IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Charleen Flintroy (the “accused”), is charged with four counts of unlawfully possessing cocaine, heroin, methamphetamine, and methylphenidate for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act (the “CDSA”). The date of the alleged offences is August 27, 2013.

[2]           The charges against the accused followed police surveillance of an apartment building located at 9981 Whalley Boulevard in Surrey, British Columbia, conducted between August 12, 2013, and August 27, 2013. Police suspected that apartment 3107 (the “apartment”), located in the building was the home base for the packaging and distribution of illicit drugs into the Downtown Eastside (the “DES”) of Vancouver.

[3]           On August 27, 2013, the police arrested the accused, Kaveh Soltanpour (“Soltanpour”) and Cameron Mak (“Mak”).  Soltanpour, in separate proceedings, has dealt with his various drug charges. Mak’s charges have been severed from those brought against the accused. His charges will be dealt with in 2018.

[4]           The case against the accused is entirely circumstantial.

[5]           Has the Crown established that the accused, either constructively or jointly possessed the drugs seized in this case for the purpose of trafficking?

[6]           Pursuant to s. 655 of the Criminal Code of Canada (the “Code”), the accused and the Crown filed extensive Admissions of Fact: Ex. 1. I have reviewed all of the Admissions of Fact, which included photographs, diagrams, and documents. In addition, the analysis of the seized illicit drugs, their market value, and associated packaging has been admitted.

[7]           There were also Admissions with respect to various motor vehicles associated to this case, including:  a 2008 BMW M3 (the “BMW”), registered to Mak at the apartment; a black 2004 Porsche Cayenne (the “Porsche”), registered to the accused at 2901 Charles St., Vancouver; a black 2004 Acura MDX (the “Acura”), registered to Tara Beth at 13670 94a Avenue, Surrey; and a 1990 Harley-Davidson (the “Harley”), registered to Mak at 93101 32^nd St., Surrey.

[8]           For ease of reference, I have compressed the Admissions into summary form:

[9]           Detective Constable Tara Monroe was qualified as an expert to give opinion evidence in relation to the price, packaging, distribution, sale, consumption and trafficking of cocaine, heroin, methamphetamine, methylphenidate and morphine, and to give opinion evidence in relation to trafficking language and terminology.

[10]        She reviewed all of the evidence, including all photographs, documents, the Report to Crown Counsel, and the Admissions of Fact.  It was her opinion that the drugs found on Soltanpour were consistent with drug trafficking. It was also her opinion that the drugs found in the Umbra bag, in the back of the Acura, were consistent with a mid-level to upper mid-level trafficking operation.

[11]        She testified that drug trafficking is a cash business, and, consequently, traffickers typically have large amounts of cash in small denominations. This cash is often bundled into $1,000.00 increments for the purpose of counting and storing. It was her opinion that the cash located at the Whalley Boulevard apartment was consistent with a drug trafficking operation.

[12]        It was her opinion that the scales, baking soda, Pyrex measuring cup, caffeine, Lock and Lock containers, Ziploc baggies, weapons, notebook entries, money counter machines, and the numerous cell phones were all consistent with the apartment being a location for the packaging of drugs for distribution.

[13]        There are two elements to the offence of possession for the purpose of trafficking: (1) possession of a controlled substance, and (2) intention to traffic.

[14]        Section 2(1) of the CDSA adopts the definition of possession as set out in s. 4(3) of the Code:

[15]        The various types of possession outlined in this section are typically described as personal (s. 4(3)(a)), constructive (s. 4(3)(a)(i) and (ii)), and joint (s. 4(3)(b)). The Crown alleges that the accused’s possession was either constructive or joint with her co-accused.

[16]        Constructive possession arises when an accused does not have the physical possession of the prohibited item, but has “knowledge of the nature of the prohibited item or substance and some measure of control over it”: R. v. Ahmadzai, 2012 BCCA 215, at para 26.

[17]        Joint possession, on the other hand, arises when someone other than the accused possesses the prohibited item with the knowledge, control and consent of the accused: R. v. Fisher, 2005 BCCA 444, at para 24.

[18]        The case against the accused is entirely circumstantial. In R. v. Villaroman, 2016 SCC 33, at para 37, Cromwell J. outlined the correct approach to circumstantial cases:

[19]        In order to convict the accused based on circumstantial evidence, “an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits”: ibid, at para 30. If the evidence permits a reasonable inference other than guilt, a reasonable doubt exists and the accused must be acquitted.

[20]        Inferences consistent with innocence do not have to arise from the proven facts, but rather, may arise from gaps in the evidence: ibid, at para 35.

[21]        The Crown argues that the apartment building was a drug packaging and distribution “hub”. In support of this theory, the Crown points to facts admitted by the defence as well as the opinion evidence, including, in summary form:

[22]        The accused did not seriously challenge the Crown’s argument on this point, beyond noting that the police did not check to see whether the cell phones located in the crate in the bedroom worked, and that the police surveillance of Soltanpour only established that he entered the Whalley apartment building, and not necessarily unit 3107.

[23]        The Crown identifies several elements from the Admissions that would invite an inference of occupancy, including, in summary form:

[24]        The accused submits that the evidence could give rise to inferences other than occupancy. She argues that the evidence relating to her Porsche is not persuasive that she was an occupant of the apartment building, as it was not seen at the apartment building on August 12, 17, 18, or 19, and the police did not conduct surveillance between August 22 and 27.

[25]        If the accused did live in the apartment, there is evidence that she may have occupied the second bedroom where the tax return and the safe were located. If she was living in the second bedroom, she would not have seen certain items relating to drug trafficking that were stored in the master bedroom in her day-to-day use of the apartment.

[26]        The Crown advances three principal arguments in support of its contention that the accused had knowledge of the trafficking operation:

[27]        The Crown analogized this case to R. v. Dipnarine, 2014 ABCA 328. In Dipnarine, the appellant rented a house with his co-accused. During the execution of a warrant, the police found the co-accused sleeping in a bedroom on the main floor. Large quantities of marijuana and cash were found in the same room. In the basement, which was accessible from the main floor by way of an unlocked door, they discovered cocaine, sandwich bags with the corners cut off, a scale, a pan with cocaine residue, scissors, and a knife. All of these items were in plain view on a table. The Court of Appeal remarked, at para 11, that “[n]othing in the photos suggests that anything else was happening in that location other than cutting the drugs into packages. No adult with a modicum of discernment or life experience would fail to realize immediately on seeing it what the condition of that location indicated.”

[28]        The accused argues that the facts in Dipnarine, ibid, are distinguishable. Whereas the basement in Dipnarine appeared to be used solely for packaging drugs, the same cannot be said for the apartment, which was clearly an occupied home. In particular, no immediate “red flags” were raised until the police conducted a thorough search of the apartment. Many of the items identified by the Crown as being connected to the drug trafficking were tucked away discreetly; for instance, much of the cash was in backpacks, duffel bags, or a lidded container.

[29]        The accused further argues that the purported scoresheet located in the apartment kitchen was in a closed notebook bearing the name “Cam”.

[30]        Items that were in plain view and purportedly used for the purpose of packaging of drugs were not inherently suspicious, for example, the sandwich bags located on the kitchen counter.

[31]        The accused notes that there is no surveillance confirming when she entered the apartment building on August 27, so there is no basis to infer that she was present when Soltanpour arrived. In relation to the note bearing the name of “Kav” and “Kaveh Soltanpour” found in her wallet, she says that it would be odd for a drug trafficker to carry around a note bearing the name of a drug dealer.

[32]        She concedes that the cash that she carried at the time of her arrest would raise suspicions, but it would do no more than that. It could well be the case that she may have earned undeclared income through casino winnings. Furthermore, the opinion evidence established that drug traffickers typically receive cash in small denominations, whereas the cash that the accused carried primarily consisted of $50 and $100 bills.

[33]        I find that there is a reasonable inference that the drugs found on Soltanpour and the drugs found in the Umbra bag on August 27, 2013, were packaged in the apartment. This inference is supported by the evidence of drug-making supplies, including the Pyrex container, the baking soda, the caffeine, the scales, and various plastic bags located in the kitchen.

[34]        In addition, the only reasonable inference that can be drawn in relation to the drugs found on Soltanpour, and the drugs found in the Umbra bag on August 27, 2013, is that they were being distributed from the apartment. There is also a clear link between the drugs found on Soltanpour, and the drugs found in the Umbra bag. There are similarities in relation to both the packaging and the quantities.

[35]        The inference that drugs were being distributed from the apartment also finds support from the police surveillance, in particular, of Mak’s activities on August 22.

[36]        The inference that the residents of the apartment were involved in drug distribution also finds support from the evidence regarding the cash, cell phones, weapons, and money counters found in the apartment during the police search.

[37]        I find that the Crown has established beyond a reasonable doubt that a drug trafficking operation existed at the apartment on August 27, 2013.

[38]        I find that there is a reasonable inference that the accused, at times, lived at the apartment. She had important documents at the apartment, including her 2012 tax return. The prescription bottles in her name, located in the master bedroom ensuite bathroom, do not suggest that she is a mere occasional visitor.

[39]        The accused appears to have a dedicated parking stall in the parkade of the apartment building, which she was seen to use on several occasions to park her Porsche. In addition, police observed her using a fob to enter the apartment building on August 22.

[40]        The evidence further supports an inference that the accused was living in, or at the very least, regularly accessing the master bedroom. Her prescription bottles were found in the ensuite bathroom along with other personal female items.

[41]        I infer that the accused’s ability to access the apartment building through the use of a fob, her occasional use of a dedicated parking stall for her Porsche, her documents found in the apartment, and the prescription pill containers in her name, establish that the accused exercised control over the contents of the apartment: R. v. Nazarek, 2017 BCSC 1909, at para 90.

[42]        I find that the Crown has established beyond a reasonable doubt that the accused was an occupant of the apartment and was able to exercise control over the contents of the apartment, including any drugs which may have been in the apartment, on August 27, 2013.

[43]        There is a reasonable inference that the accused was complicit in the drug trafficking operation out of the apartment. In particular, there is evidence that the drugs were likely packaged in the kitchen, which is a shared room within the apartment. Soltanpour regularly visited the apartment in circumstances suggesting that he was picking up drugs for delivery to the DES of Vancouver.

[44]        At the time of her arrest, the accused is found to be in possession of a large amount of cash which would support an inference that she is complicit in the drug trafficking operation out of the apartment.

[45]        Pursuant to the approach outlined in Villaroman, supra, subsequently, the relevant question to be asked is whether this evidence also excludes all other reasonable inferences.

[46]        Though I have found that the Crown has established beyond a reasonable doubt that, as a matter of law, the accused is an occupant of the apartment, I do not find that this is her exclusive place of residence. She is also associated to an address at 2901 Charles St. in Vancouver. Her Porsche is registered to that address.

[47]        There was no evidence led by the Crown that there was ever any police surveillance of the Charles Street address. There was evidence that the Porsche was not observed in the parkade at the apartment building during police surveillance on August 12, 17, 18, or 19.  There was no surveillance conducted between August 22, and 27.

[48]        The BMW and the Harley are owned by Mak.  The BMW is registered to the apartment address.  The BMW and the Harley were consistently observed by the police to be in their respective stalls during police surveillance.

[49]        The apartment contains commonplace furnishings, and accessories that would be found in many residences where there is no illicit drug trafficking activity. In the living room of the apartment, there is a bookcase with various accessories on display, including numerous framed photographs of individuals.  Some of the photographs depict several individuals with their arms linked and smiling as their photograph is taken.  After reviewing the Photograph Admissions, the video of the apartment, the Admissions of Fact, and the submissions of the Crown and the accused, I infer that one of the principal purposes of the apartment is that of an occupied, and functional residence.

[50]        There can be little doubt that Mak both lived in the apartment and had control over the contents of the apartment. It was Mak who left the apartment at 3:18 PM on August 27, 2013, carrying the Umbra bag, which was later found to contain a large assortment of illicit drugs carefully packaged in Tupperware containers. Prima facie there is a strong inference that Mak had knowledge of the contents of the Umbra bag.

[51]        With those considerations in mind, I find that there is a reasonable inference that Mak was a principal participant in the drug trafficking operation out of the apartment. It would also be reasonable to infer that Mak shielded the accused from acquiring knowledge that drugs were packaged and sold out of the apartment.

[52]        This inference is possible as, unlike the cases of Nazarek, supra, and Dipnarine, supra, there were no drugs found in the apartment at the time of the police search, let alone anything in plain view that would raise “red flags” that drug trafficking was taking place out of the apartment.

[53]        Further, there was no evidence led by the Crown to establish how the drugs were stored in the apartment, leaving open the possibility that Mak stored the drugs discreetly out of the view of the accused. Alternately, it is possible that in the absence of the accused, Mak packaged the drugs and arranged for dealers, including Soltanpour, to pick up the drugs for delivery to the DES.

[54]        There is no forensic evidence that would circumstantially connect the accused to the drug trafficking operation out of the apartment. The same cannot be said in relation to Mak. His right ring fingerprint was located on the Smith & Wesson magazine located in the bottom drawer of the nightstand.  The police also located in the top drawer of the nightstand Mak’s passport, and a cheque book in his name with the apartment’s address.

[55]        While the accused’s 2012 tax return reports that she was in receipt of Social Assistance benefits in 2012 that would not establish that she was in receipt of Social Assistance benefits in July of 2013.  There was no investigative follow-up by the police to determine if she was in receipt of assistance benefits at any time in 2013.

[56]        I also find that it is possible that the illicit drugs found in the Umbra bag were not in the apartment at the time that the accused left at 1:30 PM on August 27, 2013.  At 2:27 PM, approximately one hour after the arrest of the accused, an unknown male carrying a bag with a Canadian Flag design on it was seen taking the elevator to the 31^st floor of the apartment building, and leaving shortly thereafter without the bag.

[57]        At 3:18 PM, Mak was observed getting into the elevator on the 31^st floor of the apartment building carrying the Umbra bag. When this bag was later searched, a bag with a Canadian Flag design containing bulk quantities of illicit drugs was discovered in the Umbra bag. These circumstances establish a strong inference that the bag carried by the unknown male at 2:27 PM is the same bag as the one found in the Umbra bag.

[58]        I find the Crown has failed to negative the possibility that all of the drugs in the Umbra bag were delivered at 2:27 PM, on August 27, 2013, by the unknown male.

[59]        I find that the Crown has failed to establish beyond a reasonable doubt that the accused had knowledge that a drug trafficking operation was taking place out of the apartment on August 27, 2013, and, therefore, she must be acquitted.