J. IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: v. Ernst, 2005 NSPC 10 Date: (20050413) Docket: 1358368, 1358369, 1358370 Registry: Bridgewater v. Shea Patrick Samuel Ernst Defendant Judge: The Honourable Judge Crawford Heard: March 25, 2004, in Bridgewater, Nova Scotia August 19, 2004, in Bridgewater, Nova Scotia March 10, 2005, in Bridgewater, Nova Scotia Counsel: Josh Bryson Paul Scovil, for the Crown Robert Cragg, for the Defence By the Court: [1] Shea Patrick William Ernst is charged with possession of cannabis marijuana for the purpose of trafficking, with possession of cocaine for the purpose of trafficking, both under s. 5(2) of the Controlled Drugs and Substances Act and with possession of property obtained by crime under s. 355(b) of the Criminal Code. [2] The facts are as follows, from the Crown brief and my earlier decision on voir-dire in this matter: On August 13, 2003 Constable Smith and Corporal Campbell of the R.C.M.P. were on routine patrol in the area of the Government Wharf in Western Shore, Lunenburg County, Nova Scotia. There had been prior mischief complaints from the public regarding activity in the area and the officers approached several youth standing near vehicles on the wharf. One of the Constables was able to view through the window of one of the vehicles two open bottles of beer on the console. Upon asking who owned the vehicle young male came forward by the name of Josh Hyslop. The officers advised they were going to search the vehicle for liquor and then found in the rear hatch area of the vehicle cooler which contained more alcohol. In searching the front passenger area of the vehicle, the officer went to move knapsack on the floor to check for further liquor under the passenger seat. When he picked up the bag, it felt heavy and he further could feel what he thought might be bottles contained within. The backpack was opened upon which narcotics were found together with large amount of cash. Additionally in the front pocket was the wallet of the accused containing identification papers, licenses and personal papers. The backpack, while zipped up, was not secured by lock even though small lock was attached to the front of the backpack. [3] The defendant was not present on the wharf at the time of the investigation. [4] The police officers seized the backpack and at subsequent search at the police station it was found to contain: an unopened bottle of Olands Export Ale, 232 grams of cannabis marihuana, 63 grams of cocaine, bundles of cash containing $3000 in total, digital scale, the black wallet referred to above, as well as other items of personal nature such as an eyeglass case, toothbrush and deodorant. [5] Following my decision that the evidence seized was admissible against the defendant, the Crown continued its case by calling two further witnesses: Joshua Hyslop, and Cst. Paul Robinson. [6] Joshua Hyslop testified that on August 13, 2003 he picked the defendant up at the Lido in Chester, and they travelled by car to Western Shore “to have beer”. He said that the defendant handed him the cocaine which he placed in the vehicle console where the police later found it, and that the defendant had knapsack with him, which he placed at his feet in the front passenger seat. The defendant also brought Oland’s beer with him, which the two friends placed in the trunk of Hyslop’s car. [7] They drove to Western Shore, Lunenburg County, Nova Scotia, where they stopped in the area of the wharf to drink beer. There were other people on the wharf. Hyslop said that the police arrived less than minutes later, and at that point they both got out of the car and the defendant left. Hyslop did not know where the defendant went, but he left his beer and knapsack in the vehicle. He said they didn’t panic when they saw the police, but they did have beer in the car and he was also concerned about the cocaine he knew was there. [8] Hyslop testified that he did not know what was in the defendant’s knapsack that night, but he, Hyslop, did not put anything into or take anything out of it and he did not see anyone else touch it either. [9] Hyslop admitted that he owned two sets of scales found in his car and denied ownership of any of the other exhibits before the court. [10] In regard to the cocaine which he had placed in the console, he said that no money changed hands when the defendant passed it to him. He said that the defendant gave it to him to look at, and he assumed that they would discuss it later. [11] Cst. Paul Robinson of the R.C.M.P. was qualified by consent as an expert in the use, availability, distribution, packaging, sale, price and value of cocaine and cannabis marihuana and proceeds derived therefrom. He testified, based on his training and experience, that in his opinion the items seized by the police in this case were possessed for sale, not personal use. In regard to the more than 230 grams of marijuana found, he said that it would sell at $15 per gram at street level and would accordingly have value of $3480. The fact that it was found in an open motor vehicle in an open spot was also significant in his conclusion that the marijuana was possessed for sale, not personal use. As well, he stated that heavy user of marijuana might smoke joints day, so that this would represent 77 day supply for such heavy personal use. [12] In regard to the 63 grams of cocaine which were found, he stated that at the street value of $100.00 per gram, typical user would buy gram or half-gram at time. [13] The presence of the other items also were typical of what would be found in the possession of seller. The barley seed is used to keep cocaine from clumping with moisture, similar to putting rice in salt shaker. The three rolls of cash containing $1000 each is typical method used by drug traffickers, who not uncommonly have large amounts of cash, to hold their proceeds of sale. The lotto forms are commonly used to package cocaine for sale. Scales are used for weighing out the product. [14] The defence did not call evidence, but argued that this was circumstantial case in which the Crown had not proven beyond reasonable doubt that the only reasonable inference to be drawn was that the drugs and money were in the possession of the defendant. [15] Section 4(3) of the Criminal Code states: (3) For the purposes of this Act, (a) person has anything in possession when he has it in his personal possession or knowingly (i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and (b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them. [16] This section sets out three types of possession: personal, where person has something physically in his possession (s. 4(3)(a)); constructive possession, where he has it in the custody or control of another person (s. 4(3)(a)(i)) or where he is storing it in another place (s. 4(3)(a)(ii)); and joint possession, where two or more persons possess something together (s. 4(3)(b). [17] In proving constructive possession, the Crown must establish beyond reasonable doubt that the defendant had knowledge of the presence of the item in question, consented to its presence and had some measure of control over it. R. v. Terrence (1983), 1983 CanLII 51 (SCC), 47 N.R. 8; C.C.C. (3d) 193 (S.C.C.); R. v. Fraser (1985), 70 N.S.R. (2d) 82 (C.A.). [18] As for any other fact, any type of possession can be proven by direct evidence or circumstantial evidence, or combination of both. [19] Because the circumstances leading to an inference of possession vary so widely, each case turns on its own facts and other cases are useful for illustrative purposes at best; thus, although have reviewed the cases supplied by the defence, find no need to refer to them directly. Also, in this case there is not only circumstantial evidence but also the direct evidence of Mr. Hyslop, which accept. [20] Hyslop’s evidence establishes that the defendant handed the packages of cocaine found in the console of the motor vehicle to him, and that no money changed hands for it. I therefore find that that cocaine had been in the defendant’s personal possession up to the point of handing it to Hyslop and thereafter was in the joint possession of the defendant and Hyslop. [21] In regard to the drugs and money found in the knapsack, I note that the knapsack was in the personal possession of the defendant when he entered the motor vehicle, that no one else had any access to it from then until the police seized it. also note that the knapsack contained, in addition to the drugs and money, wallet containing the defendant’s identity papers, and other personal items. [22] In short, I am satisfied that the only reasonable inference to be drawn from all of the evidence before the court is not only that the knapsack was in the personal possession of the defendant, but that, because it contained items of such a personal nature, because the cocaine the defendant handed to Hyslop came from the knapsack, and because no one else had access to the knapsack, the defendant must have had knowledge of all of its contents and, for the same reasons, consented to their being there. It is also obvious that he had control of the bag and its contents until he left the motor vehicle. [23] find that the defendant was in possession of the marijuana and cocaine found in his knapsack. For the purpose of trafficking [24] The uncontroverted expert evidence of Cst. Robinson is that the amounts of both marijuana and cocaine and all of the circumstances here establish that the possession was for the purpose of trafficking and so find. Possession of property obtained by crime [25] For the reasons stated above, I find that the three rolls of cash in the amount of $1000 each were in the possession of the defendant and that, because they were in small denominations, found in the same bag as large amounts of cocaine and marijuana, rolled in the manner in which drug dealers commonly hold their cash, and as the defendant was a student the previous year and therefore unlikely to have large amounts of cash from any other source, the only reasonable inference here is that these rolls of cash were proceeds of drug trafficking. Hence find that the defendant had them in his possession knowing that they were obtained by the commission in Canada of an offence punishable by indictment. Conclusion [26] The defendant is guilty of all three charges before the court.
The defendant was charged with possession of cannabis marijuana and possession of cocaine, both for the purposes of trafficking. When the police approached a group of youth standing around vehicles, through one of the vehicle's open windows they noticed two open bottles of beer. While searching the vehicle for liquor, they moved a knapsack on the floor to check under the seat; the knapsack felt heavy and it felt like there were bottles inside it. The police opened the knapsack and found beer bottles, narcotics and a large amount of cash. In the front pocket of the knapsack, the police found the defendant's wallet with identification and personal papers. They also found packages of cocaine in the console of the vehicle. The defendant, who was not the owner of the vehicle, was not present when the search was conducted. The owner of the vehicle testified that he had picked up the defendant in his vehicle earlier in the day and that the defendant had placed the knapsack in the vehicle. When the police arrived, they both got out of the vehicle and the defendant left. The defence argued that the evidence was all circumstantial. The defendant was found guilty on all charges. The evidence established that the defendant had handed the packages of cocaine found in the console of the vehicle to the vehicle's owner; thus the cocaine was in the defendant's personal possession initially and thereafter in the defendant's and his friend's joint possession. The knapsack was in the personal possession of the defendant when he entered the vehicle and no one else had access to it until the police seized it; the only reasonable inference to be drawn was not only that the knapsack was in the personal possession of the defendant but that since it contained items of such a personal nature and since the cocaine handed to the friend had come from the knapsack and no one else has access to it, the defendant must have had knowledge of all its contents and consented to them being there. The three rolls of cash were also in the possession of the defendant and since they were in such small denominations and were found in the same bag as the large amounts of cocaine and marijuana, rolled in the manner in which drug dealers commonly hold their cash, and as the defendant was a student the previous year and therefore unlikely to have large amounts of cash from any other source, the only reasonable inference was that the rolls of cash were the proceeds of drug trafficking.