B.C. Introduction [1] The accused, Ms. Francis and Mr. Quiring, are charged that on December 13, 2002, at or near the City of Surrey, Province of British Columbia, they did unlawfully possess controlled substances for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, 1996, c. 19 ("CDSA"). Count 1 pertains to the controlled substance, methamphetamine; and Count 2 pertains to the controlled substance of cannabis (marihuana). [2] On December 13, 2002, at 9:14 a.m., the RCMP executed a search warrant at a residential address in Surrey, B.C. Upon entry they found Ms. Francis sitting in the living room and Mr. Quiring leaving the lower floor of the premises via a rear door. Both were arrested. Upon searching the residence the police found 400 grams of methamphetamine, 356 grams of marihuana, and 303.8 grams of cannabis resin, as well as an inoperable handgun, several sets of scales, and other items related to the packaging and sale of methamphetamine or marihuana, at various locations on the upper floor, which was the main living area. [3] The sole issue to be determined is whether the Crown has proven beyond a reasonable doubt that either or both of the accused were in constructive possession of the methamphetamine and marihuana found in the residence. [4] At trial the court heard evidence on a Charter voir dire, and considered whether or not the accuseds' s. 8 Charter rights to be secure against unreasonable search and seizure were violated by the search. At issue was both the sufficiency of the Information To Obtain upon which the search warrant was obtained, and the manner in which the search was conducted. I found that no violations had occurred and the fruits of the search were admitted into evidence at trial. The Trial [5] The trial commenced on July 25, 2005 and continued July 26, 27, and 28. On the voir dire the defence were permitted to cross-examine the affiant, Cst. Ng, on a specific part of the Information To Obtain drafted and sworn by him. Cst. Ng and Cst. Martynowski both participated in the execution of the search warrant, as did Cst. Storozuk, the exhibits officer, who listed and described the items of note that the police found in the search of the residence. On October 3, 2005, I provided oral reasons as to the issues pertaining to the alleged Charter violations. [6] The expertise of Cpl. Furac to provide expert opinion evidence regarding the price, packaging, quantity and value of methamphetamine and marihuana seized was admitted, as was his report. Neither accused took issue with the "for the purpose of trafficking" aspect of Count 1 or Count 2. [7] The trial continued on April 24 and 25, 2006. Ms. Francis testified on her own behalf and called Ms. Heather Steele, a friend. Mr. Quiring did not testify and called no witnesses. After final submissions the matter was adjourned to September 7, 2006 for oral reasons for judgment, but was then adjourned to today's date due to the serious illness of Mr. Quiring's counsel. Brief Summary of the Evidence Evidence called by the Crown: [8] The evidence of the three police officers initially heard on the voir dire was admitted as evidence in the trial proper, with the exception of the inadmissible portions of Cst. Ng's testimony, which went to his reasonable grounds. The expert evidence of Cpl. Furac in the form of his report (Exhibit 30) was admitted by consent. [9] Cst. Ng testified as to the initial investigation of this matter and certain circumstances relevant to the Information To Obtain a Search Warrant, sworn by him at 2:05 a.m. on December 13, 2002. The search warrant was granted by a justice of the peace at 2:45 a.m. the same morning. Much of his testimony on the voir dire was relevant only to the lawfulness of the search, and portions of it were admissible only for that purpose. However, his evidence includes his observations on July 9, 2002, and December 11, 2002, of the same two motor vehicles at the residence he searched on December 13, 2002. Both were registered to Ms. Francis, and their presence shows a continuing connection over time by Francis to that residence. [10] Cst. Ng also testified that in the evening of December 12, 2002, police stopped a person after they saw the person go to the vicinity of the residence and then leave. This person had a small quantity of methamphetamine in his or her possession. The statements made by this person to police were not admissible at trial. Police planned a "hard entry", based on information that a hand gun and a methamphetamine lab were located within the residence. [11] Cst. Ng testified that when he and Cst. Martynowski executed the search warrant, they announced "police" and entered the Surrey residence at 9:15 a.m. on December 13, 2002. The front door was closed, but not locked, and the police did not use the ram they had brought with them. Cst. Ng was the first to enter and he ran up the stairs to the living room where he found Ms. Francis sitting in a chair having coffee. He had his gun drawn and directed her to get down on the ground. When she did not respond, he holstered his gun and took her arm and pushed her to the ground. He advised her of the reasons for her arrest. A female officer came and took control of Francis and provided her with her Charter rights. Police arrested Mr. Quiring and another male leaving via the door from the suite on the lower floor, and thereafter Quiring was advised of his Charter rights. [12] Cst. Ng described the entry to the house to be to a mezzanine level with stairs up to the main living area of the house and stairs down to a suite. He noted that, based on the modifications to the lower suite, it appeared as though the lower suite had previously been used for a marihuana grow operation. He noted that the upstairs portion of the house occupied about 1000 to 1100 square feet, and included a kitchen, living room, bathroom, a bedroom and a room used as an office. He did not notice any of the doors in the upstairs to be closed and none were locked. He described the suite in the downstairs of the house to include a kitchen, living room, and a bedroom. The access from the downstairs suite to the upstairs had been blocked off with a closed door and a shoe shelf. At the rear of the house there was a door to the outside from the downstairs suite. [13] Cst. Ng searched the upstairs portion of the residence with Cst. Storozuk. Cst. Ng recalled finding a handgun in a dresser drawer in the south-west bedroom and that Cst. Storozuk found methamphetamine in a north-east bedroom used as an office. The handgun turned out to be an inoperable, Colt .45 calibre auto-loading pistol. [14] Cst. Ng. found other items relevant to the investigation and he directed Cst. Storozuk to them, for the latter to document and seize. [15] Cst. Martynowski testified as to his involvement in the execution of the search warrant. He recalled carrying the ram because of his large physical stature, but could not recall if it was used. He arrested Mr. Quiring at the back of the residence and identified the male accused in court as the person he arrested on that occasion. He recalled that other police officers had Quiring and another male "proned out" on the ground when he dealt with Quiring, whose name and date of birth as well as a brief physical description he noted in his notebook. Cst. Martynowski advised him of his Charter rights. [16] Cst. Storozuk listed the items seized and their locations when found by the police in the Exhibit Flow Chart that is marked Exhibit 2. In addition to the various quantities of what analyzed to be methamphetamine and marihuana, which were found in the north-east bedroom that served as an office and in the main bedroom (described as the south-west bedroom) he seized numerous documents in the names of Ms. Francis and Mr. Quiring. These came from various locations on the upper floor of the residence. [17] The police also found a notebook (Exhibit 23) belonging to Ms. Francis on the coffee table in the living room, in which she practised calligraphy, and made various notes. The notebook contains several unhappy letters from Ms. Francis to Mr. Quiring about difficulties in their relationship. They include references to her "dirty money" and him going out of his way to "get [her] working". In a calligraphy note Ms. Francis makes reference to him taking $40 and then $60 from her wallet, and she comments: "So that alone is more than profit on an 8 ball". The notebook also contains several pages of score sheets. She was required to comment on various notations in her notebook in the course of her testimony. [18] Cst. Storozuk took the court through the various items seized, tendered by the Crown as exhibits. He pointed out where items were found in the residence in relation to the photographs marked 1 through 38. [19] Items of particular note were found in the north-east bedroom that served as an office. In this room was a low dresser or table, a computer and computer desk, and many personal items belonging to both accused. In this room police found a photograph album (Exhibit 9) showing photos of drug-related paraphernalia, marihuana plants and actual dried marihuana leaves. It shows people snorting a substance and a young Mr. Quiring, whose name is written in the album. It was found in the top drawer of the dresser, with a Goods and Services Tax letter addressed to Christine Francis, dated July 26, 2002 (Exhibit 10), and her resume (Exhibit 11). [20] The computer desk is shown in Photos 17, 18, 24 and 25. Photos 24 and 25 show a significant quantity of methamphetamine loose on the desk by an electronic scale, as well as a large quantity of plastic baggies suitable for packaging. Photos 20, 21 and 22 show a partially visible safety deposit box protruding from under the desk or its adjoining table, in which the police found 3 bags of methamphetamine with a total weight of 383.2 grams. The methamphetamine in plain view on the desk weighed 8.1 grams. Plastic vials suitable for hash oil were also found in this room, a photocopy of which is marked as Exhibit 5. [21] On the computer desk the police found a Hydro bill for that address, dated October 28, 2002, in the name of Mr. Quiring (Exhibit 4); a letter to Christine Anne Francis at that address, dated March 18, 2002 (Exhibit 6); a B.C. Hydro bill addressed to Mr. Quiring at that address, dated October 23, 2002 (Exhibit 7); and a B.C. Gas statement in Mr. Quiring's name at that address, dated October 22, 2002 (Exhibit 8). [22] Four further gas or hydro bills in Mr. Quiring's name at the same address, bearing dates in August or September, 2002, (Exhibits 12 through 15) were found in a shelving unit between the upstairs kitchen and living room. Four more items addressed to Christine Francis at the same address dated in July or August, 2002 were found in the same shelving unit (Exhibits 16 through 19). [23] The second location of note was the south-west bedroom that served as the master bedroom. Photos 5 and 6, taken in that room, show a dresser drawer that appears to have male clothing and a man's belt in the top drawer with the inoperative handgun. In that drawer, along with the handgun, police found a pay statement in Mr. Quiring's name for the period of October 18 to 24, 2002 (Exhibit 20), and a BC Hydro notice threatening disconnection addressed to him, dated August 23, 2000 (Exhibit 21). This dresser was referred to as No. 3 in the diagram of Cst. Heisler, which was admitted into evidence as Exhibit 26. On a little shelf above this dresser the police found a baggie containing 2 grams of methamphetamine near to a B.C. Driver's Licence and a Care Card in Mr. Quiring's name. In another dresser, police found six bottles containing 235.2 grams of hash oil. In a second drawer police found a plastic canister containing marihuana with a total weight of 178 grams. [24] The police found a cardboard box next to a dresser (referred to as No. 2, in the diagram of Cst. Heisler) in the master bedroom. This box is shown in Photo 28. It contained 6 ziplock baggies of marihuana with a total weight of 178 grams, 54 grams of cannabis resin or hash in a separate bag, and 14.6 grams of hash in another bag. [25] On the night table in the master bedroom police found a baggie containing .8 grams of methamphetamine and Francis' purse, which Cst. Storozuk saw on the night table. It contained $600 in cash. Photo 34 shows a king size bed with rumpled bedding, a dresser upon which there is a television set that is on, and part of a vanity. [26] The closet adjacent to the bedroom (Photo 27) is full of clothing, the most visible of which is women's clothing. The adjacent bathroom contains toiletries. [27] Gauging by the Photos 29, 30, and 33, which show a laundry area with clothes in a basket, and a well-used kitchen and dining/living room area, the upper floor of the residence is cluttered and appears "very lived in." [28] Cst. Storozuk testified that another electronic scale in a box was also found in the office room, whereas I note that the second scale, as shown in a box in Photos 23 and 24, appears to be the kitchen. Nothing turns on the exact location of the second scale. [29] The police also found a list of police vehicles and vehicle license plates in the downstairs hallway (Exhibit 24) suggestive of counter-surveillance by occupants of the residence. Cst. Storozuk recognized a particular entry on the list (to a Ford van driven by an elderly man) as belonging to the RCMP "Special O" unit. [30] I find as a fact, based on the above evidence, including the items seized and the photographs of the upper floor in Exhibit 1, that both Ms. Francis and Mr. Quiring lived in the upper floor of the house where the drugs were found. Both the rooms where the drugs were found were full of the accuseds' many personal items. The dressers and their contents in the bedroom indicate that both accused came and went freely from the bedroom, depositing things and collecting things as they needed to. Both accused shared the kitchen, living room, bathroom areas, and had the freedom to frequent or use any of the rooms on this floor, including the north-east room that served as an office, in which the bulk of the methamphetamine was found, and where a sizeable quantity of it was in plain view. [31] Cpl. Furac provided expert opinion evidence on the value of the methamphetamine seized. The total amount of methamphetamine found in the residence was 397.5 grams or 14.6 ounces. Sold by the quarter or half gram its value was estimated to be $31,800. If sold by the gram the value was estimated to be between $31,800 and $39,750. Given the evidence of packaging and the use of scales it is unlikely that it was to be sold at the ounce level, which according to Cpl. Furac, would have resulted in an estimated value of $14,000 to $16,800. [32] Cpl. Furac indicated that the 670 grams or 1.48 pounds (23. 6 ounces) of marihuana bud seized had an estimated value of between $6,685 and $9,550 if sold in 3 ½ gram amounts, and between $4,720 and $8,260 if sold by the ounce. He indicated that the 68.6 grams (2.42 ounces) of cannabis resin or hash found had an estimated value of between $686 and $1,029 if sold by the gram. The 235.2 grams of marihuana oil seized had an estimated value of between $4,704 and $7,056 if sold by the gram. [33] Very conservatively, the total value of the cannabis and methamphetamine seized was in excess of $40,000. [34] At p. 6 of his report (Exhibit 30) Cpl. Furac offered specific views on the trafficking aspect: The bulk methamphetamine (approximately 383.2 grams) in three bags found in the safety deposit box underneath a computer desk and the bulk 8.1 grams of methamphetamine piled loosely on top of the computer desk with an electronic scale and packaging material nearby all suggests that this was a processing site for the methamphetamine for distribution to the street level user and does not suggest personal use. The bulk cannabis resin (hash oil) in six vials totalling approximately 235.2 grams along with many more empty small plastic vials all suggest that this residence was a processing site for the cannabis resin (hash oil) for distribution to the street level user and does not suggest personal use. [35] I accept the evidence put before the court by the Crown to be accurate and reliable. None of the officers were shaken on cross examination in terms of what they did, saw or found in the residence, and I find the foregoing to be the facts in this case, proven beyond a reasonable doubt. Evidence called on behalf of the Accused Ms. Francis: [36] Ms. Francis testified on her own behalf and also called her friend, Ms. Heather Steele. [37] Francis is 52 years old and has two grown children. She has worked at various jobs in B.C., and presently is managing a paint department in a store. She had been married and divorced twice before starting her relationship with Mr. Quiring in 1990. She said the relationship was "on again off again" over the next 10 years, and that by 2001 they were having serious difficulties. She recalled that they had lived together at this residence for three or four years as of 2002. Francis said that by December, 2002, neither of them were spending any time at home as they both knew the relationship was over, and she said she was rarely there, coming back to feed her three dogs. She also said it was a rented house with two suites and that originally there was one tenant downstairs, and then more people in the suite, and they paid a portion of the rent. She said that she did not have access to the lower suite. [38] As of December 13, 2002, Ms. Francis said that Mr. Quiring was driving the blue pickup truck registered in her name and that she was driving the red Aerostar. She described being out shopping on December 12 and coming home between 11 p.m. and midnight. She said she heard music downstairs and went straight to bed in the upper floor bedroom, which was unoccupied. She said that both she and Mr. Quiring kept their clothes in the bedroom. She said that she had just awakened on December 13 when the police arrived, and that as she was in a panic, it did not initially register with her that it was the police. She then described producing identification for the police, which she obtained from her purse, which she said was on the floor between the wall and the bed in the bedroom (as opposed to on the nightstand with the small quantity of methamphetamine the police found). She explained the $600 cash in her purse as Christmas shopping money, saying that she did not use a credit card. Ms. Francis denied any knowledge of the drugs or the handgun the police found in the residence. [39] I accept the testimony Ms. Francis gave about the length of her relationship with Mr. Quiring, that they lived together in the upper floor of that residence and had done so for three or four years prior to December, 2002. I accept that the relationship was a troubled one, and that Mr. Quiring regularly drove the blue pickup truck registered in her name. [40] In direct examination Ms. Francis said that her notebook contained notes by her and others, and her "rantings" to Mr. Quiring that she hoped he would read. [41] In cross- examination by counsel for Mr. Quiring, Ms. Francis admitted that many of the items in the upper floor of the residence were hers, and that although the relationship had effectively ended, neither of them had done anything concrete in terms of finding other places to live or started packing. [42] Ms. Francis' response to questions about the presence of various quantities of drugs was that she did not know they were there. In terms of the methamphetamine in plain view on the computer desk, she said that she did not know when, prior to December 13, 2002, she had last been in that room, or that she even would have noticed it. She also denied having ever seen the white scale shown in Photo 26. [43] When various entries in the notebook were put to her, she recognized many of the people and situations referred to and somewhat reluctantly admitted that she had written them. When an incriminating entry was put to her (like the score sheet on p. 34, obviously in the same hand as previous writings she acknowledged) she became very evasive saying: "Well, it looks like mine, but I don't know", "All I can say is it looks like my writing", and "I can't remember a lot of this stuff." She gave similar evasive or non-responsive answers to questions about the entries she made that appeared to be related to drug transactions or knowledge of drug-related terms, like "gram", "pot", or various numerical amounts being divisible by the common prices of certain quantities. [44] I find that the testimony of Ms. Steele as to her friendship with Ms. Francis, her knowledge of Ms. Francis' stormy relationship with Mr. Quiring, and her lack of knowledge of Ms. Francis being involved in the drug trade in December, 2002, did not add anything of significance to the body of evidence in this trial. Either the activities at the residence occupied by Ms. Francis and Mr. Quiring were carried on without her knowledge, or she was not telling the truth. Either way, her testimony does not assist. [45] I do not accept as truthful, reliable, or credible a single response by Ms. Francis in relation to any aspect of her denial of knowledge of the drugs or the incriminating items associated with trafficking, including the packaging materials and scales. She was a wildly evasive, extremely unresponsive witness. She was not able to provide a forthright answer to a simple question like "Does Dave practise calligraphy?" in relation to entries in her notebook. Her denial of knowledge about the sizeable quantity of cannabis products and methamphetamine found in the residence that only she and Mr. Quiring shared, which was full of her personal property as well as his, strains common sense past the breaking point. [46] In her testimony she was obviously trying not to incriminate herself and protect Mr. Quiring at the same time. Certain of her notebook entries clearly relate to the drug trade. When Crown counsel asked her why she used the term "eight ball" in writing to Mr. Quiring, she responded that she was trying to get a reaction from him. Ms. Francis admitted writing the lists of names and amounts at p. 43 of the notebook, but said she could not remember writing them. They are obviously a record of amounts sold to or owed by various people. She reluctantly admitted she wrote them down from discussions with Mr. Quiring. When pressed about them, Ms. Francis appeared to appreciate that the numbers listed next to the names were consistent with various quantities of methamphetamine, and then she said they were dictated to her, but she did not know how long ago. I find that it is highly unlikely that she could recall writing down such a list and yet forget its purpose. The only inferences I can draw from her evidence on this point, and similarly evasive or unresponsive answers on other potentially incriminating points that arise from her notes in her notebook, are that the notations were exactly as they appeared - records relating to drug trafficking. When she made the various entries that refer to drug trafficking is not particularly relevant. Their significance is that they show both accused to have been engaged in or complicit in drug trafficking in the past. [47] Therefore, I find that I must reject Ms. Francis' evidence that she was unaware of the methamphetamine and cannabis products in her residence. Various items were in plain view throughout the upper floor of the residence, including the box containing a significant quantity of cannabis in the bedroom, and a very obvious pile of methamphetamine spread out on the computer table in the room that served as an office. The later was in plain view in the "well used" office and part of the approximately $31,000 worth of methamphetamine the police found in that room. Relevant Law and Analysis [48] The accused are both charged with possession of controlled substances for the purpose of trafficking contrary to s. 5(2) of the CDSA: Count 1 pertaining to methamphetamine, a Schedule III substance (as of the date of the alleged offence); and Count 2 pertaining to cannabis marihuana, a Schedule II substance. [49] Section 2(1) of the CDSA incorporates the definition of possession contained in s. 4(3) of the Criminal Code, which includes the concept of constructive possession, defined in s. 4(3)(a) as follows: (3) For the purposes of this Act, (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; [50] The law relating to possession has evolved over the years in Canada. A recitation of the same always starts with Beaver v. The Queen, [1957] S.C.R. 531, (1957), 118 C.C.C. 129 (S.C.C.) as authority for the three elements of constituting possession within the meaning of the criminal law, which are, in cases of manual handling, that it must be co-existent with knowledge of what the thing is and some element of control over it outside public duty. [51] In the recent decision of R. v. Fisher (2005), 200 C.C.C. (3d) 338, 2005 BCCA 444, Smith J. A., for the court, reviews the law in relation to personal, constructive, or joint possession at ¶19 to 22. I have considered the law as set out in those paragraphs. [52] Relevant to the present case are the elements of knowledge and control in the context of an allegation of constructive possession of a narcotic. [53] The facts in Fisher are of interest because of some similarities they have to the case at bar. In Fisher, the appellant appeared nervous when the police knocked at the door of an apartment he was occupying to investigate a possible stolen truck. He consented to the police request to enter the apartment and look around. The police officer observed the appellant to put away a black weigh scale into a kitchen drawer when he thought the officer was not watching. The officer saw white powder on the counter where the scales had been, along with a measuring cup and a calculator. Based on his experience, the officer believed the white powder to be cocaine, and upon arrest of the appellant, the police found him to have $1,380 cash in his pocket. In the drawer where Fisher had earlier been seen to place the scale, the police found a plastic bag containing 29.1 grams of cocaine. Based on the police observations, the physical evidence, and the opinion of an expert in the use, price, packaging, and distribution of cocaine in Victoria, B.C., the appellant was convicted at trial. He did not testify but his girlfriend, Ms. Chau, and her room-mate, Mr. Nilsson, testified; the latter saying that the cocaine was his. According to Nilsson, the appellant did not live there but visited often and slept there three times a week. [54] At ¶ 22 of Fisher, Smith J.A. quotes with approval the following passage by Allen J. A. from Regina v. Caldwell (1972), 7 C.C.C.(2d) 285, [1972] 5 W.W.R. 150 (Alta. C.A.) at p. 290-91: while possession under the definition prescribed by the Criminal Code is a matter to be determined on the facts of each case, when the goods in question are not in the physical possession of an accused, in order to constitute constructive possession it must extend beyond quiescent knowledge and disclose some measure of control or right of control over the goods. [55] At ¶ 24 of Fisher, Smith J.A. concluded the following: As is evident from my summary of the law, neither constructive possession nor joint possession requires proof of manual handling. To establish constructive possession, it was incumbent upon the Crown to prove beyond a reasonable doubt that the appellant knew of the presence of the cocaine and that he had some measure of control over its location. To establish joint possession, the Crown was required to show that someone other than the appellant had possession of the cocaine with his knowledge and consent and that he had some measure of control over it. [Emphasis added.] [56] While ownership of the controlled substances in question may be relevant to the question of possession, the question of possession of the controlled substances may nonetheless be determined regardless of their actual ownership: Fisher at ¶33. [57] One of the cases relied upon by the Crown is Regina v. Bauer (2003), 180 B.C.A.C. 42, 2003 BCCA 138. In Bauer the police found Mr. Bauer with two others in a house upon executing a search warrant. Bauer was getting dressed in a bedroom when the police arrived. The basement was occupied by an extensive marihuana grow operation and there was a pervasive odour of marihuana in the house. Bauer had $2,800 in cash on his person and near the bedroom was a linen closet containing dried marihuana, weigh scales and bags. He called no evidence and did not testify. On appeal, Bauer argued unsuccessfully that the evidence was not sufficient to support his conviction for production and possession of marihuana for the purpose of trafficking. [58] In Bauer, Hall J.A. for the court, reviewed a number of authorities and stated at ¶18: It seems to me that a common theme running through several of the cases cited is that knowledge could not be brought home to the accused persons in those cases, either because the drugs, or in the case of Lee, the weapons, were concealed. In the case of Malek, there was no evidence of the physical presence of the accused at any time at the scene of the criminal activity. [59] Often control may be inferred from proof of knowledge, depending on the circumstances of the individual case, if it extends beyond "quiescent knowledge" to some measure or right of control over the unlawful substance. [60] In the case of Ms. Francis, who testified herself and also called Ms. Steele to support her testimony, the issue becomes whether I accept her evidence, or find that it raises a reasonable doubt as to her having knowledge and a measure or right of control over the controlled substances found in the residence, or even if I am not left in doubt by her evidence, whether on the basis of evidence that I do accept, I am convinced beyond a reasonable doubt by that evidence of her guilt in relation to the offences charged: Regina v. W.(D.) (1991), 63 C.C.C.(3d) 397, [1991] 1 S.C.R. 742, per Cory J. at ¶11. [61] For the reasons previously stated I do not accept Ms. Francis' denial of knowledge of the controlled substances found in her residence. I find that it does not raise a reasonable doubt as to her knowledge of the methamphetamine and cannabis marihuana found by the police. I must then look to the evidence I do accept, which in this case is the evidence contained in the Crown's case, to determine whether it proves the offences charged against Francis beyond a reasonable doubt. [62] In the case of Mr. Quiring, who did not testify or call evidence, the issue is whether the evidence called by the Crown is of sufficient strength and cogency to constitute proof beyond a reasonable doubt that he knew of the illegal substances in the residence and had a measure or right of control over their location in the residence. To find him guilty of one or both offences I must find that the only reasonable inference to be drawn from the proven facts is that Quiring had knowledge and a measure of control in relation to the methamphetamine and/or marihuana found in the residence: Regina v. Cooper (1977), 34 C.C.C. (2d) 18, (S.C.C.), per Ritchie, J. at p. 33. [63] The Crown relies upon Regina v. Hubble, 2002 BCCA 561, (202), 55 W.C.B. (2d) 452, as an example of a case where the strength of the Crown's case was such that the conviction of the appellant on a charge of production of marihuana was upheld. In Hubble the appellant did not testify at trial. The facts were that the police obtained a search warrant and entered a residence, after observing Hubble eating cereal from a bowl through a window. Hubble answered the door and admitted the officers. The police detected a smell of growing marihuana upon entry coming from a locked basement, which had as its only entry a door on the main floor of the house, off the kitchen. The police found the key to the basement on the fireplace mantle in the living room. The officers heard the sound of fans associated with the grow operation under their feet in the kitchen. They found 180 marihuana plants growing in the basement under high-intensity lights. In the upstairs of the residence they found a cable bill, a telephone bill, and other mail in Hubble's name. They also found a quantity of marihuana in a tin. Hubble's name was on an application to rent the premises, shown as the sole occupant, and his birth certificate and male clothing was found in the main bedroom upstairs. Female clothing was found in a second bedroom. Someone had left a note on the dining room table thanking "Reg" for "the gonge and the weed and definitely good times". The Crown's evidence indicated that "gonge" was a glass device for smoking "weed", which is marihuana. At trial it was suggested to the trial judge that because of the woman's clothing and the power bill in another name that the appellant had a partner. The trial judge concluded the appellant "fostered and facilitated the cultivation of marijuana in the basement" and that if he had a partner then he was "one of the parties to the offence as he clearly must have had to aid and abet that unidentified person for the offence to have been committed". [64] In upholding the conviction, Hollinrake J.A. at ¶13 of Hubble, referred to Regina v. Busby (1972), 7 C.C.C.(2d) 234 (B.C.C.A.), in which Tysoe J.A., for the court, upheld a conviction for cultivation. At ¶14 of Hubble Hollinrake J.A. quoted Tysoe J.A. in Busby as follows: In my respectful opinion the facts as found by the learned Magistrate carry with them an irresistible inference that the appellant was in fact, on or about July 29, 1971, cultivating marijuana. It is to be noted that the appellant gave no evidence himself and called no witnesses. In my view the dictum of Irving, J.A. of this Court in R. v. Jenkins (1908), 14 C.C.C.221, 14 B.C.R. 61, is directly applicable. That dictum is as follows [15 p. 230]: It is true that a man is not called upon to explain suspicious things, but there comes a time when, circumstantial evidence having enveloped a man in a strong and cogent net-work of inculpatory facts, that man is bound to make some explanation or stand condemned. [65] Before turning to the evidence in this case from which the Crown asks the court to infer knowledge and an element or right of control on behalf of both accused beyond a reasonable doubt in relation to the methamphetamine and marihuana found, I find it useful to refer to the recent decision of R. v. Pham (2006), 209 C.C.C. (3d) 351, 2006 SCC 26. In this case the Supreme Court of Canada unanimously adopted the majority reasons of the Court of Appeal for Ontario in R. v. Pham (2005), O.R. (3d) 401, (2005) 303 C.C.C. (3d) 326, and dismissed the further appeal by the accused of her conviction for possession of cocaine for the purpose of trafficking. [66] In Pham the police found 9.8 grams of individually wrapped cocaine in an apartment that the appellant, Ms. Pham originally occupied alone. At the time of the search and seizure the apartment was occupied by Pham and a male person named Nguyen. At trial the charge against Nguyen was dropped and the Crown proceeded against Pham alone. The evidence was that before Nguyen moved in, a neighbour occupying the apartment across the hall from Ms. Pham observed numerous visitors coming to the accused's door, money being slipped under the door, and clear plastic bags containing a white substance coming out of the apartment. The police were contacted and set up surveillance of the building after Nguyen moved in to Pham's apartment and they observed that persons they knew to have drug problems were entering and leaving the building. The police obtained a search warrant for the accused's apartment and executed it a day after she was observed to leave the apartment. At the time the police entered and searched the apartment Nguyen was its only occupant. Police found the rocks of individually-wrapped cocaine in the bathroom in a cloth purse, and money was found in a make-up bag. At the time of the search the accused had been absent from the apartment for some 32 hours. The issue at trial was whether or not she had knowledge and control of the cocaine found in the bathroom, and therefore was in possession of it. The trial judge found as a fact that Nguyen did not bring the cocaine into the apartment after Pham left, and also stated that there was no evidence that Nguyen had the means to purchase the drugs. The trial judge concluded that Ms. Pham had sufficient knowledge and control to constructively possess the cocaine either personally or jointly with Nguyen. [67] On appeal to the Court of Appeal for Ontario, Kozak J.A. (ad hoc), with Blair J.A. concurring, addressed the issue of constructive possession and upheld the findings of the trial judge in his conviction of Ms. Pham. [68] In Pham, at ¶15 to 18, Kozak J.A. reviewed the law in relation to constructive possession, in the following passages: 15 In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. See R. v. Caldwell (1972), 7 C.C.C. (2d) 285, [1972] 5 W.W.R. 150 (Alta. S.C. (A.D.)); R. v. Grey (1996), 28 O.R. (3d) 417, [1996] O.J. No. 1106 (C.A.). 16 In order to constitute joint possession pursuant to section 4(3)(b) of the Code there must be knowledge, consent, and a measure of control on the part of the person deemed to be in possession. See R. v. Terrence, [1983] 1 S.C.R. 357, 147 D.L.R. (3d) 724; R. v. Williams (1998), 40 O.R. (3d) 301, [1998] O.J. No. 2246 (C.A.); R. v. Barreau, [1991] B.C.J. No. 3878, 19 W.A.C. 290, (C.A.) and R v. Chambers, [1985] O.J. No. 143, 20 C.C.C. (3d) 440 (C.A.). 17 The element of knowledge is dealt with by Watt J. in the case of R. v. Sparling, [1988] O.J. No. 107 (H.C.J.) at p. 6 (QL): There is no direct evidence of the applicant's knowledge of the presence of narcotics in the residence. It is not essential that there be such evidence for as with any other issue of fact in a criminal proceeding, it may be established by circumstantial evidence. In combination, the finding of narcotics in plain view in the common areas of the residence, the presence of a scale in a bedroom apparently occupied by the applicant, and the applicant's apparent occupation of the premises may serve to found an inference of the requisite knowledge. The Court of Appeal decision in R. v. Sparling, [1988] O.J. No. 1877, 31 O.A.C. 244 (C.A.) upheld the above passage as being sufficient evidence to infer knowledge. 18 The onus is on the Crown to prove beyond a reasonable doubt, all of the essential elements of the offence of possession. This can be accomplished by direct evidence or may be inferred from circumstantial evidence. In R v. Chambers, supra at p. 448, C.C.C., [page 407] Martin J.A. noted that the court may draw "appropriate inferences from evidence that a prohibited drug is found in a room under the control of an accused and where there is also evidence from which an inference may properly be drawn that the accused was aware of the presence of the drug". [Emphasis added.] [69] In Pham, at ¶25, Kozak J.A. reviewed the various findings on the evidence that supported the conclusion that Ms. Pham had knowledge and control of the cocaine found in the apartment. They included the fact that she continued to be the occupant of the apartment and retained control while she was away, the purse containing the crack cocaine and the pink make-up bag were in plain view in the bathroom, a common area of the apartment. Also, those items were found amidst her personal toiletries where no male toiletries were found, and materials to wrap the drugs were found in the main bedroom which was littered with women's clothing. The circumstantial evidence was found to support as "the only logical inference" a consistent awareness of and participation in all that occurred in her home on the part of Ms. Pham, and therefore demonstrated "much more than a quiescent or passive knowledge" of the drugs, as well as an element of control over them. It was also found that her role in the trafficking scheme strongly suggested that she had authority over the drugs found and an ability to withhold her consent to the keeping of drugs in her apartment, and that Nguyen either filled in for her when she was away or the two of them were jointly involved in the trafficking scheme. [70] While the facts in the case at bar differ in a number of material aspects from the evidence in Pham, I find the analysis in that case to be helpful in terms of the type of inferences this court may properly draw in the context of alleged constructive possession. [71] In the case at bar I find the only rational inference to be drawn from the proven facts as disclosed by the evidence prove constructive possession on the part of both accused of the methamphetamine and marihuana beyond a reasonable doubt, based on the following: 1. Police surveillance on July 9 and December 11, 2002 placed two vehicles, a red Ford Aerostar and a blue GMC pickup, both registered to Ms. Francis at the residence, and the pickup being regularly driven by Mr. Quiring; 2. On the evening of December 12, 2002, police dealt with a person who they observed to go into the area of the residence and then leave, who had in his possession a small amount of methamphetamine; 3. When the police executed a search warrant at the residence at 9:14 a.m. on December 13, 2002, they found both the accused present: Ms. Francis in the living room having coffee and Mr. Quiring leaving through a lower rear door; 4. The upper floor of the residence where the drugs and drug-related paraphernalia were found was clearly inhabited by both accused and appeared "very lived in" in terms of household items and clutter; 5. The suite in the lower floor appeared less inhabited and had previously been modified for a marihuana grow-operation. The police did not seize any personal items relating to either accused from the lower level and there is no evidence to indicate that either accused was regularly living downstairs as opposed to upstairs; 6. The rooms in the upper floor were all accessible and no doors to any of those rooms were locked; 7. Personal items belonging to both accused were found throughout the upper floor of the residence, including mail and bills in the names of both in the shelving unit between the kitchen and the living room, and Ms. Francis' notebook on the coffee table in the living room. Items including a basket of laundry, and food on the kitchen counter, indicated current occupation; 8. The main bedroom, in which the bulk of the cannabis marihuana (including the rather large and obvious cardboard box on the floor containing six bags of marihuana bud and two bags of cannabis resin) and two baggies of methamphetamine (one on a shelf and the other on a night table) were found, was shared by both accused as is evidenced by the many personal items found there belonging to both accused, including bills and pay stubs, in their names. Ms. Francis' purse containing $600 cash was also found in the bedroom. The bedroom had recently been occupied, as indicated by an unmade bed and the television being on; 9. In the bedroom a handgun (albeit an inoperative one) was found in a dresser I find to have been Mr. Quiring's, along with a small quantity of methamphetamine in a baggie on a shelf above the dresser; 10. Both accused are also linked to the office in the north-east room where police found $31,000 worth of methamphetamine (including 8.1 grams of loose methamphetamine on the top of the computer desk by a scale), by virtue of personal possessions, including Mr. Quiring's photo album and Ms. Francis' resume; 11. The presence of controlled substances, conservatively worth $40,000, would logically be a matter of interest to both accused given their otherwise very modest means. This is evident from the modest nature of their rented residence, which was rundown and dilapidated in places, and the inexpensive furnishings and personal effects shown in the photographs of its upper floor. [72] Specifically, in relation to Mr. Quiring, I note that a significant amount of methamphetamine was in plain view as were various articles associated with trafficking in the upper floor of the house, which he frequented. A large amount of cannabis was in the main bedroom he shared with Ms. Francis, where he kept his possessions. He was present in the house when the police arrived. "The only logical inference" is that he possessed a constant knowledge of and an obvious measure of control over what went on in the residence he shared with Francis. Therefore, in relation to Mr. Quiring, who did not testify, as is his right, I find him "enveloped in a strong and cogent net-work of inculpatory facts", where having made no explanation he stands "condemned", to use the somewhat quaint language of Irving J.A. previously quoted at ¶64 of these reasons. "E.A. Arnold-Bailey, J." The Honourable Madam Justice E.A. Arnold-Bailey