IN THE PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v. Phinney, 2012 NSPC 68
Date: 20120731
Docket: 2308959/2308960
2308961/2308962/2308963
2308964/2308968
2308969/2308970
Registry: Amherst
Between:
Her Majesty the Queen
v.
Kimball Carl Phinney
Judge: The Honourable Judge Paul B. Scovil
Heard: 22 March and 7 June 2012 in Amherst, Nova Scotia
Written decision: 31 July 2012
Charge: THAT HE on or about the 18th day of April A.D. 2011 at, or near Amherst, Nova Scotia, did have in his possession a prohibited weapon, to wit a Black Cobra Stun Gun, Model J-911, without being the holder of a license under which he may possess it contrary to section 91(2) of the Criminal Code;
AND FURTHERMORE on or about the 18th day of April in the year 2011 at Amherst, Nova Scotia, not being authorized under the Firearms Act to carry a concealed weapon, to wit a Black Cobra Stun Gun, Model J-911, did carry it concealed contrary to section 90 of the Criminal Code;
AND FURTHERMORE on or about the 18th day of April in the year 2011 at Amherst, Nova Scotia, did have in his possession, a weapon, to wit a WORTH Insanity Aluminum baseball bat, for a purpose dangerous to the public peace contrary to section 88 of the Criminal Code.
AND FURTHERMORE on or about the 18th day of April in the year 2011 at Amherst, Nova Scotia, did have in his possession, a weapon, to wit a Black Cobra Stun Gun, model J-911, for a purpose dangerous to the public peace contrary to section 88 of the Criminal Code;
AND FURTHERMORE on or about the 18th day of April in the year 2011 at Amherst, Nova Scotia, was an occupant of a motor vehicle, to wit a 2003 Pontiac Bonneville, New Brunswick license plate NBF 151, in which he knew that there was at that time a prohibited weapon, to wit a Black Cobra Stun Gun, Model J-911, contrary to section 94 of the Criminal Code;
AND FURTHERMORE on or about the 18th day of April in the year 2011 at Amherst, Nova Scotia, did, while being bound by a probation order made by the Moncton Provincial Court on the 27th day of October, 2010, fail without reasonable excuse to comply with such order, to wit keep the peace and be of good behaviour contrary to section 733.1(1) of the Criminal Code;
AND FURTHERMORE on or about the 18th day of April A.D. 2011 at, or near Amherst, Nova Scotia, did possess a substance included in schedule II to wit cannabis marihuana for the purpose of trafficking contrary to section 5 of the Controlled Drugs and Substances Act;
AND FURTHERMORE on or about the 18th day of April in the year 2011 at Amherst, Nova Scotia, did unlawfully possess a substance included in schedule II to wit cannabis marihuana contrary to section 4(1) of the Controlled Drugs and Substances Act;
AND FURTHERMORE on or about the 18th day of April in the year 2011 at Amherst, Nova Scotia, did unlawfully possess a substance included in schedule II to wit cannabis resin contrary to section 4(1) of the Controlled Drugs and Substances Act.
Counsel: Mr. Bruce Baxter, for the provincial crown
Mr. Douglas Shatford, for the federal crown
Mr. Scott Fowler, for the defence
By the Court:
[1] The baseball bat is a formidable weapon. We know this from watching reruns of the Sopranos. Baseball bats are also very common in most houses in Canada and are used mainly, well, for batting baseballs. A stun gun, with very few exceptions, is always a weapon. In this case the Court must answer if simply being in possession of these items is using them in manner dangerous to the public peace. This decision must also wrestle with whether possession of a moderately large quantity of marijuana can be proven by the crown to be held by an accused for the purpose of trafficking as opposed to simply personal possession.
[2] On the 18th day of April, 2011 as a result of intelligence acquired prior to that day, the Integrated Street Crime Unit under the Royal Canadian Mounted Police followed the accused from New Brunswick to an address in Amherst, Nova Scotia. When the accused pulled his vehicle into a residence on Prince Arthur Street the police, in an unmarked police vehicle, turned on their emergency lights and took the accused, who was driving, from the car. The accused was arrested and taken back to the Amherst Police Department. The vehicle driven by the accused was seized and removed to a storage bay at the Amherst Police Department.
[3] When the vehicle was secured at the storage bay a search warrant was obtained by investigators to search both the vehicle and a cell phone taken from the accused. The search turned up a baseball bat located by the console on the front passenger side, and in the glove box, a bag containing 113 grams of cannabis marijuana. A subsequent forensic search of the cell phone identified it as the accused’s but failed to yield anything further of note. Also recovered were a number of clothing items and wallet cards identifying the accused as a member of the Bacchus Motorcycle Club.
[4] At some point during the search a jacket was presumably removed from the interior of the vehicle and placed on the roof of the car. No evidence was before me as to how the jacket and gun found itself on the car roof. The jacket was searched by Sargent Gairns and found to contain a conductive energy weapon or stun gun in a pocket. As well three grams of hash oil was located within the confines of the vehicle.
[5] The accused was on a probation order at the time of this matter that originated out of Moncton, New Brunswick. The charge under 733.1(1) alleges that the accused, as a result of all that occurred in the facts before the court, he failed to keep the peace and be of good behaviour.
[6] The investigators in this matter attempted to get a statement from the accused which amounted to more of a monologue by the officer and few comments back by the accused. The statement does contain some important material in that the accused admits to owning the stun gun, although he indicated surprise that he had it and asked if it was in his jacket at the time of the search. The accused did indicate the gun was for self defence as he had what he described as “issues” with an unnamed gentleman from Moncton. Possession of the baseball bat was also discussed, with the accused simply indicating he played softball. The accused also discussed his arthritis and his use of marijuana to self medicate. Mr. Phinney explained that he had problems walking due to his arthritis and that he did not want to use prescription painkillers due to their addictive qualities.
[7] The first issue before this court is the question of possession. The crown must obviously prove possession by the accused of the bat, stun gun, cannabis marijuana and cannabis resin for any of the charges before the court to stand.
[8] Possession is defined in section 4(3) of the Criminal Code as follows:
For the purposes of this Act,
(a) a person has anything in possession when he has it in his personal possession or knowingly
(i) has it in the actual possession or custody of another person, or
(ii) has it 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; and
(b) where one of two or more person, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
[9] Constructive possession becomes complete when an accused has knowledge of the character of the object, knowingly keeps or puts the object in a particular place, and he further intends to have the object in that place for his use or benefit. (See R. v. Morelli, [2010] 1 S.C. R. 253)
[10] Due to both the placement of the bat, guns and drugs, as well as the comments made by the accused in his statement there is no question that the possession of the objects were made out. I must say that given the lack of chain of continuity relating to the stun gun it would have been very difficult to find the accused in the possession of it without his statement.
[11] Given that the accused was in possession of the stun gun in question and that it was clearly a prohibited weapon for which the accused held no licence, I must convict him of the count under Section 91(2). As the gun was concealed in the jacket it also is clear that he is guilty under Section 90. Further, he had this item in his vehicle thereby triggering a conviction under section 94 of the Code. The remainder of the weapons charges deal with possession for a purpose dangerous to the public peace. I shall deal with those shortly.
[12] In relation to the charges under the Controlled Drugs and Substances Act it is equally clear that my findings of possession provide grounds for convicting the accused of both counts under Section 4(1) of personal possession of the cannabis marijuana and the cannabis resin.
[13] Given convictions as set out above the breach of probation charge under 733.1 obviously follows and I convict accordingly.
[14] The remaining charges faced by Mr. Phinney all deal with possession of things for a specific purpose. It only stands to reason that where a charge states that it is an offence to possess something for a stated purpose, the crown must prove beyond a reasonable doubt that the possession by the accused was for that purpose. In R. v. Kerr, [2004] S.C.J. No. 39 (S.C.C.) it was held that to satisfy the requirements under s. 88(1) of the Criminal Code the crown must prove the possession was dangerous to the public peace. A hybrid subjective-objective test must be applied to arrive at a proper determination of the purpose. I must first come to a conclusion subjectively as to what purpose the accused had these items. This by its nature requires the use of objective criteria in the consideration. I must ask myself what consequence the accused knew would likely flow from his possession irrespective of whether he desired that outcome or not. After that analysis I must determine if, in all the circumstances, I can objectively say the accused’s purpose in his possession was one dangerous to the public peace.
[15] Here there is no evidence as to what purpose the accused had for the baseball bat other than his statement that it was spring and it was for playing baseball with. There was nothing to link the bat with illicit activities such as debt collection, territorial enforcement or other activities that would bring the possession of the bat into the sphere of being dangerous to the public peace. Accordingly, I must acquit the accused of possession of the bat for a purpose dangerous to the public peace.
[16] In relation to his possession of the stun gun, it is important to note the accused seemed genuinely unaware that he had stuffed it in his jacket pocket. Again there was no extrinsic evidence to suggest a purpose dangerous to the public peace. While we can rule out cattle prodding in this particular fact situation there is very little else we can use to determine any purpose for the weapon other than a possible use in self defence. I must therefore acquit the accused of possessing the stun gun for a purpose dangerous to the public peace.
[17] As indicated before, there is no question that the accused possessed the cannabis marijuana as alleged by the crown. This court is also tasked with determining whether the crown has proven, beyond a reasonable doubt, that the purpose of Mr. Phinney’s possession of that drug was for the trafficking in it.
[18] In order to prove that Mr. Phinney’s purpose in having in his possession 113 grams of cannabis was to sell that cannabis to others, the crown put forward the expert evidence of Constable Rodney MacDonald. Before I analyse the opinion of Constable MacDonald it is useful to consider in this matter an overview of how such expert opinion should be treated by the court.
[19] The use of expert opinion has originated from the necessity of scientific testimony in an evolving technological society. In order for the courts to have assistance in considering complex factual evidence, the use of opinion evidence has progressed, as stated by Judge Anderson in R. v. Jackman [2008] A.J. No. 96 at paragraphs 31 and 32:
The principles regarding expert testimony have tended to evolve within the context of scientific testimony (most often psychiatric) but it is quite clear that the Mohan rules are intended to apply to expert testimony that is not scientific in nature as well. Consequently, the evidence of ‘drug experts’ is also governed by the criteria set out in Mohan, even though this type of testimony might better be described as ‘custom of the trade’ evidence. This distinction is made in R. v. Munro [2006] B.C.J. No. 3352, 2006 BCSC 1937, for example, wherein the Court states:
In determining the admissibility of expert evidence of this kind, it is important to keep in mind two things: first, the kind of expert evidence in issue, and second the distinction between admissibility and weight. As to the first, the evidence tendered is not scientific in nature, never mind novel science. It is more accurately characterized as “custom of the trade” evidence (see R. v. Castillo, [2004] M.J. No. 79 (Man. Q.B.)). By its nature, custom of the trade evidence cannot be assessed or tested in the manner that scientific evidence is, nor does it depend, for its evidentiary value, upon the application of such testing.
There is no doubt that this ‘custom of the trade’ evidence can be properly received, despite the fact that the scientific validity of the testimony cannot often be verified. This type of evidence does, however, present special challenges when it comes to assessing weight. If the experiential basis underlying a drug expert’s opinion is transparent and logically sound the trier of fact may well accord the weight to the opinion. However, if the experiential basis for any given opinion is not visible, it is virtually impossible to properly apply any weight to the witness’ opinions because, as stated in J. (J-L.), supra, at para. 56, “what is asked of the trier of fact is an ‘act of informed judgment’, not an act of faith”.
[20] The use of drug experts becomes important as the custom of trade utilized by drug dealers is very much outside the knowledge of the ordinary citizen. Police officers gain training and experience in this field which makes their opinion invaluable to a court in making factual determinations that lead to the ultimate question which only the court can answer, was this person trafficking in drugs.
[21] In using police experts a court must be cognizant that the expert, a police officer, is employed, trained and an intricate part of the police themselves. Police drug experts are rarely subjected to the scrutiny that other experts with science backgrounds find themselves undergoing. This scrutiny includes the ability to test results, rates of error, peer review and general acceptance in a scientific community of the reliability of opinions gained by any particular scientific method. Drug opinion evidence by its very nature does not lend itself to the scientific method. Courts must therefore closely analyse opinion evidence such as proffered by Cst. MacDonald.
[22] In determining how much weight should be given an expert in situations such as that presented by Constable MacDonald, the court must ask itself a number of questions before finding the opinion of the expert to be reliable to such a degree that it allows no reasonable doubt as to the purpose for which it is put forward. These questions include the following:
· Has the expert been qualified before and how many times and at what levels of court?
· Does the opinion come from quantifiable research conducted or developed for the purpose solely of testifying in the case before the court?
· Has the expert adequately accounted for alternate explanations?
· Has the expert dealt with all relevant facts in coming to his opinion and has he given the facts proper weight in his analysis?
· Is there a sufficient degree of impartiality and objective analysis such as to give significant weight to his opinion?
[23] Constable MacDonald in his evidence testified that in concluding the accused possessed the marijuana that the accused had in order to traffic the same, Constable MacDonald considered the exhibits seized on Mr. Phinney’s arrest, the quantity of cash held by Mr. Phinney (at the time $445.00), the stun gun and baseball bat seized, the amount of cannabis in his possession, the possession of a cell phone, the possession of the cannabis resin, as well as the entire crown file.
[24] Constable MacDonald seemed to place great importance on the amount of cash seized from Mr. Phinney and stated it was consistent with monies derived from trafficking. While he did say that the purchase and sale of drugs was a cash only business, there was no background as to what level of cash on a person makes you a potential trafficker. The accused was taking the female passenger to dinner. We know little about who else might be attending or if they were staying overnight. No evidence was before the court to suggest Mr. Phinney had other means of paying for dinner, such as debit or credit cards. While we are becoming a cashless society, paying cash for items in and of itself should not raise suspicions.
[25] Constable MacDonald also placed reliance on the presence of the baseball bat and the stun gun, indicating the drug trade is a violent business and robberies of drug dealers are common. Dealers would thus need protective weaponry. The officer agreed, on cross examination, that the flip side of this would also be true. Purchasers of drugs are themselves at risk of violence and can be equally concerned with self protection. It should also be noted that the accused in his statement indicated he did not even realize that the stun gun was in the car. This brings into question as well the concept that Mr. Phinney was out selling drugs and needed self protection.
[26] The true heart and soul of the issue of this charge of trafficking of cannabis is the amount of drug seized. Constable MacDonald testified that the maximum any one person could consume in marijuana and be functional was three grams. He also stated the shelf life for marijuana was six months. His opinion as to the marijuana seized in this case was that it would be uncommon that someone would carry on their person some 37½ days supply of the drug.
[27] Constable MacDonald testified that his conclusions were arrived at after having read the full crown disclosure. On cross examination, he admitted that he had not read the prisoner report exhibit. In that report, Mr. Phinney listed as a medical condition that he suffered from arthritis. Mr. Phinney in his videotaped statement as well advised he suffered from arthritis and used marijuana to self medicate. Constable MacDonald agreed under cross examination that arthritis sufferers use marijuana medicinally. It is surprising that Constable MacDonald did not deal with this in some fashion in his written opinion or on direct examination.
[28] The accused has, since the offence in question, obtained an authorization to possess dried marijuana for medical purposes. This was obtained through prescription by his doctor. Under that, he is authorized to possess up to 750 grams of dried marijuana. As well he obtained a personal use production license allowing him to store up to 5490 grams of marijuana indoors. Mr. Phinney’s prescription from his doctor indicated he should be taking up to 25 grams daily for his arthritis. This would appreciably vary the supply held by the accused from a 37½ day supply to just over a four day supply. When this was put to Constable MacDonald, the constable indicated again his opinion was that no person could function if smoking more than three grams of marijuana a day.
[29] Under cross examination, the officer indicated he based his opinion on what he was taught by the R.C.M.P. instructors. He further answered that he had not read any literature on the subject, nor was he exposed to any independent studies to show what capacity a person has to consume marijuana. Constable MacDonald was unable to say what would happen to an individual who smoked over three grams of marijuana in a day. It is difficult for a court to place reliance on an expert who on one hand indicates that a person cannot function if they smoke more than three grams of marijuana in a day, but on the other hand cannot answer what would happen to an individual who smoked more than that amount.
[30] Constable MacDonald indicated a factor in his opinion was that the accused had a cell phone. In this day and age, almost everyone over the age of 12 is physically and spiritually tied to a cell phone. The officer acknowledged this, but simply stated no known drug user operates without a cell phone. The cell phone seized was sent for a forensic examination which showed no cell phone activity that could be related to drug trafficking. The officer was well aware of that when he prepared his written expert report, yet failed to bring out that there was nothing related to trafficking found. Of greater importance, he failed to factor that lack of activity into his opinion. This again appears to show a lack of objectivity by this expert and further erodes any reliance a court can place on his opinion.
[31] Constable MacDonald also did not account for other things which were not found with the accused that ordinarily might point to trafficking. There were no scales found to weigh the product. There were no “score sheets”, the method used by dealers to keep track of their dealings. There were no containers such as baggies to individually market product. While the accused was identified as a member of the Bacchus Motorcycle Club, there was no expert evidence provided by the crown to identify the nature of this organization. Biker clubs have been known to be involved in the drug trade. This type of evidence would require further expert analysis of the accused’s club for any court to determine they were involved in the drug trade, and then linking that to the accused’s activities on the day in question.
[32] Constable MacDonald was quite right to say that you must analyse all the evidence to conclude that the 113 grams of marijuana held by the accused was without any doubt for the purpose of trafficking. To do that analysis you must include all evidence, and the lack of other evidence, to determine whether it assists your opinion or not. An expert must account for all of that for a court to place reliability on the opinion put forward. Here that reliability is lacking, and I cannot conclude beyond any reasonable doubt the marijuana held by the accused was for the purpose of trafficking, as opposed to personal use. I must accordingly acquit him of the 5(2) charge under the Controlled Drugs and Substances Act.
PCJ