SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

V.

RICHARD DURETTE

R E A S O N S F O R J U D G M E N T

BEFORE THE HONOURABLE JUSTICE G. MULLIGAN

on August 26, 2013, at BARRIE, Ontario

APPEARENCES:

R. Jones

Counsel for the Crown

L. Saunders

Counsel for Richard Durette

MONDAY, AUGUST 26, 2013

R E A S O N S F O R J U D G M E N T

MULLIGAN, J (Orally:)

Richard Durette is charged on a three count indictment. The date of the alleged offences is August the 5th, 2012. Count one relates to possession of cocaine for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c.19. Count two alleges possession of cocaine contrary to Section 4(1) of the Controlled Drugs and Substances Act. Count three alleges possession of property not exceeding $5,000.00, knowing that the property was obtained by the commission of an offence punishable by indictment, contrary to Section 354(1)(a) of the Criminal Code of Canada.

With respect to each count, the Crown is required to prove each of the essential elements of each offence beyond a reasonable doubt and this onus never shifts. The defence submits that the Crown has not met its onus with respect to each count and a verdict of not guilty should be recorded for each count.

Evidence for the Crown consisted of the viva voce evidence of the following O.P.P. officers: P.C. Addison Hunter who was the lead investigator, P.C. Michael Steele, Detective Constable David Earhart, Detective Constable Brian Anderson of the drug enforcement unit, and Sergeant John Slater. On consent the Crown filed the evidence of Detective Constable Shannon McLeaming which consisted of a transcript of her examination at the preliminary hearing. The Crown also filed, on consent, the expert report of Detective Constable Chris Bennett and 12 Health Canada Certificates of Analysis. With respect to the charges against Mr. Durette, jurisdiction and identification were conceded. In addition, the nature of the substances seized, cocaine and crack cocaine was conceded.

The accused chose not to give evidence.

Before reviewing the specific elements of each offence, the narrative of events that unfolded on August 5, 2012 will provide context for the discussion that follows.

On the morning of August the 5th, 2012 Officer Addision Hunter obtained a telewarrant based on information and belief that cocaine or crack cocaine was located within a motel unit at the Belair Motel on Highway 11, north of Orillia, occupied by Richard Durette. Before seeking a search warrant, Officer Hunter conducted his own due diligence. Early that morning he drove by the location at the beginning of the shift and noted the license plate number of a white van parked in front of what appeared to be the first unit of the motel. He then conducted a vehicle search through the Ministry of Transportation of Ontario records and learned that the van was owned by Richard Durrette. Mr. Durrette’s self-reported residential address on that record was elsewhere in the Province of Ontario. Officer Hunter conducted other database searches available to him as an O.P.P. officer.

The telewarrant was obtained and it authorized officers to enter the unit that day using force, if necessary, to search the premises.

Once the telewarrant was obtained the officers involved had a meeting at the detachment to determine the procedures to be followed for the execution of the telewarrant. Officer Addison Hunter was the lead officer assisted by Officer Mike Steele, Detective Constable David Earhart, and Detective Brian Anderson from the Drug Enforcement Unit. They were supervised by Sergeant John Slater. Detective Constable McLeaming was asked to conduct static surveillance across the highway before the search warrant was executed.

About an hour before the search warrant was executed, Detective McLeaming set up static surveillance nearby. She saw the white van parked in front of the Belair Motel. She believed that the van was in front of unit number one. She did not see anyone go in or out of the vehicle. However, because it was raining heavily, her vision was obscured. She could not tell whether there was any movement in or out of the motel unit. When she saw the other police cars arriving to execute the search warrant, she ended her static surveillance and drove to the parking lot of the Belair Motel to join the other officers.

The five officers attended at the motel to execute the search warrant at about 1:19 p.m.

When the officers arrived they were prepared to force open the door of the unit immediately behind Mr. Durette’s parked van. However, it was not necessary to do so. The officers opened the screen door and found the motel door unlocked. They simply walked in. They announced that they were police officers and that they had a warrant. They had drawn their weapons. However Mr. Durette met them at he door, was cooperative, and he was placed under arrest. The officers walked through the small motel unit and its attached bathroom, determined that there were no other occupants, holstered their weapons, and began conducting a search.

After Mr. Durette was arrested and removed he was searched and a cell phone and wallet on his person were seized. The wallet contained $1,525.00 of Canadian currency which was organized by denomination.

Sergeant Slater supervised the arrest of Mr. Durette. He placed him in his cruiser, read him a caution and his rights, and he took him to the Orillia detachment.

The officers then began to conduct a search of what was described as a very small and messy motel unit. It consisted of one small room with an attached bathroom at the back. There was no bed in the unit but there were a couple of couches with blankets or pillows. The officers assumed that the couch was for sleeping. There was male clothing present, jeans and t-shirts and the like scattered about. There was an end table beside a couch as well as some shelving or cupboards. Constable Hunter seized certain items either discovered by him or brought to him by other officers. Constable Steele took a number of photographs both inside the motel unit and later at the O.P.P. detachment of items seized in the search.

Officer Hunter described the room. Beside one of the couches was an end table with the following items on top: a plate containing small baggies, a razor, which he described as a scalpel-style blade, a closed green tackle box, a laptop computer, a digital scale, 11 pieces of paper which he described as “debt lists,” a box, which looked like a shoebox with a couple of hundred small baggies inside. He noted that there were small baggies scattered throughout the unit. While he searched the end table, Office Earhart searched shelving elsewhere in the room and found a C.D. case and two cell phones.

Upon opening the tackle box Constable Hunter found large freezer bags, one contained 17 smaller baggies containing a powdery white substance. The contents on the table and the contents of the tackle box were photographed. The contents of the baggies were seized, weighed at the detachment, and later analyzed by Health Canada. The tackle box contained 11.18 grams of crack cocaine and 2 baggies of powdered cocaine: the first weighed 0.83 grams and the second weighed 0.56 grams. Subsequent analysis and certificates from Health Canada confirmed that the seized powdery white substances were crack cocaine and powdered cocaine. Constable Hunter also seized the digital scale which was sent to Health Canada for analysis. The Health Canada certificate indicated that the scale had traces of cocaine on it.

The C.D. case found by Officer Earhart and seized by Officer Hunter contained a baggie of a white powder substance. This was weighed at the detachment. The contents weighed 1.82 grams. The Health Canada Certificate of Analysis confirmed that the substance was cocaine. Officer Hunter and the other officers looked through the small unit. Officer Hunter’s impression was that it was pretty messy because it was cluttered, the quarters were cramped, and there were dirty dishes in and around the kitchen sink. He also testified that there were men’s clothing in the unit, including t-shirts and jeans and small baggies everywhere in the unit.

Officer Steele assisted at the scene and took photographs with a small camera. He was not trained in identification techniques but took photographs in the unit and at the detachment of items seized. Those photographs were made exhibits at trial. His observation was that the unit had a lived in look. There was no bedroom, just the couch. His impression of the unit was that someone lived there, it looked lived in.

Detective Constable Earhart entered the room and assisted with the search. As noted he found black C.D. case on shelving within the room. Inside was a white granular substance. He turned this over to Officer Hunter who seized it. He noted that the search took about an hour and then the officers searched the residence and left.

He described the room as messy and cluttered with men’s clothing. There were drawers but no closets in the room.

Detective Constable Brian Anderson also assisted with the search and entered the residence with the other officers. He went through the room and the bathroom and confirmed that no one else was present. He found the room to be cluttered with boxes. He described it as a bachelor style apartment with no bed, however, one of the couches was like a bed because there were blankets and pillows on it. He did not observe any shoes or mail within the unit.

Sergeant John Slater supervised the search warrant but did not assist with the search in the room. He took Mr. Durette into custody after his arrest, gave him a caution, read him his rights, and transported him to the detachment.

After securing the premises Officer Hunter, who has seized various items took the seized items to the police detachment with Officer Steele.

At the detachment they catalogued, photographed and secured the seized items. Exhibit 18 was a photograph taken at the detachment by Officer Steele showing 3 cell phones, a digital scale, 19 small baggies containing a white substance, and a larger Ziploc type baggie containing a white substance. The photograph also showed eight debt lists. At trial 11 debt lists were made exhibits as were the above noted items. In addition the officers counted, photographed, and catalogued the seized currency. Exhibit 19 showed $1,525.00 in Canadian currency in various denominations, primarily 20 dollar bills and 7 dollars in U.S. currency. Samples of the white substance contained within the baggies were sent to Health Canada for testing. Analyst Certificates were entered as exhibits indicating that the contents were cocaine or crack cocaine. The certificates were conceded, however continuity was not conceded.

Officer Earhart was the officer who extracted samples from the seized baggies and sent them to Health Canada. He gave evidence as to the procedure he followed with respect to the samples extracted from the substances which had been placed in control envelopes by Officer Hunter. From each control envelope he took a small sample, placed it in a separate baggie, and resealed the envelope. He returned the envelopes to the drug locker at the detachment and took the samples to Health Canada. He retrieved the Certificates of Analysis from Health Canada on June 19th, 2013. Under the circumstances I am satisfied that there is continuity with respect to the samples taken from the drugs seized, sent to Health Canada, and returned by Officer Earhart.

As noted previously, one of the envelopes contained the digital scale which was sent to Health Canada. It was returned showing positive for cocaine according to the Certificate of Analysis.

After Officer Hunter finished cataloguing, photographing, and lodging the seized items in the drug locker, Officer Hunter released Mr. Durette later in the afternoon on a Promise to Appear and he drove him back to the Belair Motel.

Expert Report

As part of the Crown’s case, an expert opinion was provided by way of a written report from Detective Constable Chris Bennett. The report was admitted on consent. Detective Bennett did not testify. In his report the officer noted that 11.18 grams of crack cocaine were seized. There were different styles of dime bags containing differing amounts: six dime bags containing 0.6 grams each, seven dime bags containing 0.5 grams each, two dime bags containing 1.05 grams each, and one dime bag containing 1.35 grams.

3.21 grams of cocaine which was seized was packaged as follows: two dime bags of 0.83 grams and 0.56 grams for a total of 1.39 grams and one dime bag with 1.82 grams. This last item was located in the C.D. case while the other mentioned items were located in the tackle box.

The officer also noted other property which had been seized including the cell phones, the digital scale, and the $1,525.00 in Canadian currency.

Detective Constable Bennett’s report indicated that the total value of the crack cocaine seized ranged from a low value of $540.00 to a high value of $2,236.00. He valued the cocaine seized at the low range of $256.00 to a high range of $417.00.

Officer Bennett reviewed the packaging of various quantities, the presence of digital scales, cell phones, and currency, and provided a summary. He indicated that the seizure had to be looked at in its totality. The packaging in distinct amounts indicated that possession was for more than personal use. As to the scales, he stated in part;

It is common practice for persons who traffic in controlled substances to possess scales to be used in the weighing of the controlled substances that they sell. The fact that the scale was located in close proximity to controlled substances would indicate to me that they were in possession of these controlled substances for more than personal use.

As Officer Bennett noted in the summary,

One of the most common materials used for packaging material are the Ziploc baggies observed by the investigating team located in the residence.

As to the currency, Officer Bennett opined;

Finally, the $1,525.00 Canadian currency and the denominations found is also a factor in persons who traffic in controlled substances, smaller denominations are used to make change for those whose purchase small quantities of controlled substances. Therefore it is my opinion that this person possesses all the components that are commonly found in relation to low to mid level drug dealers. The quantity of the seizure, the digital scales, packaging, debt lists, and Canadian currency – complete the picture of the offences of: 1) Possession for the purpose of trafficking.

Position of the Crown

At the conclusion of the trial both the Crown and the defence made submissions and provided judicial authorities. The Crown’s position was that when the evidence is looked at in its totality, inferences can be drawn leading to a conclusion that Mr. Durette is guilty beyond a reasonable doubt with respect to each of the three offences. Mr. Durette’s van was at the Belair Motel when the officer did his drive by earlier in the morning. It was there during the static observation of Officer McLeaming, and it was there when the officers arrived to execute the search warrant. Mr. Durette was the only person in the motel unit. It had a lived-in look, it was cluttered, there were dirty dishes in sight, men’s clothing scattered about, and a couch with blankets and pillows which appeared to have been used for sleeping. There was drug paraphernalia in plain view within this very small unit: a plate with a scalpel-like razorblade, a digital scale, “debt lists”, and baggies in several locations in the unit. The tackle box was in plain view on a side table and was not secreted within the unit. The white powdery substance in the tackle box was proved to be cocaine or crack cocaine. The C.D. case on the shelf was also in plain view and by simply opening it, an additional white powdery substance was found in a Ziploc bag. There were three cell phones within the unit, one of which was on Mr. Durette’s person as was his wallet containing $1,525.00 in various denominations.

The Crown submits that Mr. Durette is guilty on all three counts. When the totality of the evidence is considered, including the expert evidence the only logical inference is that Mr. Durette was in constructive possession of the seized drugs. The presence of the drugs in distinctive baggies, distinct quantities, together with the debt lists and digital scale, furthers the inference that these drugs were in possession of Mr. Durette for the purpose of trafficking. In addition, the quantity of currency found and the various small denominations indicate that the money was the proceeds of crime, the sale of cocaine and crack cocaine.

The Crown submits that the defence has conceded that if Mr. Durette is found guilty of possession of a controlled substance, it follows that he should be found guilty of the offence of possession for the purpose of trafficking based on all of the circumstances in this case.

Position of the Defence

The defence submits that the Crown has failed to prove the counts beyond a reasonable doubt. There is a lack of evidence that Mr. Durette had knowledge and control. The motel unit was not locked and the seized drugs were not in plain view, they were within a tackle box and a C.D. case on a shelf. There is also an absence of evidence of how long Mr. Durette had been there. The officer doing brief static surveillance did not have a clear view. There is no evidence about whether others may have come and gone. As to whether Mr. Durette was the occupant, there was no investigation to determine if he had a lease or questioning of his landlord, there was no mail found on the premises, and his vehicle license check showed a different permanent address for his residence. There is no evidence that the currency found was profit from sale of drugs. The defence submits that the case is a circumstantial case and other inferences are equally rational. Mr. Durette’s mere presence in the unit is not sufficient to ground convictions for these counts.

Analysis

Based on the evidence at trial, including the Certificates of Analysis, I have no hesitation in finding that there was a presence of a controlled substance or substances, cocaine and crack cocaine within the unit of the Belair Motel occupied by Mr. Durette when the search warrant was executed. However the drugs were not found on Mr. Durette’s person, they were located within a tackle box and a C.D. container within the unit. Therefore the issue of constructive possession requires consideration. Section 4(3) of the Criminal Code provides as follows:

4(3) For the purpose 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 anyplace, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or another person;

That definition is incorporated in the Controlled Drugs and Substances Act.

Section 2.(1) of the C.D.S.A. provides:

In this Act,

‘possession’ means possession within the meaning of subsection 4(3) of the Criminal Code.

The Supreme Court of Canada in R. v. Morelli, [2010] S.C.C. 8, provided the following guidance about constructive possession in paragraph 17:

Constructive possession is established where the accused did not have physical custody of the object in question, but did have it ‘in the actual possession or custody of another person’ or ‘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’ (Criminal Code 4(3)(a)). Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in a particular place for his ‘use or benefit’ or that of another person.

In support of its position, the Crown relied on R. v. Russell, [2011] B.C.C.A. 277. Russell was a case dealing with constructive possession. The Court in Russell relied on Morelli at Paragraph 17 and framed the issue under consideration at paragraph 19 as follows:

Thus the question is whether on the evidence the learned trial judge could properly conclude, that the only reasonable inference to be drawn from the proven facts was that the appellant had knowledge of, and a measure of control over, the drugs.

In Russell, a conviction was upheld by the British Columbia Court of Appeal based on drugs located within a vehicle during a traffic stop.

The difference between an inference and mere speculation was set out by the Ontario Court of Appeal in R. v. T.S., 2012 ONCA 289, [2012] O.J. No. 1962. As the Court stated at paragraph 62:

A trier of fact may draw inferences of fact from evidence adduced at trial. An inference is a deduction of fact that may be logically and reasonably drawn from another fact or group of facts established in the proceedings. Absent an objective evidentiary basis from which to infer the facts a party seeks to establish, no inference is available, only impermissible speculation and conjecture: R. v. Morrissey (1995) 1995 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.) at page 209.

The Court of Appeal reviewed the essential elements of knowledge and control in a constructive possession case R. v. Pham, 2005 44671 (ON CA), [2005] O.J. No. 5127. The Court dealt with a factual situation where an apartment was searched which was occupied by an accused person and another person. At the time of search the accused was not in the apartment. A quantity of crack cocaine was found in the bathroom. In dealing with the issues of knowledge and control Kozak, J speaking for majority stated at paragraph 17,

The element of knowledge is dealt with by Watt, J in the case of R. v. Sparling, [1998] O.J. No. 107 (H.C.) at paragraph 6:

There is no direct evidence of the applicant’s knowledge of the presence of narcotics in the residence. It is not essential that there be such evidence for as with any other issue of fact in a criminal proceeding, it may be established by circumstantial evidence. In combination, the findings of narcotics in plain view in the common areas of the residence, the presence of a scale in a bathroom apparently occupied by the applicant, and the applicant’s apparent occupation of the premises may serve to found an inference of the requisite knowledge.

In Pham, the Court reminded itself of the onus on the Crown, and at paragraph 18 stated:

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, Martin, J.A., noted that the court may draw ‘appropriate inferences from evidence that a prohibited drug is found in the room under the control of the accused and where there is also evidence from which an inference may be properly drawn that the accused was aware of the presence of the drug.’

In Pham, the Court of Appeal in upholding the conviction of the accused listed a number of findings of the trial judge, noting at paragraph 25,

The following findings and evidence regarding both knowledge and control of the 9.8 grams of crack cocaine by the accused support that conclusion:

(b) both the black cloth purse containing the drugs and the pink make-up bag containing the money were found in full view in the bathroom, a common area of the apartment;

(f) the circumstantial evidence supported as the only logical inference, a consistent awareness of and participation in all that occurred in her home on the part of Ms Pham, and demonstrated much more than a quiescent or passive knowledge of the drugs, as well as an element of control over them.

The facts referred to by the Court of Appeal in Pham indicate that although the drugs were not in plain view, their containers – the black cloth purse and make-up purse – were found in full view.

In considering the difficulty of whether or not an inference of possession could be supported, the Court of Appeal in Pham referred to its earlier decisions in R. v. Sparling, and R. v. Grey, 1996 35 (ON CA), [1996], O.J. No. 1106.

In Grey the accused regularly occupied his girlfriend’s apartment and the cocaine was found hidden in her bedroom. Crack cocaine was found in a cassette player sitting on a dresser and hidden under a flower arrangement on a bedside table. When the police executed the search warrant Mr. Grey was not present. The conviction against Mr. Gray was set aside. As the Court noted at paragraph 16:

There was no direct evidence of the appellant’s knowledge…The case against the appellant rested principally on his regular occupancy of Ms Escoffery’s apartment and on the presence of his clothing and other belongings in the bedroom where the crack cocaine was found. The question is whether the trial judge was entitled to infer knowledge from this evidence. In my opinion, he was not.

The Court concluded at paragraph 22:

I would not prescribe a firm rule for inferring knowledge from occupancy. In the present case no other evidence connected the appellant to the drugs, there was no direct evidence of knowledge, the drugs were hidden, the apartment was rented by the co-accused, other persons frequented the apartment and the appellant was not a permanent occupant. The circumstantial evidence does not therefore support a finding that the appellant had knowledge of the crack cocaine.

In Sparling, the Court of Appeal restored an order committing Mr. Sparling for trial. In that case, the police searched a four bedroom apartment leased to Mr. Sparling and others and found drugs in plain view as well as cash and paraphernalia associated with drug trafficking.

In its submissions the defence relied on a number of authorities including Grey, R. v. Lincoln, [2012] O.N.C.A. 542 and a number of decisions from the Ontario Court of Justice or the Ontario Superior Court of Justice. In my view, those decisions are fact specific as to the circumstantial nature of the evidence before the Court in each case. In Lincoln, the accused was the operator of a rented vehicle. When he was stopped his vehicle contained a substantial amount of cocaine together with Canadian currency. On the facts of that case the Court provided the following guidance at Paragraph 3,

No rebuttable presumption of knowledge and control for purposes of determining possession, based solely on the fact that a person is the operator with control of the vehicle, exists at common law or under the Controlled Drugs and Substances Act. To give effect to such a premise would constitute an impermissible transfer of the Crown’s burden of proof to the accused. While the fact that a person is the operator with control of the vehicle together with other evidence, may enable a trial judge to infer knowledge and control in appropriate cases, it cannot, standing alone, create such a rebuttable presumption.

Count Number 1

I turn now to count one. Mr. Durette is charged with possession of cocaine for the purposes of trafficking contrary to Section 5(2) of the Controlled Drugs and Substances Act. The essential elements of that offence are as follows; i) that Mr. Durette was in possession of the substance; ii) that the substance was cocaine and/or crack cocaine, iii) and that Mr. Durette knew the substance was cocaine and/or crack cocaine and that Mr. Durette had possession of these substances for the purpose of trafficking.

In accordance with the Certificates of Analysis from Health Canada, it is not disputed that the substances found within the unit occupied by Mr. Durette on August the 5th, 2012 at the Belair Motel were crack cocaine and cocaine. The contentious issue that the Crown must prove beyond a reasonable doubt is Mr. Durette’s requisite knowledge or control. Does the evidence logically lead to an inference or constructive possession based on all of the circumstantial evidence?

The following points of evidence bear repetition: Mr. Durette was the sole occupant of this unit at the Belair Motel when the police executed their search warrant. Mr. Durette’s vehicle, a white van, was parked in front of this unit at the time the search warrant was executed. It had been observed there throughout a period of static observation for about an hour before the search warrant was executed. In addition, it was observed there earlier in the morning when Officer Hunter drove by and noted the license plate number. The drugs were found within a tackle box and a C.D. case. Both of these containers were in full view within this tiny, crowded, bachelor style apartment. The tackle box was found on an end table next to the couch. This table also contained drug paraphernalia including, a plate with a scalpel and small baggies, a digital scale, and a box containing other small baggies. There were 11 pieces of paper called debt lists found on the side table. The digital scale was in plain view on the table. When analyzed by Health Canada, it had traces of cocaine on it. The motel room being occupied by Mr. Durette contained couches with blankets and pillows indicating it was used for sleeping arrangements. Men’s clothing was found. There was a quantity of used dishes and food products scattered about the kitchenette. In addition to a cell phone in Mr. Durette’s possession, there were two other cell phones located in plain view within this unit.

When viewed in isolation each of these facts considered individually may raise a reasonable doubt about Mr. Durette’s guilt. The defence submitted that the police could have done more to investigate including following Mr. Durette, conducting more surveillance of the unit, or making inquiries of the landlord. In my view, such submissions merely rise to the level of speculative possibilities without an evidentiary foundation. When the evidence is looked at as a whole, I am satisfied that Mr. Durette had the requisite knowledge and control. Therefore, constructive possession had been established by the Crown.

The final element of this offence is whether or not such possession was for the purpose of trafficking. The Crown submits that the defence conceded that, if there was a finding of possession of cocaine/crack cocaine, it was for the purpose of trafficking. I am not satisfied on the submissions that I heard that point was conceded by the defence. In any event, I am satisfied on all the evidence that the possession of cocaine and crack cocaine was for the purpose of trafficking. This finding is based on the following factors: the expert report of Detective Constable Bennett, details of which I have already highlighted, the presence of drug paraphernalia in plain view within the room including a digital scale with cocaine residue, and “debt lists,” the presence of a plate containing small baggies and scalpel-like knife, the presence of a shoebox full of baggies as well as baggies scattered throughout the small unit, the crack cocaine which had been divided into 17 distinct plastic baggies, the quantity of currency in Mr. Durette’s wallet, $1,525.00, broken down into various denominations, and the presence of three cell phones in the unit, one of which was on Mr. Durette’s person.

Under the circumstances and considering the totality of this evidence, I am satisfied that Mr. Durette was in possession of cocaine and crack cocaine for the purpose of trafficking. Therefore I record a verdict of guilty with respect to count one.

Count Number Two

Count two alleges that Mr. Durette was in possession of cocaine on the 5th day of August 2012 contrary to Section to section 4(1) of the Controlled Drugs and Substances Act. For the reasons noted with respect to count one, I record a verdict of guilty with respect to this count conditionally. I also note defence counsel’s comments with respect to this count that Kienapple principles may apply if there is a finding of guilt with respect to count number one.

Count Number Three

Count number three alleges that Mr. Durette had possession of property not exceeding $5,000.00 on the 5th of August 2012 knowing that the property was obtained by the commission of an offence.

The essential elements of this offensce are as follows: i) that Mr. Durette was in possession of property, in this case currency; ii) that this currency was obtained by crime; iii) that Mr. Durette knew that this property had been obtained by crime; iv) that the value of this property did not exceed $5,000.00.

Mr. Durette’s wallet was seized on his arrest. The wallet contained $1,525.00 in Canadian currency. The currency was seized, recorded, and became an exhibit at trial together with $7.00 of American currency found in the tackle box.

I have no hesitation in finding that Mr. Durette was in possession of currency and the value of that currency did not exceed $5,000.00.

Under the circumstances the Crown must then prove that this currency was obtained by crime and that Mr. Durette knew that the currency was obtained by crime.

I am satisfied that the Crown has proven these further essential elements beyond a reasonable doubt and a finding of guilty will be entered. In reaching this conclusion I have considered all of the circumstantial evidence which logically leads me to an inference that the money in Mr. Durette’s possession was obtained through crime, namely, the sale of cocaine and crack cocaine and that he had the requisite knowledge. The following key points are worth noting: the presence of drug paraphernalia including a digital scale, a scalpel-like knife, baggies scattered throughout the small unit, and 11 “debt lists.” The presence of 17 individualized baggies of crack cocaine or cocaine in distinctive baggies with coloured markings. The currency seized contained a large number of smaller bills, including twenties, tens, and fives. The expert report of Detective Constable Bennett which stated:

Finally, the $1,525 seized and the denominations found is also a factor in persons who traffic in controlled substances, smaller denominations are made to make change for those who purchase small quantities of controlled substances.

In conclusion I record the following verdicts: count number one, guilty; count number two, guilty, subject to a conditional stay on the principles of R. v. Kienaple; count three, guilty.