SUPREME COURT OF BRITISH COLUMBIA
Citation:R. c. Vaillancourt,
2018 BCSC 2527
Date:
Docket: 86751-2
Registry: Kelowna
Oral Reasons for Judgment
Counsel for the Crown: J.B. Deschamps
Counsel for the Accused: K. Sommerfeld
Place and Date of Trial:
Kelowna, BC
November 5-8, 28, 2018 and
December 17-18, 2018
Place and Date of Judgment:
Kelowna, BC
December 18, 2018
[1] THE COURT: Introduction
[2] Mr. Vaillancourt is charged with two counts of an indictment. In the first count, he is charged with the possession of cocaine for the purposes of trafficking on February 27, 2017, contrary to s. 5(2) of the Controlled Drugs and Substances Act; and in the second count, he is charged with the possession of methamphetamine for the purposes of trafficking contrary to s. 5(2) of the same law, thus committing an offence provided by that section of the Controlled Drugs and Substances Act.
[3] The prosecution alleges that the two counts were committed on February 27, 2017 in West Kelowna, British Columbia. Three witnesses were called: two police officers and Mr. Vaillancourt. They testified at the voir dire. With the consent of counsel for the Crown and the accused, their testimony was admitted into evidence at trial. Mr. Vaillancourt also testified at trial.
[4] There is also an admission of facts. The following facts were admitted: the identity of the accused is not contested and admitted by the defense; time, jurisdiction and location were not contested and admitted by the defense. The events took place on February 27, 2017. The continuity of evidence is admitted. Samples of the substances were sent to Health Canada labratories. The samples came back as cocaine and methamphetamine. Officer Sundstrom took photos of several exhibits. They were admitted by the defense. Sergeant Greg Woodcox of the Royal Canadian Mounted Police completed an expert report regarding the drugs seized from Mr. Vaillancourt. The defense admits that Sergeant Woodcox is qualified to give testimony as an expert on the trafficking, distribution and consumption of cocaine and methamphetamine in West Kelowna in February 2017. Sergeant Woodcox's report was admitted as evidence at trial with the consent of the defense. It is admitted that the quantity of drugs seized is consistent with a quantity for the purposes of trafficking. It is admitted that Mr. Vaillancourt's statements from his interrogation were voluntary. The accused understands the free and voluntary nature of the admissions presented to him and had them explained to his satisfaction with the aid of his attorney. The admission was signed on November 5, 2018.
[5] As noted above, Sergeant Greg Woodcox's opinion from his written report was admitted into evidence. The discovery of the two controlled substances in the quantities found in this case would indicate that the person sold these drugs for profit. A consumer of these drugs would not generally have in their possession multiple portions of distribution. A typical user of these drugs purchases what they need on a short-term basis and does not keep large quantities for later use. Drug addicts generally use a specific drug exclusively, such as crack, heroin or methamphetamine, and finance their consumption by selling other drugs. This behaviour can be described as drug trafficking for profit and implies, like in this case, that the individual is a dealer or trafficker at a higher level. This applies whether the accused went somewhere to purchase methamphetamine and cocaine in bulk to maximize his profit margin, or he was a smuggler who, by happenstance, found the drugs in his vehicle, where someone else had slept while transporting merchandise to another trafficker in the Okanagan region.
[6] The report also contains the potential sale value of the methamphetamine seized in this file. 506 grams of methamphetamine can be divided as follows: each ounce of methamphetamine is between $1,100 and $1,300 giving a total value between $19,400 and $23,400. Alternatively, each gram of methamphetamine is between $80 and $100 per gram giving a total value between $40,800 and $51,000. Finally, $10 per point of methamphetamine gives a value of $51,000. For the 313 grams of cocaine seized, the report gives the following potential values: 313 grams at between $100 and $120 per gram is worth between $31,300 and $37,560. The report adds that these prices are the highest prices on the market.
[7] Officer Clark also testified. She testified at the voir dire and her testimony was admitted at trial. She has been an officer for fourteen years. She performs various tasks in uniform. She also conducts street patrols. In February 2017, her responsibilities include general duty patrol and responding to calls. She knew what cocaine looked like, having seen it before. She was also familiar with the appearance of methamphetamine.
[8] On February 27, she was working in-uniform in a marked police vehicle. She was dispatched to assist Constable Sundstrom, who was investigating a suspicious incident at the intersection of Highway 97 and Westlake Road in West Kelowna. She was aware of the fact that there was an unconscious man on the surface of Highway 97. This road is the main link between Kelowna and West Kelowna. It has two lanes going north and two lanes going south with a concrete barrier dividing the two directions. The posted speed limit is 80 kilometers per hour. She was dispatched at 2:50 AM and arrived on the scene three minutes later.
[9] When she arrived on the scene, she observed a dark-coloured Ford Focus with an Alberta registration plate. The vehicle completely blocked the fast lane. Its lights were switched off. She stopped behind the Focus and turned on her lights. She did not need to activate her siren. She positioned her vehicle between twenty and fifty feet behind the Ford Focus to established a safety zone. She does not remember whether she typed the registration plate into her in-vehicle computer. There were streetlamps on the left and right side of the roadway but there was not direct illumination on the stopped vehicle. There was moderate lighting given the time of day. The man who called the police was on the scene. His vehicle was on the side of the roadway. She told him to stay on the side of the road. She proceeded to exit her vehicle, entered the safety zone and approached the passenger side of the vehicle. The other side was too close to the concrete barrier, making it impossible to open the driver-side door.
[10] When she reached the side of the vehicle, due to the poor lighting, she used a flashlight to illuminate the interior of the vehicle to be able to see inside. She saw baseball bats on the passenger seat in front of her. The interior was covered with garbage and waste. Due to the waste, it was not possible to see the floor on either the passenger or driver side. There was a man in the driver's seat. He did not react to the flashlight. There was more than one baseball bat. The emergency lights were not activated. Her priority was the man in the vehicle. Sundstrom arrived, activated his lights and proceeded to passenger side where Clark was.
[11] The bats were within reach of the driver. Clark observed that the driver's penis was exposed. When Clark arrived, she did not know whether the vehicle was abandoned or perhaps involved in an accident. Once she saw the unconscious man, she thought that he might be suffering from a medical emergency or be deceased. She arrived on the scene approximately a minute before Officer Sundstrom. After the arrival of the latter, the two officers both knocked on the windows loudly. Sundstrom ordered the driver to remove the keys from the ignition and the man moved and began moving the volume of the radio. Finally, once the door was opened, Mr. Vaillancourt began to speak. Officer Clark heard a few words, albeit not very well, due to his position on the other side of the vehicle. She heard two word: "Being shot".
[12] Once Officer Sundstrom brought the accused to the rear of the vehicle, the two officers initiated a pat-down search. In one of his pockets, Officer Clark found a hard object. Officer Clark searched the accused's left side and Officer Sundstrom searched the accused's right side. Officer Clark testified the grounds for the search were safety and the possible medical problem; the search may have uncovered some medication and paramedics would not tend to the accused prior to the officers ensuring that the scene was secure, including the accused, the officers and the public. The words "Being shot" alarmed the officer. She was concerned that there was a firearm or another weapon due to the baseball bats found in the passenger's vehicle on the passenger side.
[13] Mr. Vaillancourt was standing next to the trunk of the Ford Focus. In a pocket, which she testified was the accused's jacket pocket, Officer Clark felt something that was hard. She testified that she didn't know whether the object was a weapon because there are different types of weapons. She said that before taking the object out, she did not have any idea of what it could have been. When she took the object out, she saw that it was bag with a substance that she suspected to be cocaine. She gave the bag to Officer Sundstrom. She turned her atttention to the vehicle and conducted a general search. She searched through the garbage on the floor and the glove boxes but did not seize anything. She called the vehicle's owner and left a voice mail.
[14] In cross-examination, she denied having broken the windows of the vehicle when they tried to wake Mr. Vaillancourt up. She testified that as soon as she received the call, she formed a risk evaluation. When she heard the words "Being shot" - when he said the words "Being shot", the risk level was elevated in her mind. She asked herself again and again what what she would have done if she hadn't heard the words "Being shot". She answered each time that she couldn't say because she had heard the words. Everything changed with those words. When asked why she took the object out, she responded that weapons took all shapes and forms and the situation was potentially dangerous.
[15] I continue to Officer Sundstrom's testimony. He testified to being a police officer for seven years. Currently, he works in the First Nations Policing unit. His role is to establish relationships with bands here in West Kelowna. He works with children, teens and adults. In 2017, he was working in general duty. He responded to all types of calls. He has experience with narcotics and the appearance of drugs, especially cannabis, cocaine and methamphetamine.
[16] On February 27, he was driving in a marked patrol vehicle, a Chevrolet Tahoe. At 2:42 AM, he received a call and confirmed that he was en-route. He knew that a Ford Sedan with its lights on was stopped in the left lane, just next to the concrete barrier which separated the lanes. When he arrived on the scene, he activated his lights but not his siren. He noted that there was not a lot of light and that there was a vehicle stopped on the side of the road, opposite the Ford, and a man and woman standing by there. There was no one else around the Ford. He noted the Alberta registration plate and that the car was registered to a female from Grande Prairie. He noted that the Ford Focus blocked the fast lane.
[17] After arriving on the scene, Officer Sundstrom turned on his patrol car's lights, exited the vehicle and surveyed the scene. When he pointed his flashlight towards the vehicle, he immediately saw two baseball bats on the passenger seat. There was garbage in the car and he saw the driver in the driver's seat. The driver's seat was reclined and his penis was exposed. His pants were raised but the penis was still visible. Officer Sundstrom suspected a case of driving while impaired. He was worried about the baseball bats since they were accessible to the driver who seemed to be unconscious. Officer Clark was with him on the passenger side. He tried to get the driver's attention. He shouted; he knocked on the window with his baton.
[18] Finally, the man woke up. He was slow. He was very disoriented. Sundstrom pointed the flashlight at himself so that Mr. Vaillancourt would know that they were police officers. Officer Sundstrom ordered that the accused turn off the engine but then the accused turned the radio dials. Once the engine was shut off, he ordered that the accused exit the driver's side. He did not exit immediately. The door was opened. His feet feet were on the asphalt. Sundstrom heard several words and thought that the accused was francophone. At this moment, he heard "gun" or "gunshot". Officer Sundstrom had several thoughts: perhaps the accused was threatening them or perhaps the accused was injured. He was also concerned for his, Officer Clark's and people on the side of the roadway's safety. The accused was in a narrow passageway. Sundstrom knew that it would be difficult to subdue the accused if he had a firearm. Sundstrom went between the barrier and the vehicle. Sundstrom stopped with the accused behind the Ford without losing control of him. He held on to the accused's wrists and guided him out while walking backwards.
[19] At this time, Sundstrom decided to conduct a pat-down search. The goal of the search was to determine whether the accused possessed a firearm. In his view, Sundstrom had many grounds: the accused's safety, public safety and officer safety. He kept control of the accused with his right hand and conducted the search with his left hand. While conducting the search, he felt a large bump on the left side. He searched the pocket because he was concerned about the presence of a weapon. He found a transparent zip-lock bag. There was a white crystallized substance in the bag. Officer Sundstrom asked [TRANSLATED] "what is this?" The accused responded [TRANSLATED] "problem for me" and then "Ice". The accused asked why Officer Sundstrom was asking. The officer simply responded "I just wanted to know." The accused was not handcuffed nor on his knees. He remained standing.
[20] Officer Sundstrom testified that he decided to conduct the search for the following reasons: the presence of baseball bats, which he thought were weapons, and that he -- that Mr. Vaillancourt seemed to be impaired or suffering from a medical problem. And when he got up, he said "gunshot". Officer Clark also noted -- also found a bag. At this time, Officer Sundstrom arrested the accused. He asked for the accused's driver's license, and in the accused's wallet, he found $1,185. Officer Sundstrom read the accused his Charter rights. The accused responded that he understood and stated that he wanted to speak to counsel. He was read his Charter rights in the police vehicle. Officer Sundstrom took the two bags and tooks samples. The cocaine weighed 313 grams; the methamphetamine weighed 510 grams. Officer Sundstrom offered medical assistance but Mr. Vaillancourt declined. In cross-examination, Officer Sundstrom stated that he hadn't encountered a similar scenario before. The accused was cooperative. Officer Sundstrom testified that the accused might have said: [TRANSLATED] "I have a gunshot wound". But Officer Sundstrom did not understand at the time. He also testified that the accused might have said gunshot wound but Officer Sundstrom did not understand. He accepted this suggestion.
[21] Mr. Vaillancourt also testified during the voir dire. He said that he was 51 years old and that he lived in Grande Prairie, Alberta at the time. He has a lengthy criminal history, including convictions for fraud. He testified that last year, on September 15, 2017, he was a gunshot victim. He was transported to Calgary, Alberta where he spent several weeks recovering in a hospital. He received therapy. One of the consequences of his injuries is that it is difficult for him to get up to stand.
[22] Mr. Vaillancourt testified that on February 27, he was nearing the end of a short vacation lasting a couple of days. He had borrowed the vehicle from a friend named Cal (phonetic) but he did not know Cal's family name. Mr. Vaillancourt does not currently work but he was previously employed in construction as a driver and transporter. His girlfriend's friend lives near the city of Duncan on Vancouver Island. He stayed there for several days. He enjoys swimming, mountains and nature. He testified that he stayed there for at least three days. He likes to drive. It is a 20 hour drive from Grande Prairie to Duncan. For his return drive to Grande Prairie, someone recommended the Fraser Valley route.
[23] He arrived in Kelowna. He went to a restaurant and ordered a beer and spaghetti. This is the last memory he has for February 25 -- 26. The next memory he has is when he woke up with police next to his vehicle. In other words, he testified to a lapse in his memory. The police ordered him to exit the vehicle. He testified that he wanted to cooperate but that he needed help.
[24] On the subject of the search, he said that he tried to explain to the officer that he had been shot. After this, the officer helped him exit his vehicle and that they went to the rear of the Ford Focus. The officers both started their pat-down searches, stopped at his pockets and each found one bag. Mr. Vaillancourt said that Officer Sundstrom testified that he took the bag out and then said, [TRANSLATED] "drugs", and Mr. Vaillancourt responded, "I think I'm in deep shit." He testified that he did not know that there were drugs in his pockets. Later on, Officer Sundstrom counted the money. Mr. Vaillancourt said that he borrowed this money from his sister in Montreal.
[25] After the voir dire, Mr. Vaillancourt testified in the trial. He testified that he had been driving all day from Duncan to Grande Prairie before his arrest. He stoppped for dinner and ordered spaghetti and a beer. He testified that he doesn't remember what he was wearing. He believes that his last memory before the incident was at around 4 or 5 PM. He testified that he doesn't remember how the bags ended up in his pockets. The first time he realized that the bags contained drugs was when the police searched him.
[26] In cross-examination, he stated that anything could have happened during his memory lapse. However, it is not possible for him to have purchased drugs because he didn't have the means to purchase them. He had he had (sic) $1,120 dollars but no credit card.
[27] In closing argument, the Crown submitted that the version of events that Mr. Vaillancourt's testimony suggested was unbelievable. The Crown asked the Court to consider the evidence in its entirety as opposed to piece-by-piece. The Crown also submitted that Mr. Vaillancourt's testimony lacked credibility and reliability. The Court was invited to scrutinize Mr. Vaillancourt's account. He made a long out-of-province trip without knowing the name of the vehicle's owner. The Crown emphasizes that Mr. Vaillancourt was in possession of drugs. He then drove the vehicle to Duncan. The drug was found in his pockets. The definition of possession in the Criminal Code is found in section 4(2). A person has anything in possession when he has it in his personal possession or knowingly has it in the actual possession or custody of another person, or 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. The Crown submits that Mr. Vaillancourt had knowledge and control of the drug. On the other hand, the accused's counsel submits someone could have easily planted the drugs on Mr. Vaillancourt during his memory lapse while he was unconscious which would have lead to the events of the night in question. The defense argues that anything could have happened during the accused's memory lapse.
[28] The Court must consider the following principles. The first and most important principle in all criminal cases is the presumption of innocence. From the beginning of the trial, Mr. Vaillancourt is presumed to be innocent and this presumption applies until the Crown presents evidence which convinces me of his guilt beyond a reasonable doubt. Two rules flow from the presumption of innocence: the first is that that the Crown has the burden to prove guilt; the second is that guilt must be proven beyond a reasonable doubt. These rules are fundamental for the presumption of innocence and they serve to prevent convictions of innocent people. The burden of proof is on the Crown and is never reversed. Mr. Vaillancourt does not have the burden of proving that he is innocent. He does have to prove anything. Thus, if I have a reasonable doubt as to whether Mr. Vaillancourt is guilty of an offence of which he is accused, I must grant Mr. Vaillancourt the benefit of the doubt and find him not guilty.
[29] Equally important is evaluation of credibility. I must consider the witnesses in this case. Are they sincere? Is there a reason that the witness would not tell the truth? Is there a reason that a witness would give testimony more favourable to one side or another? Does the witness have a good memory? Does the witness have a reason to remember the events of their testimony? Did the witness have any difficulty in recalling events in question and was this difficulty justified? Is their testimony reasonable and coherent? Is their testimony compatible with other witnesses' testimony on the same events or do they differ? Did the witness say something else or do something else on another occasion? Do any contradictions make any key points of testimony more or less credible or reliable? Does the defense focus on important elements or on details? Do the contradictions arise from an honest mistake or a deliberate lie? Are the contradictions attributable to something the witness said was different or a witness' omission? Do the contradictions have explanations? Do they make sense?
[30] Equally important, in this case, is the fact that Mr. Vaillancourt has testified. Following R. v. W. (D.), [1991] 1 SCR 742, if I believe Mr. Vaillancourt's testimony, that he did not commit the offences as charged, I must find him not guilty. However, even if I don't believe Mr. Vaillancourt's testimony, if his testimony nevertheless raises a reasonable doubt in my mind, I must find him not guilty. If I do not know who to believe, I have reasonable doubt and I must find Mr. Vaillancourt not guilty. Even if Mr. Vaillancourt's testimony doesn't raise a reasonable doubt, if, after examining the evidence in its entirety, I am not convinced beyond a reasonable doubt of Mr. Vaillancourt's doubt, I must acquit him.
[31] The definition of possession is also important. In R. v. Morelli, [2010] 1 SCR 253, the majority of the Supreme Court of Canada said:
[15] For the purposes of the Criminal Code, "possession" is defined in s. 4(3) to include personal possession, constructive possession, and joint possession. Of these three forms of culpable possession, only the first two are relevant here. ...
This was a case of possession of pornography.
[15] ... It is undisputed that knowledge and control are essential elements common to both.
I understand that the following forms the basis for the prosecution's theory in this case.
[16] On an allegation of personal possession, the requirement of knowledge comprises two elements: the accused must be aware that he or she has physical custody of the thing in question, and must be aware as well of what that thing is. Both elements must co-exist with an act of control (outside of public duty): Beaver v. The Queen, [1957] S.C.R. 531, at pp. 541-42.
[32] In this case, I do not believe Mr. Vaillancourt's testimony. I find it unlikely that he does not remember neither the names of the people who lent him the vehicle nor the name of the owner of the vehicle. It is difficult to believe that he has no memory of the restaurant. I find that it is not credible that he was able to remember details of a conversation, when he was being awakened, after having lost consciousness and after being unable to walk without assistance. I find that his testimony does not raise a reasonable doubt.
[33] However this is not the end of the analysis. According R. v. W.(D) I must examine all the evidence. In this case, I accept the officers' testimony. Together, the prosecution's two witnesses gave their versions of the events without hesitation, honestly and in a natural way in both direct examination and cross-examination. Their answers were precise, directed and factual. The witnesses were calm and the Court did not detect any antipathy or any grudge towards the accused. The Court has no reason to doubt their testimony.
[34] I am convinced that the admitted facts and expert opinions are true and I accept that the quantity of drugs found in the possession of the accused was consistent with the purpose of trafficking. I am persuaded that Mr. Vaillancourt was in possession of the drugs as per Morelli. I am also aware of the officers' declarations that the accused knew he had the drugs on him. I conclude that this declaration confirms that the accused knew he had possesion of the drugs.
[35] Mr. Vaillancourt, please stand.
[36] I find you guilty beyond a reasonable doubt of the offence of possession of cocaine for the purpose of trafficking, and having in your possession methamphetamine for the purpose of trafficking.
[37] THE ACCUSED: Thank you.
"Maisonville J."