IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
R. v. Lees, |
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2018 BCSC 33 |
Date: 20180112
Docket: 31037
Registry: Cranbrook
Regina
v.
Arthur Robert Lees
Before: The Honourable Madam Justice Iyer
Oral Reasons for Judgment
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Counsel for Crown: |
R. Smyth |
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Counsel for Accused: |
R. Strahl |
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Place and Date of Trial: |
Cranbrook, B.C. October 19 and 20, 2017 |
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Place and Date of Judgment: |
Cranbrook, B.C. January 12, 2018 |
Table of Contents
[1] Mr. Lees is charged with two counts of possession of a controlled substance for the purposes of trafficking, contrary to s.5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”). One count relates to cocaine, and the other to Oxycodone. He pleaded not guilty to both charges.
[2] At the trial, Mr. Lees brought a Charter motion to exclude the evidence of the drugs on his person on the basis that he had been arbitrarily detained contrary to s. 9 of the Charter. I ruled that there was no arbitrary detention and that the evidence was admissible.
[3] After my ruling, counsel agreed that all of the evidence on the voir dire was admissible in the trial proper, except for any evidence given by the police officers as to Mr. Lees’ reputation or criminal history, and any hearsay evidence. I have disregarded all such evidence.
[4] The two officers, Constable Jones and Constable Dulude, who were involved in Mr. Lees’ arrest testified at the trial, as did Mr. Lees. The Crown also called Sergeant McMillan as an expert on the sale, use, distribution, price and packaging of controlled substances, including cocaine, oxycodone and methamphetamines. There was no objection to his qualifications.
[5] On January 30, 2015, Mr. Lees drove into Creston. He testified that he had some $3,500 in cash because he had just sold a vehicle to a friend of his. He encountered Fred Martineau, a person from whom he had previously purchased drugs, gave him a lift, and arranged to buy an 8-ball of cocaine and 30 oxycodone (Percocet) pills from him. Mr. Lees said that he gave Mr. Martineau $450 up front ($300 for the 8-ball and $150, or $5 per pill, for the oxycodone) and arranged to meet to obtain the drugs later that day.
[6] In the afternoon, Mr. Lees encountered Mr. Martineau again. At this time, Mr. Martineau was carrying a large box containing a flat screen TV. The two men walked to Mr. Lees’ car and put the box in its trunk. They stayed beside the car and chatted. Constable Jones, who was in uniform, and Constable Dulude, who was in plainclothes, approached the men. Constable Jones arrested Mr. Martineau on an unrelated matter. Mr. Lees attempted to leave, but collided with the plainclothes officer, Constable Dulude, who arrested him. Mr. Lees was holding a baggie of cocaine, and a bottle of assorted pills was found in his pocket.
[7] The bagged cocaine was sub-divided into eight smaller packets, seven weighing 0.5 grams and one weighing 0.4 grams. The pill bottle had an illegible prescription on it. It contained 38 oxycodone pills, 4 Zantac pills, 1 amphetamine pill, and 3 other unidentified pills. Mr. Lees had $355 in cash in his wallet, and a bundle of $2,500 secured by an elastic band in his pocket.
[8] The offence of possession for the purpose of trafficking under s. 5(2) of the CDSA requires the Crown to prove the following elements beyond a reasonable doubt:
1. The accused was in possession of the controlled substance;
2. The accused knew what the substance was; and
3.
The accused had possession of the substance for the purpose of
trafficking in it.
[9] If I acquit Mr. Lees on one or both charges, I must consider whether he is guilty of the included offence of possession under s. 4(1) of the CDSA: R v. Schritt [2013] M.J. No. 128 (C.A.).
[10] In this case, there is no need to address the first two elements because Mr. Lees admitted that he had possession of the cocaine and oxycodone, and knew what they were because those were the drugs he had asked Mr. Martineau to obtain for him.
[11] Turning to the question of intent, I have no difficulty concluding that Mr. Lees possessed the cocaine for the purpose of trafficking in it because he testified in cross-examination that he intended to share the cocaine with others:
Q: So how long would that cocaine last you?
A: Hard to say – a couple days.
Q: So, that means you’d be using about, well, over a gram a day?
A: I share. I don’t do it myself.
Q: Who do you share it with?
A: Any friend that would want to partake. Not too many people turn it down.
Q: So you were living on your modest savings, and you just dropped $300 on cocaine?
A: I just sold a truck that I fixed up from basically next to nothing for $3,500. So it was a pretty good pay day for me.
Q: So then, you were just going to share with whoever was interested?
A: No, I went and bought stuff for myself.
Q: Okay . . .
A: I was going to insure the other vehicle so I could in turn sell it again.
Q: Why do you need it to be insured to sell it?
A: Cause I want the people to drive it that are going to buy it.
Q: Okay.
A: And plus I wanted to drive it a little bit too. I hadn’t driven it.
Q: In the wintertime?
A: It was February. The weather wasn’t that bad.
Q: I put it to you Mr. Lees, that the winter, the snow doesn’t fly until December. You’re right in the centre of winter. The snow is not melting until March. You have at least a month and a half left of snow and the inclement weather but you would never be driving a Corvette. It’s just not believable is it?
A: We were driving. By February that thing was being driven on the road.
Q: And if you wanted somebody to sample it you could just get a day’s insurance on it?
A: I wanted to drive it. I bought it, had never driven it. Other than just to buy it.
Q: And the cocaine. So who were you intending to share this with?
A: A girlfriend, maybe a couple of girlfriends.
Q: Would you expect them to pay you for this?
A: No.
[12] Mr. Lees also testified in cross-examination that he usually buys cocaine one gram at a time.
[13] Section 2 of the CDSA defines “traffic” broadly. It means “to sell, administer, give, transfer, transport, send or deliver the substance.” In R. v. Elliott, 2016 BCSC 393, Fenlon J. (as she then was), considered a hypothetical advanced by the defence in the context of considering whether a mandatory minimum sentence for possession for the purposes of trafficking was unconstitutional. The hypothetical (“Hypothetical A”) was about an individual who grows six marijuana plants and intends to share the drug with his family and friends. Fenlon J. affirmed that this would constitute possession for the purposes of trafficking (at paras. 51-52):
51 Regardless of whether money is exchanged, a person need only commit one of the acts that is defined as trafficking, such as giving a substance to another person, for the offence to be made out. Joint possession may or may not be established on the facts of Hypothetical A. In R. v. Taylor (1974), 17 C.C.C. (2d) 36 (B.C.C.A.), that court held that a man who had used pooled funds to acquire a bulk quantity of drugs and stash it somewhere with the intention of allowing others to share it, was guilty of trafficking.
52 In Taylor, the Court of Appeal described the scope of trafficking at 40-41:
In each case the word contemplates a physical act involving two or more persons and it is important to note that these verbs can operate independently of and without reference to the ownership or change of ownership of the object given, delivered or distributed. In other words, one can “give”, “deliver” or “distribute” an object to another or others regardless of whether that object is owned by the one, another or others or all or none of them. Here there was ample evidence, including the testimony of the appellant, that the appellant’s purpose in bringing the hashish to his home on the day in question was to “give”, “deliver” or “distribute” it to some or all of the others, as well as to take some for his own use.
The gravamen of the charge of trafficking is possession plus the intent or purpose of physically making the [narcotic] available to others, regardless of ownership. The simple fact that it was economic for the purchase price to be collected in advance from the potential users of the narcotic and a bulk purchase made, thereby vesting in such users some claim to ownership and title and even a deemed joint possession by them, does not alter the nature of the physical act of giving, delivering or distributing the narcotic to another or others, which in itself constitutes the offence.
[Emphasis in original.]
[14] I am satisfied beyond a reasonable doubt that Mr. Lees is guilty of the offence of possession of cocaine for the purposes of trafficking.
[15] I reach a different conclusion with respect to the oxycodone pills found in Mr. Lees’ possession. Mr. Lees testified that he purchased the pills for his personal use and his testimony was not shaken on cross-examination. He said that he had 8 pills in the pill container with the illegible prescription on it, and that when Mr. Martineau gave him the 30 oxycodone pills he had purchased, Mr. Martineau put them in Mr. Lees’ pill container. Mr. Lees said that the Zantac pills were already in the container, but Mr. Martineau probably put in the other pills as a “bonus” or good will gesture.
[16] Mr. Lees also testified that he used oxycodone for pain, usually taking it at night, and that 30 pills would last him about 3 weeks. He said that he had previously had a prescription for the drug and could obtain one, but found it easier to purchase it on the street.
[17] Sergeant McMillan testified that the presence of different drugs in a single container bearing an illegible description is, in his experience, consistent with possession for the purposes of trafficking. He also said that it would make no sense for a person to buy the drug on the street if they could obtain it by prescription. He said that there is a discount for bulk purchases, so Mr. Lees should have paid less than the $150 he claimed for purchasing 30 pills at a time. He opined that individuals who truly require oxycodone for pain control take them every four to six hours.
[18] The Crown submitted that it made no sense for Mr. Lees to have the pill container with him if he only took oxycodone at night, and that purchasing street drugs for personal use makes no sense for a person who can obtain the drug legally with a prescription. She invited me to infer from this that Mr. Lees must have had the oxycodone for the purposes of trafficking.
[19] Although the Crown has pointed to some weaknesses in Mr. Lees’ account and to his lack of credibility in general, I find that the Crown has not satisfied its burden of proof as set out. In particular, the law requires me to acquit if I do not believe the evidence of the accused but am left in reasonable doubt by it: R. v. W.(D.), [1991] 1 S.C.R. 742.
[20] As counsel for Mr. Lees pointed out in his submissions, neither the fact that different pills were in the same bottle nor that the prescription was illegible, establish that Mr. Lees intended to traffic them. To that I would add that the fact that Mr. Lees had the bottle with him does not establish an intent to traffic. Mr. Lees did not say that he never takes oxycodone during the day. He explained the “bulk” purchase and the amount of cash as the consequence of having just sold a vehicle, and having money in hand.
[21] I consider that there is a reasonable possibility that Mr. Lees intended to purchase the oxycodone exclusively for his personal use. I therefore acquit him of the charge of possession for the purpose of trafficking in oxycodone. However, as possession has been admitted, I find him guilty of the included offence of possession.
[22] Mr. Lees, I find you guilty of Count 1 of the indictment, possession of cocaine for the purposes of trafficking, contrary to s. 5(2) of the CDSA. I find you not guilty of Count 2 of the indictment, possession of oxycodone for the purposes of trafficking, contrary to s. 5(2) of the CDSA. However, I find you guilty of the included offence of possession of oxycodone, contrary to s. 4(1) of the CDSA.
“IYER J.”