R. v. Perkins

2018 BCSC 823 R. v. Perkins IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Perkins, 2018 BCSC 823 Date: 20180312 Docket: 65705-3 Registry: Chilliwack Regina v. Corey Jim Perkins Before: The Honourable Mr. Justice Ehrcke Oral Reasons for Judgment Counsel for the Crown: C. Fast O.L. Bick M. Loda Counsel for the Accused: D. Markovitz Place and Date of Trial: New Westminster, B.C. January 29-31, 2018 February 1,2,5-9,13-16,19-23, 2018 March 6, 2018 Place and Date of Judgment: Vancouver, B.C. March 12, 2018 INTRODUCTION [1] THE COURT: The accused, Corey Jim Perkins, is charged with two counts of possession of cocaine and fentanyl for the purpose of trafficking, and eight counts of illegal possession of various firearms without being the holder of the required authorization or licence, all alleged to have occurred on December 15, 2014, at or near the City of Abbotsford in the Province of British Columbia. [2] Specifically, the indictment charges Mr. Perkins with the following 10 offences: · Count 1, possession of cocaine for the purpose of trafficking on December 15, 2014, contrary to s. 5(2) of the Controlled Drugs and Substances Act [CDSA]; · Count 2, possession of fentanyl for the purpose of trafficking on December 15, 2014, contrary to s. 5(2) of the CDSA; · Count 3, possession of a loaded restricted CZ75 handgun, contrary to s. 95(1) of the Criminal Code; · Count 4, possession of a loaded prohibited Charter Arms revolver, contrary to s. 95(1) of the Criminal Code; · Count 5, possession of a loaded restricted Sig-Sauer handgun, contrary to s. 95(1) of the Criminal Code; · Count 6, possession of a loaded prohibited Mauser pistol, contrary to s. 95(1) of the Criminal Code; · Count 7, possession of an unloaded prohibited sawn‑off shotgun, together with readily‑accessible ammunition, contrary to s. 95(1) of the Criminal Code; · Count 8, possession of a prohibited firearm, restricted firearm, or non‑restricted firearm, to wit, a CZ75 handgun, a Bersa handgun, a Charter Arms revolver, a Sig-Sauer handgun, a Rohm revolver, a Ruger revolver, a Sterling sub‑machine gun, a CZ858 semi‑automatic rifle, a Stevens sawn‑off shotgun, a Simonov SKS semi‑automatic rifle, a Kel‑Tec semi‑automatic rifle, and/or a Mauser pistol, knowing he was not the holder of a licence under which he may possess the firearms or without registration certificates, contrary to s. 92(1) of the Criminal Code; · Count 9, possession of prohibited devices including a detachable cartridge magazine with a CZ75 handgun, a detachable cartridge magazine compatible with a CZ858 semi‑automatic rifle, a detachable cartridge magazine compatible with a Kel‑Tec semi‑automatic rifle, and a detachable cartridge magazine compatible with a Sterling sub‑machine gun, knowing he was not the holder of a licence, contrary to s. 92(2) of the Criminal Code; · Count 10, possession of prohibited devices, to wit, two silencers, while not being the holder of a licence, contrary to s. 91(2) of the Criminal Code. [3] Mr. Perkins entered pleas of not guilty to all 10 counts on December 1, 2017. [4] On March 6, 2018, the wording of Count 5 was amended to conform with the evidence, pursuant to s. 601(2) of the Criminal Code. As amended, that count now alleges: · Count 5, possession of an unloaded restricted Sig-Sauer handgun together with readily accessible ammunition that is capable of being discharged in the firearm, contrary to s. 95(1) of the Criminal Code. [5] The charges relate to items found by the police on December 15 and 16, 2014, as a result of executing warrants at four locations: a Canada Post outlet in the People's Drug Mart at 1945 McCallum Road, Abbotsford, British Columbia (the "Canada Post outlet"), Storage Locker Number 1108 of Trans Canada Self Storage, 2992 Pinegrove Street, Abbotsford, British Columbia (the "storage locker"), a barn at 29939 Taylor Road, Abbotsford, British Columbia (the "Taylor Road barn"), and the residence at 34329 Green Avenue, Abbotsford, British Columbia (the "Green Avenue residence"). EVIDENCE AND ADMISSIONS [6] At trial, the Crown called eight witnesses, all police officers with the Abbotsford Police Department: Cst. Doucette, Cst. Van Unen, Cst. Coghill, Cst. Davies, Cst. Charest, Cst. Nugent, Cst. Toews, and Cst. Hannienen. Their evidence dealt mainly with surveillance of the movements of Mr. Perkins at the Canada Post outlet, the storage locker, the Taylor Road barn, and the Green Avenue residence, seizures of evidence from those locations, the arrest of Mr. Perkins, and his police interview. [7] The Crown also filed numerous exhibits, including written admissions that were marked as Exhibit 1, and a transcript of the interview of Mr. Perkins with the police on December 16, 2014, the morning after his arrest. [8] From the evidence and admissions, I find the following facts. [9] On December 15, 2014, at 13:54 hours, Cst. Doucette observed Mr. Perkins walk from the Taylor Road barn with a yellow package and get into his Mercedes automobile. He drove eastbound on Taylor Road. Then at 14:43 hours, Cst. Doucette observed Mr. Perkins enter the Canada Post outlet with a similar yellow envelope which he presented to the clerk. Mr. Perkins paid for the postage and left. [10] S/Sgt. Thomson then seized that yellow envelope. As set out in the admissions, the envelope was addressed to Tod Chapman, P.O. Box 2765, Smithers, British Columbia, V0J 1N0, and the sender was written as Rob Harrison, 5505 Glenmore Road, Abbotsford, British Columbia. The envelope contained a Western Family oatmeal box, inside of which were plastic bags containing cocaine and tablets, as well as some blue paper towel. The items were sent for analysis, which determined that there were 48 grams of rock cocaine, 134 grams of powder cocaine, and 200 tablets containing fentanyl. [11] Later on December 15, 2014, at around 15:05 hours, Mr. Perkins was arrested while taking his Mercedes through a car wash. Among the things found in his possession were two documents in the name "Logan Welding and Fabricating". [12] Police searched Mr. Perkins' Mercedes and among the items found were 3.6 grams of a substance containing a mixture of fentanyl and a derivative of fentanyl in a plastic package, a yellow post‑it note with "PO Box 2765, Smithers, B.C." written on it, a yellow package addressed to Mr. Perkins, some used envelopes, $5,000 in 20‑dollar bills, and a set of keys including a key which operated a safe at the Taylor Road barn, a key which operated the lock on the door of the storage locker, and a key which operated a safe inside the storage locker. [13] On December 15 and 16, 2014, police searched the storage locker and found, among other things: a) a blue Rubbermaid bin that contained a black case with two screw‑on silencers, a black semi‑automatic handgun, a CZ75, with its serial number ground off with one magazine containing ammunition inside the firearm, a black and silver semi‑automatic handgun, a Bersa .380 Thunder with its serial number ground off with one magazine inside the firearm, a black magazine containing 9mm rounds, and a silver and brown revolver Rohm Little Joe with its serial number ground off; b) a black Guess duffel bag that contained a black and silver revolver .357 Magnum Charter Arm Corp. loaded with five rounds, a black and brown revolver Ruger .22 calibre single six, a zip‑lock bag containing 10 7.62x39 calibre ammunition, eight 12‑gauge shotgun shells bundled together with elastic bands, and a clear plastic bag with one 9mm round; c) a black and white Health Link bag that contained a black Sterling SMG MK4 9mm rifle with two empty magazines; d) a cardboard box and black gun case that contained a black and brown CZ858 tactical rifle (7.62x39 calibre) with an empty magazine, a brown and black double‑barreled 12‑gauge shotgun Model 311A Stevens Savage sawed off, and a brown AK assault rifle and stock Tapco U.S.A.; e) a blue duffel bag that contained a black K‑Tel SU16F assault rifle with scope and magazine; f) a black Century safe inside a cardboard box and wrapped in a towel containing a yellow pill bottle with two zip‑lock bags, one empty and one containing seven dime bags containing blotter papers of LSD including 60 squares of blotter paper, a zip‑lock bag containing a baggie of ketamine weighing 1.0 gram, a small zip‑lock bag containing 1.3 grams of MDMA, a bag of methamphetamine and MDMA weighing five grams and LSD, nine clear plastic bags of rock cocaine knotted at the top weighing, respectively, 26.4, 22.7, 25.1, 25.3, 25.3, 24.1, 25.6, 27, and 26.6 grams; g) a pink and white bag with documents for Courtney Evans; and h) a red bag with multiple pill bottles in the name of Courtney Evans. [14] The Taylor Road barn was owned by Tom Feland. He provided a statement that he rented the barn to "Corey" and another individual. He identified a picture of the accused as Corey. [15] On December 16, 2014, police searched the Taylor Road barn and located three cardboard cylinders, one of which contained phenacetin, which is sometimes used as a cutting agent for cocaine. They also found a black Mauser M2 handgun on a shelf over the doorway. The Taylor Road barn had a loft area with a desk, and there the police found: a) a blue Rubbermaid bin containing bags of various white powders; b) a Prada box with five capsules containing fentanyl; c) a functional digital scale with residue, on the middle shelf of the desk; d) assorted containers; e) various documents and yellow envelopes. [16] In the middle drawer of the desk police found a large quantity of ammunition, including: a box of 50 American Eagle .357 ammunition; a box of 50 Blazer brass .45 auto pistol ammunition; two boxes of 50 reloaded .357 Magnum pistol ammunition; a box of 50 reloaded 9mm pistol ammunition; a zip‑lock bag containing 50 9mm pistol ammunition; two times 10 round strips of 7.62 rifle ammunition; a box containing 44 shotgun shells; and a tin containing 7.62 ammunition. [17] There was a black Century safe bolted to the floor under the desk, which contained: a zip‑lock bag containing five times 28 grams bags of cocaine with the ends tied and one zip‑lock bag with seven grams of cocaine; a zip‑lock bag containing 112 grams of cocaine; a zip‑lock bag containing nine bags of crack cocaine with the ends tied weighing 28 grams each; a zip‑lock bag containing two 28‑gram bags of phenacetin with the ends tied; one bag containing 28 grams containing a mixture of fentanyl and a derivative of fentanyl. [18] There was a beige cloth pouch containing a zip‑lock bag with four grams of methamphetamine, a sandwich bag with 10 grams of cocaine, a sandwich bag containing bags with various amounts of powder cocaine weighing respectively 14 grams, 6 grams, 6 grams, 3 grams, .7 grams, .5 grams, .5 grams, and .3 grams. [19] There was a plastic bag with green pills containing fentanyl and a derivative of fentanyl, and white pills. [20] There was a brown cloth bag containing a Glad bag labelled "Mint perks 1,000 2.50 each", containing 415 white pills containing a mixture of fentanyl, a derivative of fentanyl, and caffeine; a zip‑lock bag containing 257 white pills containing a mixture of fentanyl, a derivative of fentanyl, and caffeine; a zip‑lock bag labelled "Fatty 300 perk", and in that bag there was a zip‑lock bag labelled "250" containing 44 white pills containing a mixture of fentanyl, a derivative of fentanyl, caffeine, and benzocaine; and a zip‑lock bag labelled "Fatty 300 perk" containing 243 pills containing a mixture of fentanyl, a derivative of fentanyl, and caffeine. [21] On December 16, 2014, police searched the basement area of the Green Avenue residence and located, among other items, some drugs including fentanyl, 20 50‑dollar bills, a white envelope marked "Tracking numbers and info", and a black Century safe containing a passport in the name of Corey Jim Perkins and $5,000 cash. [22] Outside the basement bathroom window police found a black Sig-Sauer hard case containing a Sig-Sauer handgun with one magazine in the gun and one magazine with ammunition in the case that is capable of being discharged in the firearm. ISSUES [23] In Exhibit 1, it is admitted that Mr. Perkins did not possess an authorization or licence for the firearms. As well, the nature of the firearms, ammunition, and devices is admitted, including their nature as prohibited or restricted devices. [24] With respect to Counts 3 through 10, therefore, the only issue is whether the Crown has proven beyond a reasonable doubt that Mr. Perkins had possession of the items. With respect to Counts 1 and 2, the issue is whether the Crown has proven beyond a reasonable doubt that Mr. Perkins had possession of the controlled substances, and if so, whether the possession was for the purpose of trafficking. As to the latter issue, paragraph 39 of Exhibit 1 is an admission that, with the exception of the drugs found at the Green Avenue residence, any controlled substances that the Crown proves Mr. Perkins possessed were possessed for the purpose of trafficking. THE LAW OF POSSESSION [25] Section 4(3) of the Criminal Code defines possession as follows: 4 (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; and (b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them. [26] That definition applies to controlled substances pursuant to s. 2(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. [27] In R. v. Fisher, 2005 BCCA 444, our Court of Appeal explained at paras. 20 and 24: [20] Thus, possession may be personal, constructive, or joint. In a frequently-quoted passage in Rex v. Hess (No. 1) (1948), 94 C.C.C. 48 . . . at 50-51 (B.C.C.A.), a case involving personal possession of a narcotic, O'Halloran J.A. said, 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. This was said to be a correct statement of the law in Beaver v. The Queen, [1957] S.C.R. 531, 118 C.C.C. 129 [cited to C.C.C.] at 140. . . . [24] 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. [28] The Crown is not required to prove that the accused in fact exercised control. It is sufficient if the accused had knowledge and the right to grant or withhold consent to access to the object: R. v. Tahirsylaj, 2015 BCCA 7 at paras. 25 to 26. [29] Evidence that an accused had a key giving access to an item may be an important indicator of possession. In R. v. Vu, 2002 BCCA 659, our Court of Appeal observed at para. 23: [23] Whether an inference as to knowledge and control can be drawn by a trier of fact is a matter to be examined in light of the particular facts and circumstances of each case. In the circumstances of this case, the appellant's possession of the key to the only lock on the barn where the growing operation was located is sufficient evidence to support the inference of control. The Canada Post Outlet [30] I am satisfied beyond a reasonable doubt that Mr. Perkins had knowledge and control of the yellow envelope and of its contents which he attempted to mail at the Canada Post outlet on December 15, 2014. He not only carried the envelope to the postal outlet, but he presented it to the clerk and paid for the postage. His knowledge and control of the envelope and of its contents is reinforced by the evidence that the address on the yellow envelope was the same as on a post‑it note found in Mr. Perkins' Mercedes following his arrest. [31] As well, the drugs in the envelope were inside a Western Family oatmeal box, and similar packaging was found in the Taylor Road barn to which Mr. Perkins had access with a key. [32] The yellow envelope contained 48 grams of rock cocaine, 134 grams of powder cocaine, and 200 tablets containing fentanyl, which are the subject of Counts 1 and 2 of the indictment. I am satisfied beyond a reasonable doubt that Mr. Perkins had knowledge and control and therefore possession of the cocaine and the fentanyl for the purpose of trafficking. The Taylor Road Barn [33] The surveillance evidence that was led at trial shows that Mr. Perkins frequented the Taylor Road barn. He was observed there on October 27, November 6, November 10, November 19, December 8, and December 15, 2014. More particularly, on December 1, 2014, he was seen to drive his Mercedes to Taylor Road, operate the barn door lock with a key, and move blue Tupperware bins in the loft area. [34] The admissions set out the controlled substances that were found in the safe underneath the desk at the Taylor Road barn, including over 959 pills containing a mixture of fentanyl and other substances, 28 grams of a mixture of fentanyl and a derivative of fentanyl, and 545.5 grams of cocaine, much of it packaged in bags weighing about 28 grams, or one ounce. [35] The key that operated the safe was found in Mr. Perkins' Mercedes when police searched it following his arrest. As well, Mr. Perkins had a document in his possession at the time of his arrest with the name "Long Horn Welding and Fabricating" and that business name is evident in the photographs of the inside of the barn. [36] Further, Mr. Perkins' fingerprints were found in the interior of the safe in the Taylor Road barn. I am satisfied that the evidence establishes that Mr. Perkins had knowledge and control of the controlled substances in the Taylor Road barn, and that he had possession of those controlled substances. [37] For similar reasons, I am also satisfied beyond a reasonable doubt that Mr. Perkins had possession of the black Mauser M2 handgun that is the subject of Count 6 on the indictment. This handgun was plainly visible on a shelf over the doorway of the barn. Mr. Perkins clearly controlled access to it with his key to the barn. As to knowledge, Cst. Charest testified that a list was seized from the basement bedroom of the Green Avenue residence which appeared to be a list of firearms. That list included an entry "M2 .45 cal" which is consistent with the Mauser M2 handgun. [38] Counsel for Mr. Perkins submits that other persons could have accessed the Taylor Road barn and could have been in possession of the items found there. That submission does not raise a reasonable doubt in my mind about Mr. Perkins' possession. In the first place, there is no evidence of other people entering or using the barn. Second, Mr. Perkins had the key to unlock the barn and therefore controlled access. Third, Mr. Perkins' fingerprints were found inside the safe. Finally, even if someone else had access to the barn, that would not detract from Mr. Perkins being in possession of the items found there, as in that case he would have been in joint possession. The Storage Locker [39] A key found in Mr. Perkins' Mercedes opened the lock on the door of the storage locker, indicating Mr. Perkins' level of control over the contents of the storage locker. Mr. Perkins was observed attending the storage locker on December 3, 4, 5, and 7, 2014. Cst. Toews identified Mr. Perkins as the person in the CCTV footage, and his identification is supported by the fact that the person in the CCTV footage wore a distinctive camouflage hooded sweatshirt similar to the one located in the Green Avenue residence. [40] No one else was seen accessing the storage locker during the times when the storage locker was opened. [41] The CCTV footage from December 3, 2014 shows Mr. Perkins carrying a blue bin and a blue and white bag into the storage locker facility. Cst. Toews identified these items in the video as the items he saw in the locker on December 15, 2014 when executing the general warrant. The blue Rubbermaid bin contained three handguns, two silencers, and a loaded magazine. The blue and white bag contained the submachine gun. Several of the firearms in the storage locker also matched the entries on the document found on Mr. Perkins' desk in his bedroom at the Green Avenue residence. The list contained the following: a) "Lil Joe" which is similar to the Rohm Little Joe revolver found in the Rubbermaid bin; b) "380 Bersa" which is similar to the Bersa .380 Thunder handgun found in the Rubbermaid bin; c) "357 mag" which is similar to the 357 Magnum Charter Arms Corp. handgun found in the black duffel bag; d) "CZ 9mm" which is similar to the CZ75 9mm handgun located in the Rubbermaid bin; e) "Sawed off" which is similar to the sawed‑off shotgun found in the cardboard box; f) "SKS" which matches the rifle originally identified as an AK rifle by Cst. Coghill, but analyzed by the firearms analyst and admitted to be an SKS rifle. [42] Inside the safe at Mr. Perkins' Green Avenue residence police also located a Daytimer with loose documents. On the documents were written the names of a specific rifle, "CZ858 tactical 2V" and ammunition "7.62x39". This matched the CZ858 tactical rifle located by Cst. Coghill in the storage locker. The "7.62x39" matched the calibre of the ammunition used by two of the rifles, the SKS and the CZ858. This type of ammunition was also located at the Taylor Road barn. [43] The ammunition seized from the desk of the Taylor Road barn is the same calibre as several of the firearms at the storage locker. [44] From this evidence, I am satisfied beyond a reasonable doubt that Mr. Perkins was in possession of the weapons in the storage locker which are the subject of Counts 3, 4, 7, 8, 9, and 10 on the indictment. [45] I am also satisfied beyond a reasonable doubt that Mr. Perkins was in possession of the items in the safe. In Mr. Perkins' Mercedes, police found a key that opened the safe in the storage locker, and that safe contained the cocaine. The cocaine seized from that safe is similar to some of the cocaine seized from the Taylor Road barn safe, in that they had both been broken down into weights of approximately one ounce. [46] The storage locker was rented to Courtney Evans, and she apparently had some of her possessions there. In particular, there was a prescription pill bottle with her name on it, which contained LSD. That fact, however, does not raise a reasonable doubt about Mr. Perkins' possession of the weapons and the drugs. Even if Ms. Evans was in possession of some of these items, that would not detract from Mr. Perkins being in possession, as in that case they would have been in joint possession. The Green Avenue Residence [47] Although drugs were found in the basement area of the Green Avenue residence, the Crown has not pressed for a conviction based on those drugs, since Exhibit 1 excludes the residence from the admission that any controlled substances were possessed for the purpose of trafficking, and the Crown has not tendered any expert evidence to establish possession for the purpose of trafficking drugs found at the residence. [48] The significant question then is whether the Crown has proved that Mr. Perkins was in possession of the Sig-Sauer handgun that is the subject of Count 5 in the indictment. I am satisfied that the Crown has proved this beyond a reasonable doubt. [49] The basement bedroom was plainly Mr. Perkins'. The police observed him attending the Green Avenue residence, including with a key on October 27, November 10, November 19, and December 1, 2014. An identity card in his name was located in the room, and his passport was in the safe, as well as $5,000 cash. A camouflage hooded sweatshirt similar to the one the police had observed him to often wear was located in luggage in the closet. [50] The Sig-Sauer handgun was in a case directly outside the bathroom window near Mr. Perkins' bedroom. The case was placed in such a way as to be out of sight, but accessible by opening up the bathroom window and reaching to the side. A shoulder holster was located on the floor of his bedroom. [51] The list of apparent firearms found on the bedroom desk contained the entry, "45 platinum". The Sig‑Sauer handgun was marked "Platinum" and it is a .45‑calibre gun. [52] I am satisfied beyond a reasonable doubt that Mr. Perkins had the necessary knowledge and control of the Sig-Sauer handgun and that he was in possession of it. This would remain so even if someone else in the residence had had possession as well, although there is no evidence that anyone else had possession. The December 16, 2014 Interview [53] Mr. Perkins was interviewed by Cst. Doucette and Cst. Baker the day after his arrest. During that interview, he admitted that there was a safe bolted down in the Taylor Road barn which contained coke, crack, heroin, and Percocets. Regarding weapons at the Taylor Road barn, he said there was a shotgun, but then said he did not know. He admitted that there were assault rifles, hunting rifles, and "quite a few" handguns inside the storage locker. [54] He said that the gun at the Green Avenue residence was his, as well as the money and some drugs. He stated that he had bought the gun, a "45", for $2,000 and put it beside the hot tub. Nowhere in his interview did Mr. Perkins suggest that the items in any of the locations were possessed by someone else. [55] Regarding the Green Avenue residence, he said that his parents "have no clue about any of the stuff at all". Regarding the Taylor Road barn, he said that the people from whom he was renting thought he was using it for welding. CONCLUSION [56] For the reasons set out above, I am satisfied beyond a reasonable doubt that the Crown has proved all the essential elements of all 10 counts on the indictment. I would come to this conclusion even without the evidence of Mr. Perkins' December 16, 2014 interview, but that interview further confirms Mr. Perkins' guilt. [57] Mr. Perkins, would you please stand. [58] I find you guilty of Counts 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 of the indictment. The Honourable Mr. Justice W.F. Ehrcke