R. v. Roussel (L.), (2014) 586 A.R. 315 (QB)

• Judge: Wakeling, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 04, 2014
• Citations: (2014), 586 A.R. 315 (QB);2014 ABQB 202

R. v. Roussel (L.) (2014), 586 A.R. 315 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. AP.062

Her Majesty the Queen v. Luc Roussel (accused)

(110623576Q1; 2014 ABQB 202)

Indexed As: R. v. Roussel (L.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Wakeling, J.

April 4, 2014.

Summary:

The R.C.M.P. executed a search warrant at Roussel's residence. While the search disclosed the indicia of an active drug dealing business, there was no contraband on him. He was charged in an indictment with 12 offences under the Controlled Drugs and Substances Act, the Criminal Code, and the Excise Act. He entered a guilty plea to unlawfully possessing cannabis marijuana in a quantity not exceeding 30 grams, and possessing a tobacco product that was not stamped. The Crown's theory was that Roussel's residence served as a "stash house" for Lance Harry's drug trafficking business. Roussel denied that he knew that the 209 grams of cocaine found in the basement closet, the two rifles and the prohibited device (an over capacity machine) found in the furnace room, and the brass knuckles found in the kitchen, were in the residence. He suggested that they belonged to Mr. Harry or others who had access to his house.

The Alberta Court of Queen's Bench found Roussel guilty of possessing cocaine for the purpose of trafficking; of possessing the property set out in the indictment; and of carelessly storing firearms as charged.

Criminal Law - Topic 10.2

General principles - General and definitions - Possession defined - The Alberta Court of Queen's Bench stated that "[t]he elements of possession for the offences under the Controlled Drugs and Substances Act, the Excise Act, 2001 and the Criminal Code are the same." - The Court presented a series of hypothetical fact patterns that disclosed the essential elements of possession - "These hypotheticals support the conclusion that A possesses Y in contravention of a criminal law if (a) Y is contraband; (b) A knows that Y is contraband; (c) A has the capacity to exercise control over Y; (d) A intends to exercise control over Y; (e) A intends to exercise control over Y for a blameworthy purpose; and (f) (a), (b), (c), (d) and (e) exist concurrently. ... This conclusion is valid whether considering s. 4(3)(a), s. 4(3)(a)(i) or (ii) or s. 4(3)(b) of the Criminal Code, as well as s. 2(1) of the Controlled Drugs and Substances Act and s. 32(1) of the Excise Act, 2001." - See paragraphs 107 to 121.

Criminal Law - Topic 1175

Offences against public order - Firearms - Careless use, transportation, carrying, storage, etc., of firearm (incl. elements of offence) - Section 86(1) of the Criminal Code stated that "[e]very person commits an offence who, without lawful excuse...stores a firearm...in a careless manner...". - The Alberta Court of Queen's Bench stated that "To establish a contravention of s. 86(1) the Crown must prove beyond a reasonable doubt that the conditions under which the firearm was stored constitute a marked departure from the standard of care of a reasonably prudent person and, if it does, the accused had no lawful excuse. ...The first element involves an objective assessment. ... It is the product of three discrete determinations. First, the prosecution must prove to the criminal standard that the accused had a firearm in his possession and that he stored the firearm. ... Second, the Crown must prove, again to the criminal standard, the conditions under which the firearm was stored. ... Third, the prosecution must establish beyond a reasonable doubt the standard of care a reasonably prudent person would adhere to under the circumstances. ... Once the Court makes these three determinations, it must then ask whether the conditions under which the firearm was stored constitute a marked departure from the measure ... . The Crown does not have to prove that the accused was aware his conduct presented the risk which the enactment criminalizes." - See paragraphs 122 to 126.

Criminal Law - Topic 1175

Offences against public order - Firearms - Careless use, transportation, carrying, storage, etc., of firearm (incl. elements of offence) - The accused was charged with storing two firearms in a careless manner (Criminal Code, s. 86(1)) - The firearms were found in the furnace room of the accused's residence - The Crown led no expert evidence to establish the applicable standard of care a reasonably prudent person in possession of the firearms would adhere to - The Alberta Court of Queen's Bench held that the Crown had proved beyond a reasonable doubt that the accused was in possession of the two firearms, that he stored them, and that the conditions under which he stored them constituted a marked departure from the standard of care a reasonably prudent person would exhibit - "The Court does not need the assistance of an expert to know that a reasonably prudent person would not store firearms and ammunition next to a furnace in the condition they were found. ... Some things are 'so obvious that a lay person can act with a high level of competence without the assistance of an expert'. ... There may well be fact patterns where it would be prudent for the prosecution to lead expert evidence. ... A reasonably prudent person in these circumstances would have placed the firearms and ammunition in another part of the house not close to a heat source. This person would have utilized a secure locking device and kept the firearms in a container or room that was securely locked. ... As well, the model person would not have kept ammunition inside the containers in which the firearms were located." - See paragraphs 134 to 137.

Narcotic Control - Topic 575

Offences - Possession - General - Elements of possession - [See Criminal Law - Topic 10.2 ].

Narcotic Control - Topic 604

Offences - Possession - Evidence - Proof of possession - [See Narcotic Control - Topic 703 ].

Narcotic Control - Topic 606

Offences - Possession - Evidence - Circumstantial evidence - [See Narcotic Control - Topic 703 ].

Narcotic Control - Topic 703

Offences - Trafficking - Possession for the purpose of trafficking - When the RCMP arrested the accused, there was no contraband on him - A search of the accused's residence disclosed: (a) 209 grams of cocaine stored in a tupperware container located in a basement closet; (b) two firearms and a prohibited device hidden behind the furnace; seven grams of unpackaged cocaine in one plastic baggie located in his bedroom; (d) a large supply of ziploc bags and dime or jewel bags; and (e) brass knuckles in the kitchen - There was no direct evidence that the accused knew that the 209 grams of cocaine, the two rifles, the prohibited device and the brass knuckles were in his residence - The Alberta Court of Queen's Bench concluded that the accused possessed the 209 grams of cocaine for the purpose of trafficking - There was direct evidence which supported the inference that he knew that there was a substantial amount of cocaine, two rifles, a prohibited device and brass knuckles in his residence - In addition, as those items were in his home and readily accessible, he had the capacity to exercise control over them - He also intended to exercise control for a blameworthy purpose - See paragraphs 127 to 133.

Sales and Service Taxes - Topic 710

Sales tax - Collection and enforcement - Offences and penalties - Sale or possession of unstamped tobacco products - [See Criminal Law - Topic 10.2 ].

Cases Noticed:

R. v. Christie (1978), 21 N.B.R.(2d) 261; 37 A.P.R. 261; 41 C.C.C.(2d) 282 (C.A.), refd to. [para. 61].

People v. Ferguson (1933), 18 P.2d 741 (Dist. Ct. App.), refd to. [para. 61].

R. v. Langa, [1936] S.A.L.R. 158, refd to. [para. 61].

R. v. Warner, [1969] 2 A.C. 256 (H.L.), refd to. [para. 61].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 103].

Woolmington v. Director of Public Prosecutions, [1935] A.C. 462, refd to. [para. 104].

Davis v. United States of America (1895), 160 U.S. 469, refd to. [para. 104].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 105].

R. v. Minuskin (S.) (2003), 180 O.A.C. 255 (C.A.), refd to. [para. 106, footnote 24].

R. v. Boucher (E.), [2005] 3 S.C.R. 499; 342 N.R. 42, refd to. [para. 106, footnote 25].

R. v. Critch (A.) (2012), 322 Nfld. & P.E.I.R. 126; 1000 A.P.R. 126 (N.L. Prov. Ct.), refd to. [para. 106, footnote 26].

R. v. Beaver, [1957] S.C.R. 531, refd to. [para. 109, footnote 27].

R. v. Creighton, [1993] 3 S.C.R. 3; 157 N.R. 1; 65 O.A.C. 321, refd to. [para. 109, footnote 27].

United States of America v. Holland (1971), 445 F.2d 701 (D.C. Cir.), refd to. [para. 109].

R. v. Daniels (P.) (2004), 242 Nfld. & P.E.I.R. 290; 719 A.P.R. 290; 191 C.C.C.(3d) 393 (N.L.C.A.), refd to. [para. 111].

R. v. Chalk (R.) (2007), 231 O.A.C. 107; 227 C.C.C.(3d) 141 (C.A.), refd to. [para. 112].

R. v. Hess, [1949] 1 W.W.R. 577 (B.C.C.A.), refd to. [para. 112].

R. v. Higginbottom (1912), 8 Cr. App. Rep. 79, refd to. [para. 112].

R. v. Woodrow (1846), 153 E.R. 907, refd to. [para. 112].

People v. Gambos (1970), 84 Calif. Reptr. 908 (Ct. App.), refd to. [para. 112].

People v. Theel (1973), 505 P.2d 964 (Colo.), refd to. [para. 112].

R. v. Terrence, [1983] 1 S.C.R. 357; 47 N.R. 8, refd to. [para. 114].

R. v. Caldwell (1972), 7 C.C.C.(2d) 285 (Alta. C.A.), refd to. [para. 114].

R. v. Collin, [1943] 1 D.L.R. 20 (B.C.C.A.), refd to. [para. 114].

R. v. Chambers (1985), 9 O.A.C. 228 (C.A.), refd to. [para. 114].

R. v. Blondin (1970), 2 C.C.C.(2d) 118 (B.C.C.A.), affd. [1971] S.C.R. v, refd to. [para. 114].

R. v. Lee Chew, [1940] 4 D.L.R. 571 (B.C.C.A.), refd to. [para. 115].

People v. Carvajal (2004), 786 N.Y.S.2d 450 (Ct. App.), refd to. [para. 115].

R. v. McBurney (1975), 24 C.C.C.(2d) 44 (B.C.C.A.), refd to. [para. 116].

R. v. Worsell, [1969] 2 All E.R. 1183 (C.A.), refd to. [para. 116].

R. v. Colvin, [1943] 1 D.L.R. 20 (B.C.C.A.), refd to. [para. 118].

R. v. Grey (E.) (1996), 89 O.A.C. 394 (C.A.), refd to. [para. 118].

PHS Community Services Society et al. v. Canada (Attorney General), [2011] 3 S.C.R. 134; 421 N.R. 1; 310 B.C.A.C. 1; 526 W.A.C. 1, refd to. [para. 120].

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1, refd to. [para. 121].

R. v. Finlay, [1993] 3 S.C.R. 103; 156 N.R. 374; 113 Sask.R. 241; 52 W.A.C. 241, refd to. [para. 123].

R. v. Gosset, [1993] 3 S.C.R. 76; 157 N.R. 195; 57 Q.A.C. 130, refd to. [para. 123].

R. v. Carlos (A.M.), [2002] 2 S.C.R. 411; 287 N.R. 79; 165 B.C.A.C. 221; 270 W.A.C. 221, refd to. [para. 124].

R. v. Sparling, [1988] O.J. No. 107 (H.C.), revd. (1988), 31 O.A.C. 244 (C.A.), refd to. [para. 127].

R. v. Pham (K.T.) (2005), 204 O.A.C. 299 (C.A.), refd to. [para. 128].

Caswell v. Powell Duffryn Associated Collieries Ltd., [1940] A.C. 152 (H.L.), refd to. [para. 128].

United States of America v. Masiello (1956), 235 F.2d 279 (2nd Cir.), refd to. [para. 128].

Miller v. Minister of Pensions, [1947] 2 All E.R. 372 (K.B.), refd to. [para. 128].

People v. Antista (1954), 276 P.2d 177 (Cal. Dist. Ct. App.), refd to. [para. 133].

R. v. Halliday (S.B.) (1995), 82 O.A.C. 150; 100 C.C.C.(3d) 574 (C.A.), refd to. [para. 134, footnote 30].

Alberta (Minister of Justice and Attorney General) v. Echert et al. (2013), 563 A.R. 74; 2013 ABQB 314, refd to. [para. 134, footnote 30].

Alberta (Minister of Justice) et al. v. Cardinal et al. (2013), 565 A.R. 271; 2013 ABQB 407, refd to. [para. 134, footnote 30].

D.P.N. v. T.J.T. (2013), 567 A.R. 270; 2013 ABQB 445, refd to. [para. 135].

Canada Safeway Ltd. v. United Food & Commercial Workers, Local 401 (1992), 26 L.A.C.(4th) 409 (Alta.), refd to. [para. 135].

R. v. Candelaria (1998), 56 C.R.R.(2d) 332 (Ont. Prov. Ct.), refd to. [para. 137, footnote 31].

R. v. Cannon (1977), 37 C.C.C.(2d) 325 (Ont. C.A.), refd to. [para. 137, footnote 32].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 86(1) [para. 13].

Authors and Works Noticed:

American Law Institute, Model Penal Code (1962), §§ 1.12(1) [para. 105, footnote 23]; 2.02 [para. 126].

American Law Institute, Restatement of the Law (Second), Torts (1964), § 216 [para. 121].

Bryant, Alan W., Lederman, Sidney N., and Fuerst, Michelle K., Sopinka, Lederman & Bryant: The Law of Evidence in Canada (3rd Ed. 2009), p. 109 [para. 61].

Fletcher, George, Rethinking Criminal Law (1978), pp. 199 to 200 [para. 120].

Goodhart, Arthur, Possession of Drugs and Absolute Liability (1968), 84 Law Q. Rev. 382, pp. 382 [para. 108]; 391 [para. 109, footnote 27].

LaFave, Wayne, and Scott, Austin, Jr., Criminal Law (1972), p. 44 [para. 105, footnote 23].

Manning, Morris, and Sankoff, Peter, Manning, Mewett & Sankoff: Criminal Law (4th Ed. 2009), pp. 33 [para. 105, footnote 23]; 715 [para. 126]; 1139 [para. 111].

Schiff, Stanley, Evidence in the Litigation Process (4th Ed. 1993), vol. 1, pp. 32 to 34 [para. 131, footnote 29].

Stuart, Don, Canadian Criminal Law: A Treatise (6th Ed. 2011), p. 85 [para. 108].

Whitebread, Charles, and Stevens, Ronald, Constructive Possession in Narcotics Cases (1972), 58 Virg. L. Rev. 751, p. 759, fn. 26 [para. 121].

Counsel:

Dennis C. Hrabcak (Public Prosecution Service of Canada), for the Crown;

Simon Trela, for the accused.

This trial was heard on September 23-26, 2013, before Wakeling, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment and reasons for judgment, dated April 4, 2014.