R. v. Fletcher

2014 BCSC 2535 R. v. Fletcher IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Fletcher, 2014 BCSC 2535 Date: 20141125 Docket: 162486‑2 Registry: Victoria Regina v. Ryan Andrew Fletcher Marleena Christina Patricia Thomas Before: The Honourable Mr. Justice Johnston Oral Reasons for Judgment Counsel for the Crown: R. Fowler Counsel for the Accused Fletcher: C. Massey Counsel for the Accused Thomas: R. Drury Place and Date of Trial: Victoria, B.C. October 27, 28 and 29, 2014; and November 17, 2014 Place and Date of Judgment: Victoria, B.C. November 25, 2014 [1] THE COURT: Mr. Fletcher and Ms. Thomas are charged, in Count 1, with possession of cocaine for the purpose of trafficking; in Count 2, with possession of methamphetamine for the purpose of trafficking, both on the 19th of July, 2012. [2] Mr. Fletcher alone is charged on that same day, in Count 3, with having in his possession a prohibited or restricted weapon knowing that he did not have a licence; in Count 4, with possessing a loaded prohibited or restricted firearm without being the holder of an authorization or licence; and in Count 5, with possessing a firearm while prohibited from doing so by an order under this Act, being the Criminal Code, or any other Act of Parliament. In each of Counts 3, 4, and 5, the weapon or firearm is described as "a colt 380 calibre handgun with the serial number removed". [3] I will say this about Count 4: the Crown has agreed, and I think it is completely clear on the evidence, that there was indeed no evidence that the handgun was loaded. In fact, the evidence was to the contrary, and the allegation that the handgun was loaded being an essential element of Count 4, there is no choice, in my view, and it is proper that I find Mr. Fletcher not guilty of Count 4, there being, as I have said, no evidence that the gun was loaded. [4] The facts which I find from the evidence at trial are as follows: On July 19, 2012, the police were watching a house on Pickford Road in Colwood. They saw Ms. Thomas arrive at that house in a blue Chevrolet. They saw Ms. Thomas do something from which the police inferred she opened the vehicle's trunk using a release inside the car, and the police saw Mr. Fletcher do something consistent with putting something into the trunk. Police saw the vehicle leave the Pickford Road residence with Ms. Thomas driving, Mr. Fletcher and another male as passengers. The other male was let out at a nearby shopping centre. Ms. Thomas and Mr. Fletcher drove off in the direction of the Swartz Bay ferry terminal. [5] Police followed the car to a gas station along the way where Ms. Thomas was seen to get out and go into the convenience store, and Mr. Fletcher was observed to open the trunk of the blue Chevrolet and do something with its contents. Ms. Thomas returned to the car, got into the driver's seat, Mr. Fletcher got into the passenger's seat, and they drove to the ferry, boarding the Tsawwassen ferry. Now, I assume that it was the 3:00 p.m. ferry from the fact that police saw both accused on an upper ferry deck at about 3:13 p.m. [6] With the police following, Ms. Thomas and Mr. Fletcher drove off the ferry at the Tsawwassen side at about 4:45. Ms. Thomas continued to drive. They drove to the end of the causeway where Ms. Thomas pulled into the gas station and parked beside the convenience store. One of the officers following, a Corporal Wellard, pulled into the gas station and pretended to pump gas and to talk on her cellphone while keeping watch on both accused, to the extent that she could, and the blue Chevrolet. [7] Constable Mitchell, another member of the police surveillance team, found a place to park where she could see the accused, but at a distance sufficient that she needed binoculars. [8] At 11 minutes after 5:00 p.m., the two officers saw two males approach the rear of the blue Chevrolet. Corporal Wellard's observation from the area near the gas pumps was frequently interrupted, because she was trying to avoid being seen to be too curious about what was going on, so she kept ducking behind the gas pumps or looking in the other direction. Corporal Wellard also went into the convenience store on one occasion. She could still see out the window, because it was while she was in the convenience store that she saw a white vehicle arrive and stop. Corporal Wellard left the convenience store when she saw that and she saw two males, she described as Asian males, get out of the white car and walk toward the blue Chevrolet. One of these males was wearing an orange shirt and carried a white bag. The other male wore a green shirt. [9] Corporal Wellard saw Mr. Fletcher meet these two males at the rear of the blue Chevrolet. She could see that they were talking, but could not hear what they were saying. She saw the male with the orange shirt place the white bag into the open trunk of the blue Chevrolet. She did not see how the trunk got open. Corporal Wellard saw Mr. Fletcher rummage or put his hands into the trunk and then she saw a black bag on the closed lid of the trunk of the blue Chevrolet. Corporal Wellard saw the male in the green shirt take that black bag to the white car and then come back empty‑handed. There was a brief conversation among the two Asian males and Mr. Fletcher, after which those two males left in the white car. Mr. Fletcher then got back into the passenger's seat of the blue Chevrolet and Ms. Thomas drove them back to the Tsawwassen ferry terminal. [10] In all, the interaction among Mr. Fletcher and the other two males took about seven or eight minutes. [11] Constable Mitchell, the one who was watching through binoculars, did not see the male deliver a white bag to the blue Chevrolet. She did see one of the Asian males take a black bag from the rear of the blue Chevrolet toward what she described as a sports car. Constable Mitchell says that male returned to the rear of the blue Chevrolet and she saw the two Asian males and Mr. Fletcher standing and chatting for a short time, long enough that Constable Mitchell could take some photographs of them. [12] Neither Constable Mitchell nor Corporal Wellard saw Ms. Thomas outside the blue Chevrolet at the gas station in Tsawwassen. [13] Police followed the blue Chevrolet back onto the ferry and kept watch on that blue Chevrolet while it was on the car deck during the ferry ride back to Swartz Bay. Police stopped the blue Chevrolet, with Ms. Thomas again driving and Mr. Fletcher as a passenger, on the highway shortly after it got off the ferry at Swartz Bay. One of the police officers, Constable Delmonico, opened the trunk of the blue Chevrolet and saw a white bag. He believes he used a key to open the trunk. The white bag had an Asian language magazine in the top of it. There were two plastic bags under the magazine: one plastic bag contained 426 grams of cocaine; the other plastic bag contained 279 grams of methamphetamine. [14] It is admitted by both accused that if either one of them are found to have been in possession of either drug, then that possession was for the purpose of trafficking. [15] Also in the white bag, underneath the drugs, was a vacuum‑sealed plastic bag in two compartments containing the Colt handgun and a separate magazine for the handgun. In the bag as well there was a sock in which there were bullets for the handgun. [16] The white bag and its contents were examined for fingerprints. Neither of the accused's fingerprints were found on the bag or any of its contents. It is admitted that the fingerprints of a Mr. Chai were found on the Asian language magazine, as well as on the plastic bag containing the handgun. [17] There was no evidence led as to who owned the blue Chevrolet driven by Ms. Thomas that day. Mr. Fletcher had been seen by the police driving a red car a day or two before July 19, 2012. [18] That same evening, the police obtained a search warrant to search the Pickford Road residence, particularly the basement suite which they believed Mr. Fletcher occupied. When they arrived at that suite with the search warrant, a woman named North was inside. Searching the residence, the police found a small quantity of methamphetamine, along with some papers bearing Mr. Fletcher's name. There was a handwritten note clipped to these papers or found among them. On that note was a reference to a retail establishment where hunting equipment might be purchased. On the same page, there was a handwritten reference to handguns, not the same type of handgun found in the white bag. There was no evidence that the handwriting was examined by an expert and nothing connecting the handwriting to either of the accused. [19] In the two days prior to the search of the Pickford Road residence, police had seen three different males enter the suite that they believed Mr. Fletcher occupied; two males on one occasion, one on the other. With Ms. North, who was found inside at the time of the search, that makes four people other than Mr. Fletcher having had access to the suite at about that time. [20] The issue with respect to both the drugs and the weapon is possession. Possession is defined for the purposes of both the Criminal Code and the Controlled Drugs and Substances Act by Criminal Code s. 4(3). Possession can be personal or it can be constructive. Constructive possession is defined in the Code as one knowingly having something in their actual possession or in the actual possession or custody of another person, and it is the latter that is the constructive portion of possession. Constructive possession can also arise if one knowingly has something in a place, whether or not the place belongs to or is occupied by that person, for the use or benefit of that person or another person. [21] In addition to constructive possession, possession can be joint, which is defined in s. 4(3)(b) as where one of two or more people, with the knowledge and consent of the rest, has anything in his custody or possession, it is deemed to be in the custody or possession of each and all of them. [22] So as I say, possession can be direct or personal, it can be constructive, or it can be joint. [23] The elements of personal possession have been defined in a case called Hess by the Court of Appeal of this province in 1948. The court said there: To constitute "possession" within the meaning of the criminal law it is my judgment, that where as here there is manual handling of a thing, it must be co-existent with knowledge of what the thing is, and both these elements must be co-existent with some act of control (outside public duty). When those three elements exist together, I think it must be conceded that under s. 4(1)(d) it does not then matter if the thing is retained for an innocent purpose. [24] This is not a case of personal or actual possession. Manual handling has not been established by any evidence. No one has seen either accused touch the white bag in which the drugs or the gun was found. The only person seen to handle the white bag was the male in the orange shirt who delivered it to the trunk of the blue Chevrolet. No fingerprint evidence connects either accused to the white bag or its contents. As I have said, the only fingerprint on anything in the bag belonged to a third party who is not charged, and so whether either accused was in possession of any of the contents of the white bag is going to depend upon whether they can be found to be guilty of either constructive or joint possession. [25] Common to all three modes of possession are the essential elements of knowledge, that is knowledge of what the thing is, and some act of control. The knowledge element has been dealt with in many cases, starting perhaps with Beaver v. The Queen in the Supreme Court of Canada in 1957. There the court said the essence of the crime is the possession of the forbidden substance, and in a criminal case there is in law no possession without knowledge of the character of the forbidden substance. [26] The Court of Appeal of this province said in a case called Anderson in 1995: Knowledge need not be proved by direct evidence but may be inferred from surrounding circumstances. [27] The burden on the Crown throughout this case is to establish that both accused had knowledge and control, and that burden is to prove those beyond a reasonable doubt. [28] Both accused are charged with possession of the drugs in the white bag. I need not deal with the purpose because, as I have said earlier, that is admitted. [29] Mr. Fletcher alone is charged with possession of the gun. Crown and defence disagree in their arguments as to the level of knowledge the Crown must prove, and to illustrate the differences between them, I am going to deal with the difference in the charges faced. [30] Both the drugs and the gun were found in the white bag in the trunk. The car was driven by Ms. Thomas. She therefore had at least some measure of control over the car. Mr. Fletcher was a passenger in the car. [31] Dealing with Ms. Thomas, the Crown argues that to convict her, all it has to prove is that she knew the white bag contained something that it was illegal to possess or that she was wilfully blind to the contents of the bag, or that she was reckless as to what was in the white bag. The defence says that the Crown must go further and must prove that Ms. Thomas knew that the bag contained an illegal drug or was wilfully blind or was reckless to that possibility. On this argument, I agree with Mr. Drury, counsel for Ms. Thomas. [32] In Hess, a case I have already referred to, the required knowledge was stated to be knowledge of what the thing is. In Beaver, it is knowledge of the character of the forbidden substance. [33] There is a decision in the Court of Appeal of this province called Blondin. There an accused was charged with importing a narcotic and that narcotic was particularized as cannabis resin. The accused had brought with him into Canada a scuba tank. Police were suspicious and examined the scuba tank and they found that it contained a quantity of cannabis resin. Mr. Blondin was tried before a jury and the trial judge instructed the jury that to find Mr. Blondin guilty, they had to find beyond a reasonable doubt that he knew that he was importing something unlawful and that the unlawful thing was a narcotic, as alleged in the indictment. Mr. Blondin was acquitted, found not guilty, and the Crown appealed. [34] Two members of the Court of Appeal found that the jury instruction was wrong and held that the Crown had to prove beyond a reasonable doubt that the accused knew that he was importing a narcotic, not necessarily the particular narcotic referred to in the indictment, but that the Crown had to prove that the accused knew there was a narcotic in the tank. [35] The Court of Appeal also said that it would not be sufficient to find beyond a reasonable doubt that the accused knew that he was importing something that it was unlawful to import; that was not enough. That was because it was an essential element of the offence charged that it was a drug that was being imported, not something that it might be an offence under the Customs Act to import. [36] Blondin is still good law in this province. The Court of Appeal in a case called Rai in 2011 referred to it with approval. Blondin also supported, however, another path to finding the necessary knowledge. The judges in Blondin agreed that if the jury found that Mr. Blondin knew there was something in the scuba tank that it was unlawful to bring into Canada, and that he was either reckless or wilfully blind to what was in the tank, the jury could infer that Blondin suspected the tank contained a narcotic, and if they inferred that, they could go on to conclude that the Crown had proved knowledge beyond a reasonable doubt. [37] That raises wilful blindness and recklessness as a possible path to finding the necessary knowledge. The Supreme Court of Canada has dealt with recklessness and wilful blindness in a case called Sansregret in 1985. The court there said: Wilful blindness is distinct from recklessness because, while 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. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused's fault in deliberately failing to inquire when he knows there is reason for inquiry. [38] One of the cases cited with approval in that Sansregret decision was Blondin, and the court there noted that in Blondin an application had been made to appeal our Court of Appeal's decision to the Supreme Court of Canada and refused. [39] In this case, the circumstances of the trip to Tsawwassen and back have been described by Crown counsel in argument as a yo‑yo ferry trip. That is an apt description of what happened, and the circumstances of that yo‑yo ferry trip are certainly unusual enough to raise suspicions. Notwithstanding those suspicions, I am not persuaded beyond a reasonable doubt that Ms. Thomas knew that there was an illegal drug in the bag. The evidence does not show that she had an opportunity to see the contents of the bag, or indeed that she clearly could have or should have seen the bag being delivered to the rear of the blue Chevrolet. [40] The yo‑yo trip and the unusual nature of that trip are at least equally consistent with the purpose of the trip being to receive the unlawful weapon or the firearm in the bag. That, of course, creates an obvious dilemma, and that is Ms. Thomas is charged with possession of the narcotics but not the gun. So the equal possibility, if there is to be a possibility from the suspicious trip, is that Ms. Thomas was driving over there so that somebody could pick up a gun. She is not charged with that. [41] As to recklessness or wilful blindness, there is simply not enough evidence to establish that Ms. Thomas was or should have been conscious of risk, from which I infer that she may have suspected that the trip was to obtain the gun, not the drugs. There is not the type of evidence that would put Ms. Thomas on her inquiry, the sort of thing that emerged through cross-examination of an accused in one of the cases cited, Schepannek. [42] I have also considered whether the Crown has proved beyond a reasonable doubt that Ms. Thomas was jointly in possession of the drugs with Mr. Fletcher and have concluded that the case falls short on the same knowledge ingredient. [43] The case also fails against Ms. Thomas on the element of control. The test for control was set out in Colvin and Gladue, and it requires proof of knowledge on the part of each accused and, in addition, some measure of control. Colvin and Gladue was dealt with by the Court of Appeal in a case called Fisher, and it said at paragraph 21: ... although they had knowledge of the presence of the drug in the room, the Crown was required to establish they had a right to exercise some measure of control over it and their mere acquiescence did not establish any such right. In affirming their acquittal, O'Halloran J.A. said, at 287, that ... "knowledge and consent" cannot exist without the co-existence of some measure of control over the subject-matter. If there is the power to consent there is equally the power to refuse and vice versa. They each signify the existence of some power or authority which is here called control, without which the need for their exercise could not arise or be invoked. [44] An inference of control might be inferred from Ms. Thomas's position as driver, but that is a relatively weak evidentiary basis from which to draw that inference. It is not clear that it was her car she was driving. She was not seen to be driving it any time prior to the day in question. On balance, therefore, on all of the evidence, I have a reasonable doubt with respect to Ms. Thomas's possession of the two drugs and I find her not guilty on Counts 1 and 2. [45] Turning to Mr. Fletcher, he was seen to rummage in the trunk of the blue car, or at least appear to look into it before it left Pickford Avenue. He was again seen to be in or about the trunk of the car when it stopped at the gas station on the way to the ferry. He was seen to be standing near the open trunk of the blue car when Corporal Wellard saw the Asian male in the orange shirt deliver a white bag and put it into the trunk. Counsel have argued that Corporal Wellard's opportunity to observe was limited and interrupted by her need to pretend to be pumping gas and talking on her cellphone; that her interrupted opportunities to observe call into question the accuracy of her description of what she saw. [46] Counsel have argued that Constable Mitchell's opportunity to observe was not so interrupted and that her evidence is to be preferred, and they point, of course, to the difference between Constable Mitchell and Corporal Wellard, being that Constable Mitchell did not see anybody deliver a white bag to the trunk of the blue car. [47] I infer from the evidence that Corporal Wellard was closer to the blue Chevrolet than was Constable Mitchell, and I infer that mostly from the fact that Constable Mitchell had to use binoculars. That Constable Mitchell did not see the white bag being delivered is puzzling. I am not too concerned about discrepancies in timing as between the two officers' evidence, because both seem to be taking their timing from a surveillance log that was kept by a third party, another officer they called a scribe, whose task I gather it was to take notes based on information provided from a variety of sources, the two officers, Mitchell and Wellard, among them. [48] Having reviewed all of the evidence, I accept Constable Wellard's evidence that she saw the male in the orange shirt deliver a white bag to the rear of the blue Chevrolet. I am satisfied on that evidence and the evidence of Constable Delmonico that the white bag he found, that is Constable Delmonico found, in the trunk was the same bag that Corporal Wellard saw the male deliver to the trunk in Tsawwassen. [49] Constable Delmonico did not recall any other white bag being in the trunk when he searched it. He said that there were other items in the trunk, but that it was not too messy. I infer that the trunk was not so messy, nor did it contain enough other items that the presence of another white bag would have gone unnoticed in the police search. [50] That Mr. Fletcher stood at the open trunk while the orange‑shirted male put the white bag into the trunk, in a transaction that appears to have been an exchange, that is the white bag for the black bag that was then carried by the green‑shirted male from the area of the trunk to the white car, leaves me in no doubt that Mr. Fletcher was in control, at least sufficient control of the trunk and its contents at that point. That control is established and, on all of the circumstances, that Mr. Fletcher knew when the white bag was delivered that it contained drugs and the gun. There is no other rational inference, in my view, but that the purpose of the trip was to go to Tsawwassen to pick up the drugs and the gun and Mr. Fletcher knew it. [51] If I had any doubts about actual knowledge of the contents of the white bag, I would infer knowledge from Mr. Fletcher's apparent wilful blindness to the white bag's contents. The apparent exchange again, a black bag for a white bag, during a brief meeting in the middle of the yo‑yo ferry trip leads to the only rational inference being that, at minimum, Mr. Fletcher suspected or expected the bag to contain the drugs and the gun. He chose to avoid looking inside, perhaps to avoid putting his fingerprints on any of the contents or on the bag. [52] Again, Mr. Fletcher was the only one, as between he and Ms. Thomas, standing by the open trunk when the white bag was deposited into the trunk. He dealt with the two males who arrived in the white car. I conclude these two males brought the drugs and the gun in exchange for whatever was in the black bag. As I have said, I infer or find that Mr. Fletcher assumed control of the white bag and its contents when it was put into the trunk. [53] I am therefore satisfied, on all of the evidence, that the only rational inference is that Mr. Fletcher had the necessary knowledge and control of the contents of the white bag and that he was in possession of those contents. There is no room for doubt that the white bag contained cocaine and methamphetamine. Given the admissions respecting the purpose for which those drugs were possessed, I find Mr. Fletcher guilty on Counts 1 and 2. [54] With respect to Count 3, Exhibit 10 establishes that the Colt 380 handgun is a prohibited weapon. Mr. Fletcher has admitted he had no licence to possess the weapon. I infer that he knew that he did not have a licence, another essential ingredient. The allegation in the count that the serial number had been removed is surplusage, and that was agreed to by counsel and I am going to ignore that surplusage of the removal of serial number. All of the other essential ingredients under Count 3 are established and I find Mr. Fletcher guilty of Count 3. [55] With respect to Count 5, Exhibit 1 establishes that Mr. Fletcher was prohibited from possessing a firearm on July 19, 2012. Ten establishes that the gun is a weapon, as well as the firearm mentioned in Count 3, and those findings, together with the finding already made with respect to possession, leaves me with no doubt that Count 5 is made out and I find Mr. Fletcher guilty on Count 5. "R.T.C. Johnston, J." The Honourable Mr. Justice Johnston