Nova Scotia Court of Appeal
Citation: R. v. Wallace, 2016 NSCA 79
Date: 20161103
Docket: CAC 447459
Registry: Halifax
Between:
Charles Bernard Wallace
Appellant
v.
Her Majesty the Queen
Respondent
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Judges: |
MacDonald, C.J.N.S., Beveridge and Van den Eynden, JJ.A.
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Appeal Heard: |
September 12, 2016, in Halifax, Nova Scotia
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Held: |
Appeal dismissed, per reasons for judgment of Beveridge, J.A.; MacDonald, C.J.N.S. and Van den Eynden, J.A. concurring
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Counsel: |
Jonathan Hughes, for the appellant Jill Hartlen, for the respondent |
Reasons for judgment:
INTRODUCTION
[1] A Justice of the Peace issued a search warrant for the appellant’s home. The police executed it later that day. They found a relatively small quantity of cocaine, other drugs, and drug paraphernalia. No money was found, nor documents of any type that might indicate a commerce in drugs.
[2] The appellant and his partner were charged with possession of cocaine for the purpose of trafficking (s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19). The appellant also faced charges of possession of methadone (s. 4(1) of the CDSA), and two counts of breach of probation orders (s. 733.1(1) of the Criminal Code).
[3] The appellant challenged the validity of the warrant on the basis that the Information Sworn to Obtain the Warrant (ITO) contained insufficient evidence to properly satisfy the Justice of the Peace that reasonable grounds existed to authorize the warrant. The trial judge, the Honourable Judge Halfpenny MacQuarrie, disagreed. Hence, the challenge failed.
[4] Neither the appellant nor his co-accused testified. The appellant argued at trial that the Crown had not proved beyond a reasonable doubt that he was in possession of the cocaine, and even if he were, it was not for the purpose of trafficking. The appellant did not contest liability for the offence of simple possession of the methadone and breach of probation.
[5] The trial judge, in an unreported oral decision, convicted the appellant and his partner, Danielle Stoilov, of possession of cocaine for the purpose of trafficking and sentenced him to two years’ incarceration less credit for time spent in pre-sentence custody. Concurrent sentences were imposed for the possession of the methadone and breach of probation.
[6] The appellant appeals. He argues the trial judge was wrong to uphold the validity of the warrant and that the conviction was marred by legal error. No challenge is made to the convictions or sentences imposed for simple possession of methadone and breach of probation.
[7] For the reasons that follow, I am not convinced that the trial judge erred in her decision to dismiss the challenge to the warrant’s validity, nor with respect to the conviction for possession of cocaine for the purpose of trafficking.
[8] To put into context the appellant’s complaints of error, it is necessary to set out some detail about the ITO relied upon by the Justice of the Peace to issue the warrant and the evidence that was tendered at trial.
DETAILS
[9] In light of the defence challenge to the legality of the search and the ultimate admissibility of the search results, the Crown agreed to call its case (except its expert) within the confines of a voir dire (sometimes referred to as a trial within a trial).
[10] Cst. Chris Gallant of the RCMP was the affiant for the August 23, 2015 ITO. In the ITO, he swore to his belief that there existed reasonable grounds the appellant was in possession of cocaine for the purpose of trafficking, and that this drug and other evidence would be found in a mobile home located at 24 Indian Gardens, a trailer park in Antigonish. The mobile home was described as being blue and white in colour with an air-conditioning unit in the front window and a red baby barn at the rear.
[11] Cst. Gallant said he based his belief on information provided by a confidential informant, identified as Source A. Cst. Gallant set out that: he had known Source A for eight months; Source A had provided information that had been used to obtain two s. 11 CDSA search warrants; execution of those warrants had led to seizure of controlled substances and drug paraphernalia and applicable charges; information provided by Source A had been found to be consistent with information provided by other confidential informants; Source A was financially motivated to provide information and had been paid for the information; Source A had a criminal record, but not for misleading the police or the courts; the information provided by Source A was based on his/her firsthand conversations or observations.
[12] Cst. Gallant referred to three instances that he had spoken with Source A about the appellant—July 22, August 19, and August 23, 2015. On July 22, 2015, Source A told Cst. Gallant that the appellant lived at 24 Indian Gardens Trailer Court; he was doing needles and selling “hydromorphs” and dilaudid (4 mg), and he did not have a prescription for them. Source A also claimed that the appellant had “bud” and ounces of coke.
[13] On August 19, 2015, Source A told Cst. Gallant that the appellant is moving a lot of coke; he is using and selling; and that the previous week he had an ounce of coke. Source A said that the appellant had told him he has a .22 in the house. Details of the house were given. Cst. Gallant swore that he was familiar with the property from police work and confirmed some of the description.
[14] With respect to August 23, 2015, Cst. Gallant set out that Source A told him: the appellant has coke for sale and is selling it out of his residence of 24 Indian Gardens; specifically, that within the last 24 hours, the appellant had a half ounce of coke; he sells it for $80 to $200 a gram or $500 for a half ounce; he also sells 4 mg Dilaudid for $15, 6 mg Hydromorph for $15, and 12 mg for $25.
[15] Cst. Gallant checked RCMP databases. None showed 24 Indian Gardens as an address associated with the appellant. One database disclosed that the appellant had been arrested on August 6, 2015 and charged with four counts under the CDSA for possession of Hydromorph, Dilaudid, Codeine and morphine.
[16] When the police executed the warrant for 24 Indian Gardens later on August 23, 2015, they found two occupants. The appellant was in the bathroom and his partner, Danielle Stoilov, the kitchen.
[17] One bedroom was used as a storage space. The master bedroom had items of male and female clothing hanging in an open closet arrangement. On the closet shelf above the clothes was a safe. It was open. A pill bottle was visible. Inside the pill bottle were 11 individually wrapped plastic bags of cocaine, each weighing .7 grams. Subsequent analysis showed it was “cut” or diluted with benzocaine.
[18] A search of the top drawer of the master bedroom bureau revealed a digital scale along with various clear plastic baggies of the same type found in the safe. When tested, the digital scale was positive for the presence of cocaine and benzocaine. Inside the drawer was the appellant’s wallet. Also located on top of the bureau were: needles, scissors and spoons with white residue; and four methadone pills in a small black case.
[19] In the kitchen, the police found another digital scale, which also tested positive for cocaine and benzocaine.
[20] No cash nor score sheets (records of money owed for drugs) were found. The appellant gave an exculpatory statement denying knowledge of the presence of cocaine, let alone commerce in that or any drug.
[21] Danielle Stoilov also gave a statement. She said that “they” cut cocaine with calcium for sale. A bottle of calcium pills was found on top of the master bedroom bureau. She added that “they” did not sell it very often. Both statements were admitted without the necessity of a voir dire.
[22] After the trial judge dismissed the challenge to the validity of the search warrant, the Crown called Sgt. James Moody, from the Truro Detachment of the RCMP, to give expert opinion evidence in relation to packaging, pricing, and possession of cocaine for the purpose of trafficking. The defence admitted his qualifications to give opinion evidence.
[23] Sgt. Moody was present throughout the trial. It was Sgt. Moody’s opinion that despite the absence of cash or score sheets, based on all of the evidence, some, if not all, of the cocaine was possessed for the purpose of trafficking.
[24] With this background, I return to the appellant’s complaints of error. The Notice of Appeal set out eight grounds of appeal. In his factum, they are reduced to two issues which, with a minor change in wording, are as follows:
1. Did the trial judge err in her application of the test to review an Information to Obtain a Search Warrant?
2. Did the trial judge fail to apply the appropriate test for knowledge, possession, and control of a controlled substance for the purpose of trafficking?
REVIEW OF THE ITO
[25] The parties voice no disagreement about the test. That is understandable. The essential features have been settled since the landmark decision of the Ontario Court of Appeal in Re Church of Scientology and The Queen (6) (1987), 31 C.C.C. (3d) 449 (Ont. C.A.): the reviewing judge or court does not determine whether the justice of the peace should have been satisfied on the evidence presented to him, but rather could he have been satisfied on the evidence set out in the ITO that there were reasonable and probable grounds for believing that the articles sought would be of assistance in establishing the commission of an offence and would be found in the premises sought to be searched (see: Re Carroll and Barker and The Queen (1989), 88 N.S.R. (2d) 165 (N.S.S.C.A.D.)).
[26] This test has been reiterated numerous times and in all contexts of challenges to warrant based state intrusions into citizens’ private lives despite variation in procedure (the more common challenge at trial as opposed to an application for certiorari), and the introduction of the more streamlined statutory language of “reasonable grounds” (see: Baron v. Canada, [1993] 1 S.C.R. 416 at paras. 43-44). It is the norm for challenges to wiretap authorizations as well as for search warrants under different statutes (see: R. v. Garofoli, [1990] 2 S.C.R. 1421, para. 56; R. v. Grant, [1993] 3 S.C.R. 223; R. v. Wiley, [1993] 3 S.C.R. 263; R. v. Morris, 1998 NSCA 229; R. v. Araujo, 2000 SCC 65 at paras. 52-53; R. v. Shiers, 2003 NSCA 138; R. v. Durling, 2006 NSCA 124; R. v. Morelli, 2010 SCC 8).
[27] A succinct and helpful statement of the test a reviewing judge is to apply was penned by Fichaud J.A. in R. v. Shiers, supra.:
[15] Based on these principles, the reviewing judge should have applied the following test. Could the issuing judge, on the material before her, have properly issued the warrant? Specifically, was there material in the Information from which the issuing judge, drawing reasonable inferences, could have concluded that there were reasonable grounds to believe that a controlled substance, something in which it was contained or concealed, offence-related property or any thing that would afford evidence of an offence under the CDSA was in Mr. Shiers’ apartment?
[28] Before turning to the trial judge’s reasons and the appellant’s specific complaint of error, it is important to understand the kind of evidence that can be said to satisfy an issuing judge that reasonable grounds have been made out.
[29] The ITO need not demonstrate a prima facie case against a named person. But something more is required than suspicion, or the mere possibility, that relevant evidence of a crime may be found at a place. Reasonable grounds can only be said to exist where suspicion is replaced by credibly based probability. Dickson J., as he then was, in the seminal decision of Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145 made it clear that a reasonable belief that there is a possibility of finding evidence is insufficient. He explained:
…The purpose of an objective criterion for granting prior authorization to conduct a search or seizure is to provide a consistent standard for identifying the point at which the interests of the state in such intrusions come to prevail over the interests of the individual in resisting them. To associate it with an applicant’s reasonable belief that relevant evidence may be uncovered by the search, would be to define the proper standard as the possibility of finding evidence. This is a very low standard which would validate intrusion on the basis of suspicion, and authorize fishing expeditions of considerable latitude. It would tip the balance strongly in favour of the state and limit the right of the individual to resist, to only the most egregious intrusions. I do not believe that this is a proper standard for securing the right to be free from unreasonable search and seizure. [emphasis in original]
Anglo-Canadian legal and political traditions point to a higher standard. The common law required evidence on oath which gave “strong reason to believe” that stolen goods were concealed in the place to be searched before a warrant would issue. Section 443 of the Criminal Code authorizes a warrant only where there has been information upon oath that there is “reasonable ground to believe” that there is evidence of an offence in the place to be searched. The American Bill of Rights provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation ....” The phrasing is slightly different but the standard in each of these formulations is identical. The state's interest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone at the point where credibly-based probability replaces suspicion. History has confirmed the appropriateness of this requirement as the threshold for subordinating the expectation of privacy to the needs of law enforcement. Where the state’s interest is not simply law enforcement as, for instance, where state security is involved, or where the individual’s interest is not simply his expectation of privacy as, for instance, when the search threatens his bodily integrity, the relevant standard might well be a different one. That is not the situation in the present case. In cases like the present, reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search, constitutes the minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure…
(pp. 167-168) [Emphasis added]
[30] The affiant of an ITO must set out evidence under oath affirming his or her subjective belief, supported by objective criteria, that an offence has been committed (or is being committed), and that the things to be searched for will be found at the place specified. The reasonable belief does not have to be based on personal knowledge, but, if based on information from a police informer, the reliability of the information must be apparent. These principles were summarized by Cromwell J.A., as he then was, in R. v. Morris, 1998 NSCA 229 :
[30] Without attempting to be exhaustive, it might be helpful to summarize, briefly, the key elements of what must be shown to establish this “credibly based probability”:
(i) The Information to obtain the warrant must set out sworn evidence sufficient to establish reasonable grounds for believing that an offence has been committed, that the things to be searched for will afford evidence and that the things in question will be found at a specified place: (R. v. Sanchez (1994), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.) at 365)
(ii) The Information to obtain as a whole must be considered and peace officers, who generally will prepare these documents without legal assistance, should not be held to the “specificity and legal precision expected of pleadings at the trial stage.” (Sanchez, supra, at 364)
(iii) The affiant’s reasonable belief does not have to be based on personal knowledge, but the Information to obtain must, in the totality of circumstances, disclose a substantial basis for the existence of the affiant’s belief: R. v. Yorke (1992), 115 N.S.R. (2d) 426 (C.A.); aff’d [1993] 3 S.C.R. 647.
(iv) Where the affiant relies on information obtained from a police informer, the reliability of the information must be apparent and is to be assessed in light of the totality of the circumstances. The relevant principles were stated by Sopinka, J. in R. v. Garofoli, [1990] 2 S.C.R. 1421 at pp. 1456-1457:
(i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds.
(ii) The reliability of the tip is to be assessed by recourse to “the totality of the circumstances”. There is no formulaic test as to what this entails. Rather, the court must look to a variety of factors including:
(a) the degree of detail of the “tip”;
(b) the informer’s source of knowledge;
(c) indicia of the informer’s reliability such as past performance or confirmation from other investigative sources.
(iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information.
[31] The main complaint by the appellant is based on the words from Garofoli (quoted above in R. v. Morris) that, “Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds.” He argues that because it is plain that the sole basis for the grounds set out in the ITO was the information from Source A, it must have been insufficient to establish reasonable and probable grounds. Hence, the trial judge fell into legal error in deciding otherwise.
[32] With respect, the argument is based on a flawed understanding of the guidance provided by the Supreme Court of Canada in Garofoli, and a failure to appreciate the assessment mandated by an examination of the “totality of the circumstances” of the information set out in the ITO. I will explain.
[33] It is a mere conclusionary statement by an informer that, without more, cannot satisfy reasonable grounds. Justice Sopinka’s oft-quoted passage in Garofoli for assessing if reasonable grounds existed to justify a search warrant (or a warrantless search incident to arrest) is based on the Supreme Court’s acceptance of Justice Martin’s articulation in R. v. Debot (1986), 30 C.C.C. (3d) 207 (Ont. C.A.) of the “totality of circumstances” test.
[34] In Debot, the accused sought to exclude the results of a search incident to arrest (i.e., a warrantless search) that was based in part on information supplied by an informer. Martin J.A., writing for the court, described the approach to assess if information from an informer meets the required standard of reasonable grounds for a warrant or an arrest:
Unquestionably, information supplied by a reliable informer, even though it is hearsay, may in some circumstances provide the necessary “reasonable ground to believe”, to justify the granting of a search warrant: see, for example, R. v. Nepp (1927), 48 C.C.C. 275 at pp. 276-77 (Man. C.A.); Illinois v. Gates (1983), 462 U.S. 213. Such information may also provide the necessary reasonable and probable grounds to justify an arrest without warrant: see Draper v. U.S. (1959), 358 U.S. 307. It would seem to be entirely logical and reasonable that such information can also provide the necessary “reasonable ground to believe”, to justify a warrantless search, where a warrantless search is authorized by law. On an application for a search warrant, the informant must set out in the information the grounds for his or her belief in order that the justice may satisfy himself or herself that there are reasonable grounds for believing what is alleged: see R. v. Noble, supra, at 161. Consequently, a mere statement by the informant that he or she was told by a reliable informer that a certain person is carrying on a criminal activity or that drugs would be found at a certain place would be an insufficient basis for the granting of the warrant. The underlying
circumstances disclosed by the informer for his or her conclusion must be set out, thus enabling the justice to satisfy himself or herself that there are reasonable grounds for believing what is alleged. [ . . . ]
(p. 218) [Emphasis added]
[35] As to the distinction between a mere conclusionary statement by an informer, and where reliability can be reached by consideration of such factors as the degree of detail, source of knowledge, prior reliability, or police confirmation of some part of the information, Justice Martin explained:
[ . . . ] I am of the view that such a mere conclusory statement made by an informer to a police officer would not constitute reasonable grounds for conducting a warrantless search or for making an arrest without warrant. Highly relevant to whether information supplied by an informer constitutes reasonable grounds to justify a warrantless search or an arrest without warrant are whether the informer’s “tip” contains sufficient detail to ensure that it is based on more than mere rumour or gossip, whether the informer discloses his or her source or means of knowledge and whether there are any indicia of his or her reliability, such as the supplying of reliable information in the past or confirmation of part of his or her story by police surveillance. I do not intend to imply that each of these relevant criteria must be present in every case, provided that the totality of the circumstances meets the standard of the necessary reasonable grounds for belief.
(pp. 218-219) [Emphasis added]
[36] This approach to hearsay evidence from informants was accepted by the Supreme Court of Canada in R. v. Debot, [1989] 2 S.C.R. 1140, and again in R. v. Garofoli, supra.
[37] Justice Sopinka, in Garofoli, introduced his discussion about hearsay from informants as follows:
[62] The general requirement with which the authorizing judge must comply has already been referred to in these reasons. He or she must be satisfied that the statutory conditions have been established. The reviewing judge should not set aside this decision unless he or she is satisfied on the whole of the material presented that there was no basis for the authorization. While this is the general instruction that each judge should apply, special problems arise with respect to the use of information of informants. It is therefore desirable to examine what special requirements, if any, should be developed to enable judges to apply the general instruction in a way that strikes a just balance between the needs of law enforcement and the protection of the rights of privacy.
[38] After affirming the totality of circumstances approach to the weight to be given to such hearsay evidence, Justice Sopinka summarized the propositions that he said could be regarded as having been accepted by the Court. For ease of reference, I will repeat them:
(i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds.
(ii) The reliability of the tip is to be assessed by recourse to “the totality of the circumstances”. There is no formulaic test as to what this entails. Rather, the court must look to a variety of factors including:
(a) the degree of detail of the “tip”;
(b) the informer's source of knowledge;
(c) indicia of the informer’s reliability such as past performance or confirmation from other investigative sources.
(iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information.
[39] Quite apart from the history that demonstrates that a tip from an informant can be sufficient, the submission of the appellant would render the balance of Garofoli criteria redundant. That cannot be the law.
[40] The reference to “…evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds” is limited to circumstances where the tip is nothing more than a bare conclusionary statement unsupported by details, demonstrated reliability, or other police work.
[41] With respect to the decision by the trial judge to uphold the validity of the warrant, the appellant does not claim that the trial judge otherwise articulated the wrong test. The submission is that she failed to apply it correctly. I accept that merely because a reviewing judge correctly sets out the test, does not detract from the ability of this Court to intervene if convinced that the trial judge failed to correctly apply it (see: R. v. Durling, supra.; R. v. Shiers, supra.). What then was the test and analysis that informed her decision?
[42] The argument before the trial judge was not quite what was advanced here. At trial, the appellant submitted that: the informer’s details were not sufficient to establish reliability; he was only known for eight months and he was being paid; the information provided in two prior cases could not support reliability as the search warrants in those cases had not yet been tested in court; and the police had not confirmed through investigation any of the details—in fact the police databases showed the appellant was not associated with the named address at all.
[43] The trial judge discussed the test she was to apply:
Mr. Hughes, in argument, has referred to the test that is set out in the MacDonald case which has been adopted in Nova Scotia, most recently in 2006 by the Nova Scotia Court of Appeal in R. v. Durling, and namely, the Garofoli Decision from the Supreme Court of Canada. And it involves an analysis to examine the things that Mr. Hughes has referred to, the degree of detail of the tip, the informer’s source of knowledge, and indicators of the informant’s reliability such as past performance, or confirmation from other investigative sources.
[44] After cautioning herself that it is not her role to substitute her opinion, but determine only if the issuing justice could have granted the authorization, she looked at the detail of the tip and the claimed reliability of the informer. She reasoned as follows:
So you have someone who obviously has been in this residence, has identified these items as being in that residence, has identified sales in terms of amounts and cost, has talked about details of the interior of this property. That clearly tells me I don't need a lease, or a mortgage, or a deed to know that Charles Wallace is sitting there in that property if I am the authorizing Judge.
I appreciate what Counsel has said as to what is not present, but that’s not what the J.P. looks to. The J.P. is to look to what is present. The J.P. does not look for proof beyond a reasonable doubt. They have to have credibly-based probability.
Counsel for the Accused both stress that there’s just one source. Well, yes, there is just one source. There does not need to be more than one source. Often we see more than one source, but that's not what the J.P. has to look at. Has to look at the reliability of that source, and I have no hesitation in saying that it is a properly-issued judicial authorization for a search.
The issue with respect to the eight months doesn’t -- nothing turns on that in my mind, and the fact that there were two prior identifications, it’s not whether or not it -- the Warrant was properly before the Court. The issue was whether or not it produced the result that it was intended or thought to produce, and that’s the evidence.
[45] With respect, I see no error in the trial judge’s articulation or application of the test: was there sufficient evidence set out in the ITO that could have allowed the authorizing justice to be satisfied that reasonable grounds were made out to issue the warrant.
[46] The affiant’s description of the information from the informer belies the notion that the warrant was based on a mere conclusionary statement. The trial judge rightly looked at the details provided by the informer. The affiant deposed that the informer’s information was based on his or her firsthand observations. This led the trial judge to conclude that the informer had been in the residence and was knowledgeable about the type and quantities of drugs being sold by the appellant.
[47] Further, the affiant set out details that supported the reliability of the informer; he or she had provided information on two prior occasions that led to search warrants and consequent seizures of controlled substances and drug paraphernalia.
[48] It is the totality of the circumstances set out in the ITO that determines if mere suspicion is displaced by credibly based probability. The trial judge was right to conclude the test was met. I would therefore not give effect to this ground of appeal.
DID THE TRIAL JUDGE APPLY THE APPROPRIATE TEST TO FIND POSSESSION FOR THE PURPOSE OF TRAFFICKING?
[49] Originally, the appellant complained that the trial judge erred in inferring that the appellant knew of the presence of cocaine, consented to its presence and had control over it. Without that inference, possession was not made out.
[50] During argument, counsel expanded the complaint to take issue with the trial judge’s further finding that the Crown had proved beyond a reasonable doubt that the appellant’s possession was for the purpose of trafficking. I am not persuaded that the trial judge erred in either respect.
[51] Whether the cocaine was possessed for the purpose of trafficking is a question of fact. This Court cannot intervene unless the trial judge erred in law or the verdict is one that is unreasonable or unsupported by the evidence. Here the trial judge considered: the packaging of the 11 baggies of cocaine, cut with benzocaine; the presence of scissors, unused baggies, and two digital scales with traces of both cocaine and benzocaine.
[52] In addition, the Crown adduced expert opinion evidence. Sgt. Moody was acknowledged as qualified to give opinion evidence. It was his opinion that the cocaine found in the trailer was for the purpose of trafficking.
[53] The trial judge accepted Sgt. Moody’s opinion. She explained:
Sergeant’s Moody’s evidence is accepted by this Court as being credible. He gave sound reasons for his opinion which were tested by Cross-examination. His opinion did not change, his answers toward Defence counsel suggested to him as to missing ingredients on a charge of possession for the purpose of trafficking were logical and based on his knowledge in this area that is the drug trade which he explained as always evolving.
I accept his testimony that the Cocaine that was found in the safe was there for the purpose of being sold. The Court must now turn its mind to each of the Defendants and whether they are jointly or either individually guilty of this offence, that is has the Crown met its proof -- burden of proof of beyond a reasonable doubt.
[54] The appellant told the police in his statement that he was a junkie—a user of cocaine and other drugs. The paraphernalia found in the trailer certainly supported his statement. That evidence, coupled with the facts that the quantity was relatively small (7.7 grams) and there were no cash or score sheets could have caused the trial judge to have a reasonable doubt as to the purpose of the possession. The weighing of the totality of the evidence was for the trial judge. She accepted the expert opinion evidence of Sgt. Moody. There is nothing unreasonable about her finding.
[55] With respect to the issue of whether the Crown had proven that the appellant was in possession of the cocaine, this too is an issue of fact (see R. v. Lepage, [1995] 1 S.C.R. 654).
[56] The cocaine was not in the appellant’s personal possession. Hence, the Crown had to establish beyond a reasonable doubt that he was in constructive or joint possession of the cocaine (s. 4(3) of the Criminal Code). To do so, the trial judge had to be satisfied that the appellant knew of the presence of the cocaine, consented to its presence, and had some measure of control of it (see R. v. Pham, 204 O.A.C. 299, aff’d 2006 SCC 26).
[57] The inculpatory statement of the appellant’s co-accused was not admissible against him, nor the hearsay littered ITO examined in the voir dire. There is no suggestion that the trial judge relied on any of that evidence in her decision to convict the appellant.
[58] The appellant, in his police statement, was adamant that he did not know of the presence of cocaine, let alone that his co-accused was selling it. It is obvious that the trial judge rejected his exculpatory protestations, nor did they raise a reasonable doubt.
[59] Moreover, there was ample admissible evidence that permitted the trial judge to infer constructive or joint possession. The appellant and his co-accused had lived together for seven years in total, and for two months in the trailer. They were the only occupants. The cocaine was in relatively plain sight in the safe with the door open, directly situate over where his clothes were hanging. The appellant told the police he was aware of the safe, how much it cost and weighed. His personal items were located with the scissors, baggies, and scale that had tested positive for cocaine. He was an admitted user of cocaine, and was familiar with its going street value.
[60] The trial judge reasoned:
As regards Mr. Wallace the following was established by the evidence. He lived in the trailer where the Cocaine was found with Ms. Stoilov. It was found in his bedroom. The safe the Cocaine was located in was open.
The pill bottle with the Cocaine in it was visible. The safe was located above male clothing. He admitted in his statement he was aware of the safe in their bedroom. He stated “it’s a safe weighing about three pounds and the variety you get at any store for sixty-nine ninety-nine.”
In his statement Mr. Wallace advised Constable Gallant that a gram of Coke in Antigonish goes for fifty to seventy dollars.
…
The evidence of Sergeant Moody as to his reasons for his opinion included among other things the presence of scissors, baggies, scales that tested positive for Cocaine, the photo evidence and Constable Jessome’s evidence of the search showed these items were located in a drawer in the master bedroom.
These items were all located with Mr. Wallace’s wallet with a Nova Scotia picture ID driver’s license. Sergeant Moody’s opinion was that the master bedroom was the packaging and distribution center, the selling of this -- eventual selling of this Cocaine.
In all of these circumstances I find that Mr. Wallace had the knowledge, possession and control of the Cocaine and he too was in possession of it for the purpose of trafficking and I find Mr. Wallace guilty as well.
[61] To the extent that the appellant suggests that the verdict is unreasonable or not supported by the evidence, I respectfully disagree. This is hardly the type of situation where there was no evidence that could permit an inference of knowledge and control (R. v. Grey, 89 O.A.C. 394).
[62] I would therefore dismiss the appeal.
Beveridge, J.A.
Concurred in:
MacDonald, C.J.N.S.
Van den Eynden, J.A.