R v. Dowding

2000 BCSC 1699 Citation: HMTQ v. Dowding Date: 20001124 2000 BCSC 1699 Docket: 96968 Registry: Victoria IN THE SUPREME COURT OF BRITISH COLUMBIA HER MAJESTY THE QUEEN AGAINST DWIGHT ANTHONY DOWDING REASONS FOR JUDGMENT OF THE HONOURABLE MADAM JUSTICE LYNN SMITH Counsel for the Crown: D. Schmid Counsel for the Defence: G. Worobec Date and Place of Trial: August 14, 15, 18, 2000 and October 6, 2000 Victoria, BC and Vancouver, BC THE CHARGES: [1] The accused is charged under the Controlled Drugs and Substances Act, S.C. 1996, c. 19, with one count of trafficking in cocaine and one count of possession of cocaine for the purpose of trafficking. TESTIMONY FROM POLICE WITNESSES: [2] Sergeant Darren Laur (who was then a Constable) testified that he was in an observation post overlooking the intersection of Broad and Pandora Streets in Victoria, British Columbia on November 26, 1997 at about 3:25 p.m. He received a radio dispatch from a fellow officer, Constable Simpson, and then moved north to overlook Centennial Square. He was able to see the accused, who was known to him, near a set of planters. [3] He testified that Mr. Dowding was walking close to the planters and constantly scanning the square. Mr. Dowding walked toward a set of stairs that lead up to City Hall, then stopped, leaning up against the planters. His back was to Sergeant Laur although he was at an angle such that Sergeant Laur could see his hands. The Sergeant said the accused reached into his right jacket pocket with his right hand and removed a small dark cylinder container with a white lid and opened it with his left hand, then shook the container so that small white plastic wrapped balls (about the size of Smarties) fell into his hand. He could not be certain how many there were except that there were more than two. He thought they were "spitballs" of cocaine. Sergeant Laur swore that he was about 15 feet away from the accused when he was in the observation post and that he had a clear unobstructed view from it. He said the observation post was in a building, behind glass and not on the main floor. [4] When the accused walked under some arches, Sergeant Laur said, he lost sight of him but changed his observation post and saw him reappear on the southwest corner of City Hall. He said the accused had the small container in his right hand, and placed it in another small planter. The witness said he was again about 15 feet away when he made this observation. [5] According to this witness's testimony, Mr. Dowding then walked over to the southwest corner of Broad and Pandora where he had a brief conversation with a native male. He swore that the accused then, with his left hand, placed something on a windowsill. He testified that he had a clear unobstructed view of the accused's back and that he saw him put whatever it was he had in his left hand onto the windowsill. He did not see any money change hands. Sergeant Laur swore that the second man then removed something from the windowsill with his right hand and walked away, placing his right hand in his right jacket pocket. On cross examination Sergeant Laur agreed that he could not see anything on the windowsill but maintained that he had seen the accused place something there - a very small object. His observation post was by then half the length of Pandora Street away from the accused. He did not know whether there was anything on the windowsill prior to Mr. Dowding's arrival in the area, and he did not appear to have checked the windowsill after the arrest to see if there was anything left behind. [6] Sergeant Laur radioed other officers who were on mountain bikes nearby and they assisted in arresting the accused and the second man. Sergeant Laur testified that during the arrest he saw the second man reach his hand into his right pocket and then put something in his mouth. He said that two spitballs were recovered from the second man's mouth and they appeared identical to the items he had seen the accused shake from the canister. [7] Constable Brent Burger testified that he was on duty that night as part of a mountain bike unit. When summoned by Sergeant Laur he came and arrested the accused, then searched him. He found in Mr. Dowding's right pants pocket $370 in Canadian currency and on his belt a pager. [8] Sergeant James Simpson testified that he was working with Constable Burger that night. He swore that he looked over a wall into Centennial Square and saw the accused, who was known to him, walk into the square. He then called Sergeant Laur. He watched the accused, who came through the arches but then went back, looked around in the square and repeated the earlier procedure. Sergeant Simpson was about 75 - 100 metres away. He said Mr. Dowding was doing something in the front of his coat with his hands - fumbling with something. Sergeant Simpson said that Mr. Dowding approached a four-foot high planter, walked up to the second bush from the building and made a motion as if putting something into that bush in the planter. [9] After a call from Sergeant Laur, Sergeant Simpson rode out on his bicycle and participated in the arrest of the second man, whose name proved to be Smith. He took him by the arm and hair, and when Sergeant Laur advised that Smith's hand was going to his mouth, he used a hypoglossal restraint and took him to the ground. When Smith coughed up two spitballs, Sergeant Laur picked them up. [10] Sergeant Simpson said that he then rode down to the second bush in the planter, reached in and located a black container which was the only item in the bush. Inside were what looked to be 10 more spitballs, in the same colour of shrink wrap, knotted the same way and of the same size as those found with Smith. He said that the appearance of these spitballs was not unusual in his experience of drug investigations which he said was extensive at that time. [11] Sergeant Simpson testified that the money found on the accused consisted of 17 twenty-dollar bills, two ten-dollar bills, and two five-dollar bills. [12] Sergeant Bruce Korn was called as an expert witness on the use, distribution, packaging and sale of cocaine in Victoria in November 1997. He has been involved in drug investigations since 1986 and has previously been accepted as an expert in court 54 times, 14 of those relating to cocaine. I accepted his qualifications in the areas in which he was tendered as an expert. He testified that the most common form of packaging cocaine is in clear plastic, for example from sandwich baggies, with the cocaine placed in the corner, the plastic tied off and excess plastic removed by cutting or burning it off. It is sometimes double wrapped in that manner. He said that these are called either "spic balls" or "spit balls" and are sold on the street, usually for $20 for a quarter gram. He testified that these are rarely held by the vendor and are commonly held by someone else or placed in a stash to which the vendor goes to replenish supplies. Sergeant Korn further testified that Centennial Square in Victoria is an area notorious for the sale and purchase of drugs. [13] Shown the package with the 10 spitballs, Sergeant Korn said it was a very common method of packaging and that the quantity was consistent with possession for the purpose of trafficking. He said that that amount (about two and a half grams) if held for personal use would be in one container, one baggie or one paper envelope rather than in multiple spitballs. [14] Sergeant Korn, with permission of the court, had been in the courtroom during all of the other evidence. Regarding the accused's conduct as it had been described, in that he went into the area, looked around, left, came back with the container, came back with spitballs, put them on the window ledge, and had the money with him in the denominations that were found, Sergeant Korn stated the opinion that it was all consistent with possession for the purpose of trafficking. He also testified that pagers are commonly used by drug traffickers. [15] Crown counsel asked what conclusion Sergeant Korn would reach if the only evidence was that the accused had 10 spitballs in his possession in Centennial Square and was found to have the money and the pager on his person. He testified that he would reach the same conclusion: that it was not possession for personal use. [16] On cross-examination he was asked if his evidence would have been different if he had not heard the evidence of the other witnesses, and he answered that he would have had the same opinion. He testified that he had read the report to Crown Counsel that the other officers had prepared and agreed that his opinion was pre-determined before he arrived. [17] There was no issue that continuity of the items seized and later sent for analysis was established on the evidence. CERTIFICATES OF ANALYSIS: [18] Sergeant Simpson testified that he sent the suspected cocaine recovered from Mr. Smith and from the canister in the planter to the laboratory for testing, each in a differently numbered envelope. He received certificates under the previous Narcotic Control Act, R.S.C. 1985, c. N-1, prepared a Notice of Intention under the Controlled Drugs and Substances Act (which had by then come into effect) and served the papers on counsel for Mr. Dowding. Advised by Crown counsel that he had to re-serve, he received from the lab a second set of certificates dated June 1, 1998 and had another Notice of Intention prepared. He served those certificates by leaving them with Mr. Dowding on June 13, 1998. These were tendered in evidence by the Crown. [19] The certificates state that they were prepared by Satya Pal Singhal, and that he is a person on the staff of the Department of Health duly designated as an analyst under the Controlled Drugs and Substances Act. [20] When the Notice of Intention and two certificates, together with the envelopes to which they related, were tendered by the Crown through Sergeant Simpson, defence counsel stated that their admission into evidence was not objected to but that there would be some argument as to their contents. [21] In cross-examination, defence counsel asked about the original Notice of Intention and certificates served on the lawyer's office and these were produced and marked. They are also certificates of Satya Pal Singhal and are identical to the later ones except that (1) they state that he is a person on the staff of the Department of Health duly designated as an analyst under the Food and Drugs Act, and thereby also an analyst within the meaning of and as defined by the Narcotic Control Act and the Controlled Drugs and Substances Act, and (2) they are dated March 13, 1998. The numbers on the certificates are identical to those on the certificates dated June 1, 1998 and they relate the same findings with respect to the same analysis performed on February 26, 1998. [22] Mr. Worobec on behalf of the accused argued that, for two reasons, I should place no weight on any of the certificates of analysis. The first was that there were in effect no definitive original certificates because of the two identical sets reporting on the same analyses. Because of the conclusions I reached on the other ground it is unnecessary for me to address this one further. [23] The second ground was that the certificates were prepared and signed by an analyst who had not, either on March 13, 1998 or on June 1, 1998, been duly designated as an analyst under the Controlled Drugs and Substances Act. [24] The Act provides in s. 44 as follows: 44. The Minister may designate, in accordance with the regulations made pursuant to paragraph 55(1)(o), any person as an analyst for the purposes of this Act and the regulations. [25] Paragraph 55(1)(o) permits the Governor in Council to make regulations respecting the qualifications for analysts and their powers and duties. [26] Section 57 of the Act provides: Any power, duty or function of (a) the Minister under this Act or the regulations, or (b) the Solicitor General of Canada under the regulations may be exercised or performed by any person designated, or any person occupying a position designated, by the Minister or the Solicitor General, as the case may be, for that purpose. [27] The provision pursuant to which a certificate may be tendered as proof of the truth of its contents is s. 51: 51. (1) Subject to this section, a certificate or report prepared by an analyst under subsection 45(2) is admissible in evidence in any prosecution for an offence under this Act or the regulations or any other Act of Parliament and, in the absence of evidence to the contrary, is proof of the statements set out in the certificate or report, without proof of the signature or official character of the person appearing to have signed it. (2) The party against whom a certificate or report of an analyst is produced under subsection (1) may, with leave of the court, require the attendance of the analyst for the purpose of cross-examination. (3) Unless the court otherwise orders, no certificate or report shall be received in evidence under subsection (1) unless the party intending to produce it has, before its production at trial, given to the party against whom it is intended to be produced reasonable notice of that intention, together with a copy of the certificate or report. [28] The defence position is that the designation of Dr. Singhal as an analyst was wanting because it was performed by Mr. Dann Michols, the Director General, Therapeutic Products Directorate, Department of Health, on October 24, 1997. That date was before Mr. Michols himself was expressly authorized by delegation from the Minister to designate analysts under s. 44 of the Act. No evidence was tendered of the date at which the Minister made the delegation of this authority to the Director General, but the defence suggested it was on November 17, 1997 as stated in R. v. Sharma, [1999] B.C.J. No. 262 (Q.L.) (S.C.) and the Crown did not dispute that this was the correct date. In Sharma the court referred to a timeline provided by Crown counsel specifying that November 17, 1997 was the date on which the Minister of Health had issued a document delegating authority to the Director General, Therapeutic Products Directorate, to designate analysts under section 44 of the Act. [29] By affidavit, counsel for the defence tendered copies of two documents, the first dated October 24, 1997 and the second dated December 10, 1998, by which Dann M. Michols, the Director General, Therapeutic Products Directorate, Department of Health, designated a number of persons to be analysts for the purposes of the CDSA. The list of persons attached to both documents included the name "Satya Pal Singhal". Thus, because both of the certificates in this case were issued before December 10, 1998, if the designation of Dr. Singhal by the Director General on October 24, 1997 was invalid then the certificates were not compliant with the legislative scheme. [30] Mr. Worobec for the accused argued that because a gap in the chain of delegation had been identified, the Director General issued the December 10, 1998 document designating persons as analysts in order to remedy that gap. Mr. Schmid for the Crown, on the other hand, argued that the December 10, 1998 designation was made only out of an abundance of caution and was actually unnecessary. [31] Defence counsel argued that the certificates prepared by the analyst who had not yet properly been designated under the Act ought not be given any weight although they were pieces of paper with writing on them purporting to be certificates and were therefore technically admissible. He further submitted that because the certificates say on their face that the person making them was duly designated, they are misleading and contain an incorrect statement of fact and therefore cannot be relied upon by the court. [32] Crown counsel argued that when the Director General made the designation of Dr. Singhal as an analyst on October 24, 1997, the Director General was authorized to do so even though the Minister had not specifically delegated that authority to him. The Crown relied on s. 24(2)(d) of the Interpretation Act, which reads: 24. (2) Words directing or empowering a minister of the Crown to do an act or thing, regardless of whether the act or thing is administrative, legislative or judicial, or otherwise applying to that minister as the holder of the office, include ... (d) ...notwithstanding paragraph [c], a person appointed to serve, in the department or ministry of state over which the minister presides, in a capacity appropriate to the doing of the act or thing, or to the words so applying. [33] Section 3(1) of the Interpretation Act is also relevant. It states: 3. (1) Every provision of this Act applies, unless a contrary intention appears, to every enactment, whether enacted before or after the commencement of this Act. [34] Counsel for Mr. Dowding submitted, correctly in my view, that the nub of the argument is whether or not s. 57 of the Controlled Drugs and Substances Act indicates Parliamentary intention that s. 24(2) of the Interpretation Act be excluded. The Crown argued that s. 57 does not exhibit such an intention; the defence argued that it does. [35] In a recent decision, Edgar v. Canada (Attorney General) (1999), 46 O.R. (3d) 294 (C.A.), the Ontario Court of Appeal reviewed the legal principles in this area. The issue was whether the provisions of the federal Customs and Excise Award Payment Regulations indicated a contrary intention within the meaning of s. 24(2) of the Interpretation Act. The Regulations specified that "the Minister may, in his sole discretion, authorize payment of an award in an amount that he considers appropriate". Mr. Justice MacPherson, for the Court, reviewed the law regarding delegated authority, beginning with the decision of the English Court of Appeal in Carltona, Ltd. v. Commissioners of Works, [1943] 2 All E.R. 560 (C.A.). In Carltona the court determined that decisions entrusted by statute to a Minister of the Crown could also be made by the Minister's representatives or officials if they were properly authorized to do so. This principle was affirmed by the Supreme Court of Canada in R. v. Harrison, [1977] 1 S.C.R. 238. In Harrison, Dickson J. wrote at 245-46: ... where the exercise of a discretionary power is entrusted to a Minister of the Crown it may be presumed that the acts will be performed, not by the Minister in person, but by responsible officials in his department: Carltona, Ltd. v. Commissioner of Works. The tasks of a Minister of the Crown in modern times are so many and varied that it is unreasonable to expect them to be performed personally. It is to be supposed that the Minister will select deputies and departmental officials of experience and competence, and that such appointees, for whose conduct the Minister is accountable to the Legislature, will act on behalf of the Minister, within the bounds of their respective grants of authority, in the discharge of ministerial responsibilities. Any other approach would but lead to administrative chaos and inefficiency. [36] In Edgar, the court observed that neither s. 24(2) of the Interpretation Act nor the case law establishes the Carltona principle as an absolute rule. Section 3(1) of the Interpretation Act, which provides for a different situation where a contrary intention appears, qualifies it. The court wrote at p. 302: With respect to the case law, the leading Canadian authorities establish that several factors must be considered before determining whether the general maxim delegatus non potest delegare, or the Carltona exception to this maxim, applies in a particular situation. In Harrison, supra, Dickson J. identified those factors as "the language, scope or object of a particular administrative scheme" (at p. 245). In Ramawad v. Canada (Minister of Manpower and Immigration), [1978] 2 S.C.R. 375 at p. 381, 81 D.L.R. (3d) 687, Pratte J. said: In R. v. Harrison, my brother Dickson, speaking for the Court said, at p. 245, that "a power to delegate is often implicit in a scheme empowering a Minister to act." Whether such power exists however or, in other words, whether it may be presumed that the act will be performed not by the Minister but by responsible officers in his Department will depend on the intent of Parliament as it may be derived from, amongst other things, the language used in the statute as well as the subject matter of the discretion entrusted to the Minister. [37] In Ramawad v. Canada (Minister of Manpower and Immigration), [1978] 2 S.C.R. 375 the regulations provided that "an employment visa may be issued to a person in respect of whom ... paragraph 3D(2)(b) should not, in the opinion of the Minister, be applied because of the existence of special circumstances." The Supreme Court of Canada stated at pp. 381-82 that: The general framework of the Act and of the Regulations is clear evidence of the intent of Parliament and of the Governor in Council that the discretionary power entrusted to the Minister be exercised by him rather than by his officials acting under the authority of an implied delegation, subject of course to any statutory provision to the contrary. To put it differently, the legislation here in question, because of the way it is framed and also possibly because of its subject matter, makes it impossible to say, as was the situation in Harrison, that the power of the Minister to delegate is implicit; quite the contrary. I am reinforced in my opinion on this point by s. 67 of the Act which reads as follows: The Minister may authorize the Deputy Minister or the Director to perform and exercise any of the duties, powers and functions that may be or are required to be performed or exercised by the Minister under this Act or the regulations and any such duty, power or function performed or exercised by the Deputy Minister or the Director under the authority of the Minister shall be deemed to have been performed or exercised by the Minister. The effect of this section is, by necessary implication, to deny the Minister the right to delegate powers vested in him to persons not mentioned therein. [38] Similarly in Edgar, taking into account the factors identified by the Supreme Court of Canada in Harrison and Ramawad, the Ontario Court of Appeal concluded that the Minister was required personally to authorize or refuse reward payments under the legislative scheme. [39] A few previous British Columbia cases have considered the very issue before me, but it does not appear that the point has been addressed yet in courts outside this province. The two decisions in which the arguments have been canvassed in B.C. are R. v. Alvaji, [1999] B.C.J. No. 1981 (Q.L.) (Prov. Ct.) and R. v. Sharma, supra. [40] The facts in Alvaji were identical to those before me. The certificate there was issued before November 17, 1997, by an analyst who had been designated by the Director General prior to the Director General himself having been explicitly given the authority to make such designations. The court in Alvaji referred to Ramawad and to Bancheri v. Minister of National Revenue, [1999] T.C.J. No. 22, (Q.L.) (T.C.C.), which is to similar effect, and concluded that the provisions of s. 57 of the Controlled Drugs and Substances Act are clearly indicative of a contrary intention. Judge Bruce's reasons for this conclusion were that, first, if the authority to delegate is implicit, s. 57 has no purpose and is superfluous. Second, she viewed s. 57 as more restrictive than s. 24(2) of the Interpretation Act in that s. 24(2) contemplates the implied sub-delegation of ministerial responsibilities beyond a designated person or persons occupying a designated position in a particular Ministry while s. 57 does not. Third, s. 57 describes a procedure that contemplates an express designation of persons who may carry out the Minister's responsibilities. Thus, Judge Bruce concluded that s. 57 prevailed, that the analyst had not been designated properly and that the certificates could be given no weight. [41] In R. v. Sharma Mr. Justice Holmes of this court considered a different situation involving two certificates, one made on June 16, 1998 and the second on June 28, 1999. Thus, the facts were not identical to those in this case and in Alvaji since the second certificate was made after the designation by the Director General in December 1998. The first certificate, however, was made before that event and on the strength of designation of the analyst under the Controlled Drugs and Substances Act by the Director General on October 24, 1997. Mr. Justice Holmes concluded that the reasoning in R. v. Alvaji was not persuasive and preferred the reasoning in a different provincial court decision, R. v. Willis (11 March 1999), B.C. Prov. Ct. C34830-01. He referred to the Carltona and Harrison decisions and found there was no apparent intent that the s. 57 power of delegation was to oust s. 24(2) of the Interpretation Act and make delegation exclusively a personal act of the Minister. Therefore, he concluded that the designation of analyst was valid but held the first certificate to be inadmissible for a different, unrelated reason. He held the second certificate to be admissible and found that there was evidence upon which the conviction was properly founded. [42] The conclusions in R. v. Sharma regarding the designation of analyst at the time of the first certificate (which was in any event inadmissible for another reason) were not, strictly speaking, necessary to the court's decision on the outcome. As well, I note that the decision in Edgar v. Attorney General (Canada) was not yet available. For those reasons and with the greatest of respect to my colleague on this court, I feel able to state that I came to a different conclusion. [43] The factors in the language, scope and object of this legislative scheme that show a contrary intention within the meaning of s. 3(1) of the Interpretation Act are: (1) the legislation permits the admission of evidence through the tendering of documents for the truth of their contents by way of exception to the usual rules; (2) the liberty of the subject may be at stake; (3) there is a specific provision in the legislation stating that the Minister may designate persons as analysts who will be eligible to prepare such documents; and (4) there is another specific provision in the legislation that the Minister may designate other persons to carry out his or her functions under the legislation. [44] For those reasons, I held that the certificates of analysis were not admissible in evidence. [45] I also concluded that in the circumstances, and applying the test in R. v. S.G.G., [1997] 2 S.C.R. 716, I should make the discretionary order which was sought by the Crown and permit the Crown to re-open its case. The proof of designation of the analyst does not go to the contents of the certificates, but to their very admissibility. This flows from the wording of p. 51 of the Act, which states that "...a certificate ... prepared by an analyst... is admissible in evidence..." Objection should have been made when the certificates were tendered, not after the Crown had closed its case. Accordingly I found the case falls within the very narrow range of exceptions in which the Crown may be permitted to re-open its case and I permitted it to do so and to call the analyst as a witness. EVIDENCE OF THE ANALYSIS OF THE SAMPLES: [46] The Crown called the analyst Dr. Satya Singhal, and I accepted his qualifications as an expert who could give opinion evidence as to the chemical analysis and identification of drugs. He testified that he performed several tests on the samples he was given. These included visual examination, two thin layer chromatographic tests, one gas chromatographic test and one confirmative test, which was gas chromatography combined with mass spectroscopy ("GCMS"). With respect to that final test he said it definitively established the material to be cocaine in both cases. He was asked whether the machine had been properly calibrated prior to his use and answered that it was his understanding that it had been. On cross-examination he agreed that he did not know when the machine had last been calibrated but added that the important factor was the relationship between the internal standard, Icosane, and the drug of interest, cocaine. He testified that he received the standard Icosane and mixed it with liquid himself. [47] On cross-examination Dr. Singhal was asked about the charts from the gas chromotographic tests of the two different samples, and agreed that the presence of a peak on one that was absent on the other could have indicated adulterants present in one sample that were not present in the other. He explained that he had not been asked to perform a qualitative analysis and agreed that he could not say that the samples came from the same batch of cocaine. [48] With respect to the final GCMS test Dr. Singhal said the machine was calibrated each morning and that he compared the chart it produced regarding the samples with a chart produced by the Georgia State Crime Laboratory about 10 years previously. He said he did not know what type of equipment was used in Georgia to produce the chart he used for comparison, but that the machine used to produce the chart would have been in electron impact mode rather than chemical ionization mode. He agreed that the calibration of the machine in Georgia could affect the result of the test, as could the temperature at which the substance was eluted. [49] On re-examination he testified that the same chart for cocaine as the one he used is re-published all the time, like a constant, and that he had personally run a comparison within the last couple of years with respect to that standard. [50] On the question whether the substance in the two samples (one from the small canister, the second from the spitballs coughed up by Mr. Smith) was cocaine, Mr. Worobec urged that the evidence did not establish that fact beyond a reasonable doubt because the expert's opinion was based on the comparative results of two different tests (his own, and the one run in Georgia that generated the chart) and the expert was unable to state that important variables were the same in the two tests. The variables to which he referred were the temperature, the calibration of the machine and the electron voltage. [51] Mr. Worobec further submitted that even if I did find that the substances were cocaine, there was evidence that the cocaine was different in each sample in that the tests showed the presence of a substance in one that was not detected in the other. This, he suggested, undermined the Crown's theory that the spitballs coughed up by Mr. Smith had their origin in the canister hidden in the planter. [52] Mr. Schmid for the Crown, on the other hand, pointed to the evidence of Dr. Singhal that he had used the Georgia State standard probably thousands of times and used it as a constant, and urged that it was not realistic or practical to expect Dr. Singhal to know all of the variables involved in the Georgia test. The Crown's position was that the analyst should be able to rely on second-hand information as he had. Mr. Schmid referred to R. v. Jordan (1984), 11 C.C.C. (3d) 565 (B.C.C.A.) and to Oliver v. The Queen (1981), 62 C.C.C. (2d) 97 (S.C.C.). [53] I conclude that, as in Jordan, the analyst was entitled to use such scientific data as he deemed necessary. On cross-examination, his answers showed that although he had not made a recent point-to-point comparison of the temperature, electron voltage and type of equipment used in the Georgia State test to produce the standard chart, he had considered those parameters and had concluded that the comparisons between his tests and the standard chart were informative and valid. [54] I also note that the previous two tests run by Dr. Singhal, although not as precise as the final one, were consistent with his conclusion that the substances were cocaine. I accept his evidence and conclude that the Crown has established this element of the case beyond a reasonable doubt. [55] However, I find that Dr. Singhal's evidence does not establish that the two samples came from the same batch of cocaine. There may have been adulterants in one sample that were not present in the other. The possibility that the samples had different origins is reinforced by the evidence that the Centennial Square area was notorious for drug trafficking; thus the cocaine found in connection with the arrest of Mr. Smith could well have come from somewhere other than the windowsill from which Sergeant Laur said he saw Mr. Smith take something. CONCLUSIONS AS TO THE EVIDENCE: [56] Defence counsel submitted that I should reach a negative conclusion about the credibility of Sergeant Laur's evidence because of the manner in which he testified, which defence counsel characterized as evasive and non-responsive. I do not agree with that characterization. However, Sergeant Laur's evidence regarding the alleged transfer of spitballs from the accused to Mr. Smith flowed from observations made a good distance away, relating to very small objects. Further, he was definite that he saw more than two spitballs shaken from the canister into the accused's hand, and yet only two were recovered. There was no evidence that the windowsill had nothing on it before the accused's hand movement observed by Sergeant Laur, and no evidence that the windowsill had nothing on it after Smith's hand movement in which he seemed to pick something up. There was nothing particularly unique about the packaging of the cocaine to support an inference that the spitballs found in the possession of the alleged purchaser came from the supply in the canister which was in the possession of the alleged vendor. [57] For those reasons, I have a reasonable doubt whether the accused participated in a transfer of drugs to another person, and accordingly find the Crown has not proved the offence of trafficking. [58] However, Sergeant Laur's and Sergeant Simpson's evidence regarding the accused holding the canister, shaking objects out of it, and placing it in the planter in which it was later found, and Sergeant Korn's evidence about the purpose for which someone would be in possession of cocaine in that quantity packaged in that way, was clear and convincing. Sergeant Laur's observations were made from a clear and unobstructed vantage point about 15 feet away from the accused. The canister was found in the precise location that both he and Sergeant Simpson described. Sergeant Korn testified that possession of that quantity of cocaine packaged in that manner was not consistent with possession for personal use and was consistent with possession for the purpose of trafficking. In addition there was the pager on the accused's belt, which the evidence indicated is a device used by persons who are trafficking in drugs although it is also used by many other persons. I do not find that the denominations of the bills support an inference either way, given the general prevalence of $20 bills. [59] Considering all of the evidence, and understanding reasonable doubt as it is described in R. v. Lifchus, [1997] 3 S.C.R. 320 and R. v. Starr, 2000 S.C.C. 40 I find that the Crown has proved beyond a reasonable doubt that the accused was in possession of cocaine for the purpose of trafficking. "Lynn Smith J." The Honourable Madam Justice Lynn Smith May 3, 2001 -- Memorandum to the Legal Publishers issued as directed advising that the name of Legal Counsel for the Defence should read: "G. Worobec" And on page 17, paragraph 56, the fourth line should read: "...not agree with that characterization. However ..."