R. v. Vye

2014 BCSC 918 R. v. Vye IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Vye, 2014 BCSC 918 Date: 20140121 Docket: 74280-2 Registry: Nanaimo Regina v. David Edward Vye Before: The Honourable Mr. Justice Thompson Oral Reasons for Judgment Counsel for the Crown: M. Down Counsel for the Accused: M. Ritzker Place and Date of Trial: Nanaimo, B.C. December 4, 5 and 16-19, 2013 Place and Date of Judgment: Nanaimo, B.C. January 21, 2014 [1] THE COURT: Mr. Vye is charged with unlawful possession of over three kilograms of marijuana for the purpose of trafficking. The issue in this case is whether the Crown has proved beyond a reasonable doubt that Mr. Vye had the mens rea required to make a finding that he was in possession. I [2] On 19 August 2011, the Nanaimo Municipal Drug Unit of the RCMP was in receipt of information that caused it to stake out the seaplane terminal at the Nanaimo harbour. The police officers were in plainclothes, waiting for a black suitcase to arrive as cargo from Vancouver. Mr. Vye drove to the terminal and claimed the suitcase without opening it. [3] On his way back to his vehicle with the suitcase, Mr. Vye was arrested. The suitcase was searched and found to contain over four kilograms of marijuana and $4500 in cash. Mr. Vye's cell phone was seized. The data on Mr. Vye's cell phone was extracted by the RCMP with the assistance of a software program in June 2012, ten months after his arrest and the seizure of the cell phone. This data was the subject of a voir dire. I ruled that the data uncovered by this June 2012 search was inadmissible, with written reasons to follow. Those written reasons are released concurrently with this oral judgment (R. v. Vye, 2014 BCSC 93). [4] Shortly following his arrest at the seaplane terminal, Mr. Vye was transported to the RCMP detachment and interviewed by Cst. Brown, one of the police officers at the seaplane terminal. The statements made by Mr. Vye in the course of that video-recorded interview were ruled admissible at the conclusion of a voluntariness voir dire. [5] Mr. Vye testified. In a nutshell, his evidence was that he was sent on an errand to pick up the suitcase and that he was told and believed that the suitcase contained vehicle parts. II [6] On an allegation of personal possession, the requirement of knowledge comprises two elements: the accused must be aware that he has physical custody of the thing in question, and must be aware of what that thing is. See Beaver v. The Queen, [1957] S.C.R. 531. In order to establish the mens rea of the offence charged in the case at bar, the Crown is required to prove beyond a reasonable doubt that Mr. Vye had legal knowledge that illicit drugs were in the suitcase, and this legal knowledge might be established by proving actual knowledge, or recklessness, or wilful blindness as to the character of the contents of the suitcase: R. v. Blondin (1970), 2 C.C.C. (2d) 118 (B.C.C.A.); R v. Schepannek, 2012 BCCA 368. [7] The concepts of recklessness and wilful blindness were explained in the reasons for judgment of Mr. Justice McIntyre for a unanimous Court in Sansregret v. The Queen, [1985] 1 S.C.R. 570 at 584. Recklessness involves "knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur." Wilful blindness arises "where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth." The culpability in recklessness is in "consciousness of the risk and by proceeding in the face of it." The culpability in wilful blindness is in "deliberately failing to inquire when he knows there is reason for inquiry." III [8] I find that several of the statements made by Mr. Vye to Cst. Brown during the video-recorded interview demonstrate beyond a reasonable doubt that Mr. Vye was reckless in taking possession of the suitcase. In the course of his evidence, Mr. Vye sought to explain away his apparent admissions. I reject his evidence for reasons that I will explain in the course of the discussion of each of the admissions. 1. Before his arrest, Mr. Vye noticed Cst. Brown Mr. Vye: You know, you were sitting there Cst. Brown: (laugh) Mr. Vye: I knew, I had a feeling. Cst. Brown: Yeah. Mr. Vye: I had a gut feeling. I should've just walked away. Cst. Brown: What made you think? Mr. Vye: Because -- you know why? Cst. Brown: Why? Mr. Vye: You never looked at me once. Cst. Brown: I did. Mr. Vye: I didn't see you look at me and I thought this is just -- and then when I heard the plane was late, I'm going I should just get outta here. Cst. Brown: Oh. Mr. Vye: I was gonna walk away. I walked outside and I started thinking and I thought Cst. Brown: The first time you walked away, past the pub? Mr. Vye: Yeah, I was thinking about taking off. [9] During cross-examination, Mr. Vye at first denied that this part of his statement to Cst. Brown meant that he suspected she was a police officer when he saw her at the terminal, but when pressed he admitted that this was what his "gut feeling" centred on. He admitted that when he walked out past the pub, it went through his mind that there might be marijuana in the bag, but he says that he brushed off this thought because of his tendency to paranoia. [10] If Mr. Vye believed he was picking up car parts, he had no reason to be taking notice of or being concerned about the presence of Cst. Brown at the seaplane terminal or reason to be thinking about "taking off." 2. "He told me it was parts, right, but I mean, I'm not stupid okay." Mr. Vye: You know, I don't have anything to hide, it's just a stupid fuckin' move on my part. Cst. Brown: Yeah. Mr. Vye: And I really didn't know what was in there. He told me it was parts, right, but I mean, I'm not stupid okay. Cst. Brown: Um hum. Mr. Vye: I have an idea. Cst. Brown: Yeah. Mr. Vye: And I have whatever, you know. Cst. Brown: You have what? Mr. Vye: No, I don't have anything to say (laugh). Cst. Brown: (laugh) Okay, (laugh) oh man. Mr. Vye: I have a really bad stomach right now and I feel like I'm gonna get sick after this (indecipherable) Cst. Brown: Okay, well usually we have a garbage can in here, but if you do, just let me know and, yeah. Okay, how come you don't eat in the morning? Mr. Vye: I just was -- I had a funny feeling about this today. I was sick to my stomach and the person was pushing, you know. I was under pressure to, to get it, to go get this and I was (sigh). [11] Mr. Vye testified that when he said to Cst. Brown: "but I mean, I'm not stupid okay," he meant that he is not so stupid as to pick up a bag if he knew there was marijuana in it, and that when he said that "I have an idea," the "idea" he was referring to is the notion that all that was in the bag was vehicle parts. [12] I do not accept this evidence. It is a concoction. It does not make sense. Mr. Vye was not sick to his stomach because he was taking on a mission to pick up some vehicle parts. He is not stupid: he knew when he was at the seaplane terminal that the suitcase likely contained marijuana, not vehicle parts. 3. The day before his arrest, Mr. Vye was "done with the stress." Mr. Vye: You know what the funny thing was, is if you look at my cellphone, I said I'm done yesterday. Done with the stress. I don't need this stress. I mean, I don't know what's -- I mean it could have been cocaine in there. Cst. Brown: Which would have been worse for you, for sure. Mr. Vye: You know, it could have been cocaine. Cst. Brown: Yeah. You're saying that you, you usually do cocaine and now it's just marijuana Mr. Vye: No Cst. Brown: this time? Mr. Vye: no, no, no, no, no, no, no, no, no, no. Cst. Brown: (laugh) Oh. Mr. Vye: That's what I'm saying you know Cst. Brown: Yeah. Mr. Vye: I mean, I don't know what the hell they're putting in it. I mean I was, you know, just deliver it. And, a bit later in the interview: Mr. Vye: I know, it was a mistake Cst. Brown: it's just from what I've seen and Mr. Vye: I'm a, I'm a, I'm -- it, it was a big mistake Cst. Brown: Yeah. Mr. Vye: and, and if you look at my phone, the day before, I said I will never, I don't want nothin' to do with this anymore. [13] Mr. Vye's evidence is that when he said he was "done" with this, he meant done with helping people and especially people who do not appreciate his help. [14] I accept that it is likely true that he did not know for a certainty what was in the bag, but Mr. Vye was not stressed because he was shuttling car parts as favours for friends. And his statement that on the day before his arrest he had stated that he was "done" is strong evidence of the fact that he knew or suspected that he had been engaged and was again engaged in picking up illegal drugs. I do not accept his suggestion that when he told Cst. Brown that he was "done" that he was expressing some form of general dissatisfaction with the outcome of kindnesses done for others. 4. Mr. Vye turns a "blind eye". Cst. Brown: Yeah. So your buddy just says pick up some ‑- the bag and ... Mr. Vye: No, he just said Cst. Brown: or parcel or whatever Mr. Vye: it's on the phone. It says, it'll be there at 12:00. Pick it up. Cst. Brown: And what does he say though? Mr. Vye: Nothing, he just said pick it up and then I gotta take it to the other friend. And that guy has a license. Cst. Brown: But wouldn't you then need a license in order to be the middler? Mr. Vye: I -- I don't know. I don't know the laws. I don't know. I shoulda looked into it. But yeah, I, I imagine, now that I think about it, I imagine you would. I imagine you would. Cst. Brown: So if you, I'm just trying to get this straight. If you, your friend told you to -- to put some -- to pick up the package that had parts in it, and then you were going to take it to a guy that had a legal permit? Mr. Vye: Yeah, I don't know what happened. I guess he sent it off to somebody else for -- and then it got sent back. That's what happened. Cst. Brown: Okay, so that bag got sent over to Vancouver and then it go Mr. Vye: Well I don't know that, I don't know the whole story but I think, what happened was it's -- some of it supposed to go to a patient and the patient didn't take -- I don't know the whole story. All I know is that they just said, bring it back, get it back, get it back, go pick it up, bring it back. That's all I know (sigh). It wasn't coming from a place over there. It was from a guy that was -- I don't know if it's a compassion club or what it is but there was -- somebody wasn't happy with what it was or whatever and that's why it got sent back. Now I don't know -- didn't know there was money in there. I had no idea. I didn't know what was in there actually. Well I knew, I was stupid (sigh). I don't know. I mean it could have been parts you know, it could've been parts, right? Cst. Brown: But you knew, like you just said (laugh). Mr. Vye: No, I didn't really know. You know what, you don't, it's like you close a blind eye to stuff and you shouldn't. [15] Mr. Vye's evidence is that when he said: "Well, I knew," he meant that as he sat with Cst. Brown, at that moment he knew it was marijuana -- i.e. as opposed to having that knowledge when he was in possession of the suitcase. And, when he made reference to a "blind eye" he did not really know what that expression meant. When pressed in cross-examination, he said that his "blind eye" comment was an abstract thought about hindsight and how sometimes people ignore their suspicions. [16] I reject Mr. Vye's evidence that when he said he "knew," that this was a statement of his knowledge after his arrest and after the bag was opened by the police. Again, to read this part of his statement in this way makes no sense in context. And, I do not believe Mr. Vye that his use of the expression "a blind eye" was part of an abstract philosophical discussion. I do not believe him when he says that he does not know what it means. There is a malapropism -- the usual form of the expression being "turn a blind eye" rather than "close a blind eye" -- but the context of this statement leads to the inescapable conclusion that Mr. Vye is at least confessing to recklessness: the bag could have contained vehicle parts, but Mr. Vye turned a blind eye to the reality that it was more likely marijuana. IV [17] Has the Crown proved that Mr. Vye had actual knowledge that it was marijuana in the suitcase? There is no evidence that Mr. Vye ever looked in the suitcase. There was evidence from one police officer, Cst. Scrase, of a smell of marijuana when she approached Mr. Vye when he was in possession of the suitcase at the seaplane terminal, but there is not a body of evidence from which I can infer that the suitcase smelled strongly of marijuana and therefore that anyone collecting that suitcase would know immediately that it contained marijuana. I would not find that actual knowledge has been proved beyond a reasonable doubt. [18] However, I find that the Crown has proved mens rea via recklessness. Mr. Vye's statements to Cst. Brown amply demonstrate his knowledge of the risk that the suitcase contained an illicit drug and that he proceeded to collect the suitcase in the face of this risk. In particular, his suspicion that he or the suitcase were the subject of police surveillance, his statement that he was told that the cargo was parts but that he is "not stupid okay," and his admission that he "knew" but turned a blind eye to what was in the suitcase, are separately damning and taken together amount to overwhelming proof of recklessness. [19] Mr. Vye had very good reason to believe that there might be marijuana in the suitcase. About five days before his arrest, he had witnessed the sender taking a big bag of marijuana from the person who sent him to pick up the suitcase, and he knew that the sender was expected to return the drugs very soon. [20] Mr. Vye's evidence is that he knew that the person who sent him on the errand was doing some mechanical work on his truck and that the sender had volunteered to obtain some vehicle parts for him. Having heard Mr. Vye's efforts to twist the meaning of his words in the videotaped statement to Cst. Brown, I simply am not prepared to attach any weight to Mr. Vye's evidence about the truck or parts for the truck. [21] Mr. Vye testified that he had been let down by his instincts in the past. He gave as examples that he once canceled a flight because he had a false premonition that the aircraft would crash and that he canceled a driving trip because he foresaw a road accident. Mr. Vye testified that on this occasion, when his suspicions arose as to the contents of the cargo, he sought assurances from the sender and the person who asked him to pick up the cargo. He said that he asked both men for an assurance that there was no marijuana in the suitcase. And his evidence is that with those assurances and his poor track record when he follows his instincts, he coached himself into overcoming his doubts and took custody of the suitcase. [22] I reject Mr. Vye's evidence that he sought assurances from the sender and the person who sent him to pick up the cargo. It is at odds with the tenor and particulars of what he told Cst. Brown: i.e. that he "is not stupid" and that he knew what was in the bag but turned a "blind eye." And, I do not believe that Mr. Vye's nervousness surrounding his trip to the seaplane terminal was in any way akin to a groundless premonition of doom. His statement to Cst. Brown demonstrates a well-grounded basis for his feeling sick to his stomach and wanting to be done with the stress of this sort of errand. [23] I have not lost sight of the statements that Mr. Vye made to the police before and during the videotaped interview that he did not know what was in the suitcase. I accept that these statements might be literally true in the sense that, not having opened the suitcase, Mr. Vye did not know for certain what was in there. But, if admissible, these previous consistent statements do not assist Mr. Vye as they are no different than what he said to Cst. Brown during his video statement and what he said in his evidence at trial. Ultimately, I accept that there is a reasonable doubt that Mr. Vye had actual knowledge of what was in the suitcase. But I have no doubt that Mr. Vye was reckless: he was conscious of a high degree of risk that the suitcase contained marijuana and he proceeded to take custody of the bag in the face of that risk. [24] To summarize my findings using the rubric established by R. v. W.(D.), [1991] 1 S.C.R. 742, I do not believe Mr. Vye's evidence or find that it raises a reasonable doubt as to the mens rea element that the Crown must prove, and, setting aside my rejection of his evidence, I find that the Crown has otherwise met its burden of establishing the mens rea element beyond a reasonable doubt. The Crown has met its burden by establishing recklessness via the admissions that Mr. Vye made to Cst. Brown. [25] Please stand up, Mr. Vye. I find you guilty of possession of marijuana for the purpose of trafficking. You may sit down. "Thompson J."