2018 BCSC 2391 R. v. White

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	R. v. White,
	2018 BCSC 2391

Date: 20181214

Docket: 169433‑2

Registry: Victoria

Regina

Michael Philip Desbiens
Jeremiah James Hackland
Dezmond Anthony White

Before: The Honourable Mr. Justice Steeves

Oral Reasons for Judgment
re Accused Dezmond Anthony White

Counsel for the Crown:	T. Corsi
Counsel for the Accused Dezmond White:	B. Hickford
Place and Dates of Trial/Hearing:	Victoria, B.C. December 4‑7, 2018
Place and Date of Judgment:	Victoria, B.C. December 14, 2018

[1] THE COURT: The accused Dezmond Anthony White is charged with the following seven counts:

Count 1 / Chef 1

Michael Phillip DESBIENS, Jeremiah James HACKLAND and / et Dezmond Anthony WHITE, on or about the 25th day of October, 2016, at or near the City of Victoria, in the Province of British Columbia, did unlawfully possess a controlled substance, to wit: Cocaine, for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act.

Count 2 / Chef 2

Michael Phillip DESBIENS, Jeremiah James HACKLAND and / et Dezmond Anthony WHITE, on or about the 25th day of October, 2016, at or near the City of Victoria, in the Province of British Columbia, did unlawfully possess a controlled substance, to wit: Fentanyl (N-(1-phenethyl-4-piperidyl) propionanilide), for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act.

Count 3 / Chef 3

Dezmond Anthony WHITE, on or about the 25th day of October, 2016, at or near the City of Victoria, in the Province of British Columbia, did unlawfully possess a controlled substance, to wit: GHB (4-hydroxybutanoic acid), for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act.

Count 4 / Chef 4

Michael Phillip DESBIENS, Jeremiah James HACKLAND and / et Dezmond Anthony WHITE, on or about the 25th day of October, 2016, at or near the City of Victoria, in the Province of British Columbia, did unlawfully possess a controlled substance, to wit: Diacetylmorphine (heroin), Fentanyl (N-(1-phenethyl-4-piperidyl) propionanilide) and N-methyl-3,4-methylenedioxyamphetamine (N-a-dimethyl-1,3-benzodioxole-5-ethanamine) [MDMA], for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act.

Count 5 / Chef 5

Michael Phillip DESBIENS, Jeremiah James HACKLAND and / et Dezmond Anthony WHITE, on or about the 25th day of October, 2016, at or near the City of Victoria, in the Province of British Columbia, did occupy a vehicle knowing there was a prohibited firearm, restricted firearm or non-restricted firearm, prohibited weapon, prohibited device other than a replica firearm, or prohibited ammunition, to wit: a Bryco 380 Auto semi-automatic handgun, in the vehicle, contrary to Section 94(1) of the Criminal Code.

Count 6 / Chef 6

Michael Phillip DESBIENS, Jeremiah James HACKLAND and / et Dezmond Anthony WHITE, on or about the 25th day of October, 2016, at or near the City of Victoria, in the Province of British Columbia, did possess a loaded prohibited or restricted firearm, to wit: a Bryco 380 Auto semi-automatic handgun, without being the holder of an authorization or a licence under which they may possess the firearm in that place and a registration certificate for the firearm, contrary to Section 95(1) of the Criminal Code.

Count 7 / Chef 7

Michael Phillip DESBIENS, Jeremiah James HACKLAND and / et Dezmond Anthony WHITE, on or about the 25th day of October, 2016, at or near the City of Victoria, in the Province of British Columbia, did have in their possession property, to wit: cheques and receipts, the property of John Knight Construction, of a value not in excess of five thousand dollars ($5,000.00) knowing that the said property was obtained by the commission in Canada of an offence punishable by indictment, contrary to Section 355(b) of the Criminal Code.

[2] At the commencement of this trial, the Crown stayed Count Number 7. Further on in the trial, the Crown indicated that they were seeking a conviction under Count 3 of only possession, not possession for the purpose of trafficking. Also at the beginning of the trial, the Crown stayed all charges against Jeremiah James Hackland. Finally, Michael Philip Desbiens pleaded guilty to Counts 1, 2, 5, and 6. He was remanded to appear before another justice along with other charges.

BACKGROUND

[3] Counsel have helpfully prepared an agreed statement of facts dated December 3, 2018:

1. On October 25, 2016 at approximately 02:15 hours Cst. Lequesne stopped a black four door Hyundai Elantra with BC Licence plate CV608E (“Hyundai”) in the parking lot of the Howard Johnson Hotel at 310 Gorge Road East, in the City of Victoria, Province of British Columbia (“Hotel”).

2. Jeremiah Hackland was in the driver's seat of the Hyundai.

3. The registered owner of the Hyundai was Desbiens,

4. Desbiens was located in the front passenger seat of the Hyundai.

5. White was located in the rear passenger seat of the Hyundai, behind the driver's seat.

6. Cst. Sark seized from the centre console of the Hyundai a round puck of substance analyzed as THC, with a weight of 5 grams.

7. Cst. Sark seized from a black “MEC” case located on the floor of the front passenger seat of the Hyundai:

a. Plastic bag with fentanyl weighing 31.6 grams with packaging and analyzed as 9.0% pure;

b. Plastic bag with fentanyl weighing 13.8 grams with packaging and analyzed as 6.4% pure;

c. Marihuana weighing 3.9 grams.

8. Cst. Sark seized from a black backpack located on the backseat of the Hyundai:

a. A mixture of fentanyl, heroin, MDMA weighing 11.8 grams;

b. A black pouch containing a mixture of fentanyl, heroin, MDMA weighing 0.6 grams;

c. Cocaine weighing 15.9 grams;

d. Marihuana weighing 6.0 grams;

e. 9 tablets of diazepam;

f. 3 tablets of alprazolam.

9. Cst. Sark seized from White:

a. Baggie with fentanyl weighing 0.4 grams with packaging and analyzed as 7.4% pure;

b. 4 tablets of clonazepam;

c. 2 tablets of hydromorphone.

10. Police executed a search warrant into suite 351 of the Hotel.

11. Cst. Iles seized from Suite 351:

a. 7 tablets of amphetamine;

b. 2 grams of marihuana;

c. 2 tablets of buprenorphine;

d. 3 tablets of clonazepam;

e. 2 syringes of tetrahydrocannabinol;

f. 40 tablets of oxandrolone;

g. 20 millilitres of GHB

12. The fentanyl and the fentanyl/heroin/MDMA mixture sell for approximately the same price.

13. The total value of the fentanyl and the fentanyl/heroin/MDMA mixture if sold at the gram level is approximately $8.500.00. The value if sold at the 1/4 ounce level (7 grams) is approximately $6,500.00.

14. The value of the cocaine if sold at the point level (0.1 grams) is approximately $1,590.00.

15. The fentanyl, fentanyl/heroin/MDMA mixture, and cocaine were possessed for the purpose of trafficking.

16. Cst. Sark seized from the pocket of the left rear door of the Hyundai a loaded Bryco 380 Auto semi-automatic handgun with a barrel length of 74 mm, a prohibited firearm as defined by s. 84 of the Criminal Code.

17. DNA of at least one male was located on the firearm. DNA of White matched the profile of one of the males.

[4] At trial, the accused did not testify. Mr. Desbiens did testify as the sole witness of the defence. The Crown called a number of police officers, including an expert in the trafficking of drugs and an expert in DNA evidence.

[5] By way of background and a fuller narrative to the agreed facts, Constable LeQuesne was alone in his police vehicle the early morning of October 25, 2016. He recognized a vehicle, a black Hyundai, he knew was owned by Mr. Desbiens and he knew Mr. Desbiens had his driver's licence suspended. The vehicle was parked at a 7‑Eleven store and Constable LeQuesne could not see anyone in it. He drove down the road and parked to wait for the car to leave. He saw the car leave in the opposite direction in his rear‑view mirror. He turned and followed it.

[6] The vehicle travelled for a short time and at an intersection, Constable LeQuesne saw three occupants, two in the front and one in the rear. It is agreed that Mr. Desbiens was in the front passenger seat and Mr. White was in the left rear seat.

[7] The vehicle turned into a Howard Johnson hotel parking lot about the same time Constable LeQuesne put on his flashing lights. He followed behind the vehicle which parked in a stall beside the hotel. The purpose of the stop was to see if Mr. Desbiens was driving his vehicle without a licence.

[8] Constable LeQuesne stopped his vehicle and got out. About the same time, the person in the back seat of the Hyundai behind the driver, Mr. White, got out holding three or four bags of what turned out to be groceries. Constable LeQuesne recognized Mr. White from a previous contact and he greeted him by name. He asked where he was living. The accused, Mr. White, answered that he was staying at the hotel with his girlfriend. Constable LeQuesne told Mr. White to get back in the vehicle, which he did. He may have sat on the seat with his feet outside on the ground. Mr. White was cooperative throughout.

[9] The rear door of the Hyundai vehicle remained open and Constable LeQuesne moved closer to it. About 10 to 15 feet away, he saw something metal shining in the door, probably reflecting back the lights from the police vehicle. Constable LeQuesne thought that it could be a weapon in the door, possibly a knife or something else. It was within reach of Mr. White and Constable LeQuesne drew his firearm, told Mr. White he was under arrest and said that if he reached for the gun in the door he would be shot.

[10] Constable LeQuesne got closer and observed a handgun in the pocket of the door of the vehicle with the handle up and the muzzle pointed down. It was easily accessible, according to Constable LeQuesne. He did not touch the gun.

[11] Constable LeQuesne called for backup at least two times and the scene developed into a Code 5 high risk arrest with about five police officers and their vehicles on the scene. Constable LeQuesne remained behind the Hyundai vehicle with his firearm drawn, while other police officers arrested all the occupants of the car.

[12] Constable Sark commanded the accused to leave the vehicle and lie prone on the ground. Mr. White complied. Constable King took Mr. White, formally arrested him, handcuffed him, and put him in a police vehicle. A search of Mr. White produced $2,510 in $20 bills, a baggie and what was later identified as 0.4 grams of fentanyl, 7.4 percent pure, and some tablets.

[13] Also found on Mr. White was a printed note from a Howard Johnson hotel, noting that the unidentified guest had put a “do not disturb” sign on the door of an unidentified room and the note offered housekeeping services.

[14] Constable Sark was the lead investigator at the scene in the parking lot. He had been told by Constable LeQuesne about the gun in the door. Constable Sark approached the rear left door and he saw the gun himself when he was about 10 to 15 feet away. In his evidence, he stated that he concluded it was time to slow down and secure this firearm.

[15] He put on gloves and started taking photographs, some of which are in evidence. He took the gun from the car door and observed it was not a replica. He removed the magazine and observed the firing chamber was empty. There were four rounds in the magazine. He put the gun in one brown paper bag, the magazine in a second brown paper bag, and then both of the bags in a third brown paper bag.

[16] He did not unload the magazine. He denied in his evidence that he touched any of the rounds in the magazine.

[17] A photo shows Constable Sark holding the gun with the magazine removed in the same hand. In cross-examination, he was asked if he put the magazine down. He said he did not and he denied specifically putting it on the back seat. He put it in the paper bag.

[18] The Hyundai vehicle was towed back to the police detachment where a full search was undertaken. In addition to the drugs described in the agreed facts, the search produced a hunting knife in a case in the front door pocket, an axe on the rear floor, a baton in the back that could be extended, and an unsheathed hunting knife on the rear floor in a large black plastic case that contained a replica gun that fired pellets.

[19] The vehicle contained a number of other things in the back seat, including a backpack and a blue fabric suitcase.

[20] Constable Morgan took custody of the firearm from the rear door of the vehicle to the police detachment. He is a member of the Victoria Police Department Forensic Identification Services with training and experience in fingerprinting and DNA. He first attempted to obtain fingerprints from the gun, but he could not get any that were useable. He testified that every stage in the process of fingerprinting and taking DNA swabs, he changed gloves. He prepared four DNA swabs from the gun: one from the magazine, one from the rounds, one from the trigger, and one from the grip slide trigger guard. He sent these for DNA testing.

[21] Constable Morgan's work was in a room set aside for this work and only members of his unit have access to it, about five people. Overnight, he left the gun disassembled on the table in the room.

[22] Ms. Bella Mosimann testified as an expert in the extraction, isolation, and comparison of DNA. In her first report, she analyzed the swabs sent to her. It is dated February 3, 2017, and she identified the four samples received by her as follows:

Exhibits Examined:

Exhibit No.	Lab No.	Description	Attribution
A‑1AA	0001	swab of magazine	Vehicle
A‑1AB	0002	swab of bullets	Vehicle
A‑1AC	0003	swab of trigger	Vehicle
A‑1AD	0004	swab of grip, slide and trigger guard	Vehicle

[23] Her conclusions were:

Conclusions:

1. The DNA typing profile obtained from exhibit A-1AC (swab of trigger) is consistent with having originated from at least one individual. The partial profile is that of an unknown individual. This profile has been personally designated as Male 1. See remark 1.

2. The DNA typing profile obtained from exhibit A-1AB (swab of bullets) is of mixed origin consistent with having originated from two individuals.

a. The partial profile of the major component matches the Male 1 profile.

b. The partial profile of the minor component Is that of an unknown individual. This profile has been personally designated as Individual 1. See remark 2.

3. The DNA typing profiles obtained from exhibits A-1AA (swab of magazine) and A-1AD (swab of grip, slide and trigger guard) are of mixed origin, each consistent with having originated from at least three individuals, including at least one male. Due to the weakness of some components and the number of possible contributors, no meaningful comparison can be made to any samples.

[24] A DNA sample was then obtained from Mr. White and Ms. Mosimann produced a second report dated August 18, 2018. For privacy reasons, Mr. White was only identified as DW. The conclusions of the second report were:

Conclusions:

1. The DNA typing profile obtained from exhibit A-1AC (swab of trigger) is consistent with having originated from at least one individual. The partial profile, previously designated as Male 1, matches that of the known sample, exhibit G-1 (DW). The estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile is 1 in 340 trillion.

2. The DNA typing profile obtained from exhibit A-1AB (swab of bullets) is of mixed origin consistent with having originated from two individuals:

a. The partial profile of the major component matches that of the known sample, exhibit G‑1 (DW). The estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile is 1 in 29 trillion.

b. The partial profile of the minor component is that of an unknown individual, previously designated as Individual 1.

[25] As described by the agreed facts, the result of these tests was that DNA of at least one male was located on the firearm. DNA of White matched the profile of one of the males.

[26] According to Mr. White, there are problems with the transfer of DNA which makes the DNA evidence unreliable. In addition, Mr. Desbiens testified that the gun found in the vehicle was his and Mr. White handled it a few days before October 25, 2016. These issues are discussed further below.

ANALYSIS

[27] The Crown submits that the evidence proves, beyond a reasonable doubt, that Mr. White had personal possession of the gun in the door of the vehicle and he had joint possession of the drugs in the car with Mr. Desbiens. There are also the drugs in the hotel room and drugs found on the person of Mr. White.

[28] The defence says the Crown has not proven beyond a reasonable doubt Mr. White's guilt. Testimony of Mr. Desbiens is relied on that the drugs were his. With respect to the gun, he essentially accepts that his DNA was on it; however, he says that this was either the result of transference of DNA or his use of the firearm with Mr. Desbiens a few days before October 25, 2016.

[29] As important context for the issues in this trial, the Crown has to prove, beyond a reasonable doubt, all of the essential elements of the offences Mr. White is charged with. As well, this is a case of circumstantial evidence and before reaching a conviction, I must be satisfied, beyond a reasonable doubt, that the guilt of the accused is the only reasonable inference to be drawn from the proven facts. Guilt cannot be found on the basis of conjecture or speculation: R v. Se Chuh Lee (31 May 1996), Vancouver CA020114 (B.C.C.A.) at paras. 13-14; R. v. Wing Hong To (30 July 1992), Vancouver CA012992 (B.C.C.A.) at para. 26.

[30] I turn first to the counts related to drugs. These are Counts 1, 2, 3, and 4 of the indictment. As above, the Crown has amended Count 3 for GHB to be only for possession, not possession for the purpose of trafficking. Counts 1, 2, and 4 are for possession for the purposes of trafficking.

[31] The locations of the drugs was as follows: the cocaine, Count 1, was in the backpack in the back seat of the car; the fentanyl, Count 2, was in the backpack in the back of the car, it was in a container on the floor on the front passenger side of the car, and it was found on the person of Mr. White; the GHB, Count 3, was found in the hotel room; and the mixture of heroin/fentanyl/MDMA was found in the backpack.

[32] The legal context for these counts starts with the definition of possession in s. 4(3) of the Criminal Code:

4. (3) 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 persons, 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.

[33] This is incorporated into the Controlled Drugs and Substances Act under s. 5(2)(i) of that statute. Again, according to the Crown, Mr. White has joint possession of the drugs found of at least the drugs in the car. On this theory, Mr. Desbiens had personal possession.

[34] Beginning with the drugs in the backpack, the cocaine, fentanyl, and mixture of heroin/fentanyl/MDMA, the evidence is that it was in the back seat of the vehicle behind the front passenger. The back seat was crowded with various things, including the backpack, another blue cloth bag that was a bit bigger than the backpack, and other things. The things in the back seat actually spread over more than half the seat, as represented in the photographs in evidence.

[35] Did Mr. White have joint possession of the drugs in the back pack?

[36] I accept that ownership of the drugs does not need to be proven and joint possession does not require evidence of manual handling. What is required is for the Crown to prove beyond a reasonable doubt that someone other than Mr. White had possession of the drugs with his knowledge and consent, and that he had some measure of control over them: R. v. Fisher, 2005 BCCA 494, paras. 24 and 33.

[37] It is clear enough that Mr. Desbiens had possession of the drugs in the backpack. He has pled guilty to that, as well as the trafficking of those drugs. He said that in his evidence as well.

[38] However, there is no evidence that Mr. White had knowledge of the drugs or of the backpack itself, for that matter, nor is there any evidence he had control of them. We do not know if he opened the backpack or that he had it in his possession, nor is the evidence that someone opened the backpack in front of him or otherwise told him what was in it. On the evidence, he knew no more about the backpack than he knew about the other blue larger cloth bag which apparently contained no drugs.

[39] These circumstances are analogous to other decisions where a gun was found in a glove box, (Se Chuh Lee), drugs were found in a motorcycle saddle bag (R. v. Brienza, 2003 BCCA 159) and I note in R. v. Borkowski, 2009 BCPC 104, mere acquiescence in the presence of a backpack is not proof of possession.

[40] It is true that Mr. White had $2,510 cash on his person, as well as some rubber bands that drug dealers use to put around rolls of paper money. As will be seen, I find those are of some significance for the drugs on Mr. White's person, but for the drugs in the backpack, there was again no evidence he had knowledge of them.

[41] The same conclusion must be made about the fentanyl in the closed MEC container on the front floor of the Hyundai vehicle. No drugs were visible and there is no evidence Mr. White knew what was in the container. The only evidence is that the container was in the same car as Mr. White.

[42] The circumstances of the drugs in the backpack in the same car as Mr. White are certainly suspicious. However, I am unable to find that there is proof beyond a reasonable doubt that Mr. White had knowledge or control over them. It is possible, as the Crown argued, that Mr. White and the other two occupants of the vehicle were all involved in a dial‑a‑dope operation involving the drugs in the backpack and the MEC container. However, the evidence does not go that far and there is expert evidence that large amounts of drugs are not consistent with a dial‑a‑dope operation.

[43] I next turn to the drugs found on Mr. White's person. There was 0.4 grams of fentanyl in a baggie. Possession cannot be seriously disputed about this substance. Also found on Mr. White was $2,510 in cash and some rubber bands. As noted in Fisher, unexplained cash is particularly cogent.

[44] It is true that the amount of fentanyl found on Mr. White was small. The expert evidence is that it would be about two days' personal use and users would generally carry drugs for one day's use. In any event, I consider the $2,510 to be telling. As the expert explained, quantity of drugs is not always indicative of trafficking. A dealer can be supply heavy and cash low at the beginning of a day, and supply low and cash heavy at the end of a day of dealing.

[45] In my view, those facts leave little doubt that Mr. White was trafficking in fentanyl.

[46] There is also the evidence from the hotel room, Room 351. It is submitted that there is no connection between what was found in that room and Mr. White. I disagree. He had a note with the same hotel brand on his person, albeit without a guest room or room number. It is true there is no evidence of who the registered guest was of Room 351, but in the room were found a number of personal documents of Mr. White. These included a business licence in his name and a number of prescription receipts, also in his name. I conclude that Mr. White at least resided in the room. He also told Constable LeQuesne that he was staying at the hotel and he was being dropped off in order to enter the hotel.

[47] In the room were scales commonly used for weighing drugs. The residue was not tested and $6,430 cash was found hidden in a false coffee can. This evidence supports the conclusion that Mr. White was in the business of trafficking.

[48] As a final matter related to the drugs, I turn to the GHB found in the hotel room. Mr. White is charged, under Count 3, with possession. As above, I am satisfied that Mr. White was a resident in the hotel room. The GHB was found in that room. It is possible that GHB was in the possession of Mr. White's girlfriend, but it is no more than a possibility. I conclude that Mr. White possessed the GHB in the hotel room for either his use or the use of another person.

[49] By way of summary of the drug counts, my conclusions are as follows:

a) Count 1, possession for the purpose of trafficking of cocaine that was in the backpack, not guilty.

b) Count 2, possession for the purpose of trafficking of fentanyl that was on the person of Mr. White, guilty. Possession for the purpose of trafficking for the fentanyl found in the backpack, not guilty.

c) Count 3, this is possession of GHB found in the hotel room, I find Mr. White guilty.

d) Count 4, this is possession for the purpose of trafficking of the heroin/fentanyl/MDMA mix found in the backpack, I find Mr. White not guilty.

[50] I next turn to Counts 5 and 6 with respect to the gun found in the pocket of the rear left passenger door of the vehicle beside where Mr. White was sitting. It was loaded with four rounds in the magazine, the handle was at the top with the muzzle down, the firing chamber was empty.

[51] The Crown's evidence against Mr. White on the gun is, first of all, his proximity to it. He sat beside it and it was immediately obvious to Constable LeQuesne, or a reflection off of it was, when Mr. White stepped out of the car. Mr. White says, through his counsel, there is no evidence about this. The onus is on the Crown to prove that he sat in the vehicle for the short trip from the 7‑Eleven store to the hotel and he saw the gun. It is true that it is not visible in the door in a photograph taken about six feet behind the car with the door open. However, I accept Constable LeQuesne's evidence that it was, first of all, noticeable by the reflective glint from the lights on his police vehicle. As well, Constable LeQuesne testified that when he moved to about five feet away, he identified the gun.

[52] It is also relevant to proximity to note that Mr. White was sharing the back seat with the backpack, a large blue cloth bag, and a number of other things. On the floor under the feet of Mr. White were three water bottles and an axe, among other things. In the pocket at the back of the driver's seat was a thick wide package of papers. Overall, the situation was a very cramped one requiring Mr. White to be close to the door, if not squeezed against it. He also had three bags of groceries on his lap.

[53] Overall, I find it is highly unlikely that Mr. White would have sat in the back seat without seeing the gun.

[54] In any event, Mr. White's DNA is on the gun. This was demonstrated by analysis of swabs taken by the police and examined by experts who testified about them. As admitted, the DNA is of a male and the profile matches Mr. White. The margin of error from the test is extremely low.

[55] It is submitted by counsel for Mr. White that the DNA trail from the hotel parking lot could have been contaminated or the DNA transferred to the gun. For example, the exhibit officer, Constable Sark, could have put the magazine down on the seat of the car, or he may have had contact with Mr. White at the scene, or someone might have gained entry to the exhibit room, or the DNA could have been transferred as a result of a sneeze, a cough, or simply talking. These scenarios are no more than speculation. Some police officers and experts accepted the possibility of some of these situations, but they did that only to not rule out highly unlikely events. That is, they could not say they were impossible.

[56] Proof beyond a reasonable doubt does not mean that every possibility has to be eliminated, nor is the standard one of certainty. Some time ago, Chief Justice McEachern of this court discussed this in the following terms (Wing Hong To):

The criminal law requires a ... high degree of proof, especially for inferences consistent with guilt, but it does not demand certainty.

[57] It follows that I do not agree with the defence that, by various means, the DNA sample taken from the gun that were analyzed were contaminated by transference or other means.

[58] The defence also relies on the evidence of Mr. Desbiens with regards to the gun. As above, Desbiens has pled guilty to Counts 1, 2, 4, and 5. He testified as the only witness for the defence. He said his motivation for testifying was that he once got stuck with charges he was not guilty of, and he did not want that to happen to Mr. White.

[59] Mr. Desbiens testified that he has property in Metchosin and Mr. White visited him there a few days before October 25, 2016. Mr. Desbiens showed Mr. White his gun, the same Bryco 380 found in the Hyundai vehicle on October 25. He let Mr. White look at it and Mr. Desbiens said, and this is my transcription of the DARS recording:

A Yeah, like I handed it to him, he looked at it, popped the clip out, saw that there was a round in it, put it back in like that, saw that it loaded, and then when he was done, I just asked him to pull the bullet out of the chamber, right, so that it wasn't, like I said, able to just go off at any time. So he pulled the clip back, pulled the bullet out of there, and then he handed it to me and I reloaded it back into the clip.

Q So you took the bullet and put it back into the clip?

A Yeah. After he handed it to me, I put it back into the clip and then put the clip back into the bottom of the gun, but it was not live any more, right.

[60] According to the defence, this is the explanation for Mr. White's DNA being on the gun found in the vehicle.

[61] Mr. Desbiens continued his evidence by saying that after Mr. White visited him and before October 25, 2016, the gun was misfiring. Again, my recording of the DARS evidence:

Every couple times you'd pull the trigger, it just -- nothing would happen, so I brought it in to a friend of mine who had a look at it and kind of fixed it for me, and then I just threw it in the back seat, in the back behind the driver side door. The driver side seat, in the back door, and just put it in the back seat, kinda left it there. I was driving around all day with my buddy Gerry who was driving around for me, so we were just kinda cruising, hanging out, and I kinda forgot it was there. Hadn't gone back to my house to drop it off, so.

[62] In cross-examination, Mr. Desbiens said he put the gun in the door and Mr. White was not with him. He also denied that the gun was in the rear door to be accessible to Mr. White.

[63] There are some serious and obvious problems with Mr. Desbiens' evidence. Firstly, and generally, Mr. White did not testify. In addition, Mr. Desbiens' evidence is to be treated very cautiously since he has a lengthy record, as tendered by the defence: R. v. Styles‑Lyons, 2012 ONSC 5812, at para. 118.

[64] More specifically, Mr. Desbiens evidence contains some inconsistencies. For example, he said he threw the gun in the back seat, then he put it in the door, and then he took it from the backpack and put it in the door. As well, the person who fired or looked at the gun to fix it apparently did so with the loaded magazine. He may have taken the magazine out, but Mr. Desbiens did not say that when given the opportunity.

[65] In addition, Mr. Desbiens said that Mr. White handled the magazine and a round. He did not say Mr. White handled the trigger, the other place where Mr. White's DNA was found. He may have handled the trigger, but Mr. Desbiens did not say that.

[66] It is possible that someone could be reckless enough to throw a gun with rounds in a magazine in the back seat, assuming that is what happened. But assuming it was moved from the seat to the door, it does not explain how or why the gun was placed handle up and muzzle down in the door pocket. It seems obvious that the gun was placed to be readily available, to be easily charged with a round. That specific placement is not consistent with the casualness described by Mr. Desbiens.

[67] Overall, I find that the evidence of Mr. Desbiens is not believable. It simply is not a plausible explanation for the gun to be where it was found. The explanation that the gun was handled by Mr. White in Metchosin a few days before October 25, 2016, and then was in the door pocket beside Mr. White is convenient for the defence of Mr. White, but it is not credible. I conclude that the DNA on the gun was a result of Mr. White handling it on the night of October 25, 2016. That evidence supports a conclusion that he had knowledge and control of the weapon.

[68] Finally, as an overall summary of the above:

a) Count 1, possession for the purposes of trafficking of cocaine contrary to s. 5(2) of the Controlled Drugs and Substances Act, Mr. White is not guilty.

b) Count 2, possession for the purposes of trafficking of fentanyl contrary to s. 5(2) of the CDSA, Mr. White is guilty for the fentanyl found on his person. He is not guilty for the fentanyl found in the vehicle.

c) Count 3, possession of GHB in the hotel room contrary to s. 5(2) of the CDSA, Mr. White is guilty.

d) Count 4, possession for the purpose of trafficking of the mixture of drugs in the backpack contrary to s. 5(2) of the CDSA, Mr. White is not guilty.

e) Count 5, possession of the gun contrary to s. 94(1) of the Criminal Code, Mr. White is guilty.

f) Count 6, possession of the gun contrary to s. 95(1) of the Criminal Code, Mr. White is guilty.

[69] On preparing these reasons, it occurred to me that there may be a Kienapple issue with respect to Counts 5 and 6. I do not have a particular view on that, but I pose it as a question for counsel.

[70] MR. HICKFORD: Well, Count 5 is occupying a vehicle knowing there was a prohibited firearm in it, Count 6 is being in possession of the firearm.

[71] MR. CORSI: Yes, thank you, My Lord, I think that they could both be -- Count 6 does not require that there be a motor vehicle involved, so I'm not -- in Crown's position, there would not be a Kienapple issue with those two counts.

[72] THE COURT: Yes, all right, fair enough.

“J. J. Steeves, J.”

The Honourable Mr. Justice Steeves