IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           On August 5, 2014, Joseph William Hammer was charged under Information 39585-2-C as follows:

[2]           Mr. Hammer was arrested and charged on August 5, 2014, after the Prince George RCMP Crime Reduction Unit executed a search warrant on the upstairs residence at 2369 Redwood Street, Prince George, B.C. (the “Residence”).  The police located and seized various substances which were subsequently analyzed and identified as cocaine or heroin, along with cash, drug paraphernalia, packaging materials, scales, score sheets, cell phones and personal documentation.  These items were recorded in the Major Exhibit Flowchart (Exhibits 24 and 30) and photographed (Exhibit 1).

[3]           Mr. Hammer was one of six people found the Residence on August 5, 2014.

[4]           The salient issue in this case is whether, based on the circumstantial evidence, the Crown has proven beyond a reasonable doubt that Mr. Hammer was in possession of heroin, and if so, whether this possession was for the purpose of trafficking.

[5]           The matter came to me for trial on: January 25, 26, May 2, July 7, July 8, September 15, 2016, January 6, April 6 and June 7, 2017.

[6]           The Crown called the following witnesses:

[7]           The Crown tendered into evidence 32 exhibits.

[8]           I accept the evidence of the witnesses who testified on behalf of the Crown as credible and reliable.  Mr. Hammer did not call evidence on behalf of the defence.

[9]           On July 31, 2014, Prince George RCMP Constables Danny Grieve and Phil Charron received information alleging Joanne Potskin and Joseph Hammer were selling drugs out of the Residence.

[10]        Prince George RCMP Crime reduction team conducted a surveillance of the Residence on July 31 and August 5, 2014.

[11]        On July 31, 2014, the officers observed three people attend the Residence for a short duration of five minutes or so.  On August 5, 2014, a team of six officers conducted a surveillance on the Residence.  They observed 12 or 13 people making brief visits to the Residence.  The officers followed some of these visitors and arrested them for possession of illicit drugs.  One of the female visitors Constable Slaunwhite investigated, had in her possession a baggie of crack cocaine; another had no drugs but a fresh puncture wound and blood on her hand.  The crack cocaine seized is depicted in the photographs in Exhibit 1, pp. 54-56.

[12]        As a result of the officers’ observations and investigations, Constable Charron sought and obtained a warrant to search the Residence for cocaine, heroin, scales, packaging materials, score sheets, cell phones and proof of residency.  The warrant was entered as Exhibit 2 at trial and was not subject of a Charter challenge.

[13]        Shortly before executing the search warrant, Constable Slaunwhite observed a male, later identified as John Hammer, exit the Residence and leave in a vehicle that had been parked in the driveway.  At the time, Constable Slaunwhite believed John Hammer was the accused, Joseph Hammer, and reported to the surveillance team that Joseph Hammer was leaving the Residence.  Officers intercepted the vehicle near the Residence and placed John Hammer under arrest.  When Constable Slaunwhite learned the driver was John Hammer, not Joseph Hammer, she returned to her surveillance detail.  Constable Slaunwhite testified that Joseph and John Hammer are brothers and both are very large.  When John Hammer first emerged from the Residence, Constable Slaunwhite did not see his face.  It was because of their similar size that she initially mistook John Hammer for Joseph Hammer.  Constable Hipkin described John Hammer as looking a lot like Joseph Hammer.  He said John Hammer was a large male, but not as large as Joseph Hammer.  Constable Hipkin estimated that John Hammer weighed approximately 250 pounds and Joseph Hammer, 300 to 320 pounds.  When testifying on January 26, 2016, Constable Hipkin identified Joseph Hammer in court and noted that he appeared to have lost a lot of weight.  John Hammer was not a target of the police investigation in the matter before the court.

[14]        Members of the Crime Reduction Team executed the search warrant on the Residence at 6:40 p.m. on August 5, 2014.  Those who went into the residence included Sergeant MacNeill, Constables Grieve, Charron, Slaunwhite and Hipkin.

[15]        When the officers entered the Residence, they found six people, of whom Mr. Hammer was the only male.  Constable Grieve knew Mr. Hammer and located him in the Livingroom of the Residence.  He arrested and searched Mr. Hammer and transported him to the Prince George Police Detachment.  Constable Grieve testified that because Mr. Hammer was so large, he transported him in an unmarked vehicle which was roomier than the marked police vehicle.

[16]        The building at 2369 Redwood Street consisted of two suites, one upstairs and one downstairs.  The upstairs suite was the only subject of this investigation.  It consisted of: (a) Livingroom; (b) kitchen; (c) bathroom; (d) three bedrooms; and (e) a hallway which connected the three bedrooms and bathroom to the kitchen.

[17]        Various rooms of the Residence were depicted in the photographs which comprise Exhibit 1.  I will refer to the room depicted on pages 15 to 17 of Exhibit 1, as Bedroom “A”, on pages 18 to 21 as Bedroom “B: and on pages 13 and 14 as Bedroom “C”.  I will refer to the room depicted on page 10 of Exhibit 1 as the Kitchen, on pages 8 to 9 as the Livingroom, on page 12 as the Bathroom, and the hallway depicted on page 11 as the Hallway.

[18]        The officers described Bedroom “C” as more of a television or family room than a bedroom.  The photograph on page 13 of Exhibit 1 depicts a room with a small sofa, fan and large television.  Bedroom “C” was not setup as a bedroom as it did not contain a bed or closet or clothing.

[19]        Upon entering the residence, the officers found the following six occupants in the following rooms:

[20]        Nobody was found in the Bathroom, Kitchen or, Bedroom “A”.

[21]        Although the officers initially placed all the occupants of the Residence under arrest, only Mr. Hammer and Joanne Potskin were transported to the police detachment.  After a cursory search, Constable Slaunwhite did not find any drugs on Marilyn Potskin, Catherine Cadeaux, Felicia Paquette or Jessica Alec so they were released at the scene.

[22]        The officers located, photographed and seized a number of items recorded on the Major Exhibit Flowchart: Exhibits 24 and 32.

[23]        In Bedroom “A”, the officers located, photographed and seized the following items:

[24]        In Bedroom “A”, the officers located and photographed the following items:

[25]        In Bedroom “B” the officers located, photographed and seized:

[26]        In Bedroom “B” the officers photographed:

[27]        In Bedroom “C”, the officers located, photographed and seized:

[28]        In Bedroom “C”, the officers photographed:

[29]        In the Kitchen, the officers located, photographed and seized:

[30]        In the Kitchen, the officers located and photographed, but did not seize the following:

[31]        From the Livingroom, the officers located, photographed and seized $1,750 in cash from under the cushions of the Livingroom couch: Exhibit 14; Exhibit 1, pp. 9 and 24.

[32]        Constable Grieve found Mr. Hammer in the Livingroom and arrested him for possession for the purposes of trafficking and searched him incidental to arrest.  He located a wallet in Mr. Hammer’s right pants’ pocket.  From inside the wallet, the officers documented, photographed and seized $580 in cash: Exhibit 1, p. 52; Exhibit 15 (seized by Constable Hipkin); and photographed Mr. Hammer’s B.C. Driver’s Licence issued November 8, 2012, indicating an address of 1424 - 73 Ave, P.O. Box 451, Grand Forks, B.C. V0H 1H0: Exhibit 1, p. 51 and 52; (seized by Constable Hipkin).

[33]        The Crown also entered as exhibits:

[34]        Constable Charron was the designated exhibit custodian.  The nature of the items seized by the police when executing the search warrant on the Residence on August 5, 2014, was recorded in the Major Exhibit Flow Chart, entered into evidence at trial as Exhibits 24 and 32.

[35]        Much time was spent at trial addressing the continuity of the exhibits.  To the extent the continuity of the exhibits are in issue, I find the words of Justice Romilly in R. v. Adam, 2006 BCSC 1430 apposite:

[36]        I find the Crown has proven the continuity of all items seized, when and by whom they were seized, up to the point they were recorded, photographed, secured in the police exhibit lockers presented in court and tendered into evidence at trial.  This includes the continuity of the 12.01 grams of heroin marked as Exhibit 9 and the continuity of the sample sent for analysis via H envelopes and the corresponding Certificates of Analysis.

[37]        The Crown called Sergeant Ringelberg who I qualified as an expert to provide opinion evidence on the method of packaging and concealment, methods of distribution, methods of importation, methods of sale, methods of consumption, prices, drug jargon and slang, with respect to trafficking in heroin.

[38]        Sergeant Ringelberg examined the following exhibits:

[39]        Upon inspecting the exhibits and reviewing where they were found, Sergeant Ringelberg concluded the 12.01 grams of heroin found in Bedroom “A” (Exhibit 9) was possessed for the purposes of trafficking.  Sergeant Ringelberg opined the quantity of heroin, the quantity and nature of the packaging materials and the scales are prime indicators of street level trafficking.  The cash and score sheets are secondary indicators.  These indicators are consistent with possession for the purposes of trafficking and inconsistent with possession for simple use.

[40]        Sergeant Ringelberg opined that twelve grams of heroin, at the very low end would cost $2,500.  Broken down and sold at the point level, it is worth in excess of $4,000.

[41]        Sergeant Ringelberg was unable to opine on the precise quality of the heroin because the Analyst did not conduct a qualitative/quantitative analysis.  Sergeant Ringelberg said at the bulk level, or even at the ounce or eightball level, the quality of the heroin would affect is street value.  At the point level, if the heroin is of extraordinary value, such as china white, it may inflate the street value by an extra $20 or $30.  In determining the street value of the heroin comprising Exhibit 9 in this case, Sgt. Ringelberg used its lowest street value.

[42]        Sergeant Ringelberg did acknowledge there comes a point where the heroin is of such poor quality, it becomes unsellable.  I do not understand that to be the situation in this case.

[43]        With respect to the quantity of heroin, Sergeant Ringelberg said that heroin is typically sold in very small units of .1 grams called “a point of heroin.”  Users do not typically warehouse heroin, especially in Prince George where it is ubiquitous.  Twelve grams of heroin is more than 120 street-level point packages.  A seasoned street-level heroin addict might use two grams a day, but that would be extreme and incapacitating.  The street value for a point of heroin in Prince George is between $25 to $40, depending on the quality.  Users typically purchase heroin for immediate use in order to get high.  Because heroin is readily available in Prince George, there is no need for a user to possess 12 grams of heroin.

[44]        Cost is not the only deterrent to an addict purchasing a supply of 12 grams of heroin for personal use.  There are many ways a user could lose such a valuable stockpile.  If the police found a user in possession of such a quantity, they would likely assume he was trafficking.  The users could lose it or others might steal it.  It would be dangerous and unlikely that a user, even one who is experienced and wealthy, would purchase that much heroin.  At the most, a user would purchase an eightball or 3.5 grams.

[45]        Heroin can be smoked, snorted or injected.  If smoked, the user heats the heroin with a small butane or propane torch, usually on a small square of tinfoil, then inhales the vapours very quickly through a straw.  If injected, the user mixes a little heroin with sterile water, heats the solution on a spoon, then draws up the liquid into a syringe through a piece of cotton which acts as a filter.  In this case, the 12.01 grams of heroin found on the dresser of Bedroom “A” was not in the immediate vicinity of syringes, sterile water, spoons, cotton, torches, candles, or tinfoil.  Those items were found in Bedroom “B”: Exhibit 1, p. 21.

[46]        A point of heroin is usually packaged in either a small Ziploc baggy or a Keno flap artfully folded from part of a Keno ticket.  A trafficker can make up to six point packages from one Keno ticket.  Small one-inch square Ziploc baggies, called “dime baggies” are used to package a point or one-half point of heroin.  An eightball of heroin is packaged in two-inch square Ziploc baggies.  A user has no need for stacks of Keno tickets, prefolded unused Keno flaps or hundreds of dime baggies.  For a trafficker, small Ziplock baggies, Keno tickets and prefolded Keno flaps are necessary to package the heroin for sale.

[47]        The small scales are necessary for a street-level trafficker.  A user has no need for scales.  Sergeant Ringelberg stated in part:

[48]        Sergeant Ringelberg said that score sheet is an “overarching term” the police use for a piece of paper or some sort of medium that has corresponding numbers with either names or sums or calculations that are consistent with drug trafficking and the sums associated with drug trafficking.  Traffickers use score sheets as a type of business leger to record drug transactions.  They keep track of cash flow, anticipated profits and monies owed to and by them.

[49]        Sergeant Ringelberg opined that Exhibits 19 and 21 have characteristics of score sheets.  The sums denoted on the envelope marked as Exhibit 19, namely, 150, 120, 120, 140, are consistent with gram-level sales of heroin.  He states:

[50]        Exhibit 21 is a small notebook which Sergeant MacNeill located on the kitchen table.  It contains multiple pages with writing and calculations.  Some of those pages included pages which Sergeant Ringelberg identified as score sheets.

[51]        Sergeant Ringelberg also said that both Exhibits 19 and 21 contain numbers that are not consistent with trafficking.

[52]        Heroin is typically sold for cash.  Drug trafficking is a cash intense business.  Traffickers often stash cash in multiple locations to hide it, not only from the police, but also from others who may be inclined to steal it.  Where heroin is sold at the street level, the trafficker would likely accumulate a lot of cash, usually in denominations of $20, but also in $10 and $5.

[53]        Certificate of Analysis 14-28351V (Exhibit 26) indicates Exhibit 9 contained both heroin and morphine in unspecified proportions.  Sergeant Ringelberg testified that both heroin and morphine are both opiates and Schedule 1 drugs.  They have similar effects and it would be difficult for a user, even a habitual user, to distinguish between a mixture of heroin and morphine and just heroin.

[54]        There is no serious issue with respect to the date, time and jurisdiction of the offence charged or the identity of the accused.  Mr. Hammer was arrested at the scene and was known to the investigating officers.  Moreover his Driver’s Licence was found in his wallet in his pocket at the time of his arrest.

[55]        Subsection 5(2) of the CDSA makes it an offence to possess a controlled substance for the purpose of trafficking.

[56]        Before the Court can find Mr. Hammer guilty of possession of heroin for the purposes of trafficking, the Crown must prove each of the following four essential elements beyond a reasonable doubt:

[57]        A salient issue before me is whether the Crown has proven beyond a reasonable doubt that Mr. Hammer was in possession of the heroin.

[58]        Section 2 of the CDSA defines possession to mean possession within the meaning of subsection 4(3) of the Criminal Code, which states:

[59]        Possession, therefore, may be personal (s. 4(3)(a)), joint (s. 4(3)(b)) or constructive (s. 4(3)(a)(i-ii)): R. v. Pham, 2005 CanLII 44671 (ON CA), at para. 14, aff’d 2006 SCC 26 at para. 15 (CanLII).

[60]        Personal or actual possession requires contemporaneous knowledge, consent and control: R. v. Hess (No. 1) (1948), 1948 CanLII 349 (BC CA), 94 C.C.C. 48 (BCCA); R. v. Beaver (1957), 1957 CanLII 14 (SCC), 118 C.C.C. 129 (SCC) at pp. 139-140.  Joint possession requires proof of knowledge, consent, and some measure of control: see R. v. Fisher, 2005 BCCA 444 (CanLII).

[61]        Constructive possession occurs where the substances are found in a location over which the accused has some element of control.  Unlike personal possession, the Crown is not required to prove the accused manually handled the drugs: R. v. Strickland, 2011 BCPC 103 (CanLII), at para. 36 citing Fisher, para. 24.  Although the drugs are not actually on the accused, the law deems the accused to be in possession by virtue of s. 4(3)(a)(i) and (ii) of the Code.

[62]        In R. v. Morelli, 2010 SCC 8 (CanLII), at para. 17, Fish J., set out the requirements of constructive possession as follows:

[63]        The last element of possession requires proof of control over the object in the place: Pham, at para 15 (CanLII).

[64]        When arrested, Mr. Hammer did not have any controlled substances on his person.  Nevertheless, the Crown asserts Mr. Hammer was in constructive possession of the 12.01 grams of heroin found in Bedroom “A” (Exhibit 9).  To succeed with this argument, the Crown must prove beyond a reasonable doubt: (a) Mr. Hammer knowingly had the substance in some place for the use or benefit of himself or someone else; and (b) that he had some measure of control over the substance: Liu, at para. 17; R. v. Twohey, 2009 BCCA 428, at para. 9.

[65]        In R. v. Aiello, 1979 CanLII 31 (SCC), para 8, the Supreme Court of Canada defined “knowingly” to mean he was aware of, or reckless or wilfully blind to, the possession or custody of the substance in the place and did not act through ignorance, mistake or accident.  The Crown is not required to prove that Mr. Hammer had exclusive possession, only that he had knowledge of the existence of the substance and had some element of control over it.

[66]        Although the Crown is required to prove knowledge of, and control over, the substance beyond a reasonable doubt, it can do so through direct or circumstantial evidence.

[67]        Mr. Hammer did not testify at trial.  The Crown adduced no out-of-court statement or acknowledgement by Mr. Hammer that he stored, or directed to be stored the heroin in Bedroom “A” or knew of its existence.  No witness testified to having observed Mr. Hammer store or deal with the heroin.  The Crown relies on circumstantial evidence to prove the knowledge element of constructive possession.  Accordingly, I must be satisfied beyond a reasonable doubt that Mr. Hammer’s guilt is the only reasonable conclusion that can be drawn from the totality of the evidence: R. v. Villaroman, 2016 SCC 33, para.55.

[68]        The evidence does not have to exclude entirely other conceivable inferences, but such alternatives must not raise a reasonable doubt.  In Villaroman, Cromwell J., referencing Hodge’s Case (R. v. Hodge (1838) 1838 CanLII 1 (FOREP), 2 Lewin 227, 168 E.R. 1136 (Eng. C.C.R.)), states, in part:

[69]        The Crown submits the circumstantial evidence in this case establishes beyond a reasonable doubt that Mr. Hammer had the necessary knowledge and control to establish his possession of the heroin comprising Exhibit 9.

[70]        The Crown relies of Pham, Strickland, and Liu.

[71]        In Pham, as a result of a search of an apartment, Ms. Pham and Mr. Nguyen were jointly charged with possession of cocaine for the purpose of trafficking.  Ms. Pham occupied an apartment briefly before Mr. Nguyen moved in.  There was no evidence of Ms. Pham personally possessing the cocaine subject of the offence.  She was not present when the police searched the apartment and found the cocaine.  The Crown’s case rested on constructive or joint possession.

[72]        Defence Counsel for Ms. Pham submitted it was Mr. Nguyen who was trafficking and that all the drugs and money found in the apartment belonged to him alone.  The court received evidence from a neighbour demonstrating people regularly came to the apartment for short visits and cash was exchanged.  Ms. Pham was present and opened the door admitting the short duration visitors on two occasions.  This evidence was also supported by police surveillance.

[73]        During their search, the police found two pouches together beside the bathroom sink.  One black pouch, in full view but closed, contained individually wrapped cocaine.  The second pouch, pink in colour, also in full view, was open containing makeup and $165.00 in $20 bills.

[74]        The trial judge held that the only reasonable inference from this evidence was that Ms. Pham was aware of and participated in drug trafficking.  The evidence showed she had more than a quiescent or passive knowledge of the drugs and demonstrated she had an element of control over them.  The conviction was upheld on appeal.

[75]        In Strickland, Judge Dhillon convicted the accused after a trial for trafficking in seven different illicit drugs with a cumulative street value of $43,000.  The police seized the drugs from a hotel suite in Vancouver together with a significant amount of cash and drug paraphernalia, including weigh scales, score sheets, packaging materials, an electronic paper money counter and a vacuum heat sealer.  The drugs were found in a plastic organizer within a plastic storage container.

[76]        When the police executed a search warrant, they found the hotel suite unoccupied.  The suite was rented for two people for four nights; however, Mr. Strickland’s name did not appear on the hotel register.  Within the suite, the police found a number of personal documents linked to Mr. Strickland, both historical and current, including bank cards, court documents, business records, correspondence, a recently expired Alberta’s Driver’s licence, a Costco membership card, sex recordings and a Christmas card.

[77]        Judge Dhillon found the hotel suite was been utilized by a drug trafficker involved in a sophisticated drug trafficking operation.  The principal issue she had to decide was whether the Crown had proven Mr. Strickland had knowledge of and/or control over the drugs.  The Defence pointed to the dearth of evidence showing Mr. Strickland had a key to the suite or was ever in the suite.

[78]        In her analysis, Judge Dhillon cited the following passage from R. v. Montgomery, above, at para. 30 the Court notes:

[79]        At para. 58 in Strickland, Judge Dhillon cites the following passage from R. v. Emes, 2001 CanLII 3973 (ON CA):

[80]        Judge Dhillon concluded the number of recently dated documents sent to the accused at his mailing address could have been obtained only by the accused or someone acting under his authority.  It was highly unlikely the documents would have any value to someone other than the accused.  Based on the presence of his personal documents in the hotel suite, Judge Dhillon was satisfied beyond a reasonable doubt Mr. Strickland had personally occupied the suite on the offence date.

[81]        Judge Dhillon also found Mr. Strickland had knowledge of the existence of the drugs, even though they would not be immediately apparent to a causal visitor.  She found Mr. Strickland knew about the presence of the drugs in the suite based on the amount, variety and value of the unsecured drugs in the hotel room, their physical proximity to the accused’s personal papers, confidential recordings and other items.

[82]        In Liu, the Victoria Police conducted a search of a premises occupied by an accused named Brandon Shusterman.  Immediately after the police entered the premises, officers waiting outside witnessed a bag of what turned out to be 29 grams of cocaine fall from a bedroom window.  Officers who entered the premises found Mr. Shusterman alone with his hands on the blinds of an open window in the same bedroom from which the bag of cocaine fell.

[83]        At the time the police executed a search of the premises, the accused and another person named N.H. occupied the suite.  The tenancy agreement was in the name of N.H., as was the hydro bill.  The accused challenged the continuity of exhibits and submitted the fact the tenancy agreement and hydro bill were in the name of someone other than the accused made his presence in the residence in the nature of a “found in”.  Mr. Shusterman argued the Crown failed to prove he had the requisite knowledge and control to establish possession of the drugs seized.

[84]        In his reasons for judgment, Justice Romilly cited the British Columbia Court of Appeal in R. v. Webster, 2008 BCCA 458 (CanLII) at paras. 7 and 9 as follows:

[85]        Justice Romilly concludes (at para. 29 and 30), that mere presence at the scene is not necessarily proof of guilt.  He did, however, set out some of the circumstantial evidence supporting the conclusion an accused possesses a controlled substance for the purpose of trafficking:

[86]        The Defence submits there is no direct evidence of Mr. Hammer’s knowledge or control of the heroin.  The Defence relies on the Villaroman, R. v. Janchevsky, 2012 ABPC 90 (CanLII), R. v. Grey, 1996 CanLII 35 (ONCA), and R. v. Polukoshko, [1999] B.C. J. 646.

[87]        R. v. Janchevsky, 2012 ABPC 90 (CanLII) is a decision of the Alberta Provincial Court.  Mr. Janchevsky was charged with possession for the purposes of trafficking a number of controlled substances.  When the police executed a search warrant on a residence in Banff, Alberta, they located three people within the residence and a variety of street drugs valued at $15,000.  Mr. Janchevsky, was one of the people found in the residence.  Neither he nor the other two occupants were the owner or lessor of the residence.  Mr. Janchevsky was not the target of the investigation.  He was an unemployed drug addict sleeping on a mattress in the Livingroom.  Mr. Janchevsky’s passport, birth certificate and record of employment were found on the night table in the bedroom were the police found the bulk of the drugs.  Mr. Janchevsky testified that he was aware the drugs were being trafficked from the bedroom.  Although a consumer of the drugs, Mr. Janchevsky denied being the person trafficking the drugs stored in the bedroom.  Other than his identification documents, there was no evidence connecting him to the bedroom.  His cell phone and gym card were found in the livingroom and his electric alarm clock was plugged in near his mattress in the livingroom.

[88]        The trial judge held that if Mr. Janchevsky was proven to be in possession of the drugs found in the bedroom, then his possession was for the purpose of trafficking.

[89]        Mr. Janchevsky denied having any control over the drugs being trafficked.  In considering this issue, Judge Gaschler considered: (a) the drugs were not in plain view; (b) the Crown had not proven Mr. Janchevsky occupied or even accessed the bedroom in which the drugs were found; (c) conversely, there was evidence that Mr. Janchevsky did not occupy the bedroom; (d) Mr. Janchevsky had been staying at the residence for only a few weeks.  Although he paid rent, many people came and went from the residence; many people consumed drugs at this residence; and (e) Mr. Janchevsky was not the lessor and there was no evidence he had the power to prevent others from coming into the apartment.

[90]        Judge Gaschler concluded the presence of Mr. Janchevsky’s identification papers in the bedroom was not in itself sufficient to infer that he had knowledge and control over the drugs concealed in the bedroom.  Mr. Janchevsky’s denial was not refuted by the evidence and raised a reasonable doubt.

[91]        In R. v. Grey, 1996 CanLII 35, the police found 21.03 grams of crack cocaine hidden in a cassette player on a dresser in the bedroom of the accused’s girlfriend.  There was no direct evidence of Mr. Grey’s knowledge of their existence.  The trial judge found Mr. Grey was in possession of the drugs based on his regular occupancy of the apartment and on the presence of his clothing and other belongings in the bedroom where the cocaine was found.  The Ontario Court of Appeal held this circumstantial evidence was insufficient to establish Mr. Grey’s knowledge because the drugs were not in plain view.  Mr. Grey had not rented the apartment, other people frequented the apartment, and Mr. Grey was not a permanent occupant.  Mere occupancy does not automatically infer knowledge of the items within the dwelling.

[92]        In R. v. Polukoshko, [1999] B.C. J. 646, the accused was charged with possession of marijuana for the purpose of trafficking and cultivation of marijuana.  Ms. Polukoshko resided in a house with Mr. Ziegler on one-half acre of land.  The marijuana was being cultivated in a separate garage located about 100 feet behind the residence.  The garage was locked with a padlock and key.  Ms. Polukoshko had no access to the grow operation.  The police also found marijuana in the house along with electronic scales and other paraphernalia consistent with marijuana use.  The marijuana in the house was not in a commercial quantity.

[93]        The issue before the trial judge was whether the Ms. Polukoshko, as a co-tenant and occupant of the property at the time of the search, had the requisite knowledge and control to be found in possession of the marijuana.  Judge Macaulay held that although it was reasonable to infer Ms. Polukoshko had knowledge of some of the marijuana inside the house and possible to infer she had knowledge of the marijuana inside the garage, it was not the only rational inference.  Moreover, there was nothing in the evidence to satisfy Judge Macaulay that Ms. Polukoshko had control over the marijuana grow operation in the garage.

[94]        I find that Mr. Hammer was living at the Residence on August 5, 2014, even if only temporarily.  I base my conclusion on the following evidence:

[95]        I have also considered the Notice to End Tenancy for Cause with respect the Residence (Exhibit 12).  It makes reference to “Jauana Potskin” and “Joe” as tenants.  I have reviewed the landlord’s hand written reasons set out in Exhibit 12 for terminating the tenancy.  It appears that for Mr. Manhas, English is a second language, which may explain “Jauana”.  Because Mr. Hammer was the only male found in the Residence and his first name is Joseph, Exhibit 12 provides some evidence, albeit extremely weak, that Mr. Joseph lived at the Residence.  I give no weight to the reasons set out in Exhibit 12 for terminating the tenancy.

[96]        I also find that while living at the Residence, Mr. Hammer occupied Bedroom “A”, which is where the police located the 12.01 grams of heroin (Exhibit 9).  I reached this conclusion on the following evidence:

[97]        The Defence argues the presence of a duffle bag and the photographs of Catherine Cadeaux (Exhibit 1, p. 37) indicate that at least two others occupied Bedroom “A”.  Although I accept there is evidence connecting John Hammer to Bedroom “A”, I do not accept the mere presence of photographs of Ms. Cadeaux and the child establishes she occupied that room.  Photographs are something routinely given to others.  Their presence in Bedroom “A” is equally consistent with Ms. Cadeaux or someone else having given them to Mr. Hammer.  The Crown led no evidence of Ms. Cadeaux’s relationship with any other occupants in the Residence.  Given the dearth of female apparel and toiletries in Bedroom “A”, I do not find Ms. Cadeaux was its likely occupant.

[98]        In concluding Mr. Hammer was living at the Residence and occupying Bedroom “A”, I do not exclude the possibility that John Hammer may have also have some connection to the Residence.  John Hammer’s presence at the Residence early on August 5, 2014 and the duffle bag containing a prescription bottle in his name is some evidence he may have been in the Residence and may have used Bedroom “A”.  If this did happen, it does make Joseph Hammer’s presence in the Residence and occupancy of Bedroom “A” any less plausible.

[99]        The Crown relies on the Certificate of Analysis entered as Exhibit 26 to prove the 12.01 grams of heroin located in Bedroom “A” was heroin.  I have already ruled in R. v. Hammer, 2017 BCPC 144, all the Certificates of Analysis tendered by the Crown in this matter were not excluded under s. 51(3) of the CDSA.  I admitted the Certificates of Analysis at trial, which were marked as Exhibits 26 to 30.

[100]     In Certificate of Analysis No. 14-28351V (Exhibit 26), the analyst certified the sample analyzed was diacetylmorphine (heroin) and morphine, both controlled substances within the meaning of Schedule I of the CDSA.  Section 51(1) of the CDSA states that the certificate prepared by an analyst under s. 45 (2) is admissible in evidence as proof of the statements set out within “in the absence of evidence to the contrary”.  In this case there was no evidence challenging the analyst’s determination.  Accordingly, I find the Crown has proven beyond a reasonable doubt Exhibit 9 was in fact diacetylmorphine (heroin) in some proportion with morphine.

[101]     I find the 12.01 grams of heroin (Exhibit 9) was possessed for the purposes of trafficking.  In reaching this conclusion, I rely on the totality of the evidence, including:

[102]     I have also considered the number of short duration visitors to 2369 Redwood Street.  Although there was also a downstairs suite in 2369 Redwood Street accessible through a common entrance, there is no evidence to suggest these visitors went to the downstairs suite.  Conversely, there is a plethora of evidence to support an inference the short duration visitors went to the Residence to use or acquire drugs.  I find on a balance of probabilities that most, if not all, the short term visitors who the surveillance team observed going to 2369 Redwood Street on July 31 and August 5, 2014, went to the Residence for some drug-related activity.

[103]     Although the police found two cell phones at the residence I do not consider their presence a significant indicator of trafficking given the number of people in the residence.

[104]     I do not accept the argument because the heroin was cut with morphine, this undermined Sergeant Ringelberg’s opinion that 12.01 grams of the substance was a commercial quantity.  In note Schedule 1 to the CDSA, heroin and morphine are listed under the heading “Opium Poppy (Papaver somniferum), its preparations, derivatives, alkaloids and salts.”

[105]     I find the Crown has proven beyond a reasonable doubt that the heroin found in Bedroom “A” and comprising Exhibit 9 was possessed for the purposes of trafficking.

[106]     I have already found Mr. Hammer was living in the Residence on August 5, 2014 and that he occupied Bedroom “A”.  In assessing whether he had knowledge and control of the 12.01 grams of heroin in Bedroom “A”, I am mindful of the words of Chief Justice McEachern in R. v. To, 1992 CanLII 913, cited at para. 17 in R. v. Twohey, 2009 BCCA 428 (CanLII):

[107]     Keeping those words in mind I find it inconceivable that someone living in the Residence on August 5, 2014, could fail to notice illicit drugs being used and sold out of the Residence.  I reach this conclusion on the following basis:

[108]     When Sergeant MacNeill found the heroin in Bedroom “A” (Exhibit 9) it was inside a plastic sandwich bag wrapped in toilet paper held together with elastics.  The bundle was in open view on the top of the dresser in Bedroom “A”.  Sergeant MacNeill testified that upon seeing the bundle, he immediately suspected it contained a controlled substance because wrapping drugs in toilet paper secured by an elastic band is an old packaging technique unique to Prince George.

[109]     If Sergeant MacNeill could readily identify this bundle as packaged drugs, then likely others involved in the drug trade could as well.  I do not believe that anyone other than someone who was present in the Residence and ordinarily occupied Bedroom “A” would leave such a valuable store of drugs in plain view on top of a dresser.  This is particularly so, given the number of people who were either residing in or frequented the Residence.

[110]     The police found stashes of cash found in the Residence.  The most significant stash of cash, namely, $5,245 (Exhibit 7) was found in a black pouch in a pillowcase on the bed in Bedroom “A”.  The next significant stash of $1,750 (Exhibit 14) was found under the couch cushions in the Livingroom in close proximity to Mr. Hammer: Exhibit 1 at page 24.  Upon his arrest, Mr. Hammer was found with $580 cash (Exhibit 15) in his wallet.  Finally, the police found $110 cash (Exhibit 5) in the black suitcase in Bedroom “A” containing the receipt to Mr. Hammer from his lawyer.  Other than some change in the Humpty Dumpty jar (Exhibit 1, p. 25) the police found no other cash of any significance.  Notably, no cash was found in Bedrooms “B” and “C” or in proximity of the female occupants.

[111]     I do not accept as plausible that anyone, other than a person who was actually present in the Residence and who ordinarily occupied Bedroom “A” would leave $5,245 in a pillow case on the bed in that room in that Residence.   

[112]     There were six people in the Residence when the police executed the search warrant.  No one was in Bedroom “A” nor was there drug use paraphernalia in Bedroom “A”.  I do not accept that Mr. Hammer was found-in the residence and merely present when the police executed the search warrant.  Mr. Hammer was the person most closely associated with control of the stashes of cash, either by his proximity, ordinary occupancy of Bedroom “A” or actual possession.

[113]     Each piece of evidence does not in itself prove knowledge and control.  Yet cumulatively, they lead me to conclude Mr. Hammer did have knowledge and control of the heroin in Bedroom “A”.

[114]     Based on the totality of the evidence I am satisfied beyond a reasonable doubt the only reasonable inference to be drawn from the proven facts is that Mr. Hammer knew of heroin in Bedroom “A” (Exhibit 9) and had a significant measure of control over it.  I find he had the ability to consent, or to allow the heroin to be where it was found.  His knowledge was not mere quiescence.  The fact that others may also have had access to Bedroom “A” or knew of the heroin in Bedroom “A” (Exhibit 9), does not raise a reasonable doubt that Mr. Hammer had knowledge and control of the heroin (Exhibit 9) found in Bedroom “A”.  I am also satisfied beyond a reasonable doubt Mr. Hammer had possession of the heroin for the purposes of trafficking.

[115]     Accordingly, I find Mr. Hammer guilty of possessing heroin, a controlled substance, for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act.

[116]     On June 7, 2017, the defence filed a Notice of Application and Constitutional Issue seeking relief under ss. 11(b) and 24(1) of the Charter.  Before a conviction is entered in this matter, Mr. Hammer’s Charter application must be heard.