R. v. Hardenstine

2010 BCSC 1200 R. v. Hardenstine IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Hardenstine, 2010 BCSC 1200 Date: 20100622 Docket: X072952 Registry: New Westminster Regina v. Andrew Hardenstine Before: The Honourable Mr. Justice Savage Oral Reasons for Judgment Crown Counsel: C. Hough M. Owens Counsel for the Accused Hardenstine: B. Tak Place and Date of Trial: New Westminster, B.C. November 30, 2009, December 1-4, 2009, February 4, 2010, May 7, 2010, and June 21, 2010 Place and Date of Judgment: New Westminster, B.C. June 22, 2010 I. Introduction [1] The accused, Andrew Robert Hardenstine ("Hardenstine"), is charged with four counts of possession of a controlled substance for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. The substances in question are cocaine, "crystal meth", "ecstasy" and marihuana. [2] Briefly, Hardenstine and a companion were in a Chrysler 300 car ("Chrysler 300") when stopped and arrested in Surrey, B.C. [3] It is alleged that on the back seat of the vehicle in which they were travelling there was a black bag containing a Nestle Quick container with a false bottom. Inside the container under the false bottom were 3.6 ounces of crystal meth, 10 tablets of ecstasy, and 5.5 ounces of cocaine. Elsewhere in the bag in an inside pocket were 10 grams of marihuana. [4] It is argued that the Crown has not proven knowledge of and control of the drugs that were found in the vehicle which the accused was driving to establish possession. [5] The legal principles are not in dispute, and are conveniently summarized in the decision of Barrow J. in R. v. Johnson, 2008 BCSC 1272, as follows: [14] Section 5(2) of the Controlled Drugs and Substances Act provides that "No person shall, for purposes of trafficking, possess a substance." The substances are identified, and there is no issue in this trial that the substances found in the vehicle that Mr. Johnson was travelling in are the substances identified in the two counts of the Indictment. [15] The definition of "possession" in the Criminal Code is incorporated into the Controlled Drugs and Substances Act by s. 2(1). The relevant portions of the definition of "possession" in s. 4(3) of the Criminal Code are as follows: 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 ... [16] In order to be in constructive possession, as the definition set out in s. 4(3)(a)(ii) is sometimes referred to, a person must have knowledge of the nature of the substance possessed, and have or be able to exercise some measure of control over it (see generally R. v. Fisher, [2005] B.C.J. No. 1955 (C.A.), and the cases cited therein). The Crown must establish both of these elements beyond a reasonable doubt. [17] Where constructive possession is said to rest on circumstantial evidence, as is frequently the case, the proven facts must be such that the constituent elements, namely knowledge and a measure of control on the part of the accused, are the only reasonable inferences to be drawn (see generally R. v. Cooper (1977), 34 C.C.C. (2d) 18, and R. v. To, [1992] B.C.J. No. 1700 (C.A.)). [18] This is simply an expression of the concept of proof beyond a reasonable doubt in the context of a circumstantial case. While the standard is high, it is not a standard of absolute certainty. The task of determining whether it has been met must be approached with a measure of common sense... . [19] Similarly, when the Crown's case relating to the purpose of any proven possession rests on circumstantial evidence, the inference that the possession was for a particular purpose must be the only reasonable inference arising on the proven facts. [6] None of the foregoing legal propositions are in dispute. What is in issue is whether the inferences which the Crown seeks to have the court draw are the only reasonable inferences to be drawn based on the proven facts. [7] As the accused has testified, I am also mindful of the decision of Justice Cory in the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742: In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. See R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont. C.A.), approved in R. v. Morin, supra, at p. 357 357 [1988] 2 S.C.R.]. Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. If that formula were followed, the oft-repeated error which appears in the recharge in this case would be avoided. The requirement that the Crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law. Every effort should be made to avoid mistakes in charging the jury on this basic principle. II. Credibility of Accused [8] Counsel for the accused urged that I accept the evidence of the accused. He argued that Hardenstine's evidence was internally consistent, externally consistent as it was not contradicted by other evidence, nothing adverse could be inferred from his demeanour, his evidence was reasonable, he was not shaken on cross-examination and should be believed. [9] The first question I must ask is whether I believe the evidence of the accused. [10] The Crown says there are four broad reasons why I should reject the evidence of the accused: (a) the accused evidence is implausible, lacking an air of reality, (b) the accused's evidence is vague and lacking in details, (c) there is a head-on conflict between the evidence of the accused and the evidence of the crown, while the latter should be preferred, and (d) the accused has a criminal record for dishonesty, which raises concerns regarding his credibility. [11] The accused testified and gave the following explanation. [12] His friend, Jennifer Nowag, had supplied him with drugs in the past. She asked that he accompany her shopping to the Lower Mainland. He is unemployed and was able to go. He had savings of $700-$800 to spend. They drove to Surrey, booked a hotel, and stayed 2 nights. The spent one-half a day shopping. The next night they partied until 4:00 a.m. The following day, Jennifer Nowag packed for him and they left the hotel. Hardenstine realized that he had mixed up cell phones when at the party as he had someone else's phone. He and Jennifer Nowag ("Nowag") decided to pick up his cell from Drew's house. [13] When driving to retrieve his cell phone that had been left at the party, they got their directions mixed up. They were ultimately stopped and searched by the RCMP. Drugs were found in or near a bag in the back seat of the vehicle. Hardenstine denies knowing anything about the drugs found in the bag. [14] Hardenstine says he had someone else's phone. A person named "Drew" had hosted the party the previous night. The police who seized this phone received multiple phone calls. The calls were for Drew. Hardenstine says he goes by the name "Andrew" or "Andy", not "Drew". Although the nature of the calls suggests a dial a dope operation, the phone calls, he says, were for someone else. He was unfortunate to have picked up someone else's phone. [15] The Crown says that this explanation lacks plausibility, in its general aspects and in the specific details. [16] For example, Hardenstine was unemployed on social assistance. He lived with and was supported by his girlfriend. He had to travel for one-half a day in mid-winter to shop for one-half a day. Hardenstine would share the driving. [17] The trip involved him staying for two nights in the Lower Mainland with another woman. He and Nowag would share a room and as it turned out slept in the same bed. Hardenstine agreed that this prospect angered his girlfriend, but his view was that she would get over it. He did not have a driver's licence but agreed to do some of the driving anyway. [18] The purpose of the trip he says was shopping. Hardenstine says he had $700-$800 from welfare and savings. When asked how he could save money when he was on social assistance, he explained that his girlfriend covered their expenses. [19] Hardenstine said he purchased a computer, a monitor, and an Xbox, items found in the Chrysler 300 as gifts. As a person on social assistance these must have represented significant purchases. Hardenstine, however, could not remember from what stores he had made all of these purchases. It is also unclear why, as a person with constrained means, he would have travelled to the Lower Mainland to make these purchases rather than shop nearby where he lived, e.g., Kelowna. [20] I also note that, when arrested there was $510 in a wallet under the seat. Hardenstine said this was his money. [21] Although the alleged purpose of the trip was shopping, before being stopped Hardenstine had driven past a known crack house in Whalley. He was followed from the crack house by police, and ultimately arrested after failing to stop for a stop sign a few blocks away. [22] When arrested a strong smell of marijuana emanated from the driver's side of the car. Hardenstine says that his companion smoked a joint in the car. When searched Hardenstine had a crack pipe in his pocket. There was also a scale which could be used to measure quantities of drugs found in the driver's side door of the Chrysler 300. [23] The drugs were found in a bag on the back seat behind the passenger seat. Money was in a wallet beneath his seat. Hardenstine was observed to look back and do something in the back seat after the police officers activated their emergency equipment while driving on 104th Avenue. Instead of stopping the vehicle in response to the activation of the emergency equipment he continued driving. [24] Hardenstine says he continued driving because he was uncertain whether the police were trying to stop him, as opposed to trying to stop someone else. He agrees, however, that the police vehicle was only a car length or two behind him. In my opinion it strains credulity to suggest that a person could be perplexed over police intentions where the police vehicle engages its emergency equipment while travelling one or two car lengths behind, and travels for nearly 300 feet in this fashion. [25] When he turned the corner on 134th Street Hardenstine sped up. He says he sped up because of annoyance at being stopped for no reason by a police vehicle. The vehicle window was down when stopped. [26] Hardenstine has multiple convictions involving dishonesty. He was convicted of theft under $5000 and possession of property obtained by crime on September 11, 2000 in Penticton; theft under $5000 on October 24, 2002 in Penticton; theft over $5000, robbery, break and enter and theft on December 18, 2002 in Penticton; theft over $5000, on March 8, 2004 also in Penticton. [27] The accused argues that what is important about the evidence is not only what it includes but what it does not include. For example, although there were finger printable surfaces - plastic bags, the Nesquick container, etc. - there is no fingerprint evidence. I do not accept that because there could be more evidence, it follows that the evidence led is somehow less cogent or persuasive. [28] The Crown points to contradictions in the evidence between what was said by Hardenstine and what was said by another witness. That witness is, the Crown says, credible. For example, Hardenstine denies turning and leaning back towards the back seat during the slow pursuit. Constable Ryzak gave that evidence. Hardenstine points out that Constable Pronger did not observe this. Constable Pronger, however, did not have the vantage point of Constable Ryzak. [29] Hardenstine denies leaning his head out of the window during the pursuit. This is contradicted again by Constable Ryzak. Hardenstine also denies resisting by holding the vehicle door closed while Constable Ryzak tried to open it. Again in this point his evidence is in conflict with that of Constable Ryzak. [30] While Hardenstine's evidence is, as defence counsel says, "internally consistent", in my opinion his story, considered as whole, lacks credulity. It is unsupported by any other witness. It requires the court to accept a multiplicity of facts each of which, while not impossible, in the context of the surrounding evidence are highly improbable. Considered as a whole the evidence lacks credulity. [31] In R. v. Twohey, 2009 BCCA 428, Madam Justice Bennett, speaking for the court referred to counsel's argument that there were other rational explanations for the events that may have been overlooked by the trial judge: [16] The appellant's submission that there were other rational explanations which were overlooked by the trial judge is not sustainable. The position that the appellant threw his cell phone out the window, and that some other unknown person or prior owner of the vehicle put a disassembled, but functioning telephone in the car, does not stand up in the face of the evidence as a whole. Nor does the related argument that some unknown person or prior owner hid drugs in the same compartment where part of the telephone was located. [17] As Chief Justice McEachern said in R. v. To (1992), 16 BCAC 223 at para. 41: It must be remembered that we are not expected to treat real life cases as a completely intellectual exercise where no conclusion can be reached if there is the slightest competing possibility. The criminal law requires a very high degree of proof, especially for inferences consistent with guilt, but it does not demand certainty. [18] Trial judges are not expected to leave their common sense at the door when they enter a courtroom. The trial judge reviewed the evidence, considered the arguments and came to a conclusion which is reasonable and supported by the evidence. [32] The evidence of the accused's criminal record shows dishonesty: Corbett v. The Queen (1988), 41 C.C.C. (3d) 385 at p. 440. The story he tells lacks detail in crucial respects, where detail would be expected. It depends on a series of improbabilities that leave it without an air of reality. In the circumstances I do not accept the evidence of the Accused. It is necessary to then consider whether his evidence raises a reasonable doubt, or whether a reasonable doubt is raised on the evidence of the Crown as a whole. III. Is there reasonable doubt? [33] In order to find that Hardenstine possessed the drugs, it is necessary that the court be satisfied beyond a reasonable doubt that the accused had knowledge and control of the drugs: R. v. Anderson (1995), 67 B.C.A.C. 311, B.C.J. No. 2655 (C.A.) and R. v. Fisher, 2005 BCCA 444. The defence argues that this case is on all fours with R. v. Parchment, 2004 BCSC 1806, and similar to R. v. Caldwell, 2001 BCSC 1313. [34] In my opinion the evidence of the Crown establishes beyond a reasonable doubt the following. [35] The Chrysler 300 driven by Hardenstine was first observed by the police officers in an area in Surrey called Whalley that is notorious for drug trafficking. The vehicle slowed as it moved past a condemned crack house. The vehicle was out of place for this neighbourhood being new and clean. The vehicle was a rental vehicle and it was unusual for a rental vehicle to be in this neighbourhood. [36] The Chrysler 300 was followed by the officers and failed to stop at the stop line at the intersection of 135th Street and104th Avenue. Because of this traffic infraction Constable Ryzak activated his emergency equipment to initiate a traffic stop. The Chrysler 300 did not stop in response, instead it proceeded west along 104th Avenue. There was nothing about 104th Avenue that would prevent stopping the Chrysler 300. It is a two lane thoroughfare in both directions. [37] Stopping in the curb lane does not prevent the passage of other traffic. With the police vehicle within a couple of car lengths it should have been obvious to the driver of the Chrysler 300 that the police were trying to affect a traffic stop. [38] As the Chrysler 300 continued along 104th Avenue the driver reached into the back seat. As the driver was doing this while not stopping this raised concerns of Constable Ryzak. As the accused looked out of the window of his vehicle Constable Ryzak yelled to stop, but Hardenstine did not stop. While there is a difference in evidence between Constable Ryzak and Constable Williams, in my opinion the evidence of Constable Ryzak is reliable, supported by his notes. He was the investigating officer; Constable Williams was using the computer to check on the vehicle, and was so occupied. [39] The driver did not stop at the intersection of 104th Avenue and 134th Street, but quickly accelerated up the street. This is not consistent with finding a place to stop on the shoulder as suggested in argument and cross-examination by the defence. The window on the Chrysler 300 was down, and had been down from the middle of 104th Avenue. It was early December 2007. This action is consistent with attempting to rid the vehicle of incriminating odours. [40] When stopped and approached by Constable Ryzak Hardenstine did not comply with the officer request to exit the vehicle. He held the driver's side door closed. Constable Ryzak forcibly removed Hardenstine from the vehicle. Constable Ryzak smelled marihuana emanating from the vehicle. The vehicle was searched incidental to the arrest of Hardenstine. There was a bag on the back seat with a label, "Eva Nowag". The bag was on the passenger side of the back seat. It could be easily reached from the driver's side, but only with great difficulty from the passenger's side. [41] There is something of a dispute concerning where the drugs were found. At trial Constable Ryzak testified that they were all found in the black bag. Before the resumption of the hearing, Constable Ryzak spoke to defence counsel outside the courtroom. He was asked where the Nesquick container was found. He was unsure but said outside the bag. On later cross-examination he referred to his report to Crown counsel which was prepared as part of these proceedings. He said the drugs were found in the black bag. [42] I accept Constable Ryzak's evidence that the drugs were found in two places in the black bag. In an inside pocket and in a compartment of the Nesquick container. The drugs were of the kind and quantity set forth in the agreed statement of facts, which it is unnecessary to repeat, and worth between $9,000 and $25,000, depending on how they were parsed. Inside the black bag was male clothing. There was female clothing in a box in the trunk of the vehicle. [43] On the driver's side door, next to where Hardenstine was sitting, in a pocket there was a digital scale with white residue on it. The evidence of the Crown expert, Sergeant Furac, is that digital scales are used in the drug trade to weight and parcel drugs. In his pockets Hardenstine had a cell phone and a crack pipe. A crack pipe is used to consume crack cocaine. [44] There was a wallet underneath the driver's seat. It contained $510, consisting of five $100 bills and one $10 bill. [45] The cell phone was seized by Constable Pronger and given to Constable Ryzak. While in the possession of Constable Ryzak the cell phone commenced ringing. It rang about 15 times before being answered by Constable Ryzak at the police station in Whalley. Constable Ryzak answered 5 calls. Each call was for "Drew", although I accept that Constable Ryzak did not record "Drew" each time in his notes. [46] Constable Ryzak answered a call at 5:43 p.m. which he recorded. Toby called, said he had lots of money for "smoke". "Smoke" refers to marihuana. At 5:52 p.m. a person called asking for "40" of "rock". "Rock" refers to crack cocaine. "40" means $40 and is the price of .5 gram of crack cocaine. At 8:31 p.m., a person called saying they had cash for "blow". That person wanted half of what "Drew" had. "Blow" refers to powdered cocaine. At 12:21 a.m. a female called for "Drew" and wanted 100 worth of green. "Green" refers to marihuana. At 1:00 a.m. the female called back saying she wanted "rock" which is crack cocaine. [47] The name "Drew" is a contraction of the name "Andrew". The calls were for Hardenstine. It is argued that the drugs could have been Nowag's. The bag contained male clothing. The calls were not for "Jenn" or "Jennifer". Female clothing was found in a box in the trunk of the vehicle. [48] The total quantity of controlled substances found in the vehicle was 104 grams of methamphetamine (3.6 ounces), 156 grams of cocaine (5.5 ounces), 14 grams of marihuana and 10 tablets of ecstasy. These quantities are such that it is admitted that the controlled substances were possessed for the purpose of trafficking and not for personal use. [49] In Parchment the court discussed reliance on cell phone conversations to establish knowledge of the presence of drugs. In Parchment, however, the court found that the officer's memory of some key matters had been demonstrated to be faulty. Some of the terms used in the conversations were ambiguous. The callers asked for "Bing" who was never linked to the accused. The court found that the evidence of the expert was "unhelpful". [50] In Caldwell two persons were found in a vehicle containing large quantities of drugs. The vehicle belonged to the female passenger. Drugs were found in a shopping bag in the back seat. [51] While it is sometimes helpful to make comparisons with other cases, in my view these decisions are very much fact specific. Although the Crown argued that this case is more similar to R v. Parchment, 2005 BCSC 1919 ("Parchment #2"), in my view that case is factually distinguishable in important respects, such as that Parchment was the registered owner of the vehicle. In this case there was a rental vehicle but also evidence that rental vehicles were commonly used in drug dealings because of seizure laws. [52] That said, the decision of Justice Taylor, however, in Parchment #2 is instructive in other respects. Taylor J. says: [29] As I began these reasons, the singular issue is: has the Crown established beyond a reasonable doubt that Mr. Parchment knew of these drugs in the console? In terms of the issue of control, there is no question he had control of these secreted drugs, as they were in the console of his van and at that time he was operating it. But possession requires both control and knowledge. [30] Here there is no direct evidence of knowledge. Rather, what is sought is an inference to be derived from the body of circumstantial evidence that the accused knew of their presence. That being so, if guilt is to be established a conclusion the accused knew of these drugs must be the only rational inference to be drawn from the circumstances. If there is another rational inference inconsistent with that sought, then that is the inference to be drawn, being the one most favourable to the accused. [31] The observations of the then Chief Justice of British Columbia in R. v. To (1992), 16 B.C.A.C. 223, in paragraphs 19 and 20 and 40 and 41 are germane to the issues before me, and I quote: The first question is whether the evidence permitted the learned trial judge to conclude beyond a reasonable doubt that knowledge on the part of the accused was the only reasonable inference to be drawn from the proven facts: R. v. Cooper (1977), 34 C.C.C. (2d) 18 ... And various other cites, in which Mr. Justice Ritchie was quoted in paragraph 33: In this respect, our function is not to second-guess the trial judge, but merely to examine the evidence, and consider whether the judge has correctly applied the law to the facts of the case. ... Then paragraphs 40 and 41, the Chief Justice continued: I have reached the conclusion that it would be legitimate, on the broad facts of this case, to infer beyond a reasonable doubt that the accused knew the plastic bag contained a prohibited drug. In fact, I think that would be the only reasonable inference which could be drawn. I believe that not just because the accused was found in physical control of the drugs, but also because of the highly suspicious circumstances and the immense quantity and value of the drugs. These facts make it so unlikely that such a large quantity of drugs would be entrusted to anyone who did not know what was in the bags that such a possibility may safely be rejected. In addition, his antecedent, highly suspicious conduct, most of which was proven affirmatively before he gave his disbelieved evidence, make it impossible to draw any inferences which would displace the legitimate inference which may be drawn from physical possession that he knew what he was possessing. It must be remembered that we are not expected to treat real life cases as a completely intellectual exercise where no conclusion can be reached if there is the slightest competing possibility. The criminal law requires a very high degree of proof, especially for inferences consistent with guilt, but it does not demand certainty. I do not think it could properly be said that an inference of knowledge in this case would be unreasonable or unsupported by the evidence. [53] There are, of course, factual differences between this case and the case before Mr. Justice Taylor, and the cases he quotes from. The reasoning, however, is instructive. In my opinion, in the case before me, there is no other inference consistent with innocence in this "constellation of circumstantial evidence". There is no onus on the accused to establish an alternate inference. [54] As I have said, there is no onus on the accused to establish that someone else, such as Nowag, and not Hardenstine, knew of and possessed the drugs. In my view, however, the inference that Nowag knew of and possessed of the drugs, as opposed to Hardenstine, is inconsistent with the constellation of circumstantial evidence. [55] The phone was in the possession of Hardenstine not Nowag. The calls were for "Drew" not "Jenn". The drugs were found in a bag with male clothing. The female clothing was in the trunk. Hardenstine was the driver of the vehicle. He failed to stop in response to the police. The weigh scale was in the car pocket in the driver's side door. The wallet containing money was under the driver's seat. Hardenstine had drug paraphernalia on his person, the crack cocaine pipe. The smell of marihuana emanated from his side of the vehicle, not the passenger side. The bag in the back seat behind the passenger was accessible by him as the driver, not accessible to the passenger. Hardenstine was seen reaching into the back seat after activation of the police emergency equipment. Hardenstine drove on in response to the activation of the police emergency equipment. [56] In the circumstances I am satisfied that the only rational inference to be drawn from this body of circumstantial evidence is that Hardenstine knew that the drugs were in the bag. They were in his control as the driver of the Chrysler 300. Accordingly, I find him in possession of the four substances alleged, cocaine, "crystal meth", "ecstasy" and marihuana, in the amounts specified in the admissions. In the circumstances, Mr. Hardenstine, I find you guilty as charged. "The Honourable Mr. Justice Savage"