R. v. Bishop

2010 BCSC 1928 R. v. Bishop IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Bishop, 2010 BCSC 1928 Date: 20100917 Docket: 24920 Registry: Vancouver Regina v. Robert Llewellyn Bishop (also known as Chris Fisher) Before: The Honourable Mr. Justice Cullen Oral Reasons for Judgment Counsel for the Crown: P. Mann Counsel for the Accused: D. King Date and Place of Trial: September 16, 2010 Vancouver, B.C. Date and Place of Judgment: September 17, 2010 Vancouver, B.C. [1] THE COURT: The accused in this case has pleaded not guilty to two counts of trafficking in cocaine on November 22, 2007, and eight counts of possession of various controlled substances for the purposes of trafficking on November 23rd, 2007. [2] The controlled substances in the counts relating to possession for the purpose of trafficking are psilocybin, cocaine, ecstasy, LSD, crystal meth, GHB, cannabis, and ketamine. The first two counts relating to the trafficking in cocaine are based on evidence that members of the Vancouver City Police drug squad acquired information that a person identified as Chris Fisher was selling drugs out of Suite 914 ‑ 933 Seymour Street in Vancouver. Subsequent investigation revealed that a person identifying himself as Chris Fisher entered into a tenancy agreement in relation to that suite on June 1, 2007, and that that person was in fact the accused in this case, Mr. Bishop. [3] Based on the information they had and using a telephone number acquired through a prior undercover contact with the accused, the police, acting through Constable Jette, on November 22, 2007, contacted the accused on two occasions; on each occasion arranged to purchase a quantity of cocaine. The first transaction was at 12:15 p.m. and involved one‑half a gram of cocaine purchased for $40 at a Starbucks coffee shop located across the street from 933 Seymour Street. The second transaction was similarly arranged by telephone, began at the Starbucks coffee shop, it was for a half gram, again for $40. That transaction took place at approximately 3:00 p.m. The transaction was completed as the accused and Constable Jette walked along the street from the Starbucks. [4] On the first transaction, the accused told Constable Jette that the product he was giving her was branded Adidas, and said that he had another product branded Puma. In the second transaction, the undercover officer asked to buy the Puma product. In the course of the conversation between the accused and Constable Jette during the first transaction, the accused indicated he "had been doing this 24/7 over the last two days" and that he had "a couple of other guys working with him but they were off now". [5] During the course of the day of November 22, 2007, the front door of Suite 914, 933 Seymour was under surveillance by police officers stationed at an observation post. The accused was seen entering and leaving the suite on a number of occasions, apparently using a key to unlock and/or lock the door. Specifically, he was observed to leave and return to the suite in conjunction with the two cocaine transactions conducted with Constable Jette on that day. Other persons were also observed being in or attending to the suite at various times. [6] As a result of the information received by the police, Constable Jette's interactions with the accused, and the observations of him leaving and entering the suite contemporaneously with the undercover transactions, the police sought and obtained a search warrant to search the premises at 914 ‑ 933 Seymour Street. Before executing the warrant, the police, acting through Constable Jette, called the accused to arrange for another transaction, in order to get him out of the suite. He was subsequently arrested while en route to a supposed meeting with Constable Jette at about 11:00 a.m. on November 23, 2007, by Constable Brown of the Vancouver City Police drug squad. Constable Brown searched the accused, seized a number of items, including "a small bundle of keys", which he turned over to Constable Uganec, who was present for the arrest, three "dime bags of cocaine", two 20‑dollar bills, and two cellphones. [7] In the course of the trial there was a challenge mounted by counsel for the accused to the constitutionality of the means by which the police initially identified the accused and associated him to Suite 914, and of the validity of the search warrant issued on November 23, 2007, and of the subsequent search. After a voir dire, I ruled that the accused's constitutional rights were not infringed, and admitted the evidence relating to his identification, his association to the apartment, and the results of the search warrant. [8] The search of the apartment revealed a variety of different controlled substances found in various locations, combinations, and containers in the apartment. Some of the cocaine containers referred to Puma, Nike, and Adidas. In particular, the police found a total of 11,045 millilitres of GHB (Count 8), 34 grams of crystal meth (Count 7), 164 squares of LSD (Count 6), 6.46 grams of cocaine and crystal meth (Counts 4 and 7), 456.67 grams of cannabis (Count 9), 110.28 grams of grams of cocaine (Count 4), 27.23 grams of ketamine (Count 10), and .80 grams of ketamine and cocaine (Count 10 and Count 4), 61.46 grams of ecstasy (Count 5), 31.43 grams of ecstasy and crystal meth (Count 5 and Count 7), and 30.8 grams of psilocybin. [9] As far as the details of the search are concerned, the premises were described as possessing an open‑concept main floor area with a kitchen, living room, hallway, and shelving unit, and a bathroom. The upstairs was a loft with a bedroom and a closet with shelving. The closet door was locked upon entry of the police and had to be "breached" by the team that entered the apartment further to the search warrant. [10] Most of the cocaine was found in zip‑lock baggies and in tin containers with labels of either Nike, Puma or Adidas, and designating various quantities. The GHB was found in the fridge, the freezer, wine cooler in the kitchen area. Crystal meth was found in containers labelled "ice". MDMA in zip‑lock baggies with a blue smiley face and in containers labelled with various brand names. The LSD was in another container. The ketamine was also in zip‑lock bags and metal containers in various sizes, between half a gram to 14 grams. The cannabis marihuana was contained in three bags, one with 238 grams, one with 177 grams, and one with 41.67 grams. The psilocybin was contained in Tupperware containers. The ketamine, cocaine, and the cocaine with meth was also found in similar containers. [11] There were also three digital scales, four cellular telephones, two meth pipes, a monitor screen showing the front door of the building, money in the amount of $9,645 Canadian and $500 U.S. in plastic zip‑lock baggies, each baggie with a label showing an amount, either of $1,000 or $500. There were 22 packages of new zip‑lock baggies, paperclips, rolling pins, there was a ceramic bowl with straining utensils in it, a tin cup with cocaine residue. There were also three safes in total found in the apartment. The metal containers with drugs and zip‑lock baggies were found in two of the three safes. [12] In one of the safes, documents, bills, and passports in a money pouch, not in the accused's name or the name of a party who was arrested when the police attended at the apartment, were found. This safe also contained the Canadian currency and the U.S. cash. [13] A third safe contained three lock boxes, one with a watch marked "Scott". There was a gold 10‑karat ring in a bag with a Nike swoosh symbol on it. A second lock box had identification and documents, including some documents in the accused's name. There were also documents listing pricing and sales. In the third lock box there were 200 empty gel capsules and a Louis Vuitton receipt for $400. Also in the safe there was a pouch with various drugs and a bank card in the name of another person. [14] Also found in the suite were documents in the name of Dolgov. Dolgov was the person who was located in the suite when the police executed the search warrant and was arrested. He was originally charged with these offences, but charges against him were later stayed. When he was arrested, he was dressed only in his underclothing which, in my view, supports the conclusion that he was an occupant of the suite in question. [15] One of the safes was found underneath the kitchen island, another in the upstairs area, and a third in the locked closet upstairs. [16] In submissions, counsel for the accused conceded that in light of my ruling and based on the evidence acquired through the investigation, including the search of the premises at 914 ‑ 933 Seymour Street, the Crown had met the burden of proof beyond a reasonable doubt in respect of each of the counts in the indictment, both in relation to the two counts of trafficking and the eight counts of possession for the purposes of trafficking of the various controlled substances. The position of the accused was, however, that despite the fact that the evidence of the accused's care and control of the apartment was sufficient to fix him with possession of the various controlled substances found in common areas of the apartment or in containers along with documents in his name or that of his alter ego, Chris Fisher, the evidence of the presence of others in or with access to the apartment, and evidence suggestive of discrete operations being run from the apartment raises a reasonable doubt as to his access to or knowledge of some of the controlled substances. [17] In addition, the accused submits, while conceding trafficking operations in the apartment, that certain of the evidence found in the apartment raises a doubt as to the significance of his role in the trafficking operations, suggesting that another person was the operating mind and he simply operated as a street‑level seller. [18] Of particular significance was the issue of whether the keys which were seized from the accused upon his arrest on November 23rd at approximately 11:00 a.m. established the extent of his access to the apartment and the locked safes within it. [19] There were three officers who conducted a search of the premises, Constable Masales, Constable Lee, and Constable Davies. Constable Funk was the exhibit officer. Access to the apartment was obtained by members of the Vancouver City Police Emergency Response Team which included Constable Bollivar and Constable Galbraith. There was evidence of a person or persons living in the apartment, the person previously referred to as Dolgov. [20] As earlier noted, when the accused was arrested, Constable Brown seized a bundle of keys from him and turned them over to Constable Uganec. It was Constable Uganec's evidence that he believed the keys were to Suite 914, and he took them there to the front of the building and handed them over to Constable Bollivar. He then went up to the suite and took custody of the male who had been in the suite at the time of the execution of the warrant; that is Vadim Dolgov. At the time of his arrest, as I mentioned, Dolgov was in his underwear. Constable Uganec did not receive the keys back that he recalled giving to Constable Bollivar. [21] Constable Bollivar testified he was with the ERT, which was directed to assist in the execution of a search warrant at the premises at about 11:00 p.m. [sic] on November 23rd. He was with Constable Galbraith, acting Sergeant Esposito, acting Sergeant Derksen, and one other officer. He testified that they obtained a key to assist with entry to the suite, and Constable Galbraith was in possession of the key. The key opened the door to the apartment, but the door was secured by a chain, so it was necessary to forcibly open the door. He did not recall specifically if the key used was ever in his possession, but it was received from a drug squad member. He was not aware of what happened to the keys and he could not recall any discussion about the keys or their possible evidentiary value. [22] Constable Galbraith testified he was present with the Emergency Response Team to open the door of the premises. He was given a key by investigators on the scene, a drug squad member. He did not recall exactly when he received the key. When the door was opened, a person inside tried to run and was arrested. Constable Galbraith testified he left immediately after entry was gained. He could not recall what member he got the key from or who he gave it back to. [23] Constable Masales entered the suite at 12:01 on November 23rd, 2007. He searched the upstairs bedroom loft area, found a number of items of drug paraphernalia and containers. He also located a black metal Master Lock safe in the closet of the upstairs bedroom. That closet had a PIN code lock on it and it had been broken into by the members of the ERT to permit entry and search. [24] Constable Masales testified he was given a key on a key ring by an ERT member, either Galbraith or Bollivar. He said he got the key just after Dolgov was arrested. It was a large key ring with a set of keys on it and there was a black item on the key ring. He subsequently took a photocopy of the keys and gave the photocopy to the exhibit officer. At 1:17, he tried a Century key on the ring on a large, grey Century safe. The key fit the lock but the safe also required a combination to open. The keys also unlocked a wine cooler containing some of the drugs. He also tried the key on two black Master Lock safes, one found in the kitchen and the second one found by Constable Davies in the upstairs closet. There were two keys on the keychain which opened both those safes. [25] Also found in the suite were some documents supportive of the involvement of others in the trafficking operations centred in the suite. In particular, a document titled "Cory's Entertainment Products" showed a price list for various prescription and non‑prescription drugs. A document described as "Posted Hours of Operation" referred to "staffing availability", certain people called Davis and George, and also referred to some complaints from neighbours arising from the operation. The document was signed by "Cory". There was also a recognizance of bail dated October 22, 2007, in the name of Vadim Dolgov relating to a charge of possession of a restricted weapon, and a score sheet showing a person named Todd as an employee who owed money to Cory. There were also various other documents in the names of others found in the premises, as well as documents linking the accused to the premises. [26] The thrust of the accused's submissions were that the evidence that the keys used by Constable Masales were the keys seized from him is tenuous, given the lack of clear evidence of continuity. The accused submits in the circumstances the evidence falls short of establishing that he had access to all the safes in the premises, and that fact, in combination with the evidence of others' association to the premises, creates a doubt that the accused was integrally involved with all the drugs found in the apartment or that he was the directing or operating mind of the operation. [27] I accept that the accused was not the only person involved with the apartment or engaged in the trafficking operation. Clearly the person, Dolgov, who was present when the search was conducted and arrested in his underwear had some significant connection to the apartment, and I infer he was occupying it at the time. There were also others seen going to and leaving the apartment, and there were documents identifying others apparently associated to the apartment. It is equally clear, however, that the accused was also integrally involved with the apartment, in that he participated in a dial‑a‑dope operation from it, in that he was the registered tenant, in that some of this identification and identifying documents were found in and around the apartment and in some of the safes, and in that he possessed keys to the apartment. [28] In that regard, I am not satisfied that the evidence, taken as a whole, is clear enough to establish that the keys used by Constable Masales with respect to the safes are necessarily the same as those seized from the accused by Constable Brown and given to Constable Uganec. I accept that the keys seized from the accused were used to unlock the apartment door. There is no evidence of any other key which could have been used. Whether those were the same keys given to Constable Masales is problematic, however, given his uncertainty as to who he got them from and Constable Galbraith's uncertainty as to who he gave the keys he acquired to or what he did with them. Given Dolgov's presence and apparent occupation of the premises, the likelihood of another set of keys in the apartment can be inferred and it would be, in the circumstances, problematic to rely on the uncertain recollections of the officers in reconstructing the continuity of the keys to establish their source. [29] I thus am unable to affirmatively conclude that the keys used by Constable Masales were necessarily those seized from the accused, nor am I able to affirmatively find that they were not. [30] I conclude, therefore, that the accused had significant involvement with the trafficking operation being run out of the premises, although I am unable to find that he was exclusively involved with it or to determine what his precise role was. His use of a false name to lease the property, his obvious and active engagement in the specific drug transactions at issue, and his participation as a contact for the operation all demonstrate that he played a significant role in what was afoot, and I conclude he was at least a party to those aspects of the operation that he was not directly involved with through his control of the apartment and the widespread evidence that it was used as a source and storage place for the drug trade. [31] I therefore find the accused guilty on all counts on the basis that he participated directly in the trafficking of drugs in Counts 1 and 2, that he directly possessed the drugs as alleged for the purposes of trafficking, and that he facilitated or was a party to others' possession of those drugs for the purposes of trafficking. Cullen J.