R. v. Smith

2025 BCSC 1478 R. v. Smith

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Smith, 2025 BCSC 1478 Date: 20250512 Docket: 31685-2 Registry: Prince Rupert Rex v. Shaun Jackson Smith Corrected Judgment: The text of the judgment was corrected on cover page on August 7, 2025. Before: The Honourable Justice Greenwood Oral Reasons for Judgment Counsel for Crown: A. Switzer Counsel for Accused: C. Corriveau (by videoconference) Place and Date of Trial: Prince Rupert, B.C. November 18-22 and 25-27, 2024 Place and Date of Judgment: Prince Rupert, B.C. May 12, 2025 Introduction [1] The accused, Shaun Smith, is charged on Indictment 31685-2 with two separate counts. Count 1, is a charge of possession of cocaine for the purposes of trafficking, contrary to the Controlled Drugs and Substances Act. Count 2 is a charge of possessing cannabis for the purposes of selling it, contrary to the Cannabis Act. Both offences are alleged to have taken place in Skidegate on Haida Gwaii. [2] As in any criminal case, the Crown bears the burden of proving both charges beyond a reasonable doubt and that burden never shifts. The evidence in the case at bar arose when the police responded to a call of a suspected domestic assault in progress, which ultimately led them to detaining and searching the accused where they found a quantity of drugs on his person. They also obtained a search warrant and searched Mr. Smith's residence

at 560 Mountain View Road or Drive, where they seized a number of other exhibits, including a large number of cannabis products, openly labelled for sale in what appeared to be an unofficial store being run from the residence. [3] Mr. Smith admits that based on the evidence that was found admissible, the only reasonable conclusion to draw with respect to Count 2 is that he was guilty of possessing cannabis for the purpose of sale. I agree with that contention and will say very little in light of the position of the defence. It is sufficient to point out that there is no dispute that Mr. Smith was living at 560 Mountainview. There were documents in his name, at least one photo of him, and identification. [4] Without attempting to be exhaustive, the cannabis exhibits that were seized include 69 individual bags of cannabis concentrate in a freezer labelled as 1 gram each, 14 small plastic jars of cannabis concentrate on a shelf in a storage room that weighed 1 gram each, 7 packages of edible gummies weighing 8.9 grams, vape pen refills and vape pens with cannabis product included, and a variety of cannabis concentrate products in a black backpack said to be hash and weighing 1 gram each. [5] In addition to many cannabis products, there were balms, rolling papers, grinders, trays and other paraphernalia, and clothing items also separately for sale. There was a point-of-sale

terminal in the laundry room. Many of the cannabis products and cannabis related items had price tags on them. There was also a money box with a "Skidegate 420" label on it, on the shelf in the storage room where the cannabis was with a modest amount of cash in it, as well as a scale with vegetative cannabis residue on it. [6] Finally, there was a detailed price list and a spreadsheet labelled "Skidegate 420". I am satisfied that Mr. Smith had knowledge, and as a resident of the house had sufficient control over the cannabis that was in the open and offered for sale in the common areas of the house. In essence, it is clear that Mr. Smith's residence was being used as a cannabis dispensary of some sort. I am satisfied that all the essential elements of the offence have been established, and I find Mr. Smith guilty of Count 2. [7] Returning to the issue, the main issue before the court is whether Mr. Smith was in possession of cocaine for the purpose of trafficking. Position of the parties [8] The Crown argues that only inference to draw from the totality of the evidence is that Mr. Smith possessed the cocaine for the purposes of sale. The defence concedes that knowledge and control have been established but argues that the Crown has not proven that the cocaine in the possession of Mr. Smith was possessed, quote, "for the purposes of trafficking," unquote. Counsel submits that an

alternative inference arises from the evidence, namely that Mr. Smith possessed the cocaine for personal use. Overview of the facts [9] The background leading up to the police interactions with Mr. Smith was the subject of evidence on a voir dire. That evidence was admitted at trial by consent, and the main facts are not in dispute. On November 25, 2022, members of the RCMP were responding to a call relating to an alleged domestic assault in progress at Mr. Smith's residence in Skidegate on Haida Gwaii. At approximately 2:45 p.m., the police had received a call from a neighbour regarding a suspected assault in progress. [10] Constable Gunn and Constable Murray attended in response to the call. The police were treating the situation as a high-risk call, and Constable Gunn proceeded to the residence at 560 Mountain View Drive with his lights and sirens activated. He testified that he could not recall what he did in this instance, but it was his common practice to turn off the lights and sirens a few blocks before arriving at his destination so as not to alert parties to his presence. [11] Constable Gunn arrived at the residence shortly after 3:00 p.m., and attended the area of the stairs leading to the rear door that was used as the main entrance to the house. He encountered Mr. Smith who opened the door and stepped outside. Mr. Smith was on a small landing, three or four steps

above Constable Gunn. Constable Gunn's impression was that Mr. Smith was not aware of his presence and was simply leaving the residence for other reasons. [12] When Constable Gunn began to make inquiries of Mr. Smith and put his foot on the lower stair, Mr. Smith turned to re-enter the residence. Constable Gunn then advised him he was being detained, but Mr. Smith did not comply and there was a brief physical struggle. [13] Ultimately, Mr. Smith was put in handcuffs and was escorted to the back of Constable Gunn's police vehicle in the driveway. At about this time, Constable Murray arrived. Mr. Smith was asked to face toward the vehicle. Constable Gunn was on his right side and Constable Murray was on his left side. Mr. Smith was wearing baggy sweatpants. [14] Prior to conducting a safety search, Constable Gunn looked down and saw that the right pocket in Mr. Smith's sweatpants was folded open and he could see a knot or ball of plastic and a twenty-dollar bill. Constable Gunn pulled the plastic object out of Mr. Smith's pocket. He observed that it contained a number of one-inch by one-inch "dime bags" containing white rock-like substance that was consistent with cocaine. [15] Mr. Smith was arrested and Constable Murray seized $790 in cash in the left pocket of his trackpants shortly after his arrest. [16] The cocaine in Mr. Smith's pocket, that was found by Constable Gunn,

consisted of nine individual baggies of crack cocaine. Each rock of crack weighed 0.5 grams apart from one of them, which was just shy of that at 0.4 grams. Based on their interactions with Mr. Smith and certain other observations that the police made, they obtained a search warrant for his residence. In addition to the cannabis products and paraphernalia I have already mentioned, the police seized a number of cocaine related exhibits, as well. [17] The seized evidence from inside the house that is relevant to count one includes: a) two large chunks of crack cocaine weighing 30.5 grams inside a container that looked like a large Heinz tomato can, but had a plastic container plastered inside of it that allowed the top to be screwed off and items to be concealed inside. This can was in a kitchen cupboard; b) a large quantity of "dime bags" and other packaging material in a box on the left-hand side of the bed in the bedroom including a quantity of Lotto paper and tin foil; c) a collapsible baton on a bedside table in the bedroom; d) a small amount of cash from the bedside table; e) what was described in the evidence as a "drug processing kit" on a shelf in the storage room that was loosely covered with a tarp. The drug processing kit included two sets of scales with white residue, two sets of nitrile gloves, and a small plastic container. All of the items had white residue on

them. There was also a large quantity of "dime bags" present in the drug processing kit (the police used what were referred to as cocaine trace wipes on the scales, scissors, and container that came back positive, meaning the substance was presumptively cocaine). f) two glass Pyrex measuring cups with a crystallized white residue in it that was tested by Health Canada and confirmed to be cocaine; g) a small piece of crack cocaine loose on the wooden shelf in the storage room; h) an additional scale with white residue on it that was also wiped with a cocaine trace wipe and tested positive for presumptive cocaine; and i) a further quantity of "dime bags" in the storage room (some with cannabis leaves on them or on occasion dollar signs, that were another logo that occurred on some of the "dime bags"). [18] There were a series of external cameras with different views of the front and the exterior of the residence. There was a monitor in the living room, such that a person in the living room could see anyone approaching the house. The expert evidence [19] S/Sgt. John Macintyre was qualified as an expert witness to provide expert opinion evidence on the production, price, packaging, distribution and use of cocaine. I will not review all of his experience, but he has 20 years of experience, including extensive experience in drug investigations that include cocaine

investigations. [20] He testified that crack cocaine is made by taking powder cocaine and adding a base in order to remove the salt. That involves mixing the cocaine with a base, such as baking soda, and heating up the mixture to create this base form of cocaine that can be smoked. [21] He testified that the price of cocaine at the street level is relatively consistent with some fluctuation in remote communities, but 1 gram of cocaine would normally be $100. [22] A buyer of crack cocaine would normally purchase a "forty-rock" weighing 0.2 to 0.3 grams at 40 to 50 dollars, or a 0.5 to 0.7 grams rock of cocaine for $100. He testified that the half grams of crack cocaine seized from Mr. Smith's pocket would be worth a minimum of $50 each, and more likely closer to $100. Therefore, the 4.4 grams would be worth a minimum of $450, in his opinion. [23] S/Sgt. Macintyre was asked about the 30 grams amount that was in the residence. He testified that an ounce is a common sale amount for a street level drug trafficker, and ranges in value between $1400 and $3000. He opined that the cocaine in Mr. Smith's residence would be worth a minimum of $2000, but likely more. S/Sgt. Macintyre testified that habitual users normally use a rock of cocaine and then seek funds to acquire more, but do not normally stockpile or rarely do so. Crack cocaine is typically an all-consuming habit for users, and

casual use or dabbling is more common with powder cocaine. [24] S/Sgt. Macintyre testified that cocaine is not normally sold in the open in a manner similar to the cannabis dispensary that was found in Mr. Smith's residence. His opinion that the possession of cocaine was consistent with a trafficking operation was based on a number of factors, including: a) the quantity and value of cocaine being over an ounce of cocaine and representing a several thousand-dollar investment; b) the nature of the packaging materials in the residence, which included low-level plastic packaging and Keno or Lotto paper that is commonly seen in street level packaging of hard drugs including cocaine; c) the quantity of the packaging materials in the residence; d) the scales of cocaine residue and scissors that can be used to prepare drugs for sale, make sure weights are accurate, and bulk supply is separated consistently; e) the Pyrex cookware which is commonly used to convert powder cocaine to crack cocaine for the purpose of sale; f) the fairly substantial amount of cash in Mr. Smith's pocket that coincides with the level or amount of drugs present; g) the absence of a crack pipe to ingest the cocaine in Mr. Smith's pocket; and h) the baton and home monitoring security system which are common for a lot of people -- at least the home monitoring and security system --but is very common for

individuals in the drug trade, particularly to monitor the outside of the residence for security reasons or to alert them to the police. [25] S/Sgt. Mcintyre's opinion was based on the totality of the evidence, the bulk quantity of cocaine in the house, tools and instruments for the separation, weighing and packaging of crack cocaine, and placement of cocaine in packages of identical weights that are ready for sale, and the absence of a device that would normally be used to consume cocaine. In his view, the seized evidence was representative of a street level drug trafficking operation. [26] In cross-examination, S/Sgt. Mcintyre testified that he could not say with certainty whether the cash that was seized from Mr. Smith did not come from a lawful business being run out of a residence, such as take-out food. He also agreed it would be a consistent amount to go on a Costco run or Christmas shopping to get supplies to bring them back to a remote community. He acknowledged that a glass tube to smoke crack would be a very small item, and it would be tough for the police to go through everything when they searched. S/Sgt. Macintyre acknowledged that most of the "dime bags" had cannabis leaves on them, and there could be a variety of things packaged in them, and that it could be associated with items in the illegal cannabis dispensary. [27] He agreed that 4.4 grams was consistent

with being somewhere between a day and a half and a week's supply. He acknowledged that some people use cocaine on a binge basis, or for a binge use type situation, and testified that Friday would be a common day that you might expect someone to obtain cocaine for their personal use. [28] S/Sgt. Mcintyre agreed that from what he could see, there was no indication of dial-a-dope, any hand-to-hand transactions, phones ringing, phone records, or a network of people working in a trafficking operation, or any indicia of that nature. He agreed that fishing is common in Haida Gwaii, and that it was possible that someone might earn cash from fishing and spend $3000 on cocaine, but he testified it was not common, and more specifically, not common with crack cocaine. The governing legal principles [29] The governing legal principles are not in dispute. As noted at the outset of these reasons, the Crown bears the burden of proving each of the essential elements of the offence beyond a reasonable doubt. Count 1 charges possession of cocaine for the purposes of trafficking. Accordingly, Crown is required to prove both possession of the cocaine beyond a reasonable doubt, and that the illicit trafficking purpose has been proven beyond a reasonable doubt. As I indicated earlier, the burden never shifts. [30] The Crown has reminded that as outlined in R. v. Munif, 2009 BCCA 451, at para. 10, I

am to assess the cumulative effect of all of the evidence and not adopt a piecemeal approach. [31] Section 2(1) of the CDSA adopts the definition of possession set out in s. 4(3) of the Criminal Code. That section outlines various different kinds of possession, including personal possession, joint possession and constructive possession. In order to prove possession, the Crown must prove that the accused had knowledge of the prohibited item or substance and some measure of control over it. [32] In the present case, Mr. Smith had a quantity of cocaine in his personal possession as it was in pocket, but there was also a larger quantity in the hollowed-out Heinz tomato can with the plastic container inside it that was in the kitchen cupboard. Thus, this case involves manual handling and constructive possession. I would adopt the description of possession in cases of constructive or joint possession set out in para. 26 of the R. v. Ahmadzai, 2012 BCCA 215, in which Justice Mackenzie stated as follows: [26] Proof of manual handling of a prohibited item or substance is not required to prove constructive or joint possession under s. 4(3). Rather, to prove constructive possession, the Crown must prove beyond a reasonable doubt that the accused had knowledge of the nature of the prohibited item or substance and some measure of control over it. In R. v. Morelli, 2010 SCC 8 . . . [Justice]

Fish for the majority said: [17] Constructive possession is established where the accused did not have physical custody of the object in question, but did have it "in the actual possession or custody of another person" or "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" (Criminal Code, s. 4(3)(a)). Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his "use or benefit" or that of another person. [33] With respect to the issue of possession for the purpose of trafficking, I also must take note of the definition of trafficking in s.2(1) of CDSA which includes "to sell, administer, give, transfer, transport, send or deliver the substance." [34] On the issue of the alleged purpose for which possession existed in this case. The case of the Crown is circumstantial in nature. Therefore, I must remind myself that in order to draw an inference of guilt from circumstantial evidence, it must be the only reasonable inference available on the whole of the evidence as set out in R. v. Villaroman, 2016 SCC 33. [35] There are a number of salient principles from Villaroman that instruct trial

judges in how to approach their task. For example, Justice Cromwell explained that in assessing circumstantial evidence, if considering all the evidence, there are reasonable inferences that can be drawn other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt. Moreover, inferences that may be consistent with innocence, do not have to arise on proven facts. Requiring proven facts to support explanations other than guilt "wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence" (para. 35). A theory alternative to guilt is not rendered speculative by the mere fact that it arises from a lack of evidence. As a reasonable doubt may properly be based upon the evidence or a "lack of evidence" (para. 36). [36] Cromwell J. goes on to say that the trier of fact should consider other plausible theories and other reasonable possibilities when assessing a circumstantial case that are inconsistent with guilt. The Crown may have to negate such reasonable possibilities, but it does not have to negate every possible conjecture, no matter how irrational or fanciful that might be consistent with the innocence of the accused. Other plausible theories or possibilities must be based on logic and experience, applied to the evidence or absence

of evidence, and not on speculation. [37] As outlined at para. 38 of Villaroman, "the line between a 'plausible theory' and 'speculation' is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty." [38] Finally, in para. 42 of Villaroman, Cromwell J. states "that the trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible." Analysis: proof of possession [39] As I have indicated, the issue of possession is not disputed so I will only summarize my findings very briefly. I find that the Crown has established that Mr. Smith knew about the cocaine in his pocket and inside the Heinz container in the residence. [40] I draw that inference from the totality of the evidence connecting Mr. Smith to all areas of the house. The similarity between the exhibits in Mr. Smith's pocket and the various other items such as the packaging and the drug processing kit, and the Pyrex cups with cocaine residue in them in an openly accessible shelving area that can be used to create crack cocaine, all of which suggest a connection to the larger quantity of cocaine that was concealed in the Heinz jar in the

kitchen. Proof of the purpose of trafficking [41] Turning then to proof of the purposes of trafficking, in my view the totality in the evidence in this case offers strong support for the inference that the cocaine was possessed for the purposes of trafficking. While the defence urges me to be careful when it comes to the expert evidence, I found S/Sgt. Mcintyre to be a credible witness. He gave his evidence in a professional manner, and he made a number of reasonable concessions about possibilities that might not be consistent with trafficking. In general, I accept his evidence as accurate and reliable. [42] I accept, for example, that the cocaine in Mr. Smith's pocket was packaged in a manner that is consistent with drugs that are individually packaged for sale. The mere fact that there were nine individual packages that were almost exactly half a gram each is indicative of drugs that were weighed for sale. What would be the point of so carefully measuring the exact weights if they were intended for Mr. Smith's personal use? If they represented a supply of a day and a half to a week as S/Sgt. Mcintyre stated in cross-examination, why would all nine of them be in Mr. Smith's pocket at the same time? [43] There is also the presence of $740 in Mr. Smith's other pocket. I agree with the defence that there is no definitive proof that the money came from drug trafficking, and that

it could have come from any number of other sources, including the other businesses being run out of Mr. Smith's residence. But it is a circumstance that is consistent with street level sales amounts, and in the right denominations, and I would place some weight on that alongside the other evidence. [44] I find the presence of what was referred to as the drug processing kit and the Pyrex dishes that are commonly used to prepare crack cocaine, both strongly support the inference of trafficking. That kit could be used to perform essentially all of the required steps to get drugs ready for sale. As S/Sgt. Macintyre explained, the scissors could be used to separate the drugs, the scale is used to weigh the drugs, and the "dime baggies" with the marijuana leaves could be used to package the drugs for sale. However, in this case, it was not just the potential use of such items to break down and package drugs, as it would appear that there is evidence, in the form of the cocaine residue on all of the items, that specifically suggest that is what they were in fact used for. [45] There was some evidence about whether the "dime baggies" were for marijuana or for cocaine. But despite large quantities of cannabis products for sale, those products were not put in "dime baggies", whereas "dime baggies" were present in the drug processing kit with the cocaine residue, and the cocaine that Mr.

Smith had in his personal possession was in "dime baggies" with cannabis leaves on them. [46] One also cannot overlook the sheer volume of empty "dime baggies" with cannabis leaves on them. If the cocaine was for personal use, why would there be a necessity for so much packaging? Moreover, it was not only "dime baggies," but there were also Lotto papers and tin foil, which S/Sgt. Mcintyre testified were commonly used to sell hard drugs such as cocaine. The presence of that material is also supportive of a trafficking operation. [47] Another circumstance that is telling in my view is that no crack pipe was found on Mr. Smith's person or in the residence. That is important because crack cocaine can only be consumed by smoking it, and there were no apparent means to do so. I accept that a crack pipe is small and could theoretically be missed. But I find that the police did perform a thorough search of the residence. For example, they did find items that were consistent with the use of marijuana, and they documented those along with all the other exhibits that they located. [48] Moreover, if Mr. Smith was a user of cocaine, why would he put nine packages of drugs in his pocket, presumably to move them somewhere or keep them on his person, but not also have a pipe or other device in order to consume them? In my view, the absence of use paraphernalia is an important piece of

circumstantial evidence that supports the inference of trafficking. [49] In my view, the security monitoring system that could be live monitored may have been consistent with a drug trafficking operation, but I would not place much weight on that because many people now have security systems for a whole variety of reasons. Mr. Smith was also running an illegal cannabis dispensary in any event. For those reasons, I find the monitoring system to be a relatively neutral factor. [50] In sum, the evidence seized from Mr. Smith, the evidence seized from the residence, and the expert evidence paint a compelling picture of a relatively small‑scale trafficking operation. The question is whether that is the only reasonable inference, or whether other reasonable alternative inferences arise. [51] The defence argues that there is a reasonable alternative inference that arises from the evidence, and that is that Mr. Smith is or could be a drug user who was hiding his drug use from his girlfriend with whom he lived. This would be no different than hiding alcohol use from her, which he did as evidenced by the small bottles of liquor that he had with him in his jacket when he first encountered the police. The domestic fight that led the police to attend the residence in the first place related to, or could have related to, Mr. Smith's girlfriend not wanting Mr. Smith to drink or use

drugs. [52] It was suggested that a user on Haida Gwaii which is a remote community might well buy in bulk. Thus, for example, Mr. Smith could have bought powder cocaine, converted it to crack, which is more discreet, so that it would be more easily concealed. The defence says this would explain the bulk amount of crack cocaine in the Heinz can with paper lining the inside, such that Mr. Smith's girlfriend would be less likely to discover his stash of cocaine. The defence says this alternative theory explains all of the physical and circumstantial evidence and is inconsistent with guilt. [53] I have carefully considered the defence theory, but in my view, it is not a reasonable alternative theory. [54] First, there is no direct evidence in support of many of the specific aspects of the proposed alternative theory, including Mr. Smith's drug use, the fact that he was hiding drug use from his then girlfriend, the fact that they were fighting about his drug use, or the fact that Mr. Smith was hiding his drinking. [55] I should note in this regard that the law is clear that an alternative inference does not have to be based on proven fact, but it does have to reasonable in light of the evidence and the absence of evidence. In my view, some of the more specific factual underpinnings of this alternative theory are based on conjecture and tend more toward the speculative. Alternative

possibilities must be based on logic and experience applied to the evidence or absence of evidence, not on speculation. [56] Second, I do not find that the physical evidence is consistent with an attempt to hide the cocaine use. The drug processing kit and Pyrex dishes were in an openly accessible room on a shelf that could be accessed by anyone. There was visible cocaine residue in the dishes and even a piece of crack cocaine on the shelf that would have been easily discovered. In addition, it would make little sense to hide a stash of cocaine in the kitchen, which is an area that could be accessed by either party equally. Clearly, the cocaine was not openly visible, but anyone picking up or inspecting the Heinz tomato can would quickly realize that it was not full of tomato sauce. [57] Third, and most importantly, in my view, the proposed alternative theory does not account for the cumulative force of all of the evidence considered together. [58] Villaroman is clear that I am not to act on alternative interpretations of the circumstances that I consider to be unreasonable. In my view, the proposed alternative inference put forward here is based on little more than conjecture or speculation. Viewing it logically and in light of human experience, I am unable to conclude that it is reasonably capable of supporting an inference other than guilt. [59] In assessing the alternative

inferences that might arise, I have not overlooked that even if I do not accept the defence theory as outlined in all of its detail, I must still consider whether the simple inference that Mr. Smith might have possessed the cocaine for personal use raises a reasonable doubt. In my view, it does not. [60] The evidence led by the Crown gives rise to a web of circumstances that are consistent only with trafficking and are sufficient to prove the case beyond a reasonable doubt. I am mindful that the Crown is not required to prove any case to an absolute certainty and although a reasonable doubt is a high standard, it does not equate to certainty. [61] I am sure that Mr. Smith is guilty of the offence charged. The inference that I draw from all of the evidence is that Mr. Smith was engaged in the street level trafficking of cocaine. The Pyrex dishes had been used to create a supply of crack cocaine that was stored in the hollowed-out Heinz tomato tin. There was a drug processing kit that had been used to separate and weigh out individual half gram pieces that were then packaged in "dime baggies" and ready for sale. Mr. Smith had nine of those half gram packages in his possession when he encountered the police. [62] Considering the whole of the evidence, rather than approaching it in a piecemeal fashion, I am satisfied that possession for the purpose of trafficking is the only reasonable inference to be drawn from the evidence. I find that the Crown has proven its case beyond a reasonable doubt. Accordingly, I find Mr. Smith guilty on Count 1 and guilty on Count 2. "Greenwood J."