R. v. Van Huizen and Nelson, 2018 BCPC 284 (CanLII)
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2018 BCPC 284 |
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Date: |
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File No: |
98237-2C |
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Registry: |
Port Coquitlam |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REGINA
v.
ALICIA MARIA VAN HUIZEN and CHRISTINE LEAH NELSON
ORAL REASONS FOR JUDGMENT
OF THE
HONOURABLE JUDGE McQUILLAN
M. Wheeler, O. Bick |
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Counsel for the Accused Ms. Van Huizen: |
D. Ferguson |
Counsel for the Accused Ms. Nelson: |
J. Ray Q.C. |
Place of Hearing: |
Port Coquitlam, B.C. |
Dates of Hearing: |
September 18, 19, 20, 21, 24, 26 and 27, 2018 |
Date of Judgment: |
November 1, 2018 |
[1] Alicia Van Huizen is charged with the following three counts:
a. Possessing fentanyl for the purposes of trafficking;
b. Possessing cocaine for the purposes of trafficking; and
c. Possessing heroin for the purposes of trafficking.,
all of which are contrary to section 5(2) of the Controlled Drugs and Substances Act (“CDSA”).
[2] Christine Nelson is charged with the following three counts;
a. Possessing fentanyl for the purposes of trafficking;
b. Possessing cocaine for the purposes of trafficking; and
c. Possessing methamphetamine for the purpose of trafficking;
all of which are contrary to s. 5(2) of the CDSA.
[3] She is further charged with two additional counts:
d. Unlawfully possessing a prohibited firearm or restricted firearm together with readily accessible ammunition capable of being discharged from the said firearm, without being the holder of an authorization or licence, contrary to s. 95(1) of the Criminal Code; and
e. Possessing a prohibited firearm, restricted firearm or non-restricted firearm knowing that she was not the holder of a licence to possess the firearm or of a registration certificate for the firearm.
[4] The trial of these charges proceeded with the testimony of several police witnesses and one civilian witness. Written admissions were filed as well as a number of documents and closed circuit television video. Neither of the accused testified or elected to call evidence.
Background Facts
[5] Police officers in the Street Enforcement Unit of the Ridge Meadows RCMP began a lengthy investigative operation in May 2017. The target of that investigation was Maciej Kranc (Mr. Kranc”), who they believed to be operating an illegal drug business which included re-loading street level drug dealers in Maple Ridge.
[6] The investigation consisted largely of surveillance of Mr. Kranc as he entered and left his residence, located at 1502 - 3007 Glen Drive, in Coquitlam (the “Glen Drive Residence”). Surveillance was conducted by a number of police officers between May and August 4, 2017. It was not continuous surveillance but occurred on approximately 31 to 34 days over the period of the investigation.
[7] During the investigation Mr. Kranc was seen attending at a storage locker facility called Advance Storage Centres located at 20288 - 113B Avenue in Maple Ridge. As this was believed to be a part of Mr. Kranc’s drug operation a production order was obtained for the facility June 14, 2017 (the “Production Order”). The Production Order revealed a lease agreement which showed that Christine Nelson was the lessor of locker #1004 at the facility and had entered into a lease agreement for that locker on April 10, 2017. A document from the storage facility called “Tenant Move-In Information” with the same date indicated that “Matt Kranc” was the only other person expressly authorized to access the storage locker. That document further indicated that Ms. Nelson’s reason for requiring storage was “decluttering”.
[8] The Production Order also led to the production of unit activity logs showing the times and dates that locker 1004 was accessed. CCTV videos of the area around the storage facility and inside the building in which locker #1004 was located were also provided to the police as a result of the production order. A review of those logs and video revealed that Mr. Kranc had accessed the facility on multiple occasions since April 10 and that Ms. Nelson had at least twice.
[9] After the Production Order, the police continued their investigation and surveillance of Mr. Kranc.
[10] Early in the morning of August 4, 2017, Mr. Kranc was seen driving away from the Glen Drive Residence. A decision had been made by police to arrest him that night. Shortly thereafter, at 2:26 AM the police effected a traffic stop of Mr. Kranc’s vehicle whereupon he was arrested for possession of drugs for the purpose of trafficking. Mr. Kranc was found to have a significant quantity of cash on his person but no drugs were initially found on his person or in the vehicle. A later search of the vehicle revealed two plastic bags containing drugs found in a hidden compartment under the hood. The bags were found to contain multiple flaps and baggies of fentanyl, cocaine, and fentanyl mixed with heroin.
[11] Following the arrest of Mr. Kranc, police officers attended at the Glen Drive Residence to secure it and remove any persons to ensure the integrity of the apartment in anticipation of the execution of the pending search warrant. When officers arrived at approximately 2:50 AM, Alicia Van Huizen was the only person in the apartment. Officers then escorted her from the apartment.
[12] A search warrant was executed for the Glen Drive Residence later that day at approximately 1:50 PM. The same day a search warrant for storage locker 1004 was executed.
[13] The execution of the search warrant revealed the following. The stove top was found to be propped up by several inches on one side. Underneath the stove top were found two plastic bags, each containing smaller bags containing various amounts of fentanyl, fentanyl mixed with heroin, and synthetic cannabinoid.
[14] A Pyrex container was also found under the stove top contained several Ziploc bags which in turn contained smaller bags containing variously fentanyl, fentanyl mixed with heroin and crack cocaine. Two electronic scales were also found under the stove top.
[15] All of the above items were found tucked away at the back of the area underneath the stove top, clearly intended to be hidden, and were not easily visible without further lifting the stove top.
[16] Handwritten drug sales ledgers or “score sheets” as well as a rolled up baggie containing six individually wrapped rocks of cocaine were also found under the stove top but in the area closer to the front of the stove and visible from the kitchen.
[17] The total of the drugs seized from the Glen Drive Residence was 196.22 grams of fentanyl, 33 grams of fentanyl mixed with cocaine and 72.1 grams of cocaine.
[18] The execution of the search warrant also led to the location and seizure of $16,732 cash, 5 cellular phones and a bag containing small bags consistent with drug packaging.
[19] The execution of the search warrant for the storage locker led to the location and seizure of bags and boxes containing various quantities of fentanyl, cocaine and methamphetamine. The total quantity of drugs seized from the storage locker was 756.59 grams of fentanyl, 202.7 grams of cocaine and 228.2 grams of methamphetamine. A cardboard box in the locker also contained a .45 calibre 9 millimetre Sig Sauer handgun (the “Sig Sauer Handgun”), a cartridge magazine containing 15 cartridges of ammunition capable of being fired from the Sig Sauer Handgun and .45 calibre cartridges capable of being fired from the Sig Sauer Handgun. The Sig Sauer Handgun was a restricted handgun. The storage locker also held a bag containing $120,132 in Canadian currency.
Issues
[20] Neither Ms. Van Huizen nor Ms. Nelson were found in physical possession of the drugs, or in the case of Ms. Nelson, the drugs and the Sig Sauer Handgun. Consequently, the Crown must prove beyond a reasonable doubt that each of them was in constructive possession, joint possession or a party to the offence. Furthermore, with respect to the drugs, the Crown must prove beyond a reasonable doubt that the drugs were possessed for the purposes of trafficking.
Law
[21] Section 2 of the CDSA adopts the definition of “possession” in subsection 4(3) of the Criminal Code. That section reads:
(3) For the purposes of this Act,
(a) a person has anything in possession when he has it in his personal possession or knowingly
(i) has it in the actual possession or custody of another person, or
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
[22] Thus, section 4(3) creates three types of possession: personal possession, constructive possession and joint possession.
[23] In order to constitute constructive possession, there must be some knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. In order to constitute joint possession there must be knowledge, consent, and a measure of control on the part of the person deemed to be in possession: Knowledge may be proven by both direct and circumstantial evidence: R. v. Barreau 1991 Canlii 241 (B.C.C.A.) at paragraph 23.
[24] This was stated another way by the BC Court of Appeal in R. v. Fisher 2005 BCCA 444 at paragraph 24 as:
[24] As is evident from my summary of the law, neither constructive possession nor joint possession requires proof of manual handling. To establish constructive possession, it was incumbent upon the Crown to prove beyond a reasonable doubt that the appellant knew of the presence of the cocaine and that he had some measure of control over its location. To establish joint possession, the Crown was required to show that someone other than the appellant had possession of the cocaine with his knowledge and consent and that he had some measure of control over it.
[25] For a person to be deemed to be in possession of an item, he or she need not have in fact exercised power over it. All that is required is an ability to exercise some power: R. v. Webster 2008 BCCA 458 at para 42.
[26] “Possession” must be proven by the Crown. As stated by the Ontario Court of Appeal in in R. v. Pham (2005) 2005 CanLII 44671 (ON CA), 203 C.C.C. (3d) 326 (Ont.C.A.) at paragraph 18:
[18] The onus is on the Crown to prove beyond a reasonable doubt, all of the essential elements of the offence of possession. This can be accomplished by direct evidence or may be inferred from circumstantial evidence. In Re Chambers and the Queen, supra at 448, Martin J.A. noted that the court may draw “appropriate inferences from evidence that a prohibited drug is found in a room under the control of an accused and where there is also evidence from which an inference may properly be drawn that the accused was aware of the presence of the drug.”
[27] The Crown also alleges that Ms. Van Huizen and Ms. Nelson may be convicted of the offences they are charged with as parties to the offence pursuant to s. 21(1) of the Criminal Code, which states:
21 (1) Every one is a party to an offence who
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.
[28] The elements that must be proven as a party to a possessory offence was described in Barreau as follows at paragraph 24:
Under s.21(1) of the Criminal Code a person who aids another who actually commits the possession of the offence is also guilty as a party to the offence even though the former does not possess within the meaning of s.4(3) of the Criminal Code. Two things must be proved before an accused can be convicted of being a party by aiding and abetting. It must first be proved that he had knowledge that the principal intended to commit the offence and that the accused aided and abetted him.
[29] The element of knowledge may also be established if the accused is wilfully blind to the nature of the substance. The Crown must prove that the accused had legal knowledge of the presence of illicit drugs and, in the case of Ms. Nelson, the presence of a gun. That knowledge may be established by proving actual knowledge or recklessness or wilful blindness. Those concepts were discussed in R. v. Nazarek 2017 BCSC 1909, at paragraph 18:
[18] The requisite element of knowledge is also established if the accused is “wilfully blind” to the nature of the substance, that is, if he or she knows enough that further inquiry ought to be made but wilfully shuts his or her eyes or refrains from making the inquiry. In R. v. Briscoe, 2010 SCC 13 (CanLII), Charron J. explained wilful blindness as follows:
[21] Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. See Sansregret v. The Queen, 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570, and R. v. Jorgensen, 1995 CanLII 85 (SCC), [1995] 4 S.C.R. 55. As Sopinka J. succinctly put it in Jorgensen (at para. 103), “[a] finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?”
[22] Courts and commentators have consistently emphasized that wilful blindness is distinct from recklessness. The emphasis bears repeating. As the Court explained in Sansregret (at p. 584):
. . . while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry. [Emphasis added.]
[30] The evidence relied upon by the Crown in this case is largely circumstantial. Where that is the case, the court must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty. However, in assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts. As stated by the Supreme Court of Canada in R. v. Villaroman 2016 SCC 33 at paragraphs 35-38:
[35] At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts”: see R. v. McIver, 1965 CanLII 26 (ON CA), [1965] 2 O.R. 475 (C.A.), at p. 479, aff’d without discussion of this point 1966 CanLII 6 (SCC), [1966] S.C.R. 254. However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4 (CanLII), [2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370 (CanLII), 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614 (CanLII), 14 C.R. (7th) 149, at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.
[36] I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus, a reasonable doubt “is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence”: para. 30 (emphasis added). A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.
[37] When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: R. v. Comba, 1938 CanLII 14 (ON CA), [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff’d 1938 CanLII 7 (SCC), [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28 (CanLII), 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: R. v. Bagshaw, 1971 CanLII 13 (SCC), [1972] S.C.R. 2, at p. 8. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.
[38] Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.
[31] In Villaroman, the SCC also cited with approval a statement of the law from R. v. Dipnarine 2014 ABCA 328, which it summarized at paragraph 42 as:
The court stated that “[c]ircumstantial evidence does not have to totally exclude other conceivable inferences”; that the trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible.
[32] The Crown must prove each of the elements of the offence beyond a reasonable doubt, but a lesser standard applies to each piece of evidence. As stated by the BC Court of Appeal in R. v. Collin 2008 BCCA 431 at paragraphs 17-18:
[17] There is no requirement, however, that all of the circumstantial evidence relied upon for a finding of guilt must be proven beyond a reasonable doubt. Nor is there a requirement that a certain amount of the circumstantial evidence must be proved beyond a reasonable doubt. The requirement is that all elements of the alleged offence, including the element of identity of the offender, must be proved beyond a reasonable doubt: see R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345 at 360-362. The applicable standard was articulated in R. v. Khan (1998), 1998 CanLII 4812 (BC CA), 129 C.C.C. (3d) 45 (B.C.C.A.), as follows:
[9] The Crown need not prove beyond a reasonable doubt each fact which is said to support the inference of guilt. Each fact may be a link in the chain of ultimate proof. Sopinka J. made it clear in R. v. Morin … that it is the jury’s duty to consider the evidence as a whole and determine whether guilt has been established by the prosecution beyond a reasonable doubt.
[33] Although the charges against both Ms. Van Huizen and Ms. Nelson are connected through Mr. Kranc, the evidence that connects each of them to the drugs and, in the case of Ms. Nelson, the gun, are largely distinct from one another. As such, I will deal with the evidence as it relates to each accused separately.
Evidence in Relation to Ms. Van Huizen
[34] As noted above, the investigation targeting Mr. Kranc had begun in May 2017. The frequent surveillance of the Glen Drive Residence led to a number of target individuals being identified for their connection to the drug operation which was suspected to be run by Mr. Kranc. Any individuals who had been identified as targets were discussed at the morning briefing of the involved officers before surveillance began. Ms. Van Huizen had not been identified as a target throughout the investigation.
[35] The first time Ms. Van Huizen was seen in connection with this investigation was on August 2, 2017. At approximately 6:30 PM that evening, Constable McGowan observed Mr. Kranc and a woman he believed to be Ms. Van Huizen walking two bulldogs outside of the Glen Drive Residence. Constable McGowan testified that he was familiar with Ms. Van Huizen as he had previously seen photographs of her.
[36] Later the same evening at approximately 8:30 PM, Constable Paul, who was also part of the surveillance team, observed Mr. Kranc accompanied by Ms. Van Huizen travelling in a burgundy Mercedes and park at Jerry Sulina Park in Maple Ridge. They exited the vehicle with a dog and took the dog for a walk for several minutes. The vehicle then drove away and pulled into a small parkway next to the park. Mr. Kranc was seen to exit the vehicle, and walked away to meet with another individual nearby while Ms. Van Huizen remained in the vehicle. Constable Paul was able to identify Ms. Van Huizen from previous dealings with her.
[37] Constable McGowan collected the various observations of significance made by members of the surveillance team and wrote a surveillance report at the end of the day on August 2. In the report from that day, he indicates Ms. Van Huizen as one of the targets of the investigation, although he clarified that it was only as a result of her being observed that day that she became identified as a target.
[38] The following day on August 3, 2017 at approximately 11:30 AM, Corporal Hawes observed the white Mercedes leave the garage of the Glen Drive Residence being driven by a female who she believed to be Ms. Van Huizen, although she was not certain of the identification. At 2:12 PM, Constable Paul observed the same vehicle returning to the garage of the Glen Drive Residence. He stated that the vehicle was driven by Ms. Van Huizen.
[39] Later that day, officers in the surveillance team observed a white Mercedes being driven by Mr. Kranc exiting the Glen Drive Residence at approximately 7:00 PM. Ms. Van Huizen was identified as being in the passenger seat. They drove to a mall in Coquitlam, exited and went into a Winners store. They then returned to the vehicle and returned back to the Glen Drive Residence, making brief stops at a Donair shop and a grocery store on the way. At 10:30 PM that same evening, Constable McGowan observed Ms. Van Huizen and Mr. Kranc walking two dogs outside the Glen Drive Residence and then enter the building.
[40] Ms. Van Huizen was not observed again until officers McGowan and Blizard entered the Glen Drive Residence at 2:50 AM on August 4 in order to clear it in advance of executing the search warrant.
[41] In clearing the apartment, the officers entered without knocking, using the key that had been seized from Mr. Kranc upon his arrest. Upon entering, they verbally identified that they were police. Ms. Van Huizen then appeared from the living room area, appearing to have been watching television, which was turned on. She was wearing pyjamas and had her two dogs with her in the apartment. She was permitted to collect some personal belongings from the bedroom and bathroom and was then escorted from the apartment with the two dogs.
[42] In clearing the apartment, Constable McGowan noticed that the stove top in the kitchen was propped up on one end by a pill bottle. He testified that he could clearly see a Ziploc bag containing a white substance along with a note pad under the raised stovetop. A photograph of that was in evidence which confirmed the visibility of those items.
[43] Significant amounts of cash were located in a closed cupboard in the kitchen, both in an open stack and concealed in a Tim Hortons bag. Four cell phones were found on the kitchen counter.
[44] Medication bottles were found in a kitchen cupboard, one in the name of Mr. Kranc and one in the name of Ms. Van Huizen, the latter bearing a date of July 10, 2017.
[45] Attached to the fridge was found an invoice from False Creek Healthcare Centre billed to Ms. Van Huizen at an address in Maple Ridge. The date of the invoice was July 28, 2017 and indicated an upcoming surgery date of August 14, 2017.
[46] The police also located and seized a number of documents connected to Ms. Van Huizen from inside a file folder, which was within a box in a dresser in the second bedroom. Those documents include a photocopy of Ms. Van Huizen’s birth certificate, passport, driver’s licence and care card, a photograph of her and Mr. Kranc posing affectionately together in a restaurant, Ms. Van Huizen’s passport with an issue date of July 18, 2017, a surgical fee estimate from False Creek Healthcare Centre dated July 27, 2017, a screen shot of photo line-up shots of Ms. Van Huizen, a probation order dated February 1, 2017, and a referral form from the Ministry for Public Safety and Solicitor General directing Ms. Van Huizen to report to a probation officer on June 5, 2017.
[47] The same file folder also contained a number of documents connected to Mr. Kranc, including a certificate of vehicle insurance from June 2017, a credit agreement from June 2017 and civil forfeiture documents from 2013.
[48] Prescription documents in the name of both Ms. Van Huizen and Mr. Kranc were also found in the file folder, although they were not seized or made exhibits.
Evidence in Relation to Ms. Nelson
[49] Ms. Nelson was not originally a target of the investigation and she first came to the attention of the police when she was found to be the sole tenant of locker 1004 at Advanced Storage Centres.
[50] The storage facility is accessed by way of entering a personal access code into a keypad at the entrance to the facility. After entering the code, the outside gate opens to allow vehicles or individuals to enter the outside area of the facility. The entry on the keypad also disables the mechanism on the individual locker. Locker 1004 is located inside the first building that is reached after entering the facility. Persons then enter a man door into that building. After entering the building, locker 1004 is approached by turning left and then turning right. The lockers are then accessed by opening up a padlock on the door, and then lifting the roller door.
[51] The storage facility retains computer logs of all entries and exits of tenants from the facility. Those logs contain details of the time that the code is inputted to the outside gate, when the specific storage locker is opened and closed, and when the individual again enters his or her code into the outside key pad to leave the facility.
[52] The storage facility also maintains video cameras in various areas, both inside and outside the building that contains locker #1004. A considerable amount of video was reviewed during the trial showing either Mr. Kranc or Ms. Nelson or both of them entering the facility and approaching and leaving locker 1004. There was no camera specifically directed towards locker 1004 although the hallway leading towards that locker can be seen.
[53] Other than the storage locker lease agreement and the tenant move in information forms, the Crown’s evidence connecting Ms. Nelson to the locker and its contents came from the logs and the video evidence.
[54] The combination of the logs and the video evidence revealed that Ms. Nelson rented the locker on April 10, 2017. It was the smallest locker size available at the facility, being 5 feet by 5 feet square. After being rented by Ms. Nelson it was first accessed on May 2. On that occasion the locker was only open for 5 seconds. It was next accessed on May 6 when it was opened for 3.5 minutes and then, 15 minutes later, was opened for a further 50 seconds.
[55] Video evidence began on May 15. The video from that day shows that a Volkswagen Rabbit bearing licence BD277E, which is admitted to belong to Ms. Nelson, entered the facility and parked outside the door to the building containing locker 1004. Just before the vehicle parked, a man wearing distinctive red shoes, and whom Constable Barbour believed to be Mr. Kranc, entered the building and walked towards locker 1004. Eight minutes later the same man could be seen leaving the hallway of locker 1004, exiting the building and getting into the passenger seat of the Volkswagen Rabbitt, which then drove away and exited the facility.
[56] On subsequent days Mr. Kranc is seen to enter the facility, using the code for locker 1004 on May 20 and May 26, although on the latter day the logs do not confirm that the actual locker was opened that day.
[57] On May 27, Ms. Nelson is again seeing driving her Volkswagen Rabbit into the facility. She then enters the building carrying a small reusable bag with a distinctive black and white pattern on it. When she is seen leaving the locker a minute later she is not carrying any bag.
[58] On May 30 and June 3, Mr. Kranc is seen entering the building, with the logs showing that the locker was opened and then quickly closed and a few minutes later again opened and quickly closed, on both occasions. On those occasions the activity is consistent with Mr. Kranc going inside the locker, closing it while he remained inside, and then opening it to leave and closing it afterwards.
[59] On June 4, 9, 11 and 13, Mr. Kranc is seen using Ms. Nelson’s access code to enter the building and exit within a few minutes. On none of those occasions is he seen to carry anything into or out of the building.
[60] There was no video surveillance from the period of June 15 to July 3 in evidence due to the fact that the video is written over after 30 days. This gap in video relates to the period after the production order was delivered to the storage facility on June 14 until the date 30 days prior to the execution of the search warrant on August 4.
[61] When video surveillance resumed on July 4, the same pattern continued of Mr. Kranc regularly entering the facility and exiting a few minutes later. On July 4 when he exited, he is seen carrying a small, reusable bag with a distinctive black and white pattern similar to the one brought in by Ms. Nelson on May 27. He subsequently is seen entering and exiting the facility on July 5, 6, 7, 9 and 14. He is not seen to carry anything in but on one occasion is carrying a golf club when he exits and on another occasion is carrying a brown bag.
[62] On July 15 Ms. Nelson is again seen entering the storage facility. On this occasion she again arrives at the facility in her VW Rabbitt. Mr. Kranc arrives at the same time and the two of them enter the facility together after Mr. Kranc punches in the access code. They then enter the locker building and, according to the logs, appear to be inside the locker together for 42 minutes before they leave together. Ms. Nelson is seen to be carrying a brown bag or purse both when she enters and exits from the facility. They are seen to be talking to one another and exchanging cigarettes as they are leaving the facility.
[63] On July 16, 18, 19, 22 and 23, Mr. Kranc is again seen entering and exiting the facility. On two occasions he carries a bag with him into and out of the facility. Another time he enters without a bag and leaves carrying a black bag. On July 18 he is seen carrying a large cardboard box into the facility and leaving without it. On two of those occasions he is carrying a golf club when he enters and appears to leave the golf club inside. On another occasion he leaves with a golf club.
[64] On July 25, Ms. Nelson is again observed entering the facility, for the last time. She enters carrying a brown bag or purse, appears to have the locker opened for just over two minutes and then leaves carrying the same bag or purse. About 10 hours later the same day Mr. Kranc enters and exits the facility.
[65] On July 28, 29, 31 and August 1, Mr. Kranc is seen entering the storage facility and exiting a few minutes later. On July 31 he enters carrying a multi-coloured bag and exits carrying a white canister, but without the bag. On August 1 he is seen entering and exiting carrying a small black bag.
[66] On every occasion that Mr. Kranc and/or Ms.Nelson entered and exited the facility they used the access code specific to locker 1004.
[67] Upon execution of the search warrant for the locker on August 3, the locker was found to be largely empty. The only contents were: two bankers size cardboard boxes, with one having a smaller box sitting on top; a golf club bag which was covered on the top by a towel and with golf clubs and a rifle in the bag; a large Pelican case which contained a Canada Post uniform and a credit card scanning machine. The drugs referred to above were found in the smaller box as well as within one of the two larger boxes. Those boxes were sitting atop a short metal stand. The Sig Sauer Handgun and ammunition was also found in the same larger cardboard box. The cardboard box also contained bags of empty small baggies suitable for packaging drugs. A reusable Whole Foods grocery bag found between the boxes and the Pelican case contained the $120,132 in cash. There was little else in the locker other than a Puma athletic bag which contained what appeared to be stolen mail and fraudulent documents.
[68] Upon her arrest on August 11, Ms. Nelson had in her possession a key to the padlock that secured locker 1004.
[69] Melanie Barton, who is the facility manager for this location of Advanced Storage Centres, testified. She stated that she met Ms. Nelson on one occasion when she paid for the locker. She also met her on another occasion when Ms. Nelson’s vehicle had been trapped in the facility due to her entering just before 10:00 PM and attempting to exit after 10:00 PM, which is the time that the exit gate remains locked for the night. When Ms. Barton came in the next morning she discovered that Ms. Nelson’s vehicle was blocking cars and she asked Ms. Nelson, who was present, to move her car. Ms. Barton testified that at the time she had also reviewed the videotape to determine who was in the facility and she observed both Ms. Nelson and Mr. Kranc together at the facility. Ms. Barton also testified that this incident likely occurred during the period of June 15 to July 3 when there is a gap in the video and the unit activity logs.
Analysis regarding Ms. Van Huizen
[70] There was no evidence of Ms. Van Huizen being in any way associated with Mr. Kranc or this drug operation prior to her first being observed the evening of August 2, 2017. She was not previously noted as a target of the investigation and only became one after she was seen walking dogs with Mr. Kranc that evening. I accept that the evidence of Constables McGowan and Paul establishes that she was observed walking dogs with Mr. Kranc outside the Glen Drive Residence and, later that evening, again with Mr. Kranc at Jerry Salina Park in Maple Ridge.
[71] The next day, I accept that Ms. Van Huizen exited the Glen Drive Residence in a vehicle associated with Mr. Kranc in the early afternoon and returned later in the afternoon. That evening she was seen leaving the residence in the passenger seat of a vehicle being driven by Mr. Kranc, stopping briefly at a Winners store and a Donair shop and then returning to the Glen Drive Residence. Later that evening she was again observed walking dogs outside the residence with Mr. Kranc.
[72] When police officers attended at the Glen Drive Residence to clear the apartment in order to preserve evidence in advance of the execution of a search warrant, Ms. Van Huizen appeared to be watching television. The evidence of her wearing pyjamas, having clothing and hygiene products there as well as the two dogs, which she took with her when she left, are all indicative of her staying at the apartment. The invoice in her name posted on the fridge, as well as the various personal papers located in the second bedroom and the recent prescription pill bottle in her name found in the kitchen cupboard are similarly supportive of her staying at the apartment.
[73] A photograph of Mr. Kranc and Ms. Van Huizen together as well as veterinarian receipt from April 2016 in the names of both of them with the address of the Glen Drive Residence were both found in the apartment. Those are both supportive of them being in a relationship at some point in time. The intermingling of their personal documents in one location is also supportive of such a relationship.
[74] The appearance of the apartment was, at first blush, normal in appearance. The only unusual aspect was that the stove top was propped open. Constable McGowan stated that at first he thought it might be broken or that there could be a gas line issue. However, upon closer inspection it was apparent that there was a bag containing a white substance as well as note pads, or score sheets under the stove top.
[75] The Pyrex container which contained drugs and the electronic scales were not in plain view. Similarly, the $16,732 in cash, which was in a closed kitchen cupboard, was not in plain view.
[76] While Ms. Van Huizen was found in the apartment, there was no evidence that she had either keys or a fob to enter the building or the actual unit. When she was observed entering the building, she was with Mr. Kranc.
[77] The Crown relies on the case of R. v. Wu 2010 BCCA 589. In that case the accused had called the police about an intruder in the night. When police arrived, she was found outside the residence. When the officers entered the residence they found a marijuana grow op occupying all of the second floor of the house. The trial judge had found that the accused had knowledge and control over the marijuana and as such was convicted of the offence of possession for the purposes of trafficking. The conviction was upheld on appeal, with the court of appeal stating that “it is not unreasonable for a trier of fact to conclude that someone living in premises in which marijuana plants or other illegal drugs are openly located is in a position to exercise some measure of control over those drugs.” (para 42).
[78] The Crown also relies on the case of R. v. Nazarek referred to above. In that case the police had executed a search warrant at a residence owned by the accused and his spouse. Bags containing significant amounts of drugs were found in the basement. In addition, quantities of drugs and indicia of drug trafficking, such as electronic scales, were found in the laundry room. In convicting Mr. Nazarek, the trial judge found that at paragraph 101:
[101] In this case I find that the only reasonable inference on the totality of the evidence is that Mr. Nazarek as an owner and occupant of this small residence with these contents in these locations had the requisite knowledge of the drugs and cash in the residence. The drugs in the processing centre in the laundry room and the cash in the dresser drawers were visible or easily accessible in areas that were well used.
[102] In the alternative, the principle of wilful blindness is relevant to his knowledge of the drugs under the washing machine and drugs and cash in the camera bag and backpack: the question is one that should have been asked by Mr. Nazarek given the visibility of a drug processing centre in the laundry room of his residence.
[79] The Crown also relies on R. v. Fisher 2005 BCCA 444. In that case, the accused was found in an apartment with cocaine in a drawer, white powder on the kitchen counters and a weigh scale with white powder on it. When he believed the police were not looking, he hid the scale in a drawer. He was convicted for possession for the purposes of trafficking in the face of evidence that he had a key to the apartment, the cocaine was located in an unlocked drawer in the kitchen, he was alone in the apartment for several hours before the police arrived, he appeared nervous, he was seen hiding the scale in the very drawer where the cocaine was in plain view, and he possessed a large amount of cash. The court of appeal upheld the conviction, although commenting that the circumstantial evidence “does not present the strongest case of control”. (para 43).
[80] The defence relies on the case of R. v. Lindgren 2015 BCSC 2667. In that case the police had been conducting surveillance of a residence they believed to be that of the accused. Comings and goings of individuals were observed which were suggestive of drug trafficking at the residence. When the accused arrived at the residence just before a search warrant was to be executed he was arrested. A bundle of cash was found on his person. Execution of the search warrant on the residence revealed a significant amount of cash throughout the residence as well as cocaine in one bedroom and bags and a money counter consistent with trafficking in the house. One of the bedrooms contained a significant number of personal documents in this name. The accused was acquitted. One element of his acquittal was the lack of evidence that he occupied or resided in the residence and whether his occupation was temporary or permanent, despite the existence of his personal papers there. The court also placed some significance on the fact that there was no evidence that the accused had a key to the residence such as to establish a measure of control.
[81] The defence also relies on the case of R. v. Flintroy 2018 BCPC 15. In that case, the accused was observed on several occasions to leave the apartment in question and use a fob to re-enter the building. Her tax return was found in the apartment along with other personal documentation and prescription bottles in her name. No drugs had been found in the apartment, although there were clearly items in the apartment consistent with it being the base of a drug trafficking operation, including significant amounts of cash. The accused’s vehicle was parked in the underground parking garage on multiple occasions during the period of the police surveillance. In acquitting the accused, the court found that while it was reasonable to infer that the accused was more than a temporary resident at the apartment, it was unable to conclude that it was her exclusive place of residence.
[82] Each of the cases relied on by the Crown and defence bear similarities to Ms. Van Huizen’s case. Ultimately I must be satisfied that the Crown has proven knowledge and control of the drugs by Ms. Van Huizen beyond a reasonable doubt, based on the constellation of facts that the Crown has proven. Because of the circumstantial nature of the case, I must be satisfied that there is no reasonable inference that can be drawn from the evidence other than that the accused is guilty.
[83] On the facts that have been proven, I am unable to say that the only reasonable inference is that of the guilt of Ms. Van Huizen. In my view the following facts lead to a reasonable alternative inference that Ms. Van Huizen may have been temporarily staying at the Glen Drive Residence on August 4, 2017 and lacked the requisite knowledge and control:
1. She had not been observed at the residence or was in any way associated with the investigation prior to the evening of August 2, 2017, despite over 30 days of surveillance over a period of 3 months;
2. There was no evidence that she had a key or fob to permit her to access the apartment on her own;
3. There was no evidence of her personally possessing any drugs or items associated with drug trafficking;
4. There was no documentary evidence specifically connecting her to the apartment such as rental agreements, utility bills or mail with that address. The only exception to that was a veterinarian bill from more than one year earlier;
5. The recent documentation from the False Creek Health Centre indicated an address different than that of the Glen Drive Residence for Ms. Van Huizen.
6. The personal documents of Ms. Van Huizen were contained in a small box which was easily transportable, and consistent with it being moved with her from place to place;
7. While there was evidence suggestive of Ms. Van Huizen having been in a relationship with Mr. Kranc at some point, the evidence of them currently being in a relationship was less clear;
8. The inside of the apartment was outwardly normal in appearance. There was no drug paraphernalia or open evidence of drug packaging or even consumption occurring there;
9. The only drugs that were in plain view was the baggie of drugs under the front of the stove top, which had the appearance of being tossed there. That is consistent with an inference that Mr. Kranc tossed the bag there when he left the apartment an hour prior to the arrival of the police.
[84] In my view, the cases of Wu and Nazarek are both distinguishable based on the obvious presence of a marijuana grow op in the home of the accused in the former, and the existence of drugs and an obvious drug processing operation in a home owned and occupied by the accused in the latter. In Fisher, the fact that the accused had a key to the apartment and showed evidence of guilt by attempting to hide the scale distinguishes that case from that of Ms. Van Huizen.
[85] In all of the circumstances I am left with a reasonable doubt that Ms. Van Huizen had the requisite knowledge and control of the drugs to establish that she was in possession, constructively or jointly. I further do not find that the facts as proven support a finding that Ms. Van Huizen was wilfully blind or reckless such as to lead to a finding of guilt. The fact that a relatively small amount of crack cocaine could be seen under the stove top is insufficient to support a conclusion of wilful blindness or recklessness in relation to the offence for which she is charged.
[86] I am similarly left with a reasonable doubt that she was a party to the offence alleged as I find an absence of evidence that she aided or abetted Mr. Kranc in the drug operation.
[87] Accordingly, Ms. Van Huizen is acquitted of counts 3, 4 and 5.
Analysis Regarding Ms. Nelson
[88] Ms. Nelson was the sole renter of the locker throughout the period of April 10 to August 4, 2017 and throughout that time had the sole financial responsibility for the locker. She indicated that the purpose of renting the locker was for decluttering, and she named “Matt Kranc” as the only other person who expressly had access to the locker.
[89] Subsequent video surveillance shows only Ms. Nelson and Mr. Kranc as accessing the locker. Although the positioning of the video cameras is such that the actual locker cannot be seen and as such no one is ever viewed actually entering the locker, it is an obvious and inescapable inference that when the access code for locker 1004 is entered, the same locker is being accessed. The fact that other lockers are accessible upon entering the building does not undermine that inference since entering the code for a particular locker will only disable the alarm for that locker.
[90] While there is no video surveillance from April 10 to May 14 to identify who was accessing the locker, the computer logs indicate that the locker was only open for a total of about 4½ minutes during that period.
[91] When video surveillance begins on May 15, Ms. Nelson’s vehicle is seen entering the facility and parking outside the building. Constable Barbour believed the male who entered the building at that time was Mr. Kranc based on his distinctive shoes and walking gait. I am able to draw the same inference, by further considering other video evidence of Mr. Kranc when he is seen wearing the same red shoes. No other individual male is ever seen accessing locker 1004. I further am able to infer that Ms. Nelson was driving her vehicle that day, despite the fact that the video evidence does not permit a clear view of the driver.
[92] Ms. Nelson is next seen entering the locker on May 27 bringing a small reusable black and white shopping bag, which she leaves in the locker. When Mr. Kranc is later seen leaving the locker on July 4, he is carrying a similar looking bag.
[93] Melanie Barton testified that she also observed Ms. Nelson at the locker on an occasion when there was no video surveillance evidence available. She said that upon reviewing the video surveillance from that evening she was able to confirm that both Ms. Nelson and Mr. Kranc were at the facility together. She believes that occurred during the gap in the video surveillance evidence between June 15 and July 3.
[94] Ms. Nelson is next observed at the storage locker on July 15. On that occasion she met Mr. Kranc in the parking lot and the two of them entered the facility together after Mr. Kranc punched in the entry code. The evidence supports the inference that they remained in the locker for about 42 minutes before leaving together on foot. After exiting they exchanged cigarettes and then appeared to hug before Ms. Nelson got in her VW Rabbit and drove away. Ms. Nelson carried a large tan purse into and out of the facility.
[95] The final time Ms. Nelson is seen to enter the storage facility is on July 25. That day she entered alone and carried the same large tan purse both into and out of the facility. The locker was opened for just over two minutes.
[96] In addition to the two times when he was seen attending at the locker with Ms. Nelson, Mr. Kranc was seen there on 24 other occasions, typically every few days. On one occasion he was seen carrying a box into the locker and leaving without it, but on all other occasions he either did not appear to be carrying anything larger than a small bag or a golf club.
[97] There are gaps in the video and computer log evidence, specifically between June 15 and July 3. In addition, there is no video evidence between April 10 and May 14. Ms. Nelson argues that those deficiencies in the evidence give support to alternative inferences other than that Ms. Nelson had knowledge and control of the contents of the locker on August 4. She further argues that the Crown has not been able to adduce any evidence as to when the drugs and gun were placed into the locker, who placed those items in the locker or what the contents of the locker looked like prior to the execution of the search warrant on August 4. The surveillance does not show anyone bringing in the larger items such as the pelican case and golf bag into the locker.
[98] Ms. Nelson also relies on the fact that the computer logs contain some unexplained and confusing entries such as on May 15 when the computer log indicates that the locker remained open for 47 minutes after Ms. Nelson exited the compound. Similarly on July 18 the logs indicate that the locker remained open for 27 minutes after Mr. Kranc had exited the facility. Furthermore, on June 11, 13 and July 7, Mr. Kranc is seen on video entering and exiting the building, but the computer logs do not indicate that the locker was opened at all. I note that on July 7, despite the lack of computer evidence of the locker being opened, Mr. Kranc is seen to exit the building carrying a golf club, when he was not carrying anything when he entered. That suggests that he did enter the locker, notwithstanding the absence of any computer log entry confirming that it was opened.
[99] Ms. Nelson also argues that because she only entered the locker once after Mr. Kranc carried in a box on July 18, and Mr. Kranc entered the locker four times after she last entered it on July 25, further gives rise to alternative inferences. In particular, she says that she cannot be found to have any knowledge or control of the bag containing over $120,000 in cash that Mr. Kranc appears to have brought in to the locker on July 31.
[100] The Crown relies on a number of cases which it says are factually similar to Ms. Nelson’s case. The first is R. v. Barreau 1991 Canlii 241 (BCCA). In that case the accused and another had rented an apartment from which quantities of drugs were later seized in the execution of a search warrant. The accused testified in her defence and said that she while she provided access to the apartment for her co-accused she did not know what he did for a living and that he kept strange hours. She was convicted, with the trial judge concluding that she was aware of what the co-accused was doing and that she took active steps to aid and assist him in doing so. Her conviction was upheld on appeal.
[101] The next case relied on by the Crown is R. v. Wong 1998 CarswellBC 785 (BCCA). In that case video surveillance established that the accused was an active participant in a stash house for a drug operation and had keys to the premises. His conviction was upheld on appeal, despite the fact that there was no evidence of his attending the premises on his own after the date that video evidence showed that there had been delivery of a substantial amount of heroin to the premises.
[102] In the previously mentioned case of R. v. Pham, the accused had rented an apartment from which it appeared that drug trafficking had been occurring through the door. When a search warrant was executed the accused was not present but another individual was as well as quantities of crack cocaine and cash. The accused was convicted based on the circumstantial evidence which led to the only logical inference of the accused having a consistent awareness of, and participation in all that occurred in her home. That demonstrated more than a quiescent or passive knowledge of the drugs, as well as an element of control over them. The conviction was upheld on appeal.
[103] Finally, the Crown relies on the case of R. v. Dipnarine 2014 ABCA 328. In that case the accused and another co-accused had rented a residence for several months. When the police executed a search warrant on the residence the co-accused was sleeping there but the accused was absent. Inside the unfinished basement of the house was found a table with amounts of cocaine and items consistent with packaging cocaine for purposes of distributing. Inside one of the bedrooms were found a number of personal documents of the accused, including recent utility bills for the residence. The accused was convicted of possessing the cocaine for purposes of trafficking, which was upheld on appeal. The appeal court said that it was clearly apparent what was occurring in the basement of the house, and that there was no evidence to support a thesis that the cocaine was exclusively under the control of the co-accused or that the accused lacked any measure of control over it. Moreover, “Whoever was actually working at the table and chair in the basement to prepare packages from $12,000 worth of cocaine was plainly quite confident that the other co-tenant was not going to interfere. That demonstrable level of trust as to such valuable drugs support a common sense inference about co-participation.” (para 28)
[104] Ms. Nelson relies on the case of R. v. Oudaimy 2013 BCPC 93. In that case the accused was charged with possession of cocaine and ecstasy for the purposes of trafficking, as well as possession of firearms. As in the case of Ms. Nelson, Oudaimy involved the seizure of the contraband from a storage locker to which the accused was associated. The police had been investigating clandestine labs manufacturing illicit drugs and in the process had become aware of the importation of barrels of chemicals which were often used for manufacturing drugs. They attached tracking devices to the barrels and tracked one of them to a particular storage locker in Surrey. Video evidence confirmed that it was the accused who had delivered the barrel to the locker on October 26. A search warrant executed on December 11 led to the seizure of the gun and drugs for which the accused was charged with having possession of. None of the items were in plain view but were hidden away inside boxes and bags.
[105] The accused’s fingerprints were found on the corner of one of the bags containing codeine, although his prints were not found on any of the many other items in the locker that were tested for fingerprints. The unit was rented by another individual named Mr. Khera who testified at the trial that he was a friend of the accused and had rented the storage unit to store products for a shoelace business named “Armor” in which he was involved with the accused and two other individuals. He further testified that two other individuals associated with Armor had keys to the locker and that he had seen them accessing the locker in the past. Significant quantities of inventory for Armor were found in the locker, consistent with the operation of a legitimate business use of the locker. Furthermore, the locker was accessed in the month following the accused’s last attendance there, although the number of times it was accessed during that period was not clear.
[106] Mr. Oudaimy was acquitted, with the court finding that other reasonable possibilities inconsistent with his guilt existed. In particular the Crown’s case was weakened by the access of other individuals to the locker, the inability to determine when the contraband was placed in the locker and the absence of any evidence of the accused or anyone else accessing the locker in the ten days before the search warrant was executed, despite the existence of records confirming earlier entries to the locker.
[107] The evidence in the present case supporting knowledge and control by Ms. Nelson of the contents of the storage locker are as follows:
1. Ms. Nelson was the sole renter of the storage locker from April 10 to August 4, 2017.
2. Ms. Nelson named Matt Kranc, who is clearly Mr. Kranc, as the only other person authorized to access the locker.
3. Ms. Nelson’s confirmed attendance at the locker at least 4 times and at least 5 times at the facility. Four of those times were captured on video.
4. The evidence that she attended at the locker with Mr. Kranc on three occasions.
5. The absence of any evidence that the locker was used for decluttering (as indicated on the tenant move in information form). No such evidence was observed in surveillance videos nor indicated in the contents of the locker on August 4.
6. Although the contraband found in the locker was not in plain view, it was not particularly well hidden and there was little in the locker that was not either contraband or related to illegal activity.
7. The absence of any evidence that anyone other than Ms. Nelson or Mr. Kranc accessed the locker.
8. The fact that Mr. Kranc was not seen leaving anything of substance in the locker, other than the multi-coloured bag containing cash after Ms. Nelson’s last attendance in the locker on July 25.
9. The fact that Ms. Nelson had a key to the locker with her when she was arrested.
10. The very significant quantity and value of drugs (over $600,000) and cash (over $120,000) found in the locker. Although there is evidence that the cash was brought into the locker after Ms. Nelson’s last attendance there, she nonetheless continued to have unrestricted access to the locker. Such access is indicative of a high level of trust placed on Ms. Nelson by Mr. Kranc.
[108] All of the above facts support the locker being a key aspect of Mr. Kranc’s drug distribution operation and of Ms. Nelson having knowledge and control of the drugs and cash in the locker.
[109] Turning to the arguments advanced by Ms. Nelson, I do not find the gaps in the video evidence and the discrepancies in the computer logs to be such as to raise any reasonable alternate inferences. While I must consider other plausible theories or other reasonable possibilities which might be consistent with her innocence, I find that the suggestion of Ms. Nelson not knowing that the locker she had rented was being used as a drug refilling depot by Mr. Kranc falls into the realm of speculation.
[110] Furthermore, although there was a gap of ten days between Ms. Nelson’s last attendance at the locker and the execution of the search warrant, the existence of an ongoing drug distribution business from the locker in the weeks and months leading up to that, together with the surrounding circumstantial evidence, satisfies me beyond a reasonable doubt that Ms. Nelson had the requisite knowledge and control to establish both constructive and joint possession of the drugs.
[111] While similar facts led to an acquittal in R. v Oudaimy, in my view that case is distinguishable. Firstly, in that case the storage locker had an alternative legitimate business use, and was clearly being used for that other purpose in addition to the illicit purpose. Secondly, the accused was not the lessor of the locker. Thirdly there were three other individuals that clearly had access to the locker. As such, despite its similarities, I do not found the acquittal in Ouidamy to be supportive of an acquittal in the present case.
[112] I also find that the Crown has proven beyond a reasonable doubt, on the basis of the uncontested expert evidence of Constable Boechler, that the drugs found in the storage locker were possessed for the purposes of trafficking.
[113] I am also satisfied that the facts as proven by the Crown establish that Ms. Nelson was a party to the offence of possession of the various drugs for the purposes of trafficking under s. 21 of the Criminal Code.
[114] Turning to the firearms offences, in my view the circumstantial evidence in relation to those offences lands somewhat differently. The evidence clearly supports Ms. Nelson being aware of a drug distribution operation taking place in the locker, orchestrated by Mr. Kranc. However, it does not automatically follow that she had constructive or joint possession of the Sig Sauer Handgun. While it is often said that guns and drugs go together, there must be an evidentiary foundation to support such a finding for a conviction to follow. In my view that evidence is lacking in this case and I am left with a reasonable doubt in ascribing the requisite knowledge of the handgun to Ms. Nelson. In my view, a reasonable alternative possibility is that Ms. Nelson had no knowledge of the presence of the handgun and ammunition in the locker, despite her knowledge of the drugs.
[115] Accordingly I find Ms. Nelson guilty of counts 6, 7 and 8. I find her not guilty of counts 9 and 10.
_______________________________
The Honourable Judge R.P. McQuillan
Provincial Court of British Columbia