R. v. Williams

2009 BCCA 284 R. v. Williams COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Williams, 2009 BCCA 284 Date: 20090612 Docket: CA035585 Between: Regina Respondent And Laurie Ann Margaret Williams Appellant Before: The Honourable Mr. Justice Donald The Honourable Mr. Justice Lowry The Honourable Mr. Justice Tysoe On appeal from: Provincial Court of British Columbia, August 2, 2007 (R. v. Williams, Osoyoos Registry No. 36570-C2) Oral Reasons for Judgment Counsel for the Appellant: A.H. Pollak Counsel for the Respondent: M.M. Devlin, Q.C. Place and Date of Hearing: Vancouver, British Columbia June 12, 2009 Place and Date of Judgment: Vancouver, British Columbia June 12, 2009 [1] LOWRY J.A.: The appellant was convicted before the Provincial Court of three counts of possession of a controlled substance for the purpose of trafficking. The sole issue at the trial was whether the Crown had proved beyond a reasonable doubt the appellant was in possession and control of the substantial quantity of the drugs that were found in a house on the execution of a search warrant by the police. She appeals the conviction contending the judge erred in the admission of evidence and the rejection of the testimony of one defence witness. She seeks to have the conviction set aside and a new trial ordered. [2] Acting on what they were told by two informants, the police established surveillance on a road close to a residence where the appellant, who was known to them, was believed to be living. [3] They stopped a vehicle in which the appellant was travelling and arrested her. One officer testified that, at the scene of the arrest, a cellular telephone in the appellant's purse rang. He answered it. The caller identified himself as Sandor. He said he wished to purchase drugs and asked for the appellant by name. The officer asked the caller to call back. A second officer testified that he answered a second call from Sandor who again asked for the appellant. The officer then discussed the price of the drugs to be purchased with the caller and agreement was made for a meeting. The second officer testified to answering a third call from a person identifying himself as Aja. He also wanted to purchase drugs and asked for the appellant by name. The officer said he later answered two similar calls from a person who identified himself as Dave. He too asked for the appellant by name and discussed the purchase of drugs. [4] In the subsequent search of the residence, the police found the drugs which became the subject of the prosecution, together with drug paraphernalia and various documents bearing the appellant's name in the master bedroom. The locked door of the bedroom was opened with a key found in the appellant's purse. [5] At trial, the appellant maintained the police were not telling the truth. She said the documents had been in her purse and must have been planted by the police in the bedroom. [6] The appellant called a witness named Patricia Block who testified under the protection of s. 13 of the Charter. She said she occupied the master bedroom in the residence and said the appellant slept in the living room. She maintained that the drugs the police found were hers, having been shipped to her by Federal Express. [7] The appellant also called witnesses named Sandor Kozma and Aja Star. Both testified to making the telephone calls to the appellant intercepted by the police, but both said they did not inquire about purchasing drugs. [8] The judge rejected the testimony of the appellant and the three witnesses she called. He accepted the testimony of the police and found there was no reasonable doubt the appellant was in possession and control of the drugs. [9] The appellant first contends the judge erred in admitting the evidence of the calls to the appellant's cellular telephone on the ground the evidence is hearsay. No objection was taken at trial but she maintains the officers' testimony concerning the calls is hearsay because it was offered for the truth of its contents. She relies on R. v. Parchment, 2004 BCSC 1806, to say the calls were not evidence of possession. But there, in similar circumstances, telephone calls were said to be admissible as evidence of an intention to traffic. The prosecution failed because of the limited weight that could be put on the evidence in that case. Madam Justice Stromberg-Stein summarized the law as follows: [11] Clearly these calls are admissible, having regard to the decisions of R. v. Ly (1997), 119 C.C.C. (3d) 479 (S.C.C.); R. v. Nguyen (2003), 180 C.C.C. (3d) 347 (B.C.C.A.); R. v. Edwards (1994), 91 C.C.C. (3d) 123 (Ont. C.A.); and R. v. Ramsum (2003), 329 A.R. 370 (Q.B.). These decisions establish that cell phone calls on seized cell phones are not hearsay, but are admissible as a principled exception to the hearsay rule. They are admissible to prove the nature of activities of the intended recipient. The calls, therefore, have been used as evidence of an accused's intention to traffic. Calls are admissible as circumstantial evidence of knowledge of the presence of drugs. Calls are admissible as a statement of intention of an accused to establish drug transactions and, further, to demonstrate the state of mind of an accused, including his knowledge of the presence of drugs. [underlining added] [10] In my view, that statement of the law, save perhaps for the reference to cellular telephone calls being an exception to the hearsay rule, is one with which I respectfully agree. In particular, I agree such calls are admissible as circumstantial evidence of knowledge of the purpose of drugs, which is an element of possession. This is a complete answer to the appellant's contention and I would not accede to the first ground of appeal. [11] The appellant then contends the judge erred in rejecting Block's evidence on the basis she invoked the protection of s. 13 of the Charter. Block was cross-examined as to why she had waited until trial to say the drugs were hers. It was suggested to her she was testifying as she did because at trial she had a legal protection she would otherwise not have had. In rejecting her evidence, the judge said in part: [14] Block felt badly, she said, that Williams was charged and in custody, but not badly enough, I conclude, to come forward before the trial where she could not claim protection of the Charter of Rights and Freedoms by testifying that the drugs were hers. [Reasons for Judgment and Sentence, 2007 BCPC 0412.] [12] The appellant acknowledges witnesses may to some degree be cross-examined on their knowledge of s. 13 of the Charter, citing R. v. Jabarianha, 2001 SCC 75, [2001] 3 S.C.R. 430, but says the judge erred in resting his rejection of her testimony on her having taken the protection that section affords with resulting prejudice to the defence. [13] The judge said this about Block: [13] Block has a criminal record which includes a conviction for possession for the purpose of trafficking on October 16, 2006, for which she was sentenced to three months imprisonment plus one year probation. She admitted that she was in breach of her probation order due to not keeping her supervising probation officer apprised of her address. She acknowledged that she was not at the residence some nights and that she did not know if Williams occupied the room when she was not there. Williams had a key to the room she said, kept some of her things in there, and could basically come and go as she pleased. She denied that Williams knew there were drugs in the room, and she did not know why Williams' prescription medications were found on the nightstand. * * * [18] Other than the fact that Block occupied the master bedroom in the home from time to time, that she had assignations from time to time there with one Michael Ellis, and the fact that she herself was involved in the illicit drug trade, I do not believe a word she said. [14] In my view, it was open to the judge to reject Block's evidence as he did. He was not prepared to accept it as corroborating the testimony of the appellant in the same way as he was not prepared to accept what Kozma and Star said. I do not consider his reference to s. 13 of the Charter in respect of Block's evidence to be fatal to his declining to accept her assertion the drugs were hers. Clearly no overriding error can be attributed to the judge in firmly rejecting Block's evidence as he did. I would not accede to this ground of appeal. [15] It follows I would dismiss the appeal. [16] DONALD J.A.: I agree. [17] TYSOE J.A.: I agree. [18] DONALD J.A.: The appeal is dismissed. "The Honourable Mr. Justice Lowry"