R. v. Brenton, 2016 CanLII 24207 (NL SC)

Date:	2016-04-28
File number:	201506G0013
Citation:	R. v. Brenton, 2016 CanLII 24207 (NL SC), <http://canlii.ca/t/gr512>, retrieved on 2019-05-20

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IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR

TRIAL DIVISION (GENERAL)

Citation: R. v. Brenton, 2016 NLTD(G) 69

Date: April 28, 2016

Docket: 201506G0013

HER MAJESTY THE QUEEN

JASON DAVID HENRY BRENTON

______________________________________________________________________________

Before: Justice Garrett A. Handrigan

______________________________________________________________________________

Place of Hearing: Clarenville, Newfoundland and Labrador

Date(s) of Hearing: December 9 – 10, 2015; February 18, 2016; March 24th, 2016

Summary:

The Crown charged Jason Brenton with possessing approximately 39 pounds of marihuana for the purposes of trafficking. Mr. Brenton pleaded not guilty to the charge but denied that the Court had any jurisdiction over him and refused to submit to the jurisdiction of the Court for the trial.

The Court dismissed Mr. Brenton’s claim that it had no jurisdiction over him as completely without merit and found that the Crown proved the charge against him beyond a reasonable doubt. It convicted Mr. Brenton and set a time and date to sentence him for the offence.

Appearances:

James D. Hughes, Q.C. Appearing on behalf of the Crown

Jason David Henry Brenton Appearing on his own behalf

Authorities Cited:

CASES CONSIDERED: R. v. Bonassin, 2008 NLCA 40 (CanLII), 236 C.C.C. (3d) 562; R. v. Wall, 2012 NLCA 67 (CanLII), 329 Nfld. & P.E.I.R. 104; R. v. Chan (2003), 2003 CanLII 52165 (ON CA), 178 C.C.C. (3d) 269, 18 C.R. (6th) 322 (Ont. C.A.); Fiander v. Mills, 2015 NLCA 31 (CanLII), 368 Nfld. & P.E.I.R. 80.

STATUTES CONSIDERED: Controlled Drugs and Substances Act, S.C. 1996, c. 19; Criminal Code, R.S.C. 1985, c. C-46.

REASONS FOR JUDGMENT

HANDRIGAN, J.:

INTRODUCTION

[1] On February 11, 2015, the Crown filed a bill of indictment in this Court alleging that Jason Brenton breached s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, by having in his possession more than three kilograms of cannabis marihuana for the purposes of trafficking. Mr. Brenton pleaded not guilty to the charge when I arraigned him on March 9, 2015. I heard the evidence against Mr. Brenton on December 9, 2015 and February 18, 2016 and reserved my judgment until now.

THE ISSUE

[2] Has the Crown proved the charge against Jason Brenton beyond a reasonable doubt?

THE LAW

Possession for the Purposes of Trafficking - Statute

[3] Section 5(2) of the Controlled Drugs and Substances Act says that “(n)o person shall, for the purposes of trafficking, possess a substance included in Schedule…II…”. Cannabis marihuana appears as item 2 of s. 1 of Schedule II to the Act.

[4] Section 2(1) of the Act adopts the definition of “possession” in subsection 4(3)of the Criminal Code, R.S.C. 1985, c. C-46 and used for the purposes of the Criminal Code; which is:

(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 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.

[5] Section 2(1) of the Controlled Drugs and Substances Act defines “traffic” for cannabis marihuana, amongst other substances, as:

“(a) to sell, administer, give, transfer, transport, send or deliver the substance, (b) to sell an authorization to obtain the substance, or (c) to offer to do anything mentioned in paragraph (a) or (b)”.

Possession for the Purposes of Trafficking – Case Law

[6] Welsh, J.A. considered the statutory definition of “possession” in R. v. Bonassin, 2008 NLCA 40 (CanLII), 236 C.C.C. (3d) 562and said of it:

Described generally, the three components of possession have been stated to be: (1) knowledge of the item, (2) intention or consent to have possession of the item, and (3) control over the item...(para. 26).

[7] In Bonassin, the Court dismissed an appeal by the accused from his conviction of possessing cocaine and marihuana for the purposes of trafficking. Welsh, J.A. stated the facts the trial judge relied on to convict the appellant:

At 1:10 p.m. on November 13, 2003, pursuant to a search warrant executed at the office of Sameday Courier, the police seized a parcel addressed to Carrie Wickett, 39A Sudbury St., St. John's. The parcel appeared to contain a computer. Inside the parcel the police found bags containing eight pounds of marijuana and one ounce of cocaine which had been placed inside a computer tower. The police replaced the contents with another computer tower which contained books having a weight equivalent to that of the drugs. They returned the parcel to Sameday Courier for delivery.

That evening, the police followed the courier vehicle when the parcel was delivered as addressed. At 7:02 p.m., the courier driver entered the residence with the parcel, leaving a minute later. At 7:05 p.m., a taxicab arrived at the residence. The police then approached the house. As an officer neared the front door, Bonassin opened the door carrying the parcel in one hand and a suitcase in the other. Upon seeing the police, Bonassin backed into the house and closed the door. He was arrested in the house near the front door. The police found the address slip for the parcel on the kitchen table and seized $2445.25 in cash from Bonassin. (paras. 2 and 3)

[8] Mr. Bonassin said he did not know what the parcel contained and had gone to Ms. Wickett’s residence to buy $100 worth of marihuana from her; but she was not home. Another occupant of the house told Mr. Bonassin he could stay for a while and he did. Eventually Mr. Bonassin tired of waiting for Ms. Wickett and called a taxi to leave. He answered the door thinking it was his taxi and saw the courier driver, who asked for Ms. Wickett. He told the driver Ms. Wickett was not home and signed to receive the package for Ms. Wickett, when the courier driver asked him to.

[9] Mr. Bonassin said he then gathered up a suitcase and was moving the package away from the door when the police rushed in and announced they were doing a drug bust. Mr. Bonassin said he had moved to St. John’s from Ontario a month earlier and brought about $3,500 with him when he moved. The money the police seized from him is what he had left of it.

[10] The trial judge rejected Mr. Bonassin’s explanation and found that: Mr. Bonassin expected the parcel to contain drugs; he had an agreement with Ms. Wickett to take possession of the parcel; and he and Ms. Wickett made that agreement before the police removed the drugs from the original parcel.

[11] The Court of Appeal dismissed Mr. Bonassin’s appeal against conviction. Welsh, J.A. found that “…the evidence was sufficient to establish beyond a reasonable doubt that, before the police removed the drugs, Bonassin had joint possession with Wickett”. (para. 27). She noted that:

…because joint possession of the drugs was established prior to seizure of the parcel by the police, it is unnecessary to consider what effect the actions of the police would otherwise have had where all the drugs had been removed. It is also unnecessary to consider the question of attempt to commit the offence. (para. 29).

[12] Rowe, J.A. dissented from Welsh, J.A.’s majority decision and would have convicted Mr. Bonassin of “attempted possession for the purposes of trafficking”. According to Rowe, J.A., the evidence did not support a finding that Mr. Bonassin either had constructive or joint possession of the marihuana because the police had removed all of the marihuana from the original packaging and substituted new, faked contents without any marihuana in it; so that Mr. Bonassin did not have possession of the marihuana when he signed for and took the package from the courier.

[13] As Rowe, J.A. said:

While it is logical to infer that Mr. Bonassin must have made some arrangement with the supplier of the drugs (which supplier would have had possession of the drugs), there is no evidence of this. In the absence of such evidence, I do not see a basis to say there is proof beyond a reasonable doubt of Mr. Bonassin’s ‘control’ and, thus, either joint or constructive possession of the drugs. (para. 50).

[14] Rowe, J.A. wrote the unanimous decision for the Court of Appeal four years later in R. v. Wall, 2012 NLCA 67 (CanLII), 329 Nfld. & P.E.I.R. 104, where he noted that the “key issue” on Mr. Wall’s appeal from his conviction of possessing marihuana for the purposes of trafficking “…relates to possession of the drugs, as they were removed by the police before the package that had contained them was delivered to Mr. Wall”. (para. 1).

[15] Rowe, J.A. stated the facts:

On October 4, 2010, the Appellant went to a house that had been rented by his cousin, who had recently vacated it. There, he received delivery of a package addressed to “J. Wahl”. The delivery was made by an RCMP officer dressed in a Canada Post uniform. The package had been intercepted by Canada Post and the RCMP; it had contained 7 1/2 pounds of marihuana, which had been removed before the package was delivered.

Shortly after Mr. Wall accepted delivery of the package, the police entered the house. Mr. Wall was alone. The package had been opened. The contents of the package (a bag containing lawn grass) was found on the ground outside a window in the house.

Mr. Wall told the police and later testified that he was in the apartment to do some repairs for his cousin, so that the cousin could receive back his security deposit. (Mr. Wall’s cousin did not testify.) Mr. Wall said he had no knowledge of the package and the 7 1/2 lbs. of marihuana. The landlord testified that he did not know Mr. Wall, had not given him permission to be in the house and that, so far as he was aware, nothing needed to be fixed for return of the security deposit. (paras. 2-4)

[16] The trial judge did not believe Mr. Wall and inferred that he had arranged to receive the drugs at the address and accepted the package from the police officer posing as a mailman believing that he was receiving the drugs.

[17] Rowe, J.A. dismissed Mr. Wall’s appeal. While Mr. Wall never had “personal possession” of the marihuana, Rowe, J.A. found that it was possible that he had “constructive possession or joint possession” (para. 12) of it. Rowe, J.A. adverted to their Court’s decision in Bonassin, and noted: “…[the trial judge’s] decision that Mr. Wall had possession of the 7 ½ lbs. or marihuana is in accord with the law as set out in Bonassin”:(para. 13).

[18] I deduce the following principle from Bonassin and Wall: A person who receives packages intended for him, which formerly contained illegal drugs but from which the drugs have been removed when he receives them, may be found in constructive and/or joint possession of the removed drugs, if he is acting in concert with someone else or in constructive possession of the drugs, if he is acting alone; even though in either instance he never has personal possession of them.

[19] This is the law I will use to analyze the issue in this case; to which I turn, starting with the background to it.

ANALYSIS

Background

[20] Jason Brenton was born June 25, 1975 and is 40 years old. He lives at 4 Woody Island Road, North Harbour, NL. Mr. Brenton either has his own home in North Harbour or lives with his mother. I do not know if he is employed although I did see a reference in a question he asked when he cross-examined one of the Crown’s witnesses at his preliminary inquiry to “(m)y job doing concrete, very, very physical job…”. (Transcript of Preliminary Inquiry, dated January 19, 2015, p. 47, line 16).

[21] Mr. Brenton was at home on June 3, 2014. He left his residence around 9:20 am in a white Chevrolet Silverado pickup truck and drove to the post office in North Harbour. He entered the post office and retrieved one at a time from the post office, three large brown cardboard boxes, with the name “Budget” prominently displayed on their sides, placing them in the pan of his pickup truck. Mr. Brenton left the post office and drove back to his residence in North Harbour arriving about 9:28 am. He offloaded the three boxes and brought them into his residence. The police moved in when Mr. Brenton was still outside in the parking lot and arrested him.

[22] The police went into Mr. Brenton’s house with a warrant authorizing them to enter and search it and saw the three boxes sitting on a bed in a bedroom off the main room of the house. The officers noted the word “Budget” on the sides of the boxes and concluded from that distinct feature and the overall appearances of the boxes they were the same ones that Mr. Brenton had just received at the post office and delivered to his house by truck. There was no one in the residence at the time.

[23] The police searched Mr. Brenton’s residence thoroughly and seized 31 items besides the three Budget boxes. The Crown tendered these items and I list them in the following table, providing the Court exhibit number assigned to them, a brief description of each and where it was recovered from:

Description	Exhibit #	Where Found
Budget Car and Truck Rental Box	S.G.#1	From Bed in Bedroom
Budget Car and Truck Rental Box	S.G.#2	From Bed in Bedroom
Budget Car and Truck Rental Box	S.G.#3	From Bed in Bedroom
Cellphone	W.W.#2	On Mr. Brenton
Scales	W.W.#3	From a Container on a Shelf
Zig Zag Rolling Papers	W.W.#4	From a Container on a Shelf
Baggy of marihuana	W.W.#5	From a Safe in the bedroom
Baggy of marihuana	W.W.#6	From a Safe in the bedroom
Mason jar of marihuana	W.W.#7	From a Shelf in Kitchen
Mesh cloth with residue	W.W.#8	From a Safe in the bedroom
Mason jar of marihuana	W.W.#9	From a Safe in the bedroom
Container with puck of hash	W.W.#10	From a Safe in the bedroom
LG Cellphone	W.W.#11	From a Safe in the bedroom
Score Sheet	W.W.#12	From a Safe in the bedroom
Scotiabank Envelope (to Mr. Brenton from BC)	W.W.#13	From Back of a dresser in bedroom
Budget Car and Truck Rental Box	W.W.#14A	From Porch at Entry to Residence
Budget Care and Truck Rental Box	W.W.#14B	From Porch at Entry to Residence
Shot Glass with Residue	W.W.#15	From a Container on Shelf
Glass Pipe	W.W.#16	From a Container on Shelf
Scissors	W.W.#17	From a Container on a Shelf
Canada Post Receipt	W.W.#18	From a Container on a Shelf
Gardening Magazine	W.W.#19	From the Bathroom
Cellphone	W.W.#20	From a Drawer in Main Room
Bong and Scales	W.W.#21	From a Drawer in Main Room
Pipe and Grinder	W.W.#22	From a Drawer in Main Room
Rolling Papers and Small Wire Screen	W.W.#23	From Tool Chest
Rolling Papers and Scale	W.W.#24	From Dresser in Bedroom
Canister of Creatine	W.W.#25	From Tool Chest
Plate with Residue	W.W.#26	From Tool Chest
Vacuum Sealer	W.W.#27	From Kitchen Counter
Baggies with “Diamond Kush” on the Side	W.W.#28	From Kitchen Cupboards
Bottle of Isopropyl Alcohol	W.W.#29	From Kitchen
Mason Jar	W.W.#30	From Shelf above Stove in Kitchen
Address Sticker (from W.W.#14B)	W.W.#31	From a Budget Box in Porch
Case Containing Rolling Papers and Seeds	W.W.#32	From Basement
Green MacBook Pro Laptop	W.W.#33	From Bedroom
Silver MacBook Pro Laptop	W.W.#34
Handwritten Note	W.W.#35

[24] I note that the police seized 108 grams of marihuana from Mr. Brenton’s residence which was variously distributed amongst Mason jars, baggies and other containers they found when they searched it. Those containers and their contents are amongst the exhibits listed in the above table.

[25] The police went to Mr. Brenton’s residence primarily to intercept the three Budget Car and Truck Rental boxes that they seized from his bedroom. They were expecting Mr. Brenton to receive the boxes and the police had been tracking them since May 29, 2014. This is how they found out about them.

[26] Shawn Goodyear works is a postal inspector with the Canada Post Corporation. He has been in that position for five years and says that he is generally responsible for the security of Canada Post buildings, the safety of Canada Post employees and the security of goods that are shipped through the mail. On May 29, 2014 Mr. Goodyear inspected three large, cardboard “Budget” boxes at the Main Post Office in St. John’s, NL. The labeling on the boxes indicated that they had shipped from British Columbia and that they were destined for “Glassworks Designs Inc., c/o J. Brenton, P. O. Box 34, North Harbour, NL A0E 2N0”.

[27] Mr. Goodyear said the boxes were suspicious because they smelled of marihuana so he invited Mark Wahl, another postal inspector to examine them. Mr. Wahl opened the boxes and found what he believed to be marihuana. Mr. Wahl contacted the RCMP and asked them to attend the Post Office. Constable Michael Lee Lush and a Corporal Tipple went to the Post Office and met with Inspector Wahl who took them to a locked room where he had secured the three Budget boxes that Mr. Goodyear alerted Mr. Wahl to.

[28] Constable Lush said he noted an overwhelming smell of marihuana when he entered the room and watched as Mr. Wahl opened the boxes. Constable Lush said he saw what he believed to be plastic sleeves, each containing five or six vacuum-sealed one-half pound bags of fresh marihuana. Box #1 (S.G.#1) contained 18 bags, Box #2 (S.G.#2) contained 30 bags and Box #3 (S.G.#3) contained 31 bags.

[29] The officers seized the three Budget boxes and transported them to the RCMP Headquarters in St. John’s where they weighed them. Each of the bags weighed approximately a half pound but there were slight variations amongst them so that the 79 bags weighed 38 and a quarter pounds altogether. Constable Lush and the other officers helping him, removed the bags of marihuana from the boxes and stored them in a secure exhibit locker in St. John’s; from which they eventually turned them over to the RCMP federal policing detachment in Burin, NL.

[30] Meanwhile, the police officers stuffed the Budget boxes with used clothing and other material approximating the weight of the marihuana they removed from them. On June 2, 2014, Constable George Trouposkidas and Corporal Mike Pilgrim of the RCMP transported the re-packed boxes to the Main Post Office of Canada Post in St. John’s and turned them over to Inspector Wahl. Inspector Wahl returned them to Canada Post’s shipping queue, destined for addressee “Glassworks Designs Inc., c/o J. Brenton, P. O. Box 34, North Harbour, NL A0E 2N0” as appears on the shipping label attached to each box.

[31] Three units of RCMP police officers traveled to the North Harbour area from the federal policing detachment in Burin on June 3, 2014. They left at approximately 6:00 am and arrived just before 7:30 am. Corporal Lloyd Hillier and Constable Read stopped in Swift Current to do surveillance on the Post Office there; Corporal Geoffrey Green and Constable Chris Noseworthy went to North Harbour to do surveillance on the Post Office there; and Constable William Walsh and Constable Chris Chaisson went to North Harbour to do surveillance on Mr. Brenton’s residence.

[32] At approximately 7:30 am a Pro Ex delivery truck stopped at the Post Office in Swift Current and offloaded the mail, including the three Budget boxes. The Pro Ex truck left the Post Office and headed south on Route 210, the Burin Peninsula Highway. Shortly after the Pro Ex truck departed Swift Current, a pickup truck registered to a person in Garden Cove, a nearby community, arrived at the Swift Current Post Office and received the three Budget boxes. It left the community and headed north on Route 210 with the boxes. Corporal Hillier and Constable Read followed after it and notified the officers who were in North Harbour of the imminent arrival of the local mail delivery truck.

[33] Corporal Green and Constable Noseworthy were at the Post Office in North Harbour. The officers saw the truck shortly after 8:00 am. The driver offloaded the three Budget boxes, brought them into the Post Office and departed directly. The officers stood by the area and maintained surveillance, next noting the white Silverado pickup truck driven by Mr. Brenton, who was alone in the vehicle, when it arrived around 9:17 am. Mr. Brenton went into the Post Office and brought the Budget boxes out one at a time and put them in the pan of his truck. Then he left the Post Office and turned onto the main road, heading towards his residence in North Harbour. Corporal Green and Constable Noseworthy followed behind Mr. Brenton and pulled up just short of his residence to see what he would do.

[34] Mr. Brenton backed his truck up to his residence, got out and took the three boxes into his residence. Corporal Green and Constable Noseworthy moved in on Mr. Brenton’s residence; and Corporal Green directed the other members who were nearby to accompany them as they did. Constables Walsh and Chaisson had been observing Mr. Brenton’s residence since they arrived in North Harbour just before 8:00 am on June 3, 2014. They saw Mr. Brenton leave his residence around 9:20 am aboard his white Silverado pickup truck and told the officers who were watching the Post Office that Mr. Brenton was on the move.

[35] Constables Walsh and Chaisson saw Mr. Brenton when he returned home about eight minutes later, at 9:28 am, and watched him unload the three Budget boxes from his truck and bring them into his residence. They went to Mr. Brenton’s home when Corporal Green directed and helped in the search and seized and secured some of the exhibits that I listed earlier. Constable Read arrested Mr. Brenton outside his home and advised him why he was under arrest and of his right to counsel; and also read him the police caution. Constable Walsh swore an information on June 4, 2014 charging Mr. Brenton with possessing marihuana for the purposes of trafficking. Mr. Brenton appeared before a Provincial Court Judge the same day and the Judge released him on an undertaking with conditions.

[36] The police were authorized to search Mr. Brenton’s residence on June 3, 2014 and seize the exhibits by a general warrant as well as a warrant issued under s. 11 of the Controlled Drugs and Substances Act. On June 18, 2014, Constable Read obtained a warrant allowing him to access Mr. Brenton’s telephone records. As well, Constable Read had applied for and received a tracking warrant while he discussed with the other officers whether they would effect a controlled or conventional delivery of the Budget boxes when they put them back in the mail delivery system; but when they elected to do a conventional delivery they did not require the tracking warrant. The officers provided Mr. Brenton with copies of all warrants they relied on.

DISCUSSION

[37] The onus is on the Crown to prove all elements of the charge against Mr. Brenton beyond a reasonable doubt. Mr. Brenton’s identity and the date, time and place of the offence are clearly established by the evidence the Crown led and are not in issue. I will examine closely the two remaining elements that underpin the charge and go to the substance of the case against Mr. Brenton. They are:

1. Did the Crown prove beyond a reasonable doubt that Mr. Brenton possessed the marihuana?

2. If so, did the Crown prove beyond a reasonable doubt that Mr. Brenton possessed the marihuana for the purposes of trafficking in it?

[38] I answer each of these questions affirmatively. Let me explain why, starting with the proof that Mr. Brenton possessed the marihuana.

Possession

[39] In Bonassin, Welsh, J.A. said that possession has three constituent elements: knowledge of the item; intention or consent to have possession of the item; and control over the item. There is no doubt that the Crown proved all three elements for possession of the items that the police seized from Mr. Brenton’s house in North Harbour. Many of the items were in plain view; Mr. Brenton lived there, and there is no evidence that anyone else lived with him, save possibly his mother; and he was at the residence when the police searched it and seized them on June 3, 2014. It is self-evident that Mr. Brenton had knowledge of the items, that he intended to possess them and that he had control over them.

[40] But what of the three Budget boxes that Canada Post intercepted and from which the RCMP removed all the marihuana and re-stuffed them with the benign contents they held when Mr. Brenton received them from the Post Office? It is true that Mr. Brenton never had personal possession of the marihuana that had been in those boxes before the police removed it. Yet he did have constructive possession of it; and that is good enough.

[41] A person is in constructive possession of an object if he (paraphrasing s. 4(3) of the Criminal Code for present purposes) knowingly has it in the possession of another person, or has it in any place for his own or another person’s purposes. The three Budget boxes that Canada Post intercepted and turned over to the RCMP were addressed to “Glassworks Designs Inc., c/o J. Brenton, P. O. Box 34, North Harbour, NL A0E 2N0”.

[42] Mr. Brenton received the boxes at that address, he took control of them there and he delivered them to his home in North Harbour to complete the transaction. Mr. Brenton did not know the police had removed the marihuana and re-packed the boxes to make them appear by weight and presentation to contain the marihuana that had been in them. Mr. Brenton knew of the three boxes; he intended to possess them; and he took control of the boxes when they arrived at his mailing address, believing and expecting that he was receiving the marihuana that had been in them until the police intervened. His possession of the marihuana was constructed when all of those factors intersected at the Post Office in North Harbour on June 3, 2014.

[43] But lest there be any doubt about it, there is more evidence showing that Mr. Brenton knew about the three Budget boxes, that he intended to receive them as they were shipped from their source in British Columbia and that he exercised ongoing control over their delivery. I noted earlier that the police seized several cellphones when they arrested Mr. Brenton and searched his residence on June 3, 2014. Corporal Franklin of the RCMP B Division Technological Crime Unit, analyzed forensically one of the cellphones that was seized and recovered text messages from it. The unit, an Apple iPhone, belonged to Mr. Brenton.

[44] Corporal Franklin recovered the following text messages exchanged between Mr. Brenton’s iPhone, number (709) 277-0439 and another cellphone using a British Columbia area code, (250) 308-2580:

May 25, 2014
Number	Time	Text
(250) 308-2580	2:58:08 PM	Just picked up last of your order…sending out tomorrow
(709) 277-0439	5:25:22 PM	Cool.
(709) 277-0439	9:29:13 PM	U at. U around.
May 26, 2014
(250) 308-2580	3:50:24 AM	Hey bro…I was just getting things together …Couldn’t find bro with the pucks…Will try tomorrow again
(709) 277-0439	4:25:48 AM	K. Cool. Text tomorrow u gets on the go. My mom is moving home so going to line things up to be there for end of July.
(250) 308-2580	4:27:57 AM	Sweet bro
(250) 308-2580	1:20:00 PM	0130397000967076
(250) 308-2580	1:20:00 PM	I made mistake
(250) 308-2580	3:40:48 PM	Mail is being delivered bro!!!
(709) 277-0439	3:47:18 PM	Cool. Did u get yet.

[45] The evidence shows that Mr. Brenton’s supplier shipped the three Budget boxes full of marihuana to him on May 26, 2014. I note the following from these messages:

• the words “your order” that appear in the first text message in the above table confirms that Mr. Brenton “ordered” the marihuana that the police removed from the Budget boxes in St. John’s;

• the second last text message – “Mail is being delivered bro!!!” – confirms that Mr. Brenton’s “order” has been filled; and,

• the number – 0130397000967076 – is most likely the tracking number for the shipment, so that Mr. Brenton could follow the order as it traveled from his supplier in British Columbia to his home in North Harbour.

[46] From the above I deduce that Mr. Brenton ordered the marihuana, agreed as to the method of shipping and was able to observe the movement of the packages in transit. Ergo, he had the knowledge, intent and control that are the elements of constructive possession.

[47] Corporal Franklin recovered other text messages from Mr. Brenton’s iPhone that support those inferences. In this table, Mr. Brenton’s iPhone number is still (709) 277-0439, but the messages are exchanged with cellphone (709) 427-1588, using the Newfoundland and Labrador area code:

June 3, 2014
(709) 427-1588	11:14:08 AM	They’re hereeeeeeeee! Lol
(709) 277-0439	11:15:57 AM	What
(709) 427-1588	11:16:16 AM	Lol you don’t know who this is right??
(709) 427-1588	11:17:27 AM	Your parcels by!! They are taking over my post office!! Lol
(709) 277-0439	11:17:47 AM	Cool. Thanks. Be right over
(709) 427-1588	11:19:47 AM	I’m in the shower by…best wait till around quarter past 9 :)
(709) 277-0439	11:20:16 AM	K

[48] This exchange of messages clearly captures a notice from someone at the post office in North Harbour to Mr. Brenton that the Budget boxes had arrived and he should come and pick them up. Mr. Brenton was pleased at the notice – “Cool. Thanks. Be right over” – and left his home, as Constables Walsh and Chaisson noted, around 9:20 am to go to the Post Office. As far as Mr. Brenton knew and intended at that time, he was about to take personal possession of his shipment. That did not happen, of course, but it sealed his constructive possession of it.

For the Purposes of Trafficking

[49] In R. v. Chan (2003), 2003 CanLII 52165 (ON CA), 178 C.C.C. (3d) 269, 18 C.R. (6th) 322 (Ont. C.A.), Simmons, J.A. noted that:

…the quantity of a controlled substance that an accused person possesses often plays a role in determining whether an inference of possession for the purpose of trafficking should be drawn.

[50] To which she add hastily: “However, the fact that quantity can be, and often is, an indicium of purpose, does not make it a part of the actus reus of the offence. (para. 33).

[51] There are interesting parallels between Chan and this case. The trial judge convicted Mr. Chan of possessing heroin for the purposes of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act and sentenced him to 10 years’ imprisonment. Mr. Chan appealed his conviction and sought leave to appeal his sentence. The Ontario Court of Appeal dismissed Mr. Chan’s appeal and the Supreme Court of Canada refused him leave to appeal its dismissal.

[52] The RCMP intercepted a package that was destined for Mr. Chan, removed six kilograms of heroin from it, substituted some wooden blocks and installed a transmitting device. The police effected a controlled delivery and put one gram of the six kilograms of heroin back in the package. Mr. Chan took delivery of the package and conceded that he had constructive possession of the one gram of heroin; but he submitted that possessing one gram of heroin was not sufficient to find him in possession of heroin for the purposes of trafficking. The trial judge rejected Mr. Chan’s argument and:

…concluded that…[Mr. Chan's] expectation that he would be receiving a substantial quantity of heroin was sufficient to warrant a conviction for the offence of possession for the purpose of trafficking”(underlining mine). (para. 22).

[53] I noted earlier that “traffic” is defined in s. 2(1) of the Controlled Drugs and Substances Act, for substances included in Schedules I to IV as: “(a) to sell, administer, give, transfer, transport, send or deliver the substance, (b) to sell an authorization to obtain the substance, or (c) to offer to do anything mentioned in paragraph (a) or (b)…”. There is overwhelming evidence that Mr. Brenton intended to traffic in the marihuana that he expected to receive from British Columbia. Let me explain.

[54] Constable David Emberley is a 13-year member of the RCMP. He joined the police force in February 2003 and has worked exclusively on drug investigations since August 2009. From February 2003 to August 2009 he was a general duty member of the RCMP and gained some experience with drug investigations. The Crown presented Constable Emberley as a person from whom I should accept opinion evidence about the business of trafficking in marihuana, both at the street and supplier levels. I agree that Constable Emberley could present opinion evidence on these issues; based upon Constable Emberley’s CV, his training and experience and his prior qualifications to give evidence on those issues, both in this Court and the Provincial Court.

[55] Constable Emberley submitted an “opinion report” from his review of the evidence in this case. I received it as Exhibit D.E.#2. Constable Emberley concluded his report with this opinion: “…[T]aking into consideration the totality of the circumstances, the evidence presented to me was consistent with marihuana trafficking at the supplier level”. (Exhibit D.E.#2, p. 6).

[56] Constable Emberley summarized the “circumstances” he relied on earlier in his report:

The Apple iphone contained text message conversations that I believe relate to marihuana trafficking. There are also text message conversations that I believe relate to the three boxes of marihuana located at Canada [Post]. Based on my experience, I believe the user of this cellphone was trafficking in marihuana.

I believe the handwritten note contains information consistent with marihuana trafficking. Based on my experience, I believe there would be no reason why a drug user would be in possession of such a document.

Digital scales, vacuum sealer, vacuum bags and a bag of elastic bands were also located during the search. Based on my experience, I believe these items are all consistent with trafficking.

Items were also located that are consistent with the personal use of drugs. Based on my experience, I know that most drug traffickers are also drug users.

17,473 Grams of marihuana is a 23 year supply for a heavy marihuana user. The THC ingredient of marihuana is what produces the ‘high’ to the user. After six months, the THC level in marihuana is normally depleted to the point where the user will notice a dramatic difference in the ‘high’. It does not make sense why a person would be in possession of such a quantity of marihuana for personal use. This is not to mention the amount of money tied up in the drug. (Exhibit D.E.#2, p. 6).

[57] The preceding is the “Conclusion” of Constable Emberley’s opinion report. I note that he discusses all aspects of the evidence he relies on in this conclusion in more detail in his report and also addressed them fully when he testified before me. I will not review all of those details but a few explanatory comments are needed:

• Constable Emberley converted the marihuana that Mr. Brenton had in his possession (38.25 pounds in the three Budget boxes and 108 grams in his residence) into grams to get the total of 17,473 grams. Positing that a “…heavy marihuana user will smoke an average of two grams of marihuana every day”, he calculated that Mr. Brenton had a “…23 year supply for a heavy user of marihuana” in his possession (emphasis in original). (Exhibit D.E.#2, pp. 3-4).

• Constable Emberley referred to other text messages that Corporal Franklin extracted from Mr. Brenton’s iPhone besides those that I set out earlier in these reasons.

• Constable Emberley analyzed a handwritten note that Constable Walsh seized when the RCMP searched Mr. Brenton’s home on June 3, 2014. Constable Emberley believes that names that appear in the note, including “Black diamond kush”, “blueberry”, “God” and “Superstar” refer to varieties of marihuana and he notes that numbers associated with those names are volumes and prices of those varieties. Of these quantities, he notes that “…these amounts are well beyond what a user would be in possession of”. (Exhibit D.E.#2, p. 5). He concludes that “…this note is consistent with marihuana being trafficked at the supplier level”. (Exhibit D.E.#2, p. 5).

• Constable Emberley says that the three sets of digital scales, a vacuum sealer, some vacuum bags and a bag of elastic bands recovered from Mr. Brenton’s residence are consistent with drug trafficking:

o Scales: Users do not weigh the marihuana they use but traffickers do.

o Vacuum sealers and bags: For packaging marihuana to make it harder to detect marihuana and easier to transport.

o Elastic bands: Used in bundling and containing large amounts of cash.

[58] Overall, as I noted above, the evidence that Mr. Brenton possessed the marijuana for the purposes of trafficking in it is overwhelming. I find that he was.

Other Considerations

[59] Mr. Brenton did not testify himself and called no evidence. He claims that this Court has no jurisdiction over him as a “man” and as a “private citizen”. He filed various documents on December 11, 2015, including an “Affidavit of Jason David Henry Brenton; Private citizen”, “Affidavit of Self Appointed Litigation Representative” and a “Statement of Will and Indenture: Jason David Henry Brenton; Private citizen”. In the second of these documents, Mr. Brenton declares that “I do not submit to this court’s, or any other foreign jurisdiction, in the above-styled cause…”. (Affidavit of Self Appointed Litigation Representative, para. 4).

[60] Our Court of Appeal recently dealt with similar submissions from an appellant in Fiander v. Mills, 2015 NLCA 31 (CanLII), 368 Nfld. & P.E.I.R. 80, although it was a slightly different context. Green, C.J.N.L. dismissed Mr. Fiander’s submissions outright and directed how trial courts confronted with similar submissions might dispense with them:

…(A)rguments relating to opting out of legislation, the fractionating of human personality to support claims of not being subject to law and the fanciful use of arguments based on birth certificates to create notions of estates to advance submissions that would otherwise have no rational support in the jurisprudence, have no basis in the law in this jurisdiction. It would therefore be open to a trial court in the future, when made aware of such submissions in other proceedings, to treat those submissions as presumptively vexatious and abusive and to act pre-emptively to prevent such claims from improperly clogging up the legal system to the cost and prejudice of those who would otherwise have to face and deal with them. (para. 40).

[61] Mr. Brenton’s claims have, as Green, C.J.N.L. said, “no basis in law in this jurisdiction”; they have no merit at all and do not bear upon his prosecution for possessing marihuana for the purposes of trafficking. I am satisfied that the Crown has proved the charge against Mr. Brenton beyond a reasonable doubt and I find him guilty of the offence. Let me set a time and date to sentence Mr. Brenton for this offence.

SUMMARY AND DISPOSITION

[62] The Crown charged Jason Brenton with possessing approximately 39 pounds of marihuana for the purposes of trafficking. Mr. Brenton pleaded not guilty to the charge but denied that the Court had any jurisdiction over him and refused to submit to the jurisdiction of the Court for the trial.

[63] The Court dismissed Mr. Brenton’s claim that it had no jurisdiction over him as completely without merit and found that the Crown proved the charge against him beyond a reasonable doubt. It convicted Mr. Brenton and set a time and date to sentence him for the offence.

_____________________________

GARRETT A. HANDRIGAN

Justice

Angel Ronan Entwerfen™ Firm; Journal, Intellectual Property with ENTWERFEN ™ Litigation

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R. v. Brenton, 2016 CanLII 24207 (NL SC)

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