IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         Following an investigation by members of the Vancouver Police Department (the “VPD”), Satnam Singh Randhawa (the “accused”) was arrested on August 28, 2017, for possession for the purpose of trafficking in a controlled substance.

[2]         On August 13, 2018, the accused was charged in a three count Information with possession for the purpose of trafficking in fentanyl, possession for the purpose of trafficking in cocaine and possession for the purpose of trafficking in heroin, contrary to s. 5(2) of the Controlled Drugs and Substances Act (the “CDSA”).

[3]         Has the Crown established beyond a reasonable doubt the requisite elements of possession?

[4]         Pursuant to s. 655 of the Criminal Code of Canada (the “Code”), the accused made extensive admissions [Exhibit 1] in relation to the facts of the police investigation [Project Deja Vu] into the activities of the accused that lead to his arrest on August 28, 2017.

[5]         As the admissions are extensive, a chronological summary is sufficient to establish the admitted facts:

[6]         Constable Justin Kurtz is a member of the VPD and was the lead investigator for project Déjà Vu. He also arrested the accused on August 28, 2017.

[7]         He testified in direct examination that, as a result of information received from a source handler, police suspected that drug trafficking activity was taking place at the residence on Columbia Street.

[8]         He testified that, as a result of the source handler information, members of the VPD commenced an investigation into activities taking place at the residence including conducting surveillance of the residence.

[9]         He testified that he conducted surveillance on August 27, 2017. Shortly after 3 PM, he observed the accused exit the residence and eventually make his way to Thornton Park where he sat on a park bench.

[10]      After a short period of time another male sat down on the park bench. Constable Kurtz observed the accused bending over and tying and re-tying his shoestrings while looking around as he was bent over. It appeared to Constable Kurtz that the accused’s mouth was moving but he was too far away to hear what, if anything, was being said.

[11]      He testified that the second male then got up from the bench and walked away.

[12]      Constable Sonu Parhar is a member of the VPD. He was tasked with the duty of being the surveillance coordinator for project Déjà Vu.

[13]      He conducted surveillance of the residence on six occasions in August 2017, including on August 27, 2017.

[14]      He testified that shortly after 3 PM, he surveilled the accused going to Thornton Park. As the accused was walking through Thornton Park, Constable Parhar observed the accused take out his cell phone and begin typing on his cell phone.

[15]      He testified that shortly after 3:30 PM, he observed the accused sitting on a park bench in Thornton Park. An unknown male then approached the park bench. The accused stood up and they shook hands. The two appeared to have a brief conversation and they then separated.

[16]      He testified that, throughout his surveillance, the accused presented as a “normal -- a normal person that fit in Olympic Village. He didn’t stand out.”

[17]      Constable Amy Harris is a member of the VPD and is assigned to the VPD Forensic Identification Unit.

[18]      Constable Harris was tasked with the role of photographer of the residence following the execution of a search warrant.

[19]      In direct examination, she gave evidence on the photographs taken of the interior of the residence and what is depicted in each of the photographs that formed part of the admissions.

[20]      Detective Constable Tara Munro’s curriculum vitae was admitted by the accused.

[21]      She is currently assigned to the Organized Crime Section, Drug Unit of the VPD.

[22]      As part of her current duties, she is responsible for investigating various levels of drug trafficking from street level to mid-level as well as high-level drug investigations, including investigations involving fentanyl, cocaine and heroin.

[23]      She has been involved in the investigation of drug houses (“stash houses”) at the mid to high level of drug trafficking operations including, for the purposes of this case, premises that involved the cooking of drugs, packaging of drugs, and score sheets as an accounting system for drug dealers.

[24]      She was qualified to give opinion evidence in relation to the use, price, packaging, and distribution of fentanyl, cocaine and heroin.

[25]      An extensive written hypothetical scenario [Exh. 3] was put to Detective Constable Munro. The hypothetical scenario contained, in part, references to various contacts the accused had with other individuals during the police surveillance of his activities in the vicinity of the residence.

[26]      The Crown also took Detective Constable Munro through many of the interior photographs containing items located in the residence that formed part of the admissions.

[27]      Her opinion evidence in direct examination is summarized as follows:

[28]      In cross-examination, Detective Constable Munro agreed that it could take a significant period of time for an individual to become educated in the drug trade industry.

[29]      She agreed that the level of knowledge required by an individual to become involved in the drug trade business is expanding and evolving and not dissimilar to traits required by a businessman to become successful.

[30]      She agreed that a cell phone is one of the tools of the trade in the drug industry but not exclusive to the drug trade industry as “everybody has a cell phone these days”.

[31]      She agreed that the minimal personal belongings located in the residence fortified her opinion that the residence was being used as a stash house and not a lived-in residence.

[32]      She agreed that the writing on a Post-It note located on the coffee table in the living room of the residence would be consistent with a food list rather than something drug related.

[33]      In direct examination, the accused testified that he is 43 years old. He was born in India and came to Canada when he was 2 years old.

[34]      He was principally raised by his father, as his mother had to go into care due to a schizophrenia condition.

[35]      He completed his grade 12. After completing high school, he took on a variety of jobs, including working for UPS at the airport when he was 19 years old. While employed with UPS, he suffered from acute psychosis and was hospitalized for several months.

[36]      After being discharged from the hospital, he got a job as a security guard with Concord Pacific. He lost that job as he was medicating his psychosis with cocaine.

[37]      He began to receive disability benefits when he was 21 years old and currently remains in receipt of disability benefits.

[38]      He reviewed and confirmed that he has a lengthy property-related criminal record commencing in January 2005 through to August 2019. There are no entries relating to convictions for drug offences.

[39]      He testified that he supported his cocaine habit by “stealing things to make money.”

[40]      He testified that, in or around the spring and summer of 2017, he was homeless and living on the streets of Vancouver. While on his way to see his probation officer, he happened to run into an old friend of his by the name of Ron Singh (“Ron”).

[41]      They exchanged telephone numbers. Ron told him to give him a call as he would pay him some money to cut the grass and maintain his house.

[42]      He testified that he followed up with the offer and went to Ron’s house located in Kitsilano where they smoked marijuana together and he helped Ron cut the grass and maintain his house. This arrangement continued on a weekly basis.

[43]      At one point in the summer of 2017, approximately a month before he was arrested, he went to visit Ron at the residence. Ron told the accused that a friend of his owned the residence and that his friend was away on vacation.

[44]      The accused estimated that he visited Ron at the residence on four or five occasions. They spent their time watching television on these occasions.

[45]      In the following exchange, the accused explained how he came to be in possession of the fob to the residence and why he was allowed to stay at the residence:

[46]      The accused corrected himself and testified that he stayed at the residence for three to four nights. The only item he took to the residence was a bag with a pair of pants, some other clothing, and his medication.

[47]      He testified that, over the three to four days that he stayed overnight at the residence, he was spending most of his time during the day visiting his mother in a care home.

[48]      From the photographs contained in the admissions, he identified the bedroom that he was using at the residence. He did not store anything in the chest of drawers in the bedroom. On one occasion, he opened the drawers as he was looking for a lighter, when he saw three bags containing what he believed was “maybe” dog food for Ron’s dog. He testified he had “never recognized fentanyl before.”

[49]      The accused later testified in direct examination that he could not specifically recall a particular incident when he was looking through the drawers in the bedroom, but he may have done so when he was looking for some “change or something … ‘cause I didn’t have much money.” He denied finding any money.

[50]      He testified that when he first went to the residence with Ron, the two barrels located by the police investigators in the living room were not there. Later, when Ron gave him the fob and allowed him to stay at the residence, there was a barrel of something in the bedroom.

[51]      He testified that two days before he was arrested, Ron telephoned him around 9:00 AM or 10:00 AM requesting that he leave the patio door unlocked as he was going to be “bringing some stuff in.”

[52]      He testified that he unlocked the patio door and went back to bed and fell asleep. When the accused got up around noon of that day, he saw the two barrels by the patio entrance. He moved them behind the couch so they were out of the way. He had “no idea” what the barrels were for. Ron never spoke to him about the barrels.

[53]      He testified that other than a note that he made to himself, he did not recognize the handwriting on various Post-it notes and other pieces of paper located in the residence.

[54]      In relation to fingerprints identified to the accused and located in the kitchen, he explained that he used the refrigerator after getting groceries. He denied using the cupboards in the kitchen though he may have opened the cupboards at some point when he was looking for a lighter.

[55]      He testified that he thought he recalled seeing a food dehydrator in the residence but denied that he purchased that food dehydrator.

[56]      He testified that the money the police found on him at the time of his arrest was part of his monthly disability benefit and also part of a loan arranged through Money Mart.

[57]      He testified that he could not remember testimony given by one of the police officers in which he is described as sitting on a bench at Thornton Park, where he was observed tying and untying his shoes while looking around. He went on to explain that he went to Thornton Park on occasion to have a cigarette and that, “Somebody might have sat down next to me but that’s why – that’s all I can remember”: Ibid at p. 23, ll. 40-44.

[58]      He testified that when he was arrested, the police located a cell phone on him. He used the cell phone to contact his mother and friends. He denied using the cell phone for any drug trafficking activity. He denied at the time of his arrest that he was involved in any drug trafficking.

[59]      In cross-examination, the accused testified that he started experimenting with cocaine in high school and that he briefly stopped using cocaine in or around 2015, but relapsed in 2016. He agreed that he had been using cocaine on and off for a period of 20 years.

[60]      He testified that when he was using cocaine he purchased the cocaine every day or every other day at a cost of $10 - $20 per purchase from drug dealers in the Downtown Eastside. Typically he purchased the cocaine from drug dealers working at street corners in the Downtown Eastside.

[61]      He agreed with the suggestion of the Crown that after using cocaine for the better part of two decades that he had become “fairly familiar” with how cocaine was purchased.

[62]      He testified that in the summer of 2017, he would purchase cocaine “once every three weeks or so” from street dealers after he received his disability benefit. Typically he would purchase one or two grams and then smoke all of it over the course of the night. If he had more money, he would have purchased more cocaine to avoid withdrawals.

[63]      The Crown began cross examining the accused concerning the surveillance evidence contained in the admissions in the following exchange:

[64]      Following this exchange, the court asked that the accused be provided with the book of admissions. He was directed to review the pages dealing with the surveillance evidence to refresh his memory.

[65]      After the accused had the opportunity to review the admissions surveillance evidence, the court asked him if he had read the admissions in the following exchange:

[66]      In the following exchange, the Crown questioned the accused with respect to surveillance evidence observed on August 1, 2017, as contained in the admissions:

[67]      The Crown took the accused through the remaining surveillance evidence contained in the admissions that related to the accused. More often than not, the accused responded with, “I don’t recall. I do not remember” Ibid, p. 19, ll. 10-25 and p.20, ll. 6-34.

[68]      The accused denied the suggestion of the Crown that he was engaged in any drug trafficking with any of the individuals that he was observed encountering from the surveillance evidence contained in the admissions.

[69]      At one point, unprompted, the accused testified that the notes made by the police officers “are lies too”: Ibid p. 22, ll. 9 – 18.

[70]      After testifying that he could not remember meeting a male on a park bench along the seawall as observed in the surveillance evidence contained in the admissions, the accused went on to testify that he did have a recollection of meeting this person and purchasing some marijuana in the following exchange:

[71]      The accused denied any knowledge of the name of the person surveilled entering and exiting the residence on August 4, 2017, as noted in the admissions. The accused was asked to refresh his memory by reading those paragraphs contained in the admissions relating to this incident.

[72]      In the following exchange, the accused was asked if reading the referenced paragraphs if that refreshed his memory:

[73]      The accused testified that on August 27, 2017, that “maybe” he was on a park bench in Thornton Park and that he could have been smoking a cigarette or marijuana with that person. He could not remember whether or not he knew this man. Nor could he remember that he was observed sliding something along the bench to this person, though he speculated it could have been a pack of cigarettes or some marijuana.

[74]      The Crown asked the accused if he had any recollection of meeting with individuals in Thornton Park to exchange items. He responded, “Not really.”

[75]      The Crown again asked the accused if he had a recollection of sliding a package of cigarettes to this person on the park bench on August 27, 2017. He gave the following answer:

[76]      The Crown asked the accused how he came to meet Ron from his high school days. The accused answered that he met Ron through a friend. They became quite good friends and would meet each other once or twice a week. After approximately one year the accused “moved on.”

[77]      He testified that it was not until the summer of 2017, when he was going to his probation office, that he saw Ron driving his car. Though up to eight years had gone by since he last saw Ron, he testified that they had no difficulty in recognizing each other. It was at this time that they exchanged telephone numbers.

[78]      He testified that he found out where Ron lived because Ron picked him up and drove him to his house located in Kitsilano. After that, he recalled taking the bus and going to Ron’s house once or twice per week through the summer of 2017.

[79]      He testified that when he went to Ron’s house he would perform various chores, including cutting the grass every two to three weeks, vacuuming, and sometimes walking Ron’s two dogs. Depending on the number of chores he performed, he would be paid $20 - $40.

[80]      Though he was homeless at the time, the accused never asked Ron if he could stay at his house. He assumed that Ron did not want him to stay at his house.

[81]      He testified that when he went to the residence for the first time, Ron told him that his friend was away on vacation and he wanted to go to visit his friend’s residence.

[82]      He testified that he did not ask Ron why they were going to the residence while his friend was away on vacation, as he did not want to ask “too many questions.”

[83]      He testified that Ron invited him to go to the residence with him for the purpose of watching television, smoking marijuana, and Ron “sometimes” liked to drink beer at the residence.

[84]      He testified that he never asked Ron why he was “just hanging out” at the residence, nor did he think it odd that they went to the residence when his friend was not there.

[85]      In the following exchange, he explained why he never asked Ron any questions about his connection to the residence:

[86]      He initially testified that he only slept at the residence for two or three nights prior to being arrested on August 28, 2017. Later in his cross-examination, he testified that he stayed overnight at the residence for four or five nights commencing on August 23^rd or 24^th.

[87]      He testified that Ron gave him permission to stay at the residence because his friend was not coming back from vacation for a couple of weeks. It was put to the accused that Ron’s friend had been on vacation for the whole time that they were hanging out at the residence. In response, the accused testified that the landlord had shown up around August 24^th or 25^th, because there was a leak in the sink which had gone through to the underground parking lot.

[88]      He agreed with the suggestion of the Crown that it was the landlord who actually called the accused on the accused’s cell phone to arrange a meeting time at the residence.

[89]      He also agreed that he may have been wrong in his recall of the date that the landlord came to the residence and that it may have been a week before he was arrested.

[90]      He testified that he did not find it odd that Ron invited him to stay overnight at the residence. It never occurred to him that Ron would allow him to stay at the residence when it was not Ron’s place.

[91]      In the following exchange, he was asked how long he expected to stay at the residence:

[92]      The accused agreed with the suggestion that he assumed how long Ron was going to permit him to stay at the residence; it was his understanding he could stay at the residence as long as he wanted, until Ron told him he had to leave.

[93]      The accused testified that it was either Ron’s friend or the landlord who came by the residence to fix the water leak.

[94]      In the following exchange, the accused was asked if he knew when Ron’s friend was coming back from vacation:

[95]      He testified that he never asked, nor was he curious about the name of Ron’s friend, who apparently owned the residence. However, he did agree that it seemed “kind of odd” that he was being allowed to stay in a residence that was essentially a new condominium for free.

[96]      In the following exchange, the Crown pressed the accused on whether or not he found it odd that he did not have to pay anything to stay at the residence:

[97]      The accused testified that Ron gave him the key to the residence four or five days prior to his arrest. He did not believe that Ron had a key to the residence.

[98]      He testified that over the four to five days that he was staying at the residence, it was only Ron and the landlord who came to the residence. He recalled that about three to four days before he was arrested, Ron called him and told him to leave the front patio door unlocked, as he would be “dropping some stuff off.”

[99]      He testified that he saw Ron dropping off some barrels in the area of the living room and kitchen. He did not have any conversation with Ron at that time or any later date with respect to the barrels as it was “none of [his] business”.

[100]   He testified initially that when he saw the barrels, he thought that they may have something to do with the flood into the parking lot. When he was asked why he thought the barrels might have some connection to the flood, he testified that he had “no idea what they were going to be used for … I didn’t want to ask any questions about it … I’m not nosy and I’m not a snoopy person.” [Emphasis Added]

[101]   After looking at some of the photographs admitted into evidence, he agreed that his deodorant was on top of a barrel located beside the bed in the bedroom. He did not find it unusual that this barrel was located next to the bed as he described himself as not being a “nosy person” who does not try “finding out things.”

[102]   He testified that he had only been into the bedroom closet once. When he went into the closet he saw the pill press apparatus and, while he found it unusual, he never asked Ron about the apparatus because it was none of his business.

[103]   He testified that it did not strike him as unusual that there were no clothes or other personal effects located in the bedroom closet. He agreed that typically if someone goes on vacation they would not take all of their clothing and personal effects with them.

[104]   He testified that he could not recall seeing a large bag of white powder located in the top drawer of the bedside table located in the bedroom when he went through those drawers looking for money. He suggested, “Somebody must’ve put it there after. The police probably planted it”: Ibid at p. 76, ll. 41 – 45.

[105]   He testified that he did not find it unusual that there was a food dehydrator next to the bed in the bedroom, because he did not know that it was a food dehydrator.

[106]   He testified that he cooked hotdogs in the oven at the residence. He denied seeing the baking trays reproduced in the photographs that were located inside the oven at the residence. He recalled laying the hotdogs on the oven racks.

[107]   He testified that while he may have seen some Ziploc baggies in one of the kitchen cupboards, that he otherwise either could not recall or did not see most of the contents brought to his attention by the Crown that were located in the kitchen cupboards, kitchen drawers and drawers of the dresser in the bedroom closet.

[108]   He testified that he recalled seeing a Ziploc baggie containing what he thought was dog food located in one of the drawers in the dresser in the bedroom closet in the following exchange:

[109]   He testified that had he found any cocaine in the residence, he would have used it as he was an addict in August 2017. Subject to having money, he would use cocaine as frequently as possible during that time.

[110]   He denied ever looking in or using the dishwasher. He would use the sink to wash any used dishes or glasses as he did not want to “wreck the washing machine.”

[111]   When it was put to the accused that the only food-related item found by the police in the residence was instant coffee, he responded that he did not use instant coffee but got his coffee from Tim Horton’s.

[112]   He testified that after he was arrested he continued to be friends with Ron, even though he blamed Ron for getting him into trouble. When he asked Ron about the drugs, Ron told him, “… it probably was dog food.”

[113]   When the Crown put to the accused that he knew the case was not about dog food, but rather, was about illicit drugs the accused responded, “I – I still didn’t know the truth behind what it was”: Ibid at p. 15, ll.15 – 19.

[114]   The court asked the accused if he knew that Ron was a drug dealer in the summer of 2017. The accused responded, “Yes.”

[115]   The court asked the accused if he recalled seeing labels on the barrels that Ron had dropped off at the residence. He responded that any labels had been torn off.

[116]   The court asked the accused if he said anything to Ron when he saw him moving the barrels into the residence. He responded, “No, I – when I -- I should have. When I woke up, I should have. I just didn’t bother” [Emphasis Added]: Ibid at p. 21, ll. 35 – 47.

[117]   The accused submitted that the Crown has failed to establish beyond a reasonable doubt that the accused had either the knowledge or the control of the controlled substances found in the residence by the police.

[118]   The accused’s other submissions related primarily to how the court should evaluate his testimony, summarized as follows:

[119]   The accused then reviewed some of the case authorities relied upon by the Crown, submitting that the facts in those cases were distinguishable from the facts of this case.

[120]   The Crown submitted that the evidence is overwhelming in establishing beyond a reasonable doubt that the accused had both the knowledge and control of the drugs found at the residence.

[121]   The Crown’s other submissions are summarized as follows:

[122]   The Crown filed a written memorandum with a book of authorities on the elements of possession. Some of the case references have been incorporated into the Legal Framework section of this judgment.

[123]   Section 2 of the CDSA adopts the definition of “possession” found in ss. 4(3) of the Code:

[124]   There are three forms of possession, namely, personal possession, constructive possession and joint possession. Knowledge and control are the key elements of the three forms of possession.

[125]   To establish constructive or joint possession, the Crown is required to establish beyond a reasonable doubt that the accused had knowledge of the nature of the prohibited item or substance and exercised some measure of control over it: R. v. Ahmadzai, 2012 BCCA 215 at para. 26 [Ahmadzai].

[126]   The requisite elements of possession can be established by direct evidence, inferred from circumstantial evidence, or a combination of both. As the Crown has relied upon the circumstantial evidence in this case, the essential question becomes 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”: R. v. Villaroman, 2016 SCC 33 at para. 38 [Villaroman].

[127]   When assessing circumstantial evidence, inferences of fact consistent with innocence no longer have to be drawn from proven facts but may be drawn from “reasonable possibilities” arising from the evidence: Ibid at paras. 36-37.

[128]   Whether or not there is a reasonable doubt concerning guilt is to be assessed on the totality of the evidence. Other competing plausible theories must be based on logic and experience in assessing the evidence and not on speculation: Ibid at paras. 35-36.

[129]   In the context of constructive or joint possession, the Crown is not required to establish beyond a reasonable doubt that the accused had knowledge of the precise nature of the substance, so long as the knowledge of the substance or its illicit character is established: R. v. To, 1992 BCCA 16.

[130]   The amount, as well as the value, of the prohibited substance can support an inference of knowledge on behalf of an accused.

[131]   With respect to control in the context of constructive or joint possession, the Crown is required to establish that the accused had the ability to exercise some power or measure of control over the item in issue: R. v. Wu, 2010 BCCA 589 at para. 20.

[132]   Control can also be established where the accused had the ability to grant or withhold access to the residence, whether or not that access was in fact granted: R. v. Fisher, 2005 BCCA 444 at para. 41.

[133]   The element of knowledge can also be established if the accused is “wilfully blind” to the nature of the substance but fails to make any further inquiry to determine the legality of the substance.

[134]   Wilful blindness was defined by the Supreme Court of Canada (the “SCC”) in R. v. Briscoe, 2010 SCC 13 at para. 21:

[135]   The legal test for the application of the doctrine of wilful blindness has most recently been considered by the British Columbia Court of Appeal (“BCCA”) in R. v. Edwards, 2020 BCCA 253 at para. 67 [Edwards]:

[136]   Section 655 of the Code reads as follows:

[137]   The preamble contained in the admissions reads as follows:

[138]   In this case the admissions are a formal statutory admission of facts signed off by both counsel for the accused and counsel for the Crown. The admissions would not be described as an informal evidentiary agreed statement of facts where, if a conflict were to arise between the viva voce evidence of a witness and the agreed statement of facts, it would require the Crown to call evidence on the points in issue: R. v. Coburn (1982), 1982 CanLII 3715 (ON CA), 66 C.C.C. (2d) 463 at para. 13, considered in R. v. Prince, 2017 BCSC 2642 at paras. 20 & 21 [Prince].

[139]   Once an admission is tendered and accepted by the court it becomes an integral part of the record. Unless altered by mutual consent, an admission voluntarily made, by or with the advice of counsel, is not easily disturbed: Prince at para. 26.

[140]   Credibility and reliability are different evidentiary concepts. Credibility concerns the veracity of a witness while reliability involves the accuracy of the witness. Accuracy engages the ability of the witness to “observe, recall and recount”: R. v. Khan, 2015 BCCA 320 at para. 44 [Khan].

[141]   Justice David M. Paciocco notes that in assessing credibility, a court should not embark upon a credibility contest. Nor should a court decide guilt on which version of events is preferred. Rather, the decisive question is whether, considering all of the evidence, the Crown has proved the guilt of the accused on the specific charge(s) alleged beyond a reasonable doubt: “Doubt about Doubt: Coping with R. W.(D) and Credibility Assessment”, (2017) 22 Cdn. Criminal LR 31 at p. 6.

[142]   The accused elected to testify. In R. v. Khaira, 2020 BCPC 6 at paras. 16 and 17 [Khaira], the court discussed the approach in the assessment of credibility as follows:

[143]   Finally, the onus rests upon the Crown to establish all of the requisite elements of possession beyond a reasonable doubt. The concept of proof beyond a reasonable doubt is “much closer to absolute certainty than to proof on a balance of probabilities”: R. v. Starr, 2000 SCC 40 at para. 242.

[144]   Detective Constable Munro was qualified to give opinion evidence in relation to the use, price, packaging and distribution of fentanyl, cocaine and heroin.

[145]   She had the opportunity in direct examination to review the photographs contained in the admissions showing the interior of the residence at the time a search was conducted on August 29, 2017.

[146]   In addition, the Crown asked her to give opinion evidence via an extensive written hypothetical scenario regarding activities taking place at the residence after the VPD received information that illegal drugs were being distributed from the residence.

[147]   It was her opinion that the residence was an active “stash house” and that, based on the hypothetical scenario and the admissions she reviewed, the activities taking place in the residence were consistent with a mid-to-high-level drug trafficking operation.

[148]   I find that Detective Constable Munro was a credible and reliable witness. I accept her opinion evidence.

[149]   I find that the Crown has established proof beyond a reasonable doubt that the fentanyl, cocaine and heroin located in the residence on August 29, 2017, was possessed for the purpose of trafficking.

[150]   The accused has admitted that he was observed by the police entering and exiting the residence from either the east entrance door or the west entrance door to the building, or from the patio door connected to the residence, on numerous occasions on August 1, 2017, August 4, 2017, August 17, 2017, August 18, 2017, and lastly, August 25, 2017.

[151]   The accused has admitted that when he was arrested on August 28, 2017, the police searched him incidental to his arrest. The police located, among other things, a fob and two keys. The fob was tested and found to activate both the east and west entrances to the building. One of the two keys opened the front door lock of the residence.

[152]   The accused has admitted that from August 1, 2017, through August 28, 2017, fob records indicate that the fob was used 154 times, including on the days of the police surveillance of the accused.

[153]   The accused has testified that he had attended at the residence with Ron to “hang-out” on numerous occasions through the summer of 2017.

[154]   He testified that Ron invited him to live at the residence either two or four days before his arrest. Ron gave him both the fob to access the building and the key to access the front door of the residence.

[155]   The accused testified that he was the individual who permitted the landlord to enter the residence when a water leak was reported.

[156]   I find it significant that the accused testified that, a few days before his arrest, Ron requested that he leave the patio door unlocked as he had to make a delivery. That delivery was the two barrels of caffeine.

[157]   I find that the Crown has established proof beyond a reasonable doubt that the building can only be accessed with the use of a fob. The fob found on the accused permitted him to access the building.

[158]   I find that the Crown has established proof beyond a reasonable doubt that the residence can only be accessed through the locked front door with the use of a key. The key found on the accused permitted him to access the residence.

[159]   I find that the Crown has established proof beyond a reasonable doubt that the residence can only be accessed from the patio if the patio door is unlocked. It is this door that the accused unlocked which allowed Ron to deliver the barrels of caffeine.

[160]   As discussed in the legal framework of this judgment, to establish constructive possession there must be evidence that discloses some measure of control over the prohibited items: Fisher at paras. 22 and 41.

[161]   I find that the Crown has established proof beyond a reasonable doubt that the accused regulated access to both the building and to the residence during the Project Déjà Vu VPD investigation into the activities taking place at the residence.

[162]   I find that the Crown has established proof beyond a reasonable doubt that the accused exercised a sufficient measure of control through his ability to regulate access to the building and to the residence to establish constructive possession of the fentanyl, cocaine and heroin found at the residence on August 29, 2017.

[163]   The accused was extensively cross-examined.

[164]   There were occasions in his cross-examination that he was confronted with his admissions relating to police surveillance of his activities observed through the month of August. In particular, he was questioned about police surveillance of his meetings with various individuals at various times.

[165]   Initially the accused denied ever making an admission that he met a male and a female outside of the residence on August 1, 2017. Following the denial, the court requested that the case be stood down so that the accused could refresh his memory by reviewing the admissions relating to the police surveillance.

[166]   When court reconvened, the accused confirmed that he had reviewed the admissions and when asked by the court if he was denying the admissions, he responded, “Yeah. That I might’ve met somebody in the summertime, but I might’ve -- I don’t recollect meeting -- saying hi to somebody. I don’t recollect what I was doing at the time”: Transcript, October 29, 2019, p. 12, ll.37-39.

[167]   As noted at para. 67 of this judgment, the Crown took the accused through the remaining surveillance evidence contained in the admissions that related to the accused. More often than not, the accused responded with, “I don’t recall” and/or “I don’t remember.”

[168]   As noted at para. 69 of this judgment, while he was being cross-examined on the surveillance evidence contained in the admissions, the accused, unprompted, testified that the notes made by the police officers “are lies too.”

[169]   As discussed in the legal framework of this judgment, admissions become an integral part of the trial record and will not easily be disturbed.

[170]   The admissions made in this case are extensive. I accept the admissions as credible and reliable in establishing the facts contained therein.

[171]   The accused’s testimony that he does not recall or does not recollect encounters with other individuals as admitted in the police surveillance does not reduce the evidentiary reliability of those admissions. His lack of recall and his allegation that the police notes with respect to the surveillance are “lies” reduced his credibility and reliability as a witness.

[172]   He testified that his ability to remember events varied. For example, he testified that his lack of recall respecting the police surveillance of his encounters with other individuals related to events that happened a year to a year and a half in the past. However, his memory was much more vivid with respect to traumatic events.

[173]   The accused’s initial encounter with Ron in the summer of 2017 was entirely coincidental. Though up to eight years had gone by since he last saw Ron, the accused testified that he had no difficulty in recognizing Ron and Ron had no difficulty in recognizing him.

[174]   I find the accused’s evidence implausible on this point. He had just testified that he could not recall his encounters with other individuals noted in the admissions because they related to events that happened a year to a year and a half in the past, but he had no difficulty identifying Ron, who just happened to be driving past him in his car.

[175]   The accused testified that his chance encounter with Ron rekindled their friendship. In quick order, he was over at Ron’s house in Kitsilano performing various chores and otherwise hanging out with Ron.

[176]   He testified that Ron took him over to the residence to watch some television, smoke marijuana and otherwise hang out because the occupant of the residence was a friend of Ron’s who was away on vacation.

[177]   He never questioned Ron on why they were going to the residence when his friend was away on vacation as he did not want to ask “too many questions.”

[178]   The accused’s reticence in asking Ron any questions about the residence became a theme in his testimony.

[179]   He never asked Ron how long he could stay at the residence because he would “probably” tell him when it was time to move out. It was shortly after that exchange with the Crown that the accused testified that he knew he could only stay at the residence for one or two weeks.

[180]   The Crown asked the accused if he ever asked Ron when his friend was returning from vacation. He answered “no” because Ron called and occasionally stopped by. Then, completely unconnected to the question, the accused testified that he did not know why Ron brought the barrels to the residence.

[181]   While initially claiming that he was asleep when Ron dropped off the barrels at the residence, he changed his evidence and admitted that he may have been awake and saw Ron dropping off the barrels. He did not have any conversation with Ron at that time or any later date with respect to the barrels as it was “none of [his] business”.

[182]   He testified that when he initially saw the barrels, he thought they may have had something to do with the flood into the parking lot below the residence. When he was asked why he thought the barrels might be related to the flood into the parking lot, he testified that he had “no idea what they were going to be used for … I didn’t want to ask any questions about it … not nosy and I’m not a snoopy person.”

[183]   At the conclusion of cross-examination and re-examination, the court asked the accused if he said anything to Ron when he saw him moving the barrels into the residence. He responded, “No, I – when I – I should have. When I woke up. I should have. I just didn’t bother.”

[184]   Similarly, he did not find the barrel located in the bedroom to be unusual and again, described himself as not being a “nosy person” who does not try “finding out things.”

[185]   I find that it is crystal-clear that the accused never asked Ron about activities taking place at the residence because he did not want to know what was going on. He certainly had the opportunity to ask questions but elected not to do so.

[186]   I find there were also occasions in which the accused’s testimony was absurd. For example, it was absurd that he would suggest that the police lied in their reports respecting their surveillance of his activities, which was contrary to his admissions.

[187]   It was also absurd that he would suggest that the large bag of cocaine located in the bedside table next to his bed was “probably planted” by the police: Transcript, October 29, 2019, p. 76, ll. 38-45.

[188]   It was absurd that he believed that the Ziploc baggie of fentanyl located in the chest of drawers in the closet was dog food. He knew there was no dog living in the residence, there was no dog food dish or leash, and in his experience he had never seen dog food kept in Ziploc baggies.

[189]   I find the accused then attempted to enhance his credibility when he volunteered that he asked Ron about the Ziploc baggie of fentanyl and Ron told him, “it probably was dog food”. I do not find the accused was being truthful.

[190]   In the admissions, the accused admitted there were two residue laden cooking trays in the oven. However, in his evidence, he denied ever seeing those cooking trays when he was cooking hotdogs on top of the racks in the oven. The cooking trays are large and virtually fill the two racks of the oven. I do not believe that the accused never saw the two cooking trays.

[191]   While the accused has little, if any, recollection of encountering E.F. on August 4, 2017, his admissions respecting that encounter are significant. The admissions put the accused and Ron in the residence at the time of the encounter with E.F. When E.F. was later arrested and searched, 116 g of cocaine with a value of approximately $6,000 was located in his shoulder bag. Detective Constable Munro gave opinion evidence that this cocaine is not an amount that would typically be sold at the street level.

[192]   I find that it is significant that the accused was using cocaine on a regular basis through the summer of 2017.

[193]   I find that it is significant that the accused knew that Ron was a drug dealer in the summer of 2017.

[194]   I find that it is significant that in the admissions, nine different surfaces within the residence were swabbed using an Ion Scanner. They all tested positive for either fentanyl or cocaine, or both.

[195]   I find that it is significant that, in the admissions, a fingerprint identified to the accused was found on the kitchen cupboard and also on a large bag of fentanyl/heroin.

[196]   I find that it is more likely than not that the accused was involved as a drug dealer in his encounters with various individuals contained in the admissions.

[197]   However, I agree with the submission of the accused that there needs to be something more than the surveillance evidence contained in the admissions to establish proof beyond a reasonable doubt that he was trafficking in fentanyl, cocaine and/or heroin on August 29, 2017.

[198]   As noted in this judgment, the accused repeatedly testified that he never asked Ron about activities taking place in the residence because he did not want to know what was taking place. He elected to remain silent.

[199]   The accused did not present as a person who was particularly sophisticated. It is also likely that he has some mental health challenges. I have taken those potential deficits into account in applying the W.(D.) framework. Those potential deficits certainly did not appear to have any impact on his decision to not ask Ron about activities taking place in the residence.

[200]   I am not left in a doubt by the evidence of the accused. I do not believe his evidence, nor does his evidence raise a reasonable doubt about his knowledge of the activities taking place in the residence. I find that the legal test for the application of the doctrine of wilful blindness as stated in Edwards at para. 67 is applicable in this case.

[201]   I find that the Crown has established proof beyond a reasonable doubt that the accused had knowledge that the residence was a stash house and that he possessed for the purpose of trafficking the illicit drugs located in the residence on August 29, 2017.

[202]   I find the accused guilty of possessing fentanyl, cocaine and heroin for the purpose of trafficking on August 29, 2017.