Criminal Law – Controlled Drugs and Substances Act – Possession for the Purpose of Trafficking – Conviction – Appeal
The appellant appealed her conviction for possession of fentanyl, methamphetamine (meth) and cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act (see: 2018 SKPC 10). The RCMP executed a warrant to search a mobile home in Kindersley occupied by the appellant and J.O. The appellant was not present during the search, but J.O. was arrested on site after the police found small quantities on J.O.’s person and in the trailer, totaling 10.5 grams of cocaine, 11.3 grams of meth and 23.5 tablets of fentanyl. He was charged and later pleaded guilty to the same offences with which the appellant was charged. The police seized a surveillance video recorder, drug paraphernalia, digital scales, zippered plastic bags, scoresheets, a laptop, a tablet, a rifle, throwing knives, five cellular phones, $1,700 in cash and additional fentanyl, meth and cocaine. At trial, evidence was presented that both the appellant and J.O. were heavy drug users. An RCMP officer, qualified as an expert witness on drug usage and trafficking, testified to the amounts of cocaine, fentanyl and meth per day that a user would keep on hand and commented that, generally, as these drugs are readily available, users would not risk having amounts such as those found in the trailer and on J.O. for fear of being of accused of possession for the purpose of trafficking. He agreed that the quantity found was not a significant surplus for a typical drug user and that he was not aware of availability of these drugs in Kindersley because his experience was with drug users in Saskatoon. The police reviewed the videos taken by the surveillance cameras outside the trailer that revealed multiple visits of short duration by third parties. They also found numerous text messages on one of the seized cellphones and some of them were to or from a person named “Kitty” or “K”. In the opinion of the expert witness, the text messages related to drug trafficking. J.O. did not confirm that the cellphone from which the messages were recovered belonged to him. There was no evidence that the appellant had a cellphone or what her number was. J.O. testified that he used both “Kitty” and “K” as nicknames for the appellant. Evidence was also given from another witness who testified that J.O. and the appellant were involved in illicit sales of meth, fentanyl and cocaine and that he had personally purchased drugs from the appellant. The trial judge found that the Crown had proven beyond a reasonable doubt that the appellant and J.O. had acted in concert in a common enterprise to traffic in illicit drugs on the basis of the nature, quantity and quality of the drugs seized, the other items, the surveillance recordings, the expert’s opinion and the evidence of J.O. and the drug purchaser. The drugs were possessed jointly by the appellant and J.O. for the purpose of trafficking. Among the grounds of appeal were whether the trial judge erred in law by: 1) admitting the evidence of the text messages when their interception was not authorized by or pursuant to Part VI of the Criminal Code; 2) relying on the content of the text messages to and from “K” as messages to and from the appellant; and 3) misapprehending the expert witness’ evidence as to the availability of specific drugs in the Kindersley area.
HELD: The appeal was dismissed. The court found that the trial judge had not erred in law with respect to: 1) admitting the text messages. The searching of a cellphone for text messages is not an interception pursuant to s. 183 of the Code and, therefore, authorization pursuant to Part VI is not required; 2) relying on the content of the messages as evidence that the sender or recipient was the appellant, because it was not the only evidence relevant to the identification of “K”, which included the video recordings and the drug purchaser’s evidence; and 3) misapprehending the evidence. His judgment referred to the fact that the witness testified that he was not as familiar with Kindersley and he was entitled to consider the evidence of availability in the context of the other evidence relevant to the question of whether the appellant and J.O. were engaged in a joint trafficking operation.