COURT FILE NO.: 357/19

DATE: 20201126

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

WINTER SNOBEL and SARAH LIANA ARBOGAST

Counsel: L. Tripp, for the Crown M. Farquhar, for the Defendant Snobel A. Prevost, for the Defendant Arbogast

HEARD: October 7, 8 and 9, 2020

Grace J. (Orally)

A. Introduction

[1] Execution of a search warrant issued under the Controlled Drugs and Substances Act at 46-575 Wilkins Street, London, Ontario (“Unit 46”)[^1] yielded a cache of items including controlled substances, drug paraphernalia, cash, an unloaded shotgun and ammunition. The defendants’ pre-trial application requesting that the evidence be excluded under s. 24(2) of the Charter was dismissed for reasons released on September 29, 2020.[^2]

[2] The April 17, 2018 discovery and seizure resulted in the defendants being jointly charged with possession of cocaine for the purpose of trafficking. Ms. Arbogast is also charged with unlawful possession of oxycodone, methylenedioxymethamphetamine (“MDMA”) and careless storage of a firearm.

B. The Investigation

[3] The surrounding circumstances may be shortly told.

[4] Information received from a confidential informant in October 2017 concerning Winter Snobel caused the London Police Service (“LPS”) to commence an investigation. Investigators established that Ms. Snobel was the registered owner of: (i) a residential unit on Stroud Crescent, London, Ontario (“Stroud”); and (ii) a 2014 blue Ford motor vehicle (the “Ford”). Observations made during periods of surveillance caused investigators to believe Ms. Snobel was trafficking a controlled substance.

[5] From early December 2017 until March 2018, Ms. Snobel’s whereabouts were unknown. Information received from a second confidential informant caused members of the LPS to begin more concentrated efforts to find her.

[6] During the morning hours of March 26, 2018, the Ford was found parked outside unit 49, 575 Wilkins Street.[^3] That was the first time during the investigation that Ms. Snobel was connected to that complex in any way.

[7] Shortly before 9 a.m., Ms. Arbogast was seen exiting Unit 46. She left the area in a BMW with two young children. The BMW returned to the complex momentarily before leaving again. About ten minutes passed before the BMW returned for a second time. Ms. Arbogast was observed exiting that vehicle and re-entering Unit 46.

[8] During the early afternoon hours of March 26, 2018, Ms. Snobel emerged from a covered area linking units 45 and 46. She entered the Ford and drove away. Members of the surveillance team recorded some of her movements, including some time spent at Stroud before she returned to the area of 575 Wilkins Street.

[9] Ms. Snobel was captured on video on March 28, 2018. After a brief interaction with an unidentified person in the parking lot of the neighbouring property, Ms. Snobel was observed parking the Ford at 575 Wilkins Street. After exiting the vehicle, Ms. Snobel entered Unit 46.[^4]

[10] Observations made on those days suggested to the investigating officer that Ms. Snobel was, indeed, involved in drug trafficking.

[11] Thereafter, members of the LPS largely relied on information obtained pursuant to tracker warrants described in my earlier ruling.

[12] The decision on the pre-trial application meant that during the trial the Crown could not rely on intelligence obtained from the cell phone tracker.

[13] The prosecution was, however, able to introduce evidence derived from the tracker placed on the Ford. The Ford made return trips to Cambridge, Ontario on April 6, 10, 14, and 16, 2018. All of them started during evening hours. In each case, the Ford returned to 575 Wilkins Street at times ranging from midnight to 4:08 a.m. the following morning.

[14] Physical surveillance was only conducted on two occasions. The first was on April 6, 2018. The involvement of the surveillance team commenced shortly after 11:30 p.m. D-C Younan was one of the officers involved. He told the court he pulled alongside the Ford at a traffic light at about 1:06 a.m. on April 7. Ms. Snobel was the driver and only occupant of that vehicle. She was seen texting as she waited for the traffic light to change colour.

[15] Ryan Atkinson was on duty that morning too. At 1:15 a.m. he watched as Ms. Snobel parked the Ford in front of unit 48 at 575 Wilkins Street. He observed Ms. Snobel entering Unit 46 while carrying an unidentified item under her shirt.

[16] The last out of town trip ended with the Ford returning to 575 Wilkins Street at about midnight. The car was still there when police executed the search warrant the afternoon of April 17, 2018.

C. Execution of the Search Warrants

[17] Unit 46 was under surveillance that day when Ms. Arbogast was seen entering it at about 1:30 p.m. She was carrying a tricycle and Winner’s bag. She exited and drove away from the area approximately fifteen minutes later.[^5] Officers forcibly entered the unit at about 2 p.m.

[18] Ms. Snobel was the only person located inside. She was found by Devon Gerber of the LPS lying on a couch in the basement of the residence. She appeared to have been sleeping. Ms. Snobel was told she was being arrested and charged with possession of cocaine for the purpose of trafficking. Nothing of significance was found on her person.

[19] Several members of the LPS searched the premises. I will deal with each of the three floors in turn.

[20] D-C Gerber found several items in the basement. Two cells phones were found on a large coffee table that sat in front of the couch Ms. Snobel had been lying on. A third cell phone and a black Coach purse sat on a nearby chair. A black and white gift bag was on the floor just behind where Ms. Snobel’s head had been positioned.

[21] The gift bag contained a Longo’s grocery bag. From the grocery and gift bags, Gerber withdrew a total of five plastic bags. Each contained a white substance ranging in weight from about two to thirty-four grams.[^6] Testing established that the substance was cocaine.[^7] The gift bag also contained a digital scale bearing some cocaine residue.

[22] Pieces of identification in Ms. Snobel’s name and a document bearing dates and numbers which the officer described as a “debt list” were extracted from the Coach purse. It also contained two bundles of currency totalling just over $1,000 in Canadian currency and $50 U.S. dollars.

[23] Hidden behind a clothing rack in the laundry room, Gerber found a handgun case, containing eight rounds of 45-calibre ammunition and a 45-calibre magazine.

[24] I turn to the main floor kitchen. Jeff Smith was one of the officers involved in the search there. The kitchen yielded several important items. A scale with cocaine residue and a coffee cup covered by an ashtray were found on top of the microwave. Removal of the ashtray revealed a small bag containing 7 grams of cocaine.

[25] The cupboards were opened. A prescription container bearing Ms. Arbogast’s name, a Tylenol bottle and a Walmart bag containing two blocks of cocaine were found.[^8] A Tec 3 capsule containing codeine was stored inside the Tylenol bottle.[^9]

[26] D-C Younan was one of three officers involved in the search of the master bedroom on the upper floor. Inside drawers in the nightstand he found: (i) a firearm’s licence in Ms. Arbogast’s name; (ii) boxes of 12-gauge and plastic shotgun shells: (iii) a Ruger gun lock; and (v) Ms. Arbogast’s passport. Two long boxes were recovered from under the bed. One of them contained three shotgun cartridges. D-C Younan also found ammunition for a pistol in a safe that had been placed in the closet. Some cash ($265) was also located inside an Adidas shoebox.

[27] D-C Teixeira also participated in the search of that bedroom. He located an unloaded shotgun in an armoire hidden behind some women’s clothing. A large capacity magazine containing multiple rounds was found in the armoire too. During direct examination, the officer said that there was nothing to stop the firearm from engaging. The officer said the weapon was readily available and actionable. When cross-examined, D-C Teixeira agreed the firearm must have been equipped with a safety mechanism. However, he couldn’t remember whether it was engaged.

[28] P-C Atkinson was the third officer involved in the search of the master bedroom. He found a health card bearing Ms. Arbogast’s name in a side table. A clear plastic bag containing MDMA was also located there. Ms. Arbogast’s 2016 income tax return was lying on the floor.

[29] The police were also authorized to search Stroud. Three officers attended there at about 2:25 p.m.[^10] No one was inside and nothing relevant to any of the charges was found. D-C Teixeira acknowledged in cross-examination that the residence appeared to be occupied.

[30] The Ford was also searched. Nothing of consequence was found inside.

D. Analysis and Decision - Counts one, two and three – the CDSA charges

i. The Issue

[31] The defendants are jointly charged with possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the CDSA.[^11] It is also alleged that Ms. Arbogast was in possession of oxycodone and MDMA contrary to s. 4(1) of that statute.[^12]

[32] As noted, a small quantity of MDMA was discovered in the master bedroom. A Tec 3 pill containing codeine was found in the kitchen. Two hundred and fourteen grams of cocaine was stored in a Walmart bag that was on an upper shelf of a kitchen cupboard. Seven grams of that substance was found inside the mug that was located on top of the microwave.

[33] The rest of the cocaine (90.4 grams) was discovered when D-C Gerber rooted through the gift and grocery bags that sat beside the couch Ms. Snobel had been lying on.

[34] The nature and quantity of the various substances is not in dispute. Nor is it contested that the total amount of cocaine recovered from the basement and the kitchen prove that possession of the cocaine, if established, was for the purpose of trafficking.

[35] The primary issue is whether the Crown has proven the element of possession of any of the substances found beyond a reasonable doubt.

[36] Possession may be established in various ways.[^13] Having personal possession of an item is the first one set forth in the Criminal Code.[^14] As noted, Ms. Snobel did not have any substances on her person when searched. Ms. Arbogast was not present at the time the search warrant was executed.

[37] The statute contemplates two other possibilities: (i) constructive possession; and (ii) joint possession.

[38] To the extent relevant to this case, a person has constructive possession of a substance if they knowingly keep it in a place for their use or benefit, even if they do not own or occupy that location.[^15] In order to meet the statutory test, the defendant must have some measure of control over the substance in question: R. v. Pham, (2005), 2005 CanLII 44671 (ON CA), 77 O.R. (3d) 401 (C.A.) at para. 15.

[39] Joint possession involves a situation in which two or more persons have possession of a substance at the same time. If one person has possession or custody of a substance, with the knowledge and agreement of another, each one of them is in possession of it. Simply knowing that another person has possession of something is insufficient to satisfy this element of the offence.[^16] Consent and some amount of dominion over the substance (in this case cocaine) are also required: R. v. Masters, 2014 ONCA 556 at para. 23; R. v. Pham, supra at para. 16.

[40] The issue of possession is a question of fact to be determined on the evidence based on the reasonable inferences to be drawn: R. v. Pham, supra at para. 27.

[41] I will deal with each of the defendants in the order in which they appear in the fresh indictment. I start with Ms. Snobel.

ii. Was Ms. Snobel in possession of the cocaine found in the basement and/or the kitchen?

[42] The following pieces of evidence link that defendant to Unit 46 and to at least some of the substances found there:

(a) From March 26, 2018 onward, Ms. Snobel’s Ford vehicle was frequently parked at 575 Wilkins Street. It was seen in that location on March 26, 28, April 7 and 17. On other occasions, its position was captured by the vehicle tracker;

(b) On three occasions Ms. Snobel was seen either exiting (March 26) or entering (on March 28 and April 7, 2018) Unit 46. She was found sleeping in the basement when the search warrant was executed;

(c) Each time the Ford was seen in motion, Ms. Snobel was the driver and the sole occupant;

(d) The gift bag containing more than 90 grams of cocaine and a digital scale was found on the basement floor near the couch Ms. Snobel had been sleeping on. Her purse was on a nearby chair. It contained over a thousand dollars in cash. A total of three cell phones were also in the same area;

(e) Ms. Snobel was the target of the investigation. Observations during surveillance and data from the vehicle tracker caused D-C Teixeira to believe that Ms. Snobel was trafficking cocaine.

[43] On the other hand:

a) No documents tied this defendant to Unit 46. In fact, Ms. Snobel was the registered owner of Stroud;

b) She was seen visiting Stroud on March 26, 2018;

c) Stroud appeared to be occupied when the search warrant was executed at that site;

d) Nothing suspicious was located there;

e) Most of the physical surveillance of Ms. Snobel had been conducted in the latter part of 2017. Very little was undertaken in 2018;

f) Much of the cocaine was found in a closed cupboard in the main floor kitchen of Unit 46.

[44] The Crown’s case is circumstantial. In such cases, the trier of fact must be satisfied beyond a reasonable doubt that the defendant’s guilt is the only reasonable inference to be drawn from the evidence as a whole: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 at para. 20; see, too R. v. Light, 2020 ONCA 128 at para. 37.

[45] I return to the evidence in this case. Ms. Snobel’s connection to Unit 46 was not new. While the commencement date is unknown, it was noted by members of the LPS on March 26, 2018. It continued until the search warrant was executed three weeks later. I recognize that not even a tenancy gives rise to a rebuttable presumption of possession: R. v. Provost, 2011 ONCA 437, [2011] O.J. No. 2562 (C.A.) at para. 13.

[46] However, there is much more to this fact situation. Ms. Snobel’s involvement in the drug trade was well past suspicion. There were reasonable and probable grounds to believe she was a drug trafficker.

[47] Importantly and as mentioned, Ms. Snobel’s personal possessions were in proximity to and scattered around the couch on which she was lying. A cell phone and her purse had been set on a chair a few feet away. Two cell phones sat on a nearby coffee table. The black and white gift bag was on the floor directly beside the spot her head had been resting. It was not some random item. That bag – and its contents – belonged to Ms. Snobel.

[48] As noted, a scale, containing cocaine residue and several individual packages of that substance were retrieved from there.

[49] Having regard to the totality of the evidence, I am sure that the cocaine belonged to and was in the possession of Ms. Snobel. She knew what the packages contained. They were under her care and control. They were easily accessible to her.

[50] I turn to the cocaine found in the kitchen. Undoubtedly, that room was a common area within the unit. A scale with cocaine residue was in plain view. How long it had been in that location and when it was last used is unknown.

[51] Furthermore, the substances were not readily visible. A small quantity of cocaine was found in the coffee mug that was covered by an ashtray. The rest was found inside a grocery bag on a shelf within a closed cupboard. While it is probable that Ms. Snobel was the source of that cocaine and in possession of it too, I am just short of being able to say that I am satisfied the Crown has proven that element beyond a reasonable doubt.

[52] While the Crown theorizes that the cocaine was acquired during Ms. Snobel’s final trip to Cambridge, I do not know when the substance was obtained, by whom or in what circumstances.

[53] Further, I know nothing of Ms. Snobel’s movements within Unit 46 or access to and use of the kitchen area and the contents of the kitchen cupboards. Consequently, I am unable to conclude that Ms. Snobel was in possession of the 221 grams of cocaine found in that room.

[54] Before leaving this issue, I note that Ms. Snobel was not charged with an offence in relation to the Tec 3 pill found in the kitchen cupboard that was also used to store the bricks of cocaine I have just mentioned.

[55] The final issue is whether the Crown has proven that Ms. Snobel had possession of the cocaine found in the basement for the purpose of trafficking.

[56] Based on the entirety of the evidence, I am satisfied the Crown has proven this element to the required standard. The cocaine in Ms. Snobel’s possession was significant in amount (90.4 grams) and value (approximately $7,200 to $9,000).[^17] The substance was found in five individual packages containing 2.4, 10, 17, 27 and 34 grams. Two bundles of cash totaling over $1,000 in Canadian and American currency was found in Ms. Snobel’s purse. Three cell phones lay nearby. Ms. Snobel was, indeed, actively involved in selling cocaine to others.

[57] The Crown has proven all the elements of count two of the indictment beyond a reasonable doubt. I therefore find Ms. Snobel guilty of possession of cocaine for the purpose of trafficking.

iii. Was Ms. Arbogast in possession of the cocaine found in the kitchen and/or basement and/or the MDMA found in the master bedroom?

[58] What about Ms. Arbogast?

[59] I start by saying that I am well satisfied Unit 46 was Ms. Arbogast’s residence. I have reached that conclusion because:

(a) Ms. Arbogast was seen leaving the premises with two children and then returning to Unit 46 on March 26, 2018;

(b) On April 17, 2018, Ms. Arbogast carried two items into Unit 46 before leaving the area in her car. The items included a tricycle that was left in the living room;

(c) A prescription bottle was found in a kitchen cupboard bearing her name;

(d) Several envelopes addressed to Ms. Arbogast at Unit 46 were found during the execution of the search warrant; and

(e) Items discovered in the upstairs master bedroom contained women’s clothing and included Ms. Arbogast’s passport, 2016 income tax return and a firearm’s licence.

[60] I recognize:

(a) Ms. Arbogast was not present when the search warrant was executed;

(b) No evidence was led that identified the registered owner of Unit 46 or explained the basis on which Ms. Arbogast occupied the premises;

(c) In cross-examination, P-C Atkinson was unable to recollect whether he saw any documents bearing the name of anyone other than Ms. Arbogast.

[61] Once again, the Crown’s case is circumstantial. I must be satisfied that the conclusion Ms. Arbogast was in possession of the various substances is the only reasonable inference to be drawn from the proven facts.

[62] I am well satisfied this defendant was in possession of the small quantity of MDMA found in the master bedroom. The clothing, pieces of identification and physical observations of Ms. Arbogast conclusively tie her to Unit 46 generally and to that part of the premises specifically. She was the principal occupant of that address. The master bedroom was hers. I am satisfied beyond a reasonable doubt that she had knowledge and possession of the MDMA. A finding of guilt is made and a conviction entered in relation to count three of the indictment.

[63] What about the substances found on the main floor and in the basement? As noted earlier, a presumption of possession of the contents of an apartment does not arise by virtue of a tenancy or occupancy: R. v. Watson, 2011 ONCA 437 at para. 13.

[64] In other words, the fact Ms. Arbogast was a resident of Unit 46 does not, on its own, mean she had knowledge of, consented to or had a measure of control over an item belonging to or in the possession of another tenant or occupant: R. v. Masters, 2014 ONCA 556 at para. 23.

[65] However, direct evidence of an accused’s knowledge of the presence of narcotics in a residence is not required. In R. v. Sparling, [1988] O.J. No. 107 (H.C.J.), aff’d [1988] O.J. No. 1877 (C.A.), Watt J. (as he then was) noted:

It is not essential that there be such evidence for…it may be established by circumstantial evidence. In combination, the finding of narcotics in plain view in the common areas of the residence, the presence of a scale in a bedroom apparently occupied by the applicant, and the applicant’s apparent occupation of the premises may serve to found an inference of the requisite knowledge.

[66] I start with the substances in the kitchen. As noted, they were not in plain view, although the scale containing cocaine residue was sitting on top of the microwave.

[67] In my view, there is simply insufficient evidence to connect Ms. Arbogast to the cocaine found in the closed kitchen cupboard and on top of the microwave. The evidence does not allow me to estimate when the scale was last used. As noted, Ms. Snobel was the target of the investigation. She was the person who was believed to be involved in travelling to and from Cambridge for the purpose of acquiring cocaine to resell. Regular trips were made. The last one ended at about midnight on April 16/17, 2018. Nothing is known concerning Ms. Arbogast’s whereabouts at or movements after that time beyond those made shortly before the search warrant was executed. Was Ms. Arbogast home when Ms. Snobel arrived? Who was the source of the cocaine and/or the Tec capsule found in the kitchen? When were they placed there? By whom? In what circumstances? The evidentiary record does not allow me to answer any of those questions.

[68] I recognize that a prescription bottle containing Ms. Arbogast’s name was found in the same cupboard that contained the cocaine. However, I know very little about it. While visible in at least one of the photographs, the details on the label were not. No other information concerning the prescription was provided by the officer who searched that area. Was it a recent or dated purchase? I simply do not know.

[69] While undoubtedly, Ms. Arbogast had access to and used that cupboard, the evidentiary record does not allow me to conclude that she did so at a time when the substances in question were within it. I emphasize that this defendant was never seen acting in any way that suggested criminal activity before the warrant was executed.

[70] Not surprisingly, I am suspicious, particularly given Ms. Snobel’s frequent, perhaps even continuous, attendance at Unit 46 over the three-week period that preceded the issuance and execution of a search warrant. However, the Crown’s case against Ms. Arbogast in relation to the cocaine in the kitchen does not rise above that level.

[71] Any connection between Ms. Arbogast and the cocaine found in the basement is even more tenuous.

[72] A reasonable doubt exists in relation to count one[^18] and insofar as Ms. Arbogast is concerned, count two. I am not able to find that Ms. Arbogast had constructive or joint possession of any of the substances other than MDMA. Consequently, I find Ms. Arobgast not guilty of those two charges. That brings me to count four.

E. Count four – careless storage of a firearm

[73] The Crown alleges Ms. Arbogast stored the shotgun found during the execution of the search warrant in a careless manner and without lawful excuse. Count four references s. 86(3) of the Criminal Code.

[74] That subsection does not identify an offence. It stipulates the potential penalties that follow if an accused is convicted of an offence under ss. 86(1) or (2).

[75] During reply Ms. Arbogast’s counsel – and the court – were advised that the Crown relied upon s. 5(1) of the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations, SOR/98-209 (for simplicity, the “Storage regulation”).

[76] That submission suggested s. 86(2) of the Criminal Code was the offence creating provision relied upon by the Crown. To the extent relevant it reads:

Every person commits an offence who contravenes a regulation made under paragraph 117(h) of the Firearms Act respecting the storage…of firearms and restricted weapons.

[77] The Storage regulation was promulgated under that section of the Firearms Act. Section 5(1) appears under the heading “Storage of Non-Restricted Firearms”. That was the classification given to the shotgun found in Unit 46 according to the firearms examiner’s report that was admitted on consent. Section 5(1) of the Storage regulation reads:

An individual may store a non-restricted firearm only if

(a) it is unloaded;

(b) it is

i. rendered inoperable by means of a secure locking device,

ii. rendered inoperable by the removal of the bolt or bolt-carrier, or

iii. stored in a container, receptacle or room that is kept securely locked and that is constructed so that it cannot readily be broken open or into; and

(c) it is not readily accessible to ammunition, unless the ammunition is stored, together with or separately from the firearm, in a container or receptacle that is kept securely locked and that is constructed so that it cannot readily be broken open or into.

[78] The defence objected to the introduction of the Storage regulation. In fairness, I also questioned the Crown’s ability to do so.

[79] I start with the objections made on behalf of Ms. Arbogast. Initially, her counsel suggested the Crown was leading evidence by introducing the enactment. That is not so. Judicial notice must be taken of such instruments.[^19]

[80] The defendant next argued that the indictment did not charge Ms. Arbogast with an offence known at law. With respect, that is simply incorrect. Section 86(2) is clearly a recognized criminal offence: R. v. Smillie (1998), 1998 CanLII 7050 (BC CA), 129 C.C.C. (3d) 414 (B.C.C.A.).

[81] My initial concern was whether Ms. Arbogast had adequate notice of the allegations that she faced. In other words, was she in a position to make full answer and defence?

[82] An earlier draft of these reasons addressed that issue. It included a reference to and analysis of the informational requirements each count in an indictment must meet under the Criminal Code: see, for example, ss. 581(3) and (5).

[83] Those subsections reminded me to look at the wording in the fresh indictment. Count four alleges Ms. Arbogast stored the shotgun “without lawful excuse … in a careless manner”. The phrases “without lawful excuse” and “in a careless manner” do not appear in s. 86(2) of the Criminal Code.

[84] They do, however, appear in section 86(1). That provision describes an offence that is committed when a person “without lawful excuse … stores a firearm…in a careless manner”. That subsection does not refer to the Firearms Act or any regulation thereunder.

[85] The elements of the offence under the two subsections differ. Section 86(2) has been described as a strict liability offence: R. v. Smillie, supra at para. 21. As Ryan J.A. wrote:

The Crown does not need to prove that the accused was negligent per se, the Crown need prove only a failure to abide by the standard prescribed by the regulations.

[86] However, s. 86(1) requires storage “in a careless manner”.

[87] Carelessness involves a failure to meet the required standard of care. Careless storage of a firearm involves conduct that shows a marked departure from the standard of care a reasonably prudent person would exercise in similar circumstances: R. v. Finlay, 1993 CanLII 63 (SCC), [1993] 3 S.C.R. 103 at 117.

[88] That aspect of the matter was not really addressed by the Crown in argument.

[89] Three witnesses testified at trial about what they found in the master bedroom. They also explained where they located the shotgun, four magazines and two boxes of ammunition. Photographs were taken of each of those items where they were found.

[90] It is clear from the evidence that Ms. Arbogast did not comply with all three requirements of the Storage regulation. The shotgun was unloaded. However, even if the safety was engaged, the firearm was not rendered inoperable in either of the mandated ways. Nor was the shotgun stored in a secured room. There was no latch on the armoire. None of the police officers remembered anything that prevented them from entering the master bedroom. In fact, no lock is visible in the photographs taken that included the entrance and door to the master bedroom. Furthermore, none of the ammunition was stored in the location or manner required.

[91] However, I am not prepared to use the Storage regulation for the purpose of establishing a standard of care against which Ms. Arbogast’s conduct is to be measured. The Crown did not refer to it for that purpose. If it creates the required level of precaution, s. 86(1) would be redundant.

[92] Further, there is a critical evidentiary gap. As noted, the police officers involved in the search of the master bedroom explained what was found and where. However, no evidence was led to establish the applicable standard of care, let alone address the issue of whether the manner of storage of the shotgun constituted a marked departure from it. Without an evidentiary foundation, it is impossible for the court to conclude that the prosecution has proven that Ms. Arobgast stored the shotgun in a careless manner as s. 86(1) of the Criminal Code requires.[^20]

[93] In all the circumstances, I find Ms. Arbogast not guilty of count four on the indictment.

F. Conclusion

[94] For the reasons given, I find Ms. Snobel guilty of count two (possession of cocaine for the purpose of trafficking).

[95] I also find Ms. Arbogast guilty of count three (possession of MDMA) but not guilty of counts one (possession of oxycodone), two (possession of cocaine for the purpose of trafficking) and four (careless storage of a firearm).

"Justice A.D. Grace"

Justice A.D. Grace

Delivered: November 26, 2020

R. v. Snobel and Arbogast, 2020 ONSC 7295

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

WINTER SNOBEL and SARAH LIANA ARBOGAST

REASONS FOR DECISION

Justice A.D. Grace

Delivered: November 26, 2020

[^1]: In para. 1 of my ruling I transposed 2 digits in the address. The one mentioned in these reasons is the correct one. [^2]: They are unreported. [^3]: Ryan Atkinson testified that he found the vehicle there at 8:45 a.m. [^4]: The number 46 was captured by Jonathon Van De Klippe toward the end of the video he took. [^5]: These observations were made by R.C.M.P. officer Jeff Smith who had been seconded to the LPS. [^6]: The quantities were 2.4, 10, 17, 27 and 34 grams for a total of 90.4 grams. [^7]: Fourteen certificates of analyst were filed on consent. [^8]: One block weighed 88 gms. The other weighed 126 gms. [^9]: The observation is based on the relevant Certificate of Analyst. [^10]: They were D-C Kristian Pouliot, D-C Teixiera and P-C Antoni Uchmanowicz. [^11]: Count 2. [^12]: Counts 1 and 3 respectively. [^13]: See Criminal Code, s. 4(3). [^14]: The provision is adopted in the CDSA. See s. 2(1). [^15]: Criminal Code, s. 4(3)(a) (ii). The CDSA adopted the definition in s. 2(1). [^16]: Criminal Code, s. 4(3)(b). The CDSA adopted the definition in s. 2(1). [^17]: Based on the evidence of D-C Kevin Kreibich. [^18]: I have not forgotten that the substance named in that charge was oxycodone. According to the Certificate of Analyst, the pill contained codeine. They are both Schedule 1 substances but are separately listed. [^19]: Statutory Instruments Act, R.S.C. 1985, c. S-22, s. 16(1); R. v. The “Evgenia Chandris”, 1976 CanLII 178 (SCC), [1977] 2 S.C.R. 97. [^20]: R. v. Halliday, 1995 CanLII 982 (ON CA), [1995] O.J. No. 1688 (C.A.) at paras. 12 and 14.