IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           William Orr (“the Accused”) is charged that on October 23, 2013, at Burnaby, British Columbia, he did unlawfully traffic in cocaine contrary to s. 5(1) of the Controlled Drugs and Substances Act (“CDSA”).

[2]           The Accused is also charged that on the same date, at Burnaby, he did unlawfully traffic in heroin contrary to s. 5(1) of the CDSA.

[3]           The Accused is also charged that on the same date, at Burnaby, while operating a motor vehicle being pursued by a peace officer that he did fail, without reasonable excuse and in order to evade the peace officer, to stop the motor vehicle as soon as reasonable in the circumstances, contrary to s. 249.1(1) of the Criminal Code (“Code”).

[4]           A co-accused, David Lai (“Lai”), has entered guilty pleas in relation to the trafficking charges and is to be sentenced at a later date.

[5]           The Accused admits that he was driving an Acura motor vehicle on October 23, 2013, when it was rammed by a police vehicle in a Staples parking lot as a result of a police investigation into dial-a-dope activities.  However, the Accused denies that he was involved in any illegal drug trafficking activity either as a principal or as a party by operation of s. 21(1) of the Code.

[6]           The Accused denies that at the time the Acura was rammed by an undercover police vehicle he was trying to evade the police.

[7]           The Accused has questioned the reliability of the evidence presented by the Crown.

[8]           Accordingly, while the credibility and reliability of the Accused is a key feature of this case, an assessment must also be made of the reliability of the evidence presented by the Crown.

[9]           On October 23, 2013, RCMP members commenced an undercover investigation into various cellular telephone numbers believed to be associated with individuals involved in dial-a-dope activity.  One of the numbers that was provided to the RCMP was related to cellular telephone number 778-686-8810.

[10]        Corporal Hryciuk (“Hryciuk”) testified that he called that cellular telephone number at 2:37 PM and spoke to a male person identified as “Vince”.  Hryciuk identified himself as “Eddie” and asked Vince if he was working and if he could “do a half ball for $100”, and also if he could “grab a point for my old lady”.

[11]        Vince told Hryciuk that he was working and that he could do the deal.  Hryciuk told Vince that he would be standing at the northwest corner of Alpha Avenue and Dawson Street in Burnaby.  Vince told Hryciuk he would be there in five minutes.

[12]        A short time later, Vince called back and Hryciuk said what he was driving. Hryciuk told Vince that he was not driving, rather he was walking and that he could not be missed as he was wearing a reflective safety vest.

[13]        At 2:50 PM, Hryciuk observed a light coloured four-door import, the Acura, approaching the intersection of Alpha Avenue and Dawson Street.  Hryciuk testified that he saw two persons in the front of the car looking in his direction, he gave a head nod and the vehicle immediately pulled over.

[14]        Hryciuk testified that he went to the rear passenger door and opened the door to get into the back seat, and observed a “startled” Asian female (“L.L.”) in the back seat. At the same time, he heard someone in the front seat saying “whoa”.

[15]        Hryciuk closed the rear door, went to the front passenger side of the motor vehicle and told the passenger, Lai, that he was “sorry”.  Lai responded by telling Hryciuk, “Sorry, should have told you”.

[16]        Hryciuk then handed marked money to Lai, who then handed the cocaine and heroin to Hryciuk.  The total transaction took approximately 15 seconds.  Hryciuk then observed the vehicle proceed along Dawson westbound.  The buy money was later found in the front console of the Acura after it was searched at the Staples parking lot.

[17]        Constable Jason Ryan (“Ryan”) was part of the RCMP undercover team involved in the surveillance of the Acura.  He testified that after the drug transaction with Hryciuk, he followed the Acura in an undercover police vehicle to the Staples parking lot off of Halifax Street in Burnaby.

[18]        Ryan was positioned approximately 50 to 75 feet away from where the Acura was parked in the Staples parking lot when he saw a male on a bicycle go to the driver side of the Acura.  After approximately 30 seconds, this cyclist then left.

[19]        Ryan observed that the Acura immediately began to leave the parking lot.  Ryan engaged emergency lights located in the grill of his motor vehicle and also emergency lights that pull down from the visor area of his police vehicle and commenced a pursuit of the Acura in the parking lot.

[20]        Ryan testified that the Acura was in a proper lane that would take it to an exit.  He did not believe that the Acura was speeding nor did he recall any screeching of tires coming from the Acura.

[21]        Ryan recalled hearing a “yelp” of a siren but no steady wailing of a siren.  Ryan believed the Acura was trying to evade the police so he took a position of containment.  Within a matter of seconds, the Acura was rammed by a police vehicle driven by Constable Aaron Greenhaugh (“Greenhaugh”) causing the Acura to become disabled.

[22]        Ryan testified that there were three occupants of the Acura, being the Accused in the front driver seat, Lai in the front passenger seat, and L.L., and a female, in the back seat.

[23]        Greenhaugh was also part of the containment team and was at the Staples parking lot when the Acura appeared to be leaving the parking lot.  He described the vehicle movement of the Acura to be, in his opinion, “quick and deliberate”.

[24]        Greenhaugh engaged the emergency lights and siren on his undercover police vehicle.  He testified that he believed the driver of the Acura was actively trying to evade police so he rammed the Acura twice with his police vehicle to prevent the Acura from leaving the parking lot.

[25]        Greenhaugh recalled seeing either the Accused or Lai drinking from a water bottle just prior to ramming the Acura.  He also recalled seeing both the Accused and Lai looking down into the console area of the Acura prior to the ramming.

[26]        Sergeant Rintoul (“Rintoul”) was also part of the containment team.  He followed the Acura after the drug transaction with the Corporal.  He observed, at one point, that the Accused was using a cellular telephone.

[27]        At the Staples parking lot, Rintoul, upon determining that it was safe to do so, directed the takedown of the occupants of the Acura.  Rintoul described the Acura to be moving “quickly” in the Staples parking lot and that the Acura appeared to be evading Ryan and Greenhaugh.

[28]        Rintoul recalled the emergency lights of Ryan’s police vehicle to be engaged and the emergency lights and siren on Greenhaugh’s police vehicle to also be engaged.

[29]        Following the arrest of the Accused shortly after 3:00 PM, there were six telephone calls received on Lai’s Blackberry cellular phone between 3:27 PM and 3:40 PM.  The incoming telephone calls were answered by Constable Musinovic (“Musinovic”).  All six of the telephone calls suggested a dial-a-dope scenario and were similar to the language used by Hryciuk when he called “Vince” at 2:37 PM. 

[30]        Constable Conway Hopkins (“Hopkins”) was involved in a search of the Acura.  In addition, he took a video of the exterior and the interior of the Acura.  The video showed fairly significant exterior damage to the Acura.

[31]        In relation to the interior of the Acura, $930, which included the buy money, was noted to be in plain view in the centre console of the Acura.  There were two cellular phones also located in plain view in the console with two other cellular phones located on the front passenger seat.

[32]        One of the cellular phones on the front passenger seat was a Blackberry with contact number being 778-686-8810.

[33]        On the floor of the front passenger seat was an open Smarties container along with an empty plastic water bottle.  Water droplets were readily observable on the rear seats of the Acura.

[34]        The Accused’s wallet was found in the glove box of the Acura.  There was $130 contained in the wallet along with identification.  Registration documents in the glove box revealed that the owner was T.N., with an address in Surrey.  The Acura had just been purchased on October 16, 2013.

[35]        Hopkins confirmed that a drug sniffing dog unit went through the Acura with negative results.

[36]        CCTV footage of the Staples parking lot was also introduced into evidence.  That footage shows a man on a bicycle proceeding northbound in the Staples parking lot and then disappearing through the northwest exit of the parking lot.  Within a matter of seconds, the Acura is observed pulling into the parking lot followed by the man on the bicycle.

[37]        The man on the bicycle goes directly to the front driver’s side of the Acura where he can be observed to be leaning toward the driver and after approximately 10 seconds he cycles out of the parking lot.  As soon as the cyclist leaves the side of the Acura the Acura can be seen to immediately back up and commence to make a northbound direction of travel.

[38]        The Accused and the Crown have admitted that at 3:28 PM the Accused spoke to Corporal Aitkin (“Aitkin”).  During that conversation, Aitkin told the Accused that he would need medical care if he ingested any drugs.  The Accused was also told that emergency health services could be requested if he required medical help.  The Accused denied ingesting anything and denied needing any medical help.

[39]        The Accused elected to testify.  The Accused told the court that he was 24 years of age, lived with his mother and brother in Surrey, and did not have a criminal record.  The Accused was friends with both L.L. and Lai.  It was the hope of the Accused that he would develop a closer relationship with L.L. in October of 2013.

[40]        The Accused testified that he spent the night of October 22, 2013, at his brother’s house with L.L.  His brother’s house was located in the area of Dawson Street and Willingdon Avenue in Burnaby.

[41]        The Accused testified that on October 23, 2013, he contacted Lai and asked him to do him a favour.  He needed a ride to pick up a costume for L.L. as it was his intention to attend a rave with L.L. “a few days before or after Halloween.”

[42]        The Accused testified that sometime after 2:00 PM, Lai arrived at his brother’s house driving an Acura motor vehicle that had been recently purchased by T.N., who is a friend of both the Accused and Lai. The Accused, Lai and L.L. all left in the Acura with the Accused driving as he had a Class 5 driver’s license while Lai only had a Class 7 driver’s license.  Apparently, a Class 7 license holder must display an “N” and cannot carry more than one passenger.

[43]        The plan at that time was to go to the Staples retail complex in northwest Burnaby to get some lunch.  The location of Staples would be opposite to the direction of travel to get L.L.’s costume in Coquitlam.

[44]        While en route to the Staples complex, the Accused recalls stopping at the area of Dawson Street and Alpha Avenue as Lai had told him that he was going to meet someone to “grab more money” for the purchase of the tickets for the rave.  The Accused testified that he really paid no attention to this person, Hryciuk, as Corporal Hryciuk, as he was busy talking to L.L.

[45]        The Accused testified that he either could not recall, or it did not happen, that Hryciuk attempted to enter the back seat of the Acura apparently causing L.L. to be startled.  The Accused also could not recall someone saying “whoa” when Hryciuk attempted to enter the back seat of the Acura.

[46]        The Accused denied seeing any drug transaction between Lai and Hryciuk.  The only thing he saw was Lai receiving some money that he placed in the large bundle of money that was located in the centre console of the Acura.

[47]        The Accused initially denied in cross-examination that he was on his cellular phone when driving to the Staples complex.  However, when pressed, the Accused told the court that he could not recall if he was on his cellular phone.

[48]        The Accused testified that once they arrived at the Staples parking lot, he recalled having an interaction with a person on a bicycle.  He explained that interaction as follows:

[49]        After that interaction with the person on the bicycle, the Accused testified there was a discussion about lunch when L.L. got the call that her costume was ready.  She wanted to immediately leave to get the costume.  The Accused testified that he wanted to be in the “good books” of L.L. and so immediately began to leave the Staples parking lot without getting any food as planned.  The Accused explained, L.L. is “the type of girl she is, she has to get things done right away.  You know how girls are”.

[50]        The Accused testified that as they began to pull away from the parking stall in the Staples complex, he saw another car coming towards the Acura from the left.  The Accused was afraid there was going to be a collision so he maneuvered the Acura around this vehicle and began to circle the parking lot toward the northwest exit.

[51]        While making that manoeuvre, the Accused described what occurred as follows:

[52]        The Accused testified that it was only after the Acura was struck by the Camry that he realized these were police vehicles.  He denied hearing any siren and only observed emergency lights deployed on one of the vehicles just prior to being rammed.  The Accused denied that the Acura was rammed twice by one of the police vehicles.

[53]        The Accused also testified that he only became concerned about illicit drugs when the Acura was being boxed in by police officers and he observed Lai apparently swallowing something from a tube.  The Accused denied that he ingested any drugs or drank any water at the time the Acura was being boxed in by the police.

[54]        The Accused testified that L.L.’s glasses and cell phone were broken by the police when the takedown took place at the Staples parking lot.  The Accused testified that he felt responsible for L.L.’s broken glasses and the broken cell phone, so the next day, after being released from custody, he bought her new glasses and a new cell phone for approximately $900 all in.

[55]        Though only working “random days” for an irrigation company, the Accused testified that he had saved this money in the bank as he did not have any bills or expenses, except for his cell phone, at that time.  The Accused denied that he was financing his lifestyle through drug dealing in October 2013.

[56]        The Accused testified that T.N. had just purchased the Acura as T.N.’s previous vehicle was wrecked in a collision.  Though Lai had apparently borrowed the Acura, the Accused was asked in the following exchange in cross-examination why he did not call T.N. to tell him that he would be driving the Acura:

[57]        It was admitted by the Crown and the Accused that cell guards at the Burnaby RCMP detachment were to watch the Accused for any negative physical effects. The Accused never received any medical assistance while in custody relating to these charges and was never observed to have any effects that would be consistent with the ingestion of drugs.

[58]        The Accused has admitted that the drugs that were sold by Lai to the Corporal were analysed to be heroin and cocaine.

[59]        The Accused submits that the Crown has not established beyond a reasonable doubt that he was either a principal or a party to any criminal activity with Lai on October 23, 2013.

[60]        The Accused relies upon the Supreme Court of Canada decision in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742 to support his position that the three evidentiary elements in  assessing credibility contained in that decision would support an acquittal.

[61]        The Accused also relies upon the decision of Hicks, PCJ, in R. v. Hardy, 2013 BCPC 66 (CanLII) for the proposition that the Crown must establish beyond a reasonable doubt that the Accused had knowledge that Lai was committing the offence of trafficking or was wilfully blind to that circumstance.

[62]        The Accused submits that his testimony was both credible and reliable in explaining that he was driving the Acura on October 23, 2013, for the purposes of getting money to buy rave tickets, to go for lunch and to get the costume for L.L. The Accused submits that Lai could not operate the Acura with more than one passenger due to his Class 7 driver’s license status.

[63]        The Accused submits that the evidence does not establish beyond a reasonable doubt that he was actively participating in any illicit drug transactions. It was submitted that the Accused never handled anything and that his role was simply that of an innocent driver.

[64]        The Accused submits that the transaction between Lai and the Hryciuk took place in a matter of seconds and there was no interaction between Hryciuk and the Accused.

[65]        The Accused submits that the CCTV footage of the Staples parking lot is not reliable in establishing that the person on the bicycle was somehow involved in an illegal drug transaction with the Accused at the driver’s side of the Acura.  The Accused submits that his evidence that the person on the bicycle was pestering him for money rings true.

[66]        The Accused submits that in relation to the charge of evading a peace officer, that events transpired very rapidly.  The Accused submits there was conflicting evidence as to whether there was a wailing of a siren or merely a yelp of a siren when the police were in the process of containing the Acura.

[67]        The Accused submits that the undercover police vehicles used to contain the Acura, being a minivan and a Toyota Camry, were not readily identifiable as police vehicles.  Emergency lights were located in the grills of the police vehicles with emergency lights also deployable from the visor area of the police vehicles.

[68]        The Accused submits that no expert evidence has been called to establish the operational protocols of a dial-a-dope enterprise.

[69]        The Accused submits that at best, the Crown’s case amounts to suspicions and probabilities, but not proof establishing beyond a reasonable doubt that the Accused is guilty of any of the offences for which he has been charged.

[70]        The Crown takes the position that the Court should look at this case by taking a “common sense approach”.  The Crown submits that the Court should reject the evidence of the Accused as not believable.  If the Court rejects the evidence of the Accused, then the only rational inference that should be drawn from the evidence is that the Accused was a party in a dial-a-dope enterprise with Lai.

[71]        The Crown submits that the Accused facilitated the dial-a-dope activity by acting as the driver of the Acura.  In addition, the Crown submits that Rintoul observed the Accused on a cell phone on the way to Staples.  The wallet of the Accused was in the glove box of the Acura in which he had $130.

[72]        The Crown submits that it did not make sense to simply have over $900 located in plain view in the console of the Acura when the Accused was driving to Staples.  The Crown submits that the empty Smarties container found on the front passenger floor, four cellular phones located in the front of the Acura, the water bottles, and droplets of water located in the back of the Acura, would support the theory of the Crown that the Acura was being used as a vehicle to sell drugs.

[73]        The Crown submits that when the police tried to contain the Acura by boxing it in, the Accused took deliberate actions to evade being boxed in and intentionally drove to evade the police prior to the Acura being rammed.  The Crown submits that the Court ought to accept evidence that Greenhaugh’s police vehicle had a wailing siren coupled with deployed emergency lights when the Acura was being pursued.

[74]        The Crown submits that the intercepted cellular phone calls received on Lai’s blackberry cellular telephone between 3:27 PM and 3:40 PM involved language consistent with dial-a-dope language and that expert evidence is not necessary to interpret the language as it would be described as “custom of the trade” evidence:  R. v. Jackman, 2008 ABPC 213, at paragraph 47.

[75]        In relation to the application of the party provision of the Criminal Code found in s. 21(1), the Crown relies upon the decision of R. v. Kumar, 2006 BCSC 1686, to establish that the evidence would establish beyond a reasonable doubt that the Accused knew or actively participated in drug transactions with Lai, or was wilfully blind in relation to Lai’s participation as a principal in relation to a dial-a-dope enterprise on October 23, 2013.

[76]        The Accused has denied being a party to any illegal drug trafficking activity on October 23, 2013. In R. v. W.(D.), the Supreme Court of Canada provided the instructive approach on the issue of credibility at paragraph 28 as follows:

[77]        The following provisions relating to “parties” and “possession” are relevant to this trial.  Section 21(1) of the Code reads as follows:

[78]        Section 4(3) of the Code reads as follows:

[79]        It is well established that the Accused cannot be convicted of the offence of trafficking as a party simply on the basis of mere presence at the time Lai sold the heroin and cocaine to Hryciuk:  (R. v. Dunlop, 1979 CanLII 20 (SCC), [1979] 2 SCR 881).

[80]        Whether the Accused actually committed the offence of trafficking by operation of s. 21(1)(a) or aided in the commission of the offence by operation of s. 21(1)(b), the onus rests with the Crown to establish beyond a reasonable doubt both the relevant actus reus and the mens rea for trafficking (Hardy at paragraph 38).

[81]        In respect of constructive possession, the language of s. 4(3) of the Code does not require proof of personal possession to make out constructive or joint possession.  It is also clear that knowledge, as a state of mind, can be inferred from all of the circumstances of the case:  (R. v. Dipnarine, 2014 ABCA 328, at paragraph 17).

[82]        In respect of control in the context of constructive possession, the Court of Appeal in R. v. Wu, 2010 BCCA 589 (CanLII), at paragraph 20 stated:

[83]        Circumstantial evidence has played a part in this trial.  Circumstantial evidence does not need to totally exclude other conceivable inferences.  The circumstantial evidence test is simply a category of analysis used to reach a conclusion regarding proof beyond a reasonable doubt (R. v. Griffin, 2009 SCC 28 (CanLII), at paragraphs 27 to 38).

[84]        Section 249.1(1) of the Code reads as follows:

[85]        The Court of Appeal in R. v. Kulchisky, 2007 ABCA 110, at paragraph 4, identified the criteria required to establish proof of an offence under s. 249.1 of the Code as follows:

[86]        There is no evidence that the Accused had any drugs in his actual possession as contemplated by s. 4(3)(a)(i) of the Code.  In respect of constructive possession, there is no question that the Accused was in control of the Acura as he was the driver on October 23, 2013.

[87]        In addition, the Accused was associated with Lai and T.N. as they were friends from high school days.

[88]        The Accused testified that he was staying at his brother’s place on Dawson Street and Willingdon Avenue when Lai came by to pick him and L.L. up in the Acura as a favour so they could get the costume for L.L. for the upcoming rave.  Though this rave event played heavily in the testimony of the Accused he was unable to say when the rave was to take place, other than he thought it was a “few days before or after Halloween.”

[89]        The Accused described the route that he took when he left his brother’s residence as follows:

[90]        Upon reviewing the Google Maps of the Brentwood area that were introduced as evidence in this trial, it does not appear that Beta Avenue intersects with Willingdon Avenue.  Rather, Beta Avenue, like Willingdon Avenue, has a north/south configuration. Beta Avenue does intersect with Dawson Street.  The Accused is either mistaken or is wrong on this point.

[91]        The Accused testified that Lai told him when they were underway that he needed to “grab more money” to pay for “all of the rave tickets”.  The Accused testified that when they stopped at Alpha Avenue and Dawson Street, he paid little attention to what took place as he was talking to L.L in the back seat, other than he saw Lai receiving some money from someone (Hryciuk) which he placed in the large bundle of cash openly located in the console of the Acura.

[92]        In cross-examination, the Accused testified that he either could not recall, or it did not happen, that someone said “whoa” when Hryciuk attempted to get into the back seat of the Acura.  When it was put to the Accused by the Crown that if L.L. had been startled, the Accused would have noticed, he responded by stating, “I would, but I - - I do not think - - that did not happen.”

[93]        Hryciuk testified that he made the initial call to the target cellular telephone number of 778-686-8810 to set up the drug transaction.  The conversation with the person known as “Vince” was detailed though brief.  Those details included confirming that “Vince” was available to do a deal, discussing the location to do the deal, discussing the amounts of money and drugs being requested, along with timing and when the meet would take place.

[94]        Hryciuk testified that there was a call back asking him what he was driving and he responded by saying he was walking and could not be missed as he was wearing a reflective safety vest.  It was shortly after that call that Hryciuk observed the Accused and Lai in the front seat of the Acura proceeding slowly along Dawson Street toward Alpha Avenue.

[95]        Hryciuk testified that he nodded his head towards the Accused and Lai, following which the Acura immediately pulled over.  Hryciuk testified that when he attempted to get into the back seat, he then observed L.L. who appeared to be “startled.” At that moment someone from the front seat said “whoa.”

[96]        Hryciuk testified he then went to the passenger side of the vehicle at which point Lai stated, “sorry, should have told you.”  Following that, the drug transaction was completed in which Hryciuk received heroin and cocaine and the buy money was handed to Lai.

[97]        I infer that the two cellular telephone calls to and from Lai were made from within the Acura while the Accused was driving the Acura.  This inference is supported by the timing of the calls and the meeting that took place at Dawson Street and Alpha Avenue.

[98]        I accept the testimony of Hryciuk that when he went to go into the back seat of the Acura that someone in the front seat said “whoa”, and that when he went to the passenger side window and said “sorry” that it was Lai who stated, “sorry, should have told you.”  It was then that the drug deal was completed.  These interactions all took place with the Accused in the driver’s seat of the Acura.

[99]        Though the Accused testified that Lai wanted to “grab more money” to buy the rave tickets, the Accused did not appear to express any interest or curiosity about Hryciuk, a complete stranger to the Accused, who was apparently putting money into the rave ticket pool.  Hryciuk certainly was not one of the six or so friends identified by the Accused as interested in buying tickets to go to the rave.

[100]     Hryciuk was an experienced police officer with approximately 9 ½ years of service with the RCMP.  His testimony was not undermined in cross-examination.  I found Hryciuk to be a credible and reliable witness as to his interactions with the Accused and Lai on October 23, 2013.

[101]     The Accused testified that a decision had been made to go to the Staples complex to have lunch.  He initially denied and then admitted that he could not recall whether or not he was on his cellular telephone while en route to the Staples complex.

[102]     Rintoul, a very experienced police officer, testified that as he followed the Acura to the Staples complex, he observed the Accused on a cellular telephone.  I accept his evidence as credible and reliable that the Accused was using a cellular telephone while traveling to the Staples complex.

[103]     The Accused testified that when he parked at the Staples parking lot, he was immediately pestered by a person on a bicycle who was asking for “food or anything.” The Accused described this person as persistent and that the two of them were engaged at the driver side window for a “little less than a minute.”

[104]     After this person left, the Accused testified that there was a brief discussion about what they were going to eat when L.L. received a call on her phone advising her that her costume was ready.  L.L. then insisted that they leave to go get her costume. Though it was after 3:00 PM and lunch was very much on the mind of the Accused, he testified that he wanted to stay in the “good books” of L.L., so left to take her to Coquitlam to get the costume.

[105]     The CCTV surveillance of the Staples parking lot provided a clear panorama of the northwest side of the parking lot. The surveillance imagery is in colour and was recorded frame by frame.  I have reviewed the CCTV surveillance with care.

[106]     The CCTV surveillance shows a person on a bicycle proceeding northbound in the Staples parking lot and then leaving from the northwest exit.  Within seconds, the Acura is observed to enter the parking lot from the northwest exit and park in a stall on the west side of the parking lot.  The person on the bicycle is then observed to re-enter the parking lot from the northwest exit and go directly to the driver’s side of the Acura.

[107]     The CCTV surveillance shows this person leaning in the area of the driver’s side window.  After approximately 10 seconds, the person on the bicycle leaves the driver’s side of the Acura and commences to leave the parking lot.  The Acura is then observed to back up and commence to make a turn which would allow the vehicle to leave from the northwest exit when undercover police vehicles commence to box in the Acura.

[108]     I find the CCTV surveillance to be reliable evidence. The clarity of the surveillance footage is good and there was nothing obstructing the activities of the person on the bicycle with the Accused.  I do not find that the person on the bicycle was engaging the Accused for a “little less than a minute”.  I find that the person on the bicycle engaged the Accused for approximately 10 seconds.

[109]     I also find the testimony of the Accused in relation to the timeline of the unfolding of events with the person on the bicycle having a discussion about food and then L.L. getting the phone call advising her that her costume was ready and she must immediately go to get her costume, improbable and ultimately unreliable.  I find his testimony does not make sense with the very short timeline depicted in the CCTV footage.

[110]     In relation to the large bundle of money in plain view located in the console of the Acura, the Accused testified that Lai was the sort of person that “leaves everything everywhere, like he- - he’s careless with everything.”  The Accused testified that he knew this money was to buy rave tickets.

[111]     I find that it did not make sense that this large bundle of cash earmarked to buy rave tickets was left in plain view in the console of the Acura while the Accused drove around.  The Accused never questioned Lai about why the money was in plain view.  Nor did the Accused suggest the money should be more safely secured.

[112]     This same bundle of money was located by the police in plain view in the console of the Acura at the time of the takedown.  I find that by inference, that money must have been in plain view when the Accused was being pestered by the person on the bicycle who wanted “food or anything.”  If the Accused was being pestered by the person on the bicycle for a little less than a minute, then the common sense reaction would be to hide the money.

[113]     The Accused testified in direct examination that with respect to the rave tickets that it was Lai who “needed to grab more money so he could pay for all the tickets.” Apparently, the plan was to buy 10 tickets at $100 each of which six tickets were earmarked for friends and the other four would be sold above market cost to offset the cost of the six tickets.

[114]     The Accused was asked in cross-examination who was responsible for the purchase of the rave tickets.  Though in direct examination he stated that Lai was responsible for paying for all the tickets, in cross-examination he told the court that L.L. “was dealing with everything.”

[115]     The Accused was further cross-examined about how much of the money in the centre console of the Acura was his in the following exchange:

[116]     I find the Accused’s explanation about the money as making little sense. 

[117]     It was also troubling when he testified that the very next day, after he was released from the holding cells, he bought some rave tickets along with nearly $1000 to buy a new phone and glasses for L.L. from funds he happened to have in the bank that he saved from working “random days” for his brother.

[118]     In relation to the cellular phones found in the Acura, the Accused testified in direct examination that when he got into the Acura and saw the four cellular phones, he believed those phones belonged to Lai.  At the conclusion of the cross-examination of the Accused, the Court asked the Accused about his reaction when he saw the four cellular phones in the following exchange:

[119]     I found the Accused’s explanation as to who owned the cellular phones to be fanciful.  I further do not accept the Accused’s explanation that he was not particularly concerned about the cellular phones as he was focused on getting tickets for the rave and getting L.L.’s costume.

[120]     The Accused was cross-examined about how it came to be that he was driving T.N.’s recently purchased Acura yet did not feel obliged to get the consent of T.N. in the following exchange:

[121]      I do not believe the Accused to be truthful that at the time that the arrest was taking place that the plan was to talk to T.N. about the Accused being permitted to drive the Acura.  Common sense would indicate that the appropriate time to get permission from T.N. was prior to any driving taking place.

[122]     The Accused did not appear to be particularly concerned over the relatively significant damage to the Acura.  I find this surprising as he did not have T.N.’s consent to drive the Acura at the time it was rammed by Greenhaugh.  It would appear that the Accused’s focus on October 24, 2013, was to replace L.L.’s glasses and cellular phone and to get tickets for the rave which he could not recall was to take place either before or after Halloween.

[123]     The Accused testified that when he was initially pulling out of the stall at the Staples parking lot after engaging the person on the bicycle, he believed that a vehicle that was coming at him from the right was going to result in a collision.  To avoid a collision, he pulled the Acura to the left and circled the parking lot when he then saw multiple vehicles surround him.  He stopped the Acura in front of the air vent, following which the Acura was rammed.

[124]     The Accused testified that he only heard a siren and saw deployed emergency police lights immediately prior to being rammed into the air vent.  It was only at that point that the Accused says that he realized that the police were involved.

[125]     The CCTV surveillance footage of the Staples parking lot at the time of first contact by the police with the Accused as he is backing out from the west facing stall reveals that the Accused was clearly commencing a right turn toward the northwest exit when a police vehicle comes from the south and stops.  It is at that point that the Accused then manoeuvers the Acura to the left and goes around a second police vehicle before disappearing from sight.  I do not find that the CCTV surveillance footage supports the Accused’s contention that he had to take evasive action to avoid a collision.

[126]     The Accused testified that as he was being boxed in by the police, he noticed Lai pulled out a “tube and swallowed something.”  That is when the Accused believed that Lai was in possession of illicit drugs and that Lai wanted to get rid of the drugs.  The Accused denied seeing the Smarties container at any prior point to the boxing in by the police.

[127]     I do not find the Accused to be credible when he asserts that he only realized Lai was involved with illicit drugs when the police were boxing in the Acura at the Staples parking lot.

[128]     After the arrest of the Accused, Lai and L.L., the Blackberry phone associated to Lai that was located on the front passenger seat was investigated by Musinovic who answered six telephone calls between 3:27 PM and 3:40 PM. The calls were all very brief and the language guarded.  For example, at 3:31 PM there was a call from someone called “Roy” in which the following exchange took place between Musinovic and Roy:

[129]     I infer from these calls that the language is related to drugs and is the proper subject of ‘custom of the trade’ evidence (Jackman at paragraph 47).  I also find from the frequency of the calls that it is reasonable to infer that Lai’s Blackberry phone was receiving numerous incoming calls from clients during the timeframe that the Accused was driving the Acura with Lai in the front passenger seat.

[130]     The issue of credibility was a significant issue in the Hardy case referred to by the Accused.  The Accused in Hardy testified that he was in a motor vehicle driven by a friend of his when they met up with an undercover police officer. Without any forewarning, the Accused was asked to be a conduit in passing drugs and money between the driver and the undercover police officer.

[131]     Hicks, PCJ, in Hardy, found that the Accused was in the car for a legitimate, lawful purpose and that there was no forewarning of the drug transaction until it actually occurred.  The court accepted the evidence of the Accused that he was not a principal to any drug transaction as contemplated by s. 21(1)(a) of the Code.

[132]     In addressing the issue of whether or not the Accused aided the driver as contemplated by s. 21(1)(b), Hicks, PCJ, found that the actus reus element was met in relation to the commission of the offence of trafficking, but the mens rea element was not established (paragraphs 62 and 63).

[133]     In this case, I do not believe the Accused’s testimony that he was in the Acura for the sole purpose of getting tickets for the rave, having lunch and getting L.L’s costume.  I also do not find that the Accused was distracted by L.L. when the drug transaction took place between Lai and Hryciuk.

[134]     I find that the Accused pulled the Acura over to the side of the road at the corner of Alpha Avenue and Dawson Street to facilitate the meeting between Lai and Hryciuk after cellular telephone calls were made to and from Lai to set up the drug transaction. The testimony of Hryciuk as to what took place during the course of this transaction rings true.

[135]     Following the drug transaction with Hryciuk, the Accused drove the Acura over a distance of multiple blocks to Staples, while at one point using a cellular telephone.  I do not find the meeting with the man on the bicycle at the Staples parking lot to be coincidental.  While not conclusive of a dial-a-dope transaction, the interaction with the man on the bicycle certainly establishes an inference consistent with a dial-a-dope scenario.

[136]     The presence of the large amount of money located in plain view in the console of the Acura, the four cellular telephones located in the front of the Acura, the empty Smarties container, the bottled water found in the Acura, the water droplets observed in the back of the Acura and the telephone calls received on Lai’s Blackberry cellular telephone by the police after the Accused and Lai were arrested were circumstances consistent with the Acura being used as a delivery vehicle for a dial-a-dope enterprise.

[137]     I also find that when Ryan and Greenhaugh were in the process of boxing in the Acura, while the Accused may not have known that these were police vehicles, his actions in manoeuvring the Acura as depicted in the CCTV surveillance footage were more consistent with an inference of flight rather than collision avoidance.

[138]     While I am not satisfied the Accused actually committed the trafficking offences, I am satisfied that by operation of s. 21(1)(b) of the Code, the Crown has established beyond a reasonable doubt that the Accused had knowledge that Lai sold the heroin and cocaine to Hryciuk and acted with the intention of assisting Lai in the commission of the trafficking offences as the driver of the Acura.

[139]     In relation to the s. 249.1(1) offence, I do not believe the Accused’s version of events as they unfolded in the Staples parking lot.  However, I find there is conflicting evidence in relation to whether there was a steady wailing siren or a yelp of a siren. Emergency lights located in the grills of both vehicles would not necessarily be readily visible when deployed.  The minivan and the Toyota Camry that were operated by Ryan and Greenhaugh would certainly not be readily identified as police vehicles.

[140]     In addition, the evidence would establish that if there was a pursuit it was extremely brief.  The Accused testified that it was only at the point that the Acura was rammed that he was aware that the police were involved. As noted in Kulchisky, the Crown must establish beyond a reasonable doubt that the Accused knew that a police officer was in pursuit.

[141]     I conclude that while I disbelieve the testimony of the Accused in relation to evading a peace officer in pursuit, I am left in a reasonable doubt by it.

[142]     I find the Accused guilty as a party who aided Lai in trafficking in cocaine and heroin on October 23, 2013.

[143]     I find the Accused not guilty of evading a peace officer in pursuit on October 23, 2013.