r. v. smith transcripts volume 1

7/30/2019 R. v. Smith Transcripts Volume 1

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Court of Appeal CA040556

J.C. WordAssist Ltd.Head Office Toll Free 1-888-811-9882Nanaimo Branch Office 250-754-7822

COURT OF APPEAL

ON APPEAL FROM THE SUPREME COURT OF BRITISH COLUMBIA,

FROM THE ACQUITTAL OF THE HONOURABLE MR. JUSTICE JOHNSTON,PRONOUNCED ON THE 10TH DAY OF JANUARY 2013.

REGINA

APPELLANTv.

OWEN EDWARD SMITH

RESPONDENT

TRANSCRIPTVolume 1 (Pages 1 - 156)

Public Prosecution Service of Canada W. Paul Riley900 - 840 Howe StreetVancouver, B.C. V6Z 2S9 CounselPhone: (604) 775-7475Fax: (604) 666-1599

Solicitors for the Appellant

Kirk Tousaw Kirk I. Tousaw 1135 Fisher RoadCobble Hill, B.C. V0R 1L4 CounselPhone: (604) 836-1420

Solicitor for the Respondent


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Head Office Toll Free 1-888-811-9882Victoria Office 250-477-8080

149345-2Victoria Registry

In the Supreme Court of British Columbia(BEFORE THE HONOURABLE MR. JUSTICE JOHNSTON)

Victoria, B.C.January 16, 17, 18, 19, 20, 23, 24, 25, 26, 2012

February 1, 6, 7, 8, 27, 28, 29, 2012March 1, 2012April 13, 2012

January 10, 2013

REGINA

v.

OWEN EDWARD SMITH

PROCEEDINGS AT TRIAL

Crown Counsel: P. EcclesK. Guest

Defence Counsel: K. Tousaw


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INDEX

VOLUME 1PROCEEDINGS AT TRIAL - JANUARY 16, 2012

Proceedings .......................................................................................................... 1

WITNESSES FOR THE CROWNCOLIN BREWSTER ................................................................................ 12EXAMINATION IN CHIEF ON VOIR DIRE BY MR. ECCLES: ................. 12CROSS-EXAMINATION ON VOIR DIRE BY MR. TOUSAW: .................. 35

WITNESSES FOR THE ACCUSEDLEON EDWARD SMITH .......................................................................... 42EXAMINATION IN CHIEF ON VOIR DIRE BY MR. TOUSAW: ............... 43

PROCEEDINGS AT TRIAL - JANUARY 17, 2012

Proceedings ........................................................................................................ 76

WITNESSES FOR THE ACCUSEDLEON EDWARD SMITH .......................................................................... 80EXAMINATION IN CHIEF ON VOIR DIRE BY MR. TOUSAW: ............... 80CROSS-EXAMINATION ON VOIR DIRE BY MR. ECCLES: ................. 140


Proceedings ...................................................................................................... 156


Proceedings ...................................................................................................... 157

WITNESSES FOR THE ACCUSEDLEON EDWARD SMITH ........................................................................ 158CROSS-EXAM ON VOIR DIRE BY MR. ECCLES, CONTINUING: ....... 158RE-EXAMINATION ON VOIR DIRE BY MR. TOUSAW: ........................ 212GAYLE QUIN ......................................................................................... 217EXAMINATION IN CHIEF ON VOIR DIRE BY MR. TOUSAW: ............. 218


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Proceedings ...................................................................................................... 233

WITNESSES FOR THE ACCUSEDGAYLE QUIN ......................................................................................... 242EXAM IN CHIEF ON VOIR DIRE BY MR. TOUSAW, CONTINUING: ... 243CROSS-EXAMINATION ON VOIR DIRE BY MR. ECCLES: ................. 270


Proceedings ...................................................................................................... 288

WITNESSES FOR THE ACCUSEDDAVID PATE ......................................................................................... 288EXAMINATION IN CHIEF ON VOIR DIRE BY MR. TOUSAW: ............. 291


Proceedings ...................................................................................................... 352

WITNESSES FOR THE ACCUSEDDAVID PATE ......................................................................................... 352EXAM IN CHIEF ON VOIR DIRE BY MR. TOUSAW, CONTINUING: ... 352CROSS-EXAMINATION ON VOIR DIRE BY MR. ECCLES: ................. 356RE-EXAMINATION ON VOIR DIRE BY MR. TOUSAW: ........................ 429


Proceedings ...................................................................................................... 435

WITNESSES FOR THE ACCUSEDSANDRA LARGE .................................................................................. 435EXAMINATION IN CHIEF ON VOIR DIRE BY MR. TOUSAW: ............. 435CROSS-EXAMINATION ON VOIR DIRE BY MS. GUEST: ................... 459GIOCONDA HERMAN ........................................................................... 471EXAMINATION IN CHIEF ON VOIR DIRE BY MR. TOUSAW: ............. 471


Proceedings ...................................................................................................... 495


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WITNESSES FOR THE ACCUSEDGIOCONDA HERMAN ........................................................................... 495EXAM IN CHIEF ON VOIR DIRE BY MR. TOUSAW, CONTINUING: ... 495CROSS-EXAMINATION ON VOIR DIRE BY MR. ECCLES: ................. 499RUTH ARTHURS................................................................................... 511EXAMINATION IN CHIEF ON VOIR DIRE BY MR. TOUSAW: ............. 511CROSS-EXAMINATION ON VOIR DIRE BY MS. GUEST: ................... 524

PROCEEDINGS AT TRIAL - FEBRUARY 1, 2012

Proceedings ...................................................................................................... 532

VOLUME 4PROCEEDINGS AT TRIAL - FEBRUARY 6, 2012

Proceedings ...................................................................................................... 537

WITNESSES FOR THE CROWNHANAN ABRAMOVICI .......................................................................... 539EXAMINATION IN CHIEF ON VOIR DIRE BY MR. ECCLES: ............... 539CROSS-EXAMINATION ON VOIR DIRE BY MR. TOUSAW: ................ 556


Proceedings ...................................................................................................... 619

WITNESSES FOR THE CROWNHANAN ABRAMOVICI .......................................................................... 619CROSS-EXAM BY MR. TOUSAW ON VOIR DIRE, CONTINUING: ...... 619

VOLUME 5PROCEEDINGS AT TRIAL - FEBRUARY 8, 2012

Proceedings ...................................................................................................... 717

WITNESSES FOR THE CROWNHANAN ABRAMOVICI .......................................................................... 717CROSS-EXAM BY MR. TOUSAW ON VOIR DIRE, CONTINUING: ...... 717RE-EXAMINATION BY MR. ECCLES ON VOIR DIRE: ......................... 738


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Proceedings ...................................................................................................... 783


Proceedings ...................................................................................................... 784


Proceedings ...................................................................................................... 785

PROCEEDINGS AT TRIAL - MARCH 1, 2012

Proceedings ...................................................................................................... 786

PROCEEDINGS AT TRIAL - APRIL 13, 2012

Proceedings ...................................................................................................... 787


Proceedings ...................................................................................................... 791

EXHIBITS

EXHIBITS ON VOIR DIREEXHIBIT 1: Admissions filed January 16, 2012 ............................................. 3EXHIBIT 1-A: Amended Admissions filed January 17, 2012 ........................... 76EXHIBIT 2: Crown's Book of Photographs ................................................... 14EXHIBIT 3: Victoria Police Department Exhibit Flow Chart .......................... 17EXHIBIT 4.1: Original Analyst Report No. 09 14838 V ................................... 30EXHIBIT 4.2: Original Analyst Report No. 09 14835 V ................................... 30EXHIBIT 4.3: Original Analyst Report No. 09 14839 V ................................... 30EXHIBIT 4.4: Original Analyst Report No. 09 14803 V ................................... 30EXHIBIT 4.5: Original Analyst Report No. 09 14804 V ................................... 30EXHIBIT 4.6: Original Analyst Report No. 09 14805 V ................................... 30EXHIBIT 4.7: Original Analyst Report No. 09 14806 V ................................... 30EXHIBIT 4.8: Original Analyst Report No. 09 14807 V ................................... 30EXHIBIT 4.9: Original Analyst Report No. 09 14808 V ................................... 30EXHIBIT 4.10: Original Analyst Report No 09 14809 V .................................... 30


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EXHIBIT 4.11: Original Analyst Report No. 09 14810 V ................................... 31EXHIBIT 4.12: Original Analyst Report No. 09 14811 V ................................... 31EXHIBIT 4.13: Original Analyst Report No. 09 14812 V ................................... 31EXHIBIT 4.14: Original Analyst Report No. 09 14813 V ................................... 31EXHIBIT 4.15: Original Analyst Report No. 09 14814 V ................................... 31EXHIBIT 4.16: Original Analyst Report No. 09 14815 V ................................... 31EXHIBIT 4.17: Original Analyst Report No. 09 14816 V ................................... 31EXHIBIT 4.18: Original Analyst Report No. 09 14817 V ................................... 31EXHIBIT 4.19: Original Analyst Report No. 09 14818 V ................................... 31EXHIBIT 4.20: Original Analyst Report No. 09 14819 V ................................... 31EXHIBIT 4.21: Original Analyst Report No. 09 14820 V ................................... 31EXHIBIT 4.22: Original Analyst Report No. 09 14821 V ................................... 31EXHIBIT 4.23: Original Analyst Report No. 09 14822 V ................................... 31EXHIBIT 4.24: Original Analyst Report No. 09 14823 V ................................... 31EXHIBIT 4.25: Original Analyst Report No. 09 14824 V ................................... 31EXHIBIT 4.26: Original Analyst Report No. 09 14825 V ................................... 31EXHIBIT 4.27: Original Analyst Report No. 09 14826 V ................................... 32EXHIBIT 4.28: Original Analyst Report No 09 14827 V .................................... 32EXHIBIT 4.29: Original Analyst Report No. 09 14828 V ................................... 32EXHIBIT 4.30: Original Analyst Report No. 09 14829 V ................................... 32EXHIBIT 4.31: Original Analyst Report No. 09 14830 V ................................... 32EXHIBIT 4.32: Original Analyst Report No. 09 14831 V ................................... 32EXHIBIT 4.33: Original Analyst Report No. 09 14832 V ................................... 32EXHIBIT 4.34: Original Analyst Report No. 09 14833 V ................................... 32EXHIBIT 4.35: Original Analyst Report No. 09 14834 V ................................... 32EXHIBIT 4.36: Original Analyst Report No. 09 14836 V ................................... 32EXHIBIT 4.37: Original Analyst Report No. 09 14837 V ................................... 32EXHIBIT 4.38: Original Analyst Report No. 09 14840 V ................................... 32EXHIBIT 4.39: Original Analyst Report No. 09 14841 V ................................... 32EXHIBIT 4.40: Original Analyst Report No. 09 14842 V ................................... 32EXHIBIT 4.41: Original Analyst Report No. 09 14843 V ................................... 32EXHIBIT 5: DVD containing scene video images......................................... 34EXHIBIT 6: City of Victoria Proclamation "International Medical Marijuana

Day" ........................................................................................ 112EXHIBIT 7: Letter from Office of the Mayor of Victoria, B.C. to Tony

Clement dated March 20, 2006 ............................................... 116EXHIBIT 8: Letter to Leon Smith from Susan Fletcher, July 27, 2005 ....... 117EXHIBIT 9: Letter from Leon "Ted" Smith to Susan Fletcher dated

January 4, 2006 ...................................................................... 119EXHIBIT 10: Letter to Ujjal Dosanjh from Leon "Ted" Smith dated

February 3, 2005 ..................................................................... 121


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EXHIBIT 33: 1-page copy of document from London Health Servicesdated July 22, 2004 ................................................................. 484

EXHIBIT 34: 1-page document from Vancouver Island Health Authoritydated May 6, 2009 .................................................................. 485

EXHIBIT 35: 3-page copy of fax dated May 11, 2005 from Dr. LaurenceJerome Re: Gina Herman ....................................................... 487

EXHIBIT 36: 1-page document of Prescription Authorization Requestprinted on January 20, 2012 re Herman, Gioconda ................ 488

EXHIBIT 37: 4-page copy of document entitled Form B1 ............................ 493EXHIBIT 38: Copy of letter from Dr. Grimwood to Mr. Brooks re Ruth Ann

Arthurs dated April 15, 2010 ................................................... 515EXHIBIT 39: 1-page copy of assessment form for Life Mark

Physiotherapy re Ruth Arthurs dated March 17, 2010 ............ 517EXHIBIT 40: Affidavit of Hanan Abramovici ................................................ 556EXHIBIT 41: "Multicenter, double-blind, randomized, placebo-controlled,

parallel-group study of the efficacy, safety, and tolerability of THC:CBD extract and THC extract in patients with intractablecancer-related pain" ................................................................ 721

EXHIBIT 42: "Adverse effects of medicinal cannabinoids: a systematicreview" .................................................................................... 726

EXHIBIT 43: Large cerlox bound volume, affidavit of Eric Ormsby .............. 755EXHIBIT 44: Curriculum vitae of Eric Ormsby ............................................. 765

EXHIBITS FOR IDENTIFICATION ON VOIR DIREEXHIBIT A: Cannabis Buyers' Club of Canada, Product Guide ................. 102EXHIBIT B: Letter to Tony Clement on International Hempology 101

Society letterhead dated December 4, 2007 ........................... 136EXHIBIT C: Binder of Health Canada MMAR information .......................... 194EXHIBIT D: Affidavit of Dr. Harold Kalant sworn April 3, 2008 ................... 412

RULINGS

Plea ...................................................................................................................... 2Ruling re re Ban on Publication .......................................................................... 10Order re Exclusion of Witnesses ......................................................................... 11Ruling re admissibility of document .................................................................. 100Ruling re admissibility of document .................................................................. 115Ruling re admissibility of document .................................................................. 119Ruling re admissibility of question on re-examination ....................................... 214Ruling re Qualification of Witness re Pate ........................................................ 291


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[RULING RE ADJOURNMENT APPLICATION] ............................................... 533Ruling re Qualification of Witness re Abramovici .............................................. 538Ruling on Voir Dire ............................................................................................ 787Ruling on Voir Dire ............................................................................................ 788Re-Election ....................................................................................................... 791Plea .................................................................................................................. 794Reasons for Judgment re Acquittal ................................................................... 795


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Victoria, B.C.1January 16, 20122

3THE CLERK: Monday, January the 16th, 2012, in the4

Supreme Court of British Columbia. Calling the5matter of Her Majesty the Queen against Owen6Edward Smith, My Lord.7

MR. ECCLES: May it please the court, Peter Eccles,8E-c-c-l-e-s. I appear for the Federal Crown on9this matter.10

MS. GUEST: Christina Guest, G-u-e-s-t, also appearing11on behalf of the Federal Crown.12

MR. TOUSAW: My Lord, my name is Kirk Tousaw,13T-o-u-s-a-w. I appear for Mr. Smith. Mr. Smith14

is present in the courtroom. He's seated next to15the sheriff in the back. I'd ask Your Honour's16leave to have him sit at counsel table with me.17

THE COURT: Why?18MR. TOUSAW: Just so he can take notes and pass them to19

me if necessary.20THE COURT: He can make notes from where he is. I21

don't think we need an accused at counsel table.22MR. TOUSAW: Thank you, My Lord.23

My Lord, this is Mr. Smith's -- Mr. Smith is24charged with possession for the purpose of25trafficking THC, tetrahydrocannabinol, and simple26

possession of cannabis. My friend and I have27 worked, as My Lord's aware, on some admissions28that we discussed at the pre-trial on this matter.29I have just signed a copy, and my friend I believe30is going to hand them up.31

THE COURT: Perhaps we should get it started with a32plea. Madam Registrar, could you take a plea from33Mr. Smith, please?34

Mr. Smith, would you stand up, please?35THE CLERK: Court File 149345-2.36

37

IN THE SUPREME COURT OF BRITISH COLUMBIA38CANADA39PROVINCE [sic] OF Victoria.40

41

HER MAJESTY THE QUEEN42AGAINST43

OWEN EDWARD SMITH.4445

Owen Edward SMITH stands charged that:4647


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...on or about the 3rd day of December, 2009,1at or near the City of Victoria, in the2Province of British Columbia, did unlawfully3possess a controlled substance, to wit:4Tetrahydrocannabinol, for the purpose of5trafficking, contrary to s. 5(2) of the6Controlled Drugs and Substances Act ,7

8

AND AGAINST THE PEACE OF OUR LADY THE QUEEN, HER9CROWN AND DIGNITY.10

11

And how do you plead?12THE ACCUSED: Not guilty, Your Honour.13THE CLERK: Not guilty, My Lord.14

THE COURT: All right. Thank you.15THE CLERK:16

17

Owen Edward SMITH stands charged that:1819

...on or about the 3rd day of December, 2009,20at or near Victoria, in the Province of21British Columbia, did unlawfully possess a22controlled substance, to wit: Cannabis23(marihuana), contrary to s. 4(1) of the24Controlled Drugs and Substances Act ,25

26

AND AGAINST THE PEACE OF OUR LADY THE QUEEN,27 HER CROWN AND HER DIGNITY.2829

And how do you plead?30THE ACCUSED: Not guilty, Your Honour.31THE CLERK: Not guilty, My Lord.32THE COURT: Thank you. You may sit down, Mr. Smith.33MR. TOUSAW: Thank you, My Lord.34

My friend and I have prepared some35admissions. Essentially Mr. Smith is admitting36the existence of the exhibits, the continuity of37the exhibits, the elements of the offences38charged. We'll be asking Your Lordship to declare39a voir dire for purposes of testing the -- testing40the law, both vis--vis the Charter , as well as41making an application for a judicial stay of42proceedings.43

My friend and I have discussed at some length44the proposed order, and if Your Lordship wishes I45can perhaps give you a synopsis of how we, at46least, think the matter is going to proceed.47


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THE COURT: Yes, please.1MR. TOUSAW: I'm going to commence with the filing of2

the admissions that establish I think the elements3of the offence and certain other basic facts. And4my friend I think has a copy that we'll hand up.5It's been adjusted this morning. We can file a6cleaner copy later today if necessary.7

THE COURT: All right.8MR. ECCLES: Yes, My Lord. The revisions are -- what's9

being handed up was a draft admission. I've10crossed out "draft" and I've crossed out a couple11of areas where we were not able to finalize12admissions. What I -- my friend and I propose is13I have a -- some materials coming over from14

Vancouver, where I'm based, which is also where my15computer with that document on it is. I can16contact my office and have the document tidied up,17so to speak, and then it will be sent over with18the balance of the materials that should arrive19tomorrow, subject to the weather in Vancouver and20the difficulty in getting anything onto a plane --21

THE COURT: All right.22MR. ECCLES: -- when the plane isn't flying.23THE COURT: We'll mark this as Exhibit 1.24MR. TOUSAW: Thank you, My Lord.25THE COURT: Madam Clerk, would you staple it together,26

and mark it as an exhibit.2728EXHIBIT 1 (on voir dire #1): Admissions29filed January 16, 201230

31

MR. TOUSAW: I understand that my friend will then call32the exhibit officer who attended the scene to give33essentially an overview of what was found. He has34a book of photographs.35

It may be that my friend will also call an36expert in the area of possession for the purpose37of trafficking, who I understand is on the way, to38talk about valuation of the materials, though39there is an open issue that my friend and I40continue to discuss that may dispense with the41need for that particular witness, at which point I42would propose to begin to call the defence case on43the applications.44

And the -- the order that I would propose to45Your Lordship is that I call Mr. Ted Smith, no46relation to the accused. Mr. Ted Smith is the47


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proprietor of an organization called the Cannabis1Buyers' Club of Canada that this particular2apartment was a bakery for, was making edible and3topical cannabis-based medicines.4

Mr. Smith's evidence would essentially go to5the history of that organization, its membership,6its role, what it does, the accused's role in the7organization, the development of the bakery8concept. And in discussions with my friend, we9anticipate that Mr. Smith is like -- Mr. Ted Smith10is likely to be on the stand today and the balance11of tomorrow, giving that evidence.12

Subsequent to that I have a number of13witnesses that I'll simply refer to colloquially14

as the patient witnesses, members of the Cannabis15Buyers' Club of Canada. There's going to be four16or five of those witnesses, essentially to testify17to their experience with the organization, their18use of the products, their medical conditions, the19benefits that they derive from the use of20cannabis-based medicines.21

It's our anticipation that that will take us22through the remainder of this week, and we have23scheduled for Monday of next week the testimony of24Dr. David Pate, the defence expert. That's25P-a-t-e. He is an expert in pharmaceutical26

science, and with a particular emphasis on27 cannabis-based medicines.28My own view is, subject to my friend's need29

to cross-examine and what he gets into, that30Dr. Pate's likely to be on the stand Monday and31Tuesday of next week. My own suggestion would be32that -- that the Wednesday of next week be a day33for any additional witnesses that we perhaps34haven't gotten to before Dr. Pate takes the stand.35I wanted to, because of his scheduling, and he's36coming from out of town, give him a date certain37to appear.38

At that point the defence case will -- at39least the evidence on the defence case will40essentially be complete, and then it will be up to41my friend to put the Crown's case in, and I don't42want to speak for him as to what that may or may43not be. There is a possibility that certain44portions of that case will be admitted, medical45testimony from a Dr. Kalant, who testified in a46prior case similar to this one, and testimony from47


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a Health Canada representative. I'll leave it to1my friend to speak to that.2

MR. ECCLES: Yes, My Lord. I have received Dr. Pate's3CV about two weeks ago, and his report roughly one4week ago. I've had an opportunity to review it.5Subject to what he says viva voce, I -- my6friend's time estimate appears to be realistic.7I'm in the process of making inquiries in Ottawa8as to whom they can provide if the Crown feels the9need for additional evidence in reply to Dr. Pate.10I have yet to hear back as to precisely who that11will be. The last week's been a bit hectic for12the Crown.13

The witness who the Crown will be calling on14

the voir dire -- it's an odd situation. The15witness is here to assist the court and16essentially my friend, given that all the elements17of the offence have been admitted. I don't18anticipate his evidence -- it's a Constable19Brewster of the Victoria Police Department. His20evidence shouldn't take much more than an hour.21Your Lordship may have noticed we have a22television. I don't anticipate using it this23morning, because we're having some difficulties24with the lovely laptop the PPSC provides me. It25doesn't seem to be compatible with the screen.26

But I don't think much will turn on that.27 I don't know a great deal about what my28friend's evidence will be, and I'll have to see as29we go. We're in the midst of discussing the30possibility of simply admitting Dr. Kalant's31report from the Beren and Swallow case. I also32have transcripts in electronic format of all the33evidence Dr. Pate gave in direct and34cross-examination. Dr. Kalant, sorry. We have35transcripts of his evidence, and subject to what36my friend may -- instructions he receives, we're37hoping by the end of today or tomorrow we'll have38firmed up how that will be admitted, if it is to39be admitted.40

I also have materials from Health Canada that41relate to the Marihuana Medical Access42Regulations , and those in -- the numbers of people43who have signed up, and the like. I don't know44whether my friend wants a witness, or the witness45who's provided the affidavit that was filed in a46proceeding in Ontario to attend. I need to47


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finalize that for my friend, because that witness1is not available. That witness is no longer2employed by Health Canada and can't access the3computers to double check data. So we may have to4find someone else to, in essence, reinvent the5wheel. We're hoping to sort that out. It's6basically tombstone data, how many people have7obtained licenses each year over the last ten8years is essentially the information. It's also9available on the website.10

I'm cautiously optimistic we won't need to11have viva voce evidence to tender, in essence, I12looked at a computer screen that records13information relating to the medical program run by14

the federal government and the number of people.15It's an accurate computer. Here are the numbers.16It is a business record, so I'm hoping we can sort17that out.18

If we're able to resolve that, I am19anticipating the Crown may call one live witness20in rebuttal, after I've heard my friend, possibly21to -- I am going to do everything I can to ensure22Your Lordship and my friend don't come to court23next week to see a battery of five or six experts24sitting in the back of a room waiting to take the25stand. We have a very narrow issue, as I26

understand it, at the end of the day in this case,27 and it may well be that the Crown will only need28one witness, so we'll only have one witness in29reply on that narrow issue. If the issues broaden30as we go, then the Crown will take it as we go.31

I'm hoping we will be confining the issue.32As I understand it from reading Dr. Pate's report33the central issue raised by the defence is that34the Marihuana Medical Access Regulations are35deficient, constitutionally invalid, because while36they do allow patients with a legitimate and37medically certified need to use marihuana to treat38their conditions, they do not contemplate or allow39the patient to be in possession of a derivative40substance, tinctures, oils, baked products, and41resinated products such as hashish, as it's42traditionally called.43

If that is the only issue we have, then the44Crown anticipates only one witness in reply,45someone who will come from Health Canada and46hopefully assist the court in explaining why the47


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regulations are structured as they are. That is1the central issue in the matter.2

I don't believe there's any factual issues3about the actual offence itself, but Constable4Brewster is here to describe what the police found5and what was seized. He has a book of6photographs. There is a video on a CD Rom, which7unfortunately we as yet cannot play, but the8officer has reviewed the video to prepare for his9evidence. It has an audio track, and I expect his10evidence will be that it's a three -- roughly11three-minute video with an audio track, as the12camera pans, the officer describing what he sees.13I'm in my friend's and the court's hands as to14

whether the officer can enter the disk without15actually playing it, and then if we can -- I16suspect it will just play on a laptop, but for17some reason my laptop won't sync with the TV.18We're hoping to sort that out over the break.19

Subject to any comments from Your Lordship,20what I propose is to simply call Constable21Brewster, he'll describe the scene, and in22conjunction with the exhibits, that will set the23framework for my friend's constitutional issue.24

THE COURT: All right. I should mention for the25information of counsel, it may be that you lose26

two hours on Wednesday. That is, you may not have27 me for Wednesday afternoon. That is not certain,28but there is another matter that is arising that I29am required to deal with, or I may be required to30deal with Wednesday afternoon. So that may affect31your plan.32

MR. TOUSAW: Mm-hmm.33THE COURT: All right. Let's get started.34MR. TOUSAW: Thank you, My Lord.35MR. ECCLES: Certainly. On that -- oh, I don't know36

whether my friend will be asking for a ban on37publication in these proceedings. This is a voir38dire, and this is a jury matter, eventually,39potentially. So in the Crown's -- I believe there40is, pursuant to the provisions of the Code ,41because this came up in another matter relating to42a funding application, when there is a jury in the43offing, a jury trial is the selected mode, it's my44understanding from the provisions of the Code that45a ban on publication is automatic, that there is46to be no publication of proceedings prior to the47


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empanelling of the jury, if a jury is in the1offing. But out of an abundance of caution, the2Crown would -- the Crown would ask Your Lordship3to declare a ban on publication of the4proceedings, just so there's no --5

THE COURT: Just in case the Criminal Code doesn't say6that a ban is --7

MR. ECCLES: Automatic.8THE COURT: -- mandatory?9MR. ECCLES: Yes, My Lord. Just, it came up10

tangentially in relation to a funding application11under 462.34 of the Code .12

THE COURT: What's the section?13MR. ECCLES: That's the problem, My Lord. I can't14

remember it off the top of my head. It's --15THE CLERK: I'm sorry, but we do require the section16

for -- in order for the computer to put the ban,17so it --18

THE COURT: The clerk needs to know what section --19MR. ECCLES: Certainly.20THE COURT: -- either I exercise a discretion under, or21

that makes a ban on publication automatic or22mandatory.23

MR. TOUSAW: My Lord, while my friend's looking that24section up, I can say from the accused's25perspective, if the ban is mandatory, it's26

mandatory; if the ban is discretionary, we would27 oppose the imposition of a ban.28MR. ECCLES: I believe it's s. 648, relates to a ban on29

publication when the jury is not present.30No, that is after separation of the jury.31

THE COURT: We're not there yet.32MR. ECCLES: No, we're not, My Lord. 648.1:33

34

After permission to separate is given to35members of a jury under subsection ..., no36information regarding any portion of the37trial at which the jury is not present shall38be published [before the jury retires to] in39any document or broadcast or transmitted in40any way before the jury retires to consider41its verdict.42

43

THE COURT: But that presumably is after the jury has44heard the evidence and has been instructed by the45court under s. 647. I don't think 648 deals with46a voir dire.47


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MR. ECCLES: I think it's probably a reach to suggest1it's automatic, so it would appear to be2discretionary. Although the 542 ... that's3confession or admission. I'm sorry, My Lord, it's4just not I'm used to ...5

THE COURT: Relating to admissions or confessions.6MR. ECCLES: Yes, My Lord.7THE COURT: Which is fairly --8MR. ECCLES: Although there are admissions before the9

court, that's for sure. But that doesn't seem to10cover the hearing of the evidence.11

The solution may be a partial ban, given the12admissions that are before Your Lordship on a13potential jury -- in essence, the admissions are14

Mr. Smith admits all elements of the offence.15That is a matter that should this matter go to a16jury may be something that is inappropriate for17them to hear or be made aware of.18

The balance of the evidence, I anticipate the19evidence of Mr. Ted Smith, the patients, and20Dr. Pate, does not appear to run afoul. But21again, I haven't heard Mr. Smith's evidence. I22anticipate his evidence will be that Owen Edward23Smith, no relation, was employed by Ted Smith to24operate a bakery to produce cannabis-infused25products that, on being sold, constitute26

trafficking within the provisions of the27 Controlled Drugs and Substances Act . That may28well be an admission in direct, but it's called by29the defence, and a witness for the defence is30admitting all elements of the offence.31

MR. TOUSAW: Yes, My Lord. It strikes me that32that -- the purpose for banning publication would33be to prevent prejudice to the defence for making34those admissions. My client's perspective is that35at some point if we empanel a jury, he's going to36admit engaging in the conduct and is not going to37prejudiced by any pre-trial publicity.38

I should also say, this case has already39enjoyed a fairly high level of publicity, and40there's a tremendous public interest in it.41

THE COURT: So, Mr. Tousaw, if I understand it, that in42spite of the fact that Exhibit 1, the admissions,43purport to be admissions for the purpose of the44pre-trial motions only --45

MR. TOUSAW: Yes.46THE COURT: -- your client, through you, is taking the47


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anything from my friend in terms of recusing other1witnesses that may testify on the voir dire, but I2did want to raise it so we don't run into any3issues. There are -- Mr. Smith's in the4courtroom, Ms. Quin. There are other witnesses5that I anticipate calling on the voir dire. I6don't know that it's contentious or troublesome7that they hear the exhibit officer, or really any8of the other evidence, but I wanted to raise that9in case it is something that my friend wishes to10consider.11

MR. ECCLES: With respect to the evidence of the12officer, the Crown is not concerned, My Lord.13With respect to having the balance of the defence14

witnesses in the room as each testifies, the Crown15is concerned. We would prefer that witnesses16giving evidence in these proceedings not be17present to hear each other, given the nature of18the issues the Crown anticipates arising.19

THE COURT: The fact that the Crown is concerned or has20a preference in the matter doesn't go so far, yet,21as to tell me that the Crown is seeking an order22that witnesses are banned until they have23testified. Are you seeking such an order?24

MR. ECCLES: Yes, My Lord, I am. I'm asking that25witnesses be asked to step out of the room until26

such time as they come forward to give evidence.27 I don't anticipate Constable Brewster to be a28lengthy witness.29

THE COURT: All right. Mr. Tousaw, any position on30that?31

MR. TOUSAW: I think it's appropriate to have them32recused.33

THE COURT: And the witnesses all know who they are, I34take it?35

MR. TOUSAW: They do.36THE COURT: All right. Anyone who is expected to give37

evidence in these proceedings should step outside38and remain outside until their evidence has been39heard. Once your evidence has been heard, you are40of course free to remain and hear the balance of41the evidence, but until you have testified, please42do not enter the room. The effect of that43is -- or the purpose of that is so that your44evidence cannot be accused of having been tainted45by any evidence you have already heard.46

The order having been sought is granted, and47


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in fact sensibly so, it seems to me, so that there1can't be any argument that your evidence is2tainted and your credibility therefore affected.3

All right.4MR. TOUSAW: Just for purposes of clarity, they can5

stay during the exhibit officer's testimony,6however?7

THE COURT: Is there any objection to that?8MR. ECCLES: No, My Lord.9THE COURT: All right. You can stay for this witness's10

evidence. Nobody wanted you to be excused for11this.12

MR. TOUSAW: Thank you, My Lord.13MR. ECCLES: Can the witness be affirmed, please?14

15COLIN BREWSTER 16a witness called for the17Crown, affirmed.18

19

THE CLERK: Would you state your full name, please?20A Constable Colin Brewster, B-r-e-w-s-t-e-r.21THE COURT: You may be seated, if you wish, Constable.22A Thank you, My Lord.23

24

EXAMINATION IN CHIEF ON VOIR DIRE BY MR. ECCLES:2526

Q Constable, you're currently employed by the27 Victoria Police Department, is that correct?28A Yes, My Lord.29Q How long have you been so employed?30A I will have been employed three months shy of31

three years coming up in March.32Q Now, I understand that on the 3rd day of December,33

in 2009, you were asked to assist in executing a34search here in the City of Victoria at a small35bachelor apartment, correct?36

A Yes, that's correct, My Lord.37Q Could you tell us about that, please?38A Yeah, absolutely. On December 3rd, 2009 I was39

requested to attend at 865 Yew Street, the Chelsea40apartment buildings, Suite 204, to assist in41providing security and continuity to Suite 20442while it was being -- a warrant was being applied43for.44

I arrived on scene, relieving Constables45Bayles [phonetic] and Stewart, who were holding46continuity of the suite prior to that, and we47


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13 VOIR DIRE

Colin Brewster (for Crown)in chief on voir dire by Mr. Eccles

remained outside the front door of the suite1ensuring that no one entered the suite until the2warrant had been granted.3

Constables Sark and Gill arrived on scene4with the approved copy of the warrant, at which5point we entered the suite, which was video taped6and photographed by myself.7

Q What was your role in the search? What were you8to do?9

A My Lord, my role was the -- acting as Exhibit10officer. So not only did I video tape entry into11the suite, I also photographed the suite prior to12it being searched, as well as located and seized13the items found within the suite.14

Q Starting with the process of photographing, when15are the photographs taken, before, during, or16after the search is complete?17

A The photographs were taken prior to the search18being done, My Lord.19

Q And you mentioned you have a book of photographs.20It's a book prepared by our offices and provided21to you, correct?22

A Yes, that's correct, My Lord.23Q And you had the opportunity this morning before24

coming to court to review the book of photographs25and confirm the photographs in the book are indeed26

those that you took on the day in question,27 correct?28A Yes, that's correct, My Lord.29Q You were using a digital camera?30A Yes, that's correct, My Lord.31Q So there's no negative and print; this is a32

digital process where the image is reproduced,33varying sizes, depending on what size you tell the34computer to create, correct?35

A Yes, that's correct, My Lord.36Q And you've created photographs that fit in a book37

on 8 by 11 pages, correct?38A Yes, that's correct, My Lord.39Q And the book you have, the photographs are40

numbered primarily in the upper right corner,41correct?42

A Yes, that's correct, My Lord.43MR. ECCLES: My Lord, I have a copy for Your Lordship,44

and I have provided my friend with a copy.45THE COURT: Any objection to these being marked as an46

exhibit?47


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MR. TOUSAW: No, My Lord.1THE COURT: Exhibit 2, then, will be the booklet of2

photographs.3MR. ECCLES:4Q And the off -- you -- that's the book you reviewed5

this morning, correct, Constable?6A Yes, that's correct, My Lord.7MR. ECCLES: Perhaps we could mark the constable's8

copy, and then Your Lordship will have a spare for9whatever purpose.10

11

EXHIBIT 2 (on voir dire #1): Crown's Book of12Photographs13

14

MR. ECCLES:15Q Now, Constable, you've described taking the16

photographs. The book of photographs, I'll just17take you through them. There's 42 in the book,18correct?19

A Yes, that's correct, My Lord.20Q Not -- couple of duplicates in there as well,21

correct?22A Yes, that's correct, My Lord.23Q Now, if you open the photographs, let's start24

with -- let's just start with photogra -- well,25first of all, before we get to the photos, I26

haven't asked you this, can you describe the27 apartment? As you enter and move through the28apartment, what do you see?29

A My Lord, as -- as we entered into the apartment,30the apartment is approximately about 400 square31feet. It's a bachelor style apartment. As you32enter into the front door you have a very narrow33hallway with a small closet on your right-hand34side, as well as a single bathroom on your35left-hand side.36

I observed inside the closet upon entry there37was a vacuum, as well as a broom and dozens of38empty egg cartons stacked along each other. There39was nothing really of note inside the bathroom.40

As you continue on into the apartment you41have a small living area, with -- which connects42into a -- a kitchen.43

The living area was extremely cluttered.44There was numerous boxes stacked on top of each45other. I didn't observe any bed, bed sheets, or46sofa within the actual living area of the47


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apartment. As I said before, there was numerous1stacked boxes on top of each other in the corner2of the apartment, as well as several small wooden3book cases and a small table located in the middle4of the living area.5

The -- the bachelor style apartment had a6single patio. On the patio we located a -- a7baker style cooling rack, covered rack. There was8no other contents found on the patio.9

Within the actual living area, as I said10before, contained inside the boxes were a lot of11miscellaneous baking supplies, numerous board12games. Within the actual living area of the13apartment on the table we located empty gel14

capsules, as well as on top of the boxes and on15top of the table we also located several batches16of baked cookies.17

Within the kitchen there was miscellaneous18baking goods, such as flour, cinnamon, oils, as19well as numerous empty peanut butter containers,20actually Adams peanut butter containers, glass21jars that had been washed and were drying on a22dish rack.23

And inside the fridge -- it's a single oven24within the actual kitchen. Inside the fridge we25located over a dozen jars, peanut butter jars,26

full of oily substance.27 Q Now, Constable, turning to the book of28photographs, just take us through and tell us what29we're looking at in each photograph, starting with30the photograph in the upper right corner is number311.32

A My Lord, in Photograph Number 1, it's a -- a metal33baker's container with a -- with a dough or a34substance inside. That container was located on35the -- on the table in the middle of the living36area of the apartment.37

Q And Photograph Number 2?38A My Lord, Photograph Number 2 shows the closet as39

you walk into the apartment. That's on your40right-hand side as you enter. As I described, you41can see the -- the broom handle, as well as the42handle to the vacuum, and as I described, the43stack -- stacks of empty egg cartons stacked on44top of each other.45

Q And Photograph Number 3?46A My Lord, Photograph Number 3 was taken in the47


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bathroom as you enter the apartment on your1left-hand side. This photograph depicts a note2left on the light switch and fan switch of the3bathroom. And in the note it reads, "Please don't4use the fan while baking," and, "And remember to5turn it off."6

Q And then in the bottom centre of the page,7Photograph Number 4?8

A My Lor -- My Lord, excuse me, Photograph Number 49is Item Number 12. It's an oily substance10contained in an Adams peanut butter jar. This was11located on the countertop of the kitchen.12

Q What's the significance of the number 12?13A My Lord, number 12 was the 12th item seized by us14

inside the apartment.15Q And pause there for a moment. How do you record16

what's seized when you're the exhibit officer on17scene?18

A My Lord, how we record what's seized is we conduct19a systematic search of the apartment. For each20item seized, we record the time it was seized at,21where it was located, and -- and describe -- a22description of what was -- what was seized.23

Q Is there a standard form document that you use as24a searching officer at a location such as this to25record this information?26

A There is, My Lord. We -- we use what's called an27 exhibit flow chart.28Q And do you have a copy of that document with you29

today?30A I do, My Lord.31Q Could you produce it, please? Would you have32

additional copies for His Lordship and myself?33A I do, yes.34Q Could you produce the original and the copies,35

please?36A Yes, My Lord. My Lord, the flow chart I'm37

producing now is the original copy.38MR. ECCLES: I understand there's no issue with the39

flow chart, My Lord. It's referenced in the40exhibit -- in Exhibit 1, as I recall, but it's not41attached to Exhibit 1 because of the different42size of the paper.43

THE COURT: Are you tendering it as an exhibit?44MR. ECCLES: I am tendering it as a stand alone45

exhibit, so it will be Exhibit 3 in this case.46THE COURT: Mr. Tousaw?47


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MR. TOUSAW: No objection.1THE COURT: Exhibit 3. That's your original there.2

3EXHIBIT 3 (on voir dire #1): Victoria Police4Department Exhibit Flow Chart5

6

MR. ECCLES:7Q And if you could hand me the copies you've made,8

Constable?9A Yeah. My Lord, there's four copies of the exhibit10

flow chart there.11MR. ECCLES: I've provided a copy to my friend, and I12

have a copy for Your Lordship.13THE COURT: Thank you.14

MR. ECCLES:15Q Now, Constable, the flow chart is prepared -- it's16

a standard document which has on it a column for17the exhibit number, a column for a description of18the exhibit, where and when seized, and underneath19that in handwriting there's a small note.20

I'll provide you with copy while --21A Thank you.22MR. ECCLES: -- Madam Clerk prepares the exhibit stamp.23

Do you have the flow chart? Yes, Exhibit 3.24Provide the exhibit to the officer, please. Thank25you.26

Q Now, handwritten in is, "December 4th, 2009." Why27 December 4th?28A My Lord, when we arrived on scene to the apartment29

it was prior to midnight, so it was December 3rd30when we attended the scene. However, when we31began our search of the apartment it was past32midnight; therefore it was December 4th.33

Q And then it says, "Where and when seized." It has34a notation, for example, "Exhibit Number 1, seven35brown cookies, living room, 027, by whom, PC 413."36That's your badge number, correct?37

A That's correct, My Lord.38Q And then it's turned over, "Locker number 40 P and39

S." That's the locker where the exhibits are40secured for later processing, is that --41

A That's correct, My Lord.42MR. ECCLES: And for the purposes of the voir dire, My43

Lord, I understand continuity is not an issue on44any exhibit that's been admitted.45

MR. TOUSAW: That's correct, My Lord.46THE COURT: All right. Thank you.47


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MR. ECCLES:1Q Now, on this flow chart at Item Number 12 you have2

described, "Description of exhibit, extra-strong3liquid jar, kitchen counter, 144," seized by you.4So Photograph Number 4, Number 12 is the item5that's Number 12 on the flow chart, correct?6

A That's correct, My Lord.7Q And if we look to Photograph Number 5 on -- in the8

book of photographs, what are we -- what did you9take a picture of there, just so we're clear?10Photo 5 is the next page. It's in the upper11right-hand corner of the photograph.12

A My Lord, Photograph Number 5 is a picture of a13batch of cookies found within the apartment. They14

were found in the living room of the apartment on15a wooden baking rack.16

Q And the tab there is a Number 11, is that correct?17A Yes, My Lord.18Q And that corresponds to exhibit flow chart Number19

11, "Cookies, 21, living room, 137," seized by20you, correct?21

A That's correct, My Lord.22Q And then Photograph Number 6?23A Photograph Number 6, My Lord, is another batch of24

cookies found on the wooden rack within the living25room of the apartment. The number below the26

cookies indicates that it was the tenth item27 seized on the exhibit flow chart.28Q And then Photograph Number 7?29A Photograph Number 7, My Lord, is another batch of30

cookies found within the living area of the31apartment. Again, they were found on a baking32sheet, on top of the wooden rack within the living33area. The number 9 located on the bottom of the34photo indicates that it was the ninth item seized35on the exhibit flow chart.36

Q And then Photograph Number 8, with the tab number378 that appears on the photo?38

A Photograph Number 8, My Lord, is again another39batch of cookies found within the living area of40the apartment. Again, the cookies were located on41a baking sheet, and the number 8 in the photograph42indicates that it was the eighth item seized on43the exhibit flow chart.44

Q And then Photograph Number 7? Sorry, Photograph45Number 9, Item Number 7.46

A My Lord, Photograph Number 9 shows, depicts,47


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sandwich bags found on a wooden shelving unit in1the living area of the apartment. As you can see2in the photo, there's approximately a dozen3sandwich bags. They were located on a shelf4within the living area. The number 7 seen in the5photo shows that it was the seventh item seized --6

Q Now, on the flow --7A -- on the exhibit flow chart.8Q Sorry. On the flow chart, number 7 is three9

sandwich bags. Do you recall whether you only10seized boxes of sandwich bags if they were open,11as opposed to closed?12

A I don't recall, My Lord.13Q And Photograph Number 10?14

A Photograph Number 10, My Lord, is -- depicts a15liquidy substance found on the table within the16living area of the apartment. The liquidy17substance is labelled, "Ryanol." It was found on18a small table within the living area of the19apartment. The number 6 depicted in the photo20indicated -- indicates that it's the sixth item21seized on the exhibit flow chart.22

Q And, Constable, if we go across the exhibit flow23chart to the head -- to the, "Turned over," it24appears to have been turned over to Police25Constable 387, and then there's brackets,26

"H-2907646." What is the significance of,27 "H-2907646"?28A The H-number located there is the H-envelope for29

which a sample was taken to be sent off for30analysis at the lab, My Lord.31

Q And if we look at, for example, the items 8, 9,3210, and 11, "Cookies," they have all corresponding33H-envelopes when we look over to the "turned over"34column, correct?35

A That's correct, My Lord. Samples of the baked36goods would have been taken and placed in an37H-envelope to be sent for analysis.38

Q And in each instance where we have an H -- a39brackets, "H" and then a seven -- seven-digit40number, that indicates that that particular item,41something was a -- a sample was submitted for42analysis, correct?43

A That's correct, My Lord.44Q Now, in Photograph Number 10, in the -- as we look45

at it, where we can read the number 6 in46the -- what would be I guess the bottom right47


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corner as we look at the photograph, with number 61top right, or the bottom left, if we look at2number 10, in the upper right, there's a syringe,3correct?4

A That's correct, My Lord.5Q And it looks like there's no needle attached to6

the syringe?7A No, that's correct, My Lord.8Q Do you recall whether that particular item9

was -- was seized, the syringe itself?10A I don't recall, My Lord. I'd have to refer to the11

exhibit flow chart.12Q Now, the next photograph, number 11, what are we13

looking at there?14

A My Lord, Photograph Number 11 depicts a plastic,15almost say a capsule counter or a capsule maker.16It was located on the table in the living area of17the apartment. As you can see there, the number 518indicated -- indicates that it was the fifth item19found -- or, excuse me, fifth item seized on the20exhibit flow chart.21

Q And then looking at Photograph Number 12, with the22tab number 4 in the photograph?23

A My Lord, Photograph Number 12 depicts some24handwritten, what -- what appeared to be baking25recipes stacked on top -- on top of each other.26

They were located within the living area of the27 apartment. The number 4 indicates that it was the28fourth item seized on the exhibit flow chart.29

Q And on the flow-chart Item 4 is described as a30dozen recipes, correct?31

A That's correct, My Lord.32Q In case I haven't asked you this, but the flow33

chart, is that your writing?34A That's not, My Lord. It's that of my partner,35

Constable McNichol.36Q When Constable McNichol fills out the chart, do37

you provide the information that he puts in the38chart?39

A That's correct, My Lord.40Q So you provide the information that there were a41

dozen recipes, and that's what's recorded on the42chart, correct?43

A Yes, that's correct, My Lord.44Q And Photograph 13 is a duplicate of 12, correct?45A That's correct, My Lord.46Q And Photograph 14, with the Tab Number 3 on it,47


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what are we looking at there?1A My Lord, Photograph Number 14 depicts empty2

capsule containers found within a container in the3living area of the apartment. The empty capsule4containers were found on the table within the5living area. The number 3 seen in the photo there6depicts that it was the third item seized on the7exhibit flow chart.8

Q And Photograph Number 14, is that on the same9table as the items we see in Photographs 10 and1011?11

A That's correct, My Lord.12Q Now, Photograph 15, with a label on it13

numbered -- in the photograph with number 2, what14

are we looking at in Photograph 15?15A Photograph Number 15 shows a metal baking16

container with a -- a dough or a doughy substance17in there, with a metal spoon contained within the18container. The tag Number 2 indicates that it was19the second item seized on the exhibit flow chart.20

Q And then Photograph Number 16?21A My Lord, Photograph Number 16 was seven cookies22

contained on a metal baking tray. That was23located in the living area of the apartment, on24top of the table. The number 1 located in the25photo indicated -- indicates that it was the first26

item seized on the exhibit flow chart.27 Q Photograph Number 17?28A My Lord, Photograph Number 17 is a liquid29

substance found on the kitchen counter of the30apartment. The label on the -- on the jar reads,31"Extra strong." It was a dark substance, and it's32contained in a glass Adams peanut butter jar.33

Q There's no label adjacent to the jar. Can you,34from looking at your flow chart, identify whether35there's -- this is a specific item that appears on36the flow chart?37

A Yes, My Lord. That would correspond to item38number 12.39

Q And Photograph Number 18?40A My Lord, Photograph Number 18 shows the baking41

supplies, as well as a batch of cookies on a metal42tray found within the living area of the43apartment. It shows that the baking supplies and44the cookies are among the -- the boxes stacked on45top of each other found within the -- the living46area of the apartment.47


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Q And on the flow chart can you find what -- because1there's no tab next to the cookies. Can you find2out where on the flow chart those cookies appear?3If we count them, there -- if it's of any4assistance, there appear to be 42 cookies on5the -- on this particular baking tray.6

A Yes, My Lord. That would correspond to Exhibit7Flow Chart Number 41, and those are 42 brown8cookies found within the living room of the9apartment.10

Q And turning to Photograph Number 19, what are we11looking at on Photograph 19?12

A My Lord, Photograph 19 shows a poster found within13the -- the apartment, and what that is is just a14

poster for a cannabis conven -- convention.15Q Do you recall whether there was any other artwork,16

pictures, personal items hanging on the walls in17the apartment?18

A My Lord, I believe there was one other poster19found within the living area of the apartment.20However, no other photographs, or very few21personal belongings were found within the actual22apartment.23

Q Now, Photograph Number 20, what are we looking at24in Photo 20, and where -- you're taking the25photograph, correct?26

A That's correct, My Lord.27 Q Where are you standing when you take this photo?28A My Lord, the photo's taken as I stand just prior29

to entering the actual living area of the30apartment, so I'm just standing at the foot of the31narrow entranceway leading into the living area.32

Q And this is -- what are we looking at here?33A My Lord, that's a photograph of34

almost -- basically the living area and the35kitchen, and the curtains lead out to the patio as36I described.37

Q And in front of the curtains that lead out to the38patio there appears to be a wooden table of some39sort with, looks like cookie trays on it. Is that40correct?41

A Yes, that's correct, My Lord.42Q And are these cookie trays that are shown in other43

photographs within the book?44A Yes, that's correct, My Lord. The -- each45

individual tray of the cookies were photographed46within the apartment.47


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Q And in the foreground of Photograph Number 201there's white cardboard items. What are those?2They're sitting on a chair.3

A Yes, My Lord. The -- the white flat items that4almost look like paper in the photograph are5actually flattened cardboard boxes. There's, you6know, probably approximately over a hundred of the7boxes, and they're stacked on top of each other,8contained within a cardboard banana box. But9they're almost bakery style boxes that fold up10into a carrying case.11

Q Now, Photograph 21, what are we looking at there?12A My Lord, Photograph Number 21 just shows another13

photograph of the living area of the apartment.14

It contains more of the living area as not seen in15Photograph 20. It shows -- it depicts the stacks16of boxes and clutter that was located near the17wall in the living area of the apartment.18

Q There appears to be a -- what I call a19mover's -- that green item, looks like a mover's20push cart thing. What did -- was that there, or21was that something that the Victoria Police22Department brought to the scene, or do you recall?23

A I -- I don't recall, My Lord.24Q Did you look inside these boxes?25A I did, My Lord. We were able to look through a26

majority of the boxes. Inside the boxes we27 located numerous boxed board games, as well as28miscellaneous items such as bakery supplies,29flour, sugar, some -- some seed.30

Q Did you find any clothes, toiletries, or personal31belongings in any of those boxes?32

A Nothing that I noted, My Lord.33Q And if we look at Photograph Number 22 of -- just34

a notice of a town hall meeting, topic before35council, medical marihuana, 7:30 p.m., Victoria36City Hall, undated; where was that found?37

A My Lord, in Photograph Number 22, it shows the38town hall meeting flyer. That was located on top39of one of the boxes within the living area of the40apartment, as seen in Photograph Number 21.41

THE COURT: Is this an appropriate point for the break?42MR. ECCLES: Yes, it is, My Lord.43THE COURT: We'll take 15 minutes.44THE CLERK: Order in court. All rise.45

46

(WITNESS STOOD DOWN)47


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(PROCEEDINGS ADJOURNED FOR MORNING RECESS)1(PROCEEDINGS RECONVENED)2

3THE CLERK: Order in court.4

5

COLIN BREWSTER, recalled.67

EXAM IN CHIEF ON VOIR DIRE BY MR. ECCLES, CONTINUING:89

Q Now, Constable, returning to the book of10photographs, which is Exhibit 2 in the11proceedings -- if the constable could be shown12Exhibit 2, please?13

A Thank you.14

Q Turning to Photograph Number 23 in Exhibit 2, and15what are we looking at in Photograph 23?16

A My Lord, Photograph Number 23 depicts a small17amount of dried marihuana contained in a small18plastic baggie, as well as some cigarette rolling19papers and a pair of scissors. They were all20contained within the living area of the apartment.21

Q Do you recall whether that small quantity of22mari -- of believed-to-be marihuana was seized?23

A Yes, it was, My Lord.24Q And did it ultimately analyze to be indeed25

marihuana?26

A I believe it did, My Lord.27 Q And if we look on your flow chart, Item 47 of the28flow chart is described as, "Marj. small bag,29living room." Is Item 47 on the flow chart what30we're looking at in Photograph 23?31

A Yes, it is, My Lord.32Q Turning over the page to Photograph 24, what are33

we looking at in Photo 24?34A My Lord, Photograph Number 24 depicts the table35

located in the middle of the living area of the36apartment. This is just an overview of the table37in its entirety. It shows the capsule counter, as38well as the syringe located near the middle of the39table, as well as a quarter full jar, or three40quarter empty jar of substance, a bag of bulk41chocolate chip cookies located near the top of the42table, as well --43

Q Sorry, cookies or chocolate chips?44A Excuse me, chocolate chips. As well as the45

container containing the empty capsules, the seven46cookies located on the baking sheet, as well as47


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the baking bowl underneath the baking sheet.1Q And in the background of the photograph is a2

wooden rack with three -- appears to be three3trays on it. Is that -- the earlier photograph4taken from further back in the room showing a5broad view of the room, there was what looked like6a wood table next to the drapes. Is that the same7table?8

A Yes, it is, My Lord.9Q And Photograph Number 25, what are we looking at10

in Photo 25?11A My Lord, Photograph Number 25 shows the kitchen12

counter of the apartment building -- or, excuse13me, the suite. It's just a snapshot of the14

countertop of the kitchen, which shows numerous15empty and partially full glass containers, as well16as some baking supplies and a metal container.17

Q And then Photograph Number 26?18A My Lord, Photograph Number 26 shows the wooden19

rack located near the curtains and the entranceway20to the patio, as described earlier. It's21a -- there's four cookie sheets or four trays of22cookies contained on the wooden rack within the23living area of the apartment.24

Q Were all of these cookies seized and sent for25analysis?26

A Yes, they were, My Lord.27 Q And if we look at the flow chart, items 41, 42,2843, and 44 appear to be four trays of cookies29located in the living room by you. Are those30the -- as best you can recall, the four -- the31trays of cookies we're looking at in this photo?32

A Yes, that's correct, My Lord.33Q And on your flow chart you have an H seven-digit34

number for each of those items, correct?35A That's correct, My Lord.36Q And that corresponds to the H-envelope into which37

a sample of the seized cookies was placed for38analysis, correct?39

A That's correct, My Lord.40Q And Photograph Number 27, what are we looking at41

there?42A Photograph Number 27 depicts a table found in the43

living area of the apartment. The table is44located in and around the boxes contained in the45actually living area. The table has on it a paper46cutter, as well as the dried marihuana and the47


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well as a telephone and a -- I believe what looks1like a grinder, and some sandwich bags, as well as2flour and salt, and it appears that some incense3is located in between the cardboard box and the4grinder. This was located in the living area of5the apartment. As you proceed into the living6area it would be on your immediate left-hand side,7just on top of a wooden -- wooden desk style8table.9

Q And then Photograph Number 33, is that just a10close-up of the table we saw earlier with the pill11machine, or whatever it is, the three -- three12quarter empty or one quarter full jar of oily13substance, the capsules, and the chocolate chips?14

A Yes, My Lord. That's just a closer up angle15providing more light.16

Q And Photograph Number 34, what are we looking at17there?18

A My Lord, Photograph Number 34 is another19photograph of the kitchen countertop, showing some20empty glass containers. You can see some, what21appears to be flour on the countertop, as well as22a half full bottle of dark liquid substance.23

Q And then Photograph Number 35?24A My Lord, Photograph Number 35 is a photograph of25

the fridge within the kitchen. This photograph26

shows the numerous jars of liquidy substance found27 within the fridge.28Q And Photograph Number 36 is another photograph of29

the sandwich bags that we've previously heard you30describe?31

A Yes, My Lord. It's a duplicate, another32photograph of the sandwich bags found within the33living area of the apartment.34

Q And Photograph Number 37, what are we looking at35there?36

A My Lord, Photograph Number 37 is a closer shot of37the flattened bakery boxes as I had described and38photographed earlier on.39

Q And Photograph Number 38 is a photograph of what?40A My Lord, Photograph Number 38 is a photograph of41

the dried marihuana that was seized on scene.42That's just a photograph of the marihuana taken43beside the scale.44

Q Is that a -- a scale, the property of the Victoria45Police Department, or was that seized in the46premise, or do you recall?47


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A That scale -- I don't recall that scale would1be -- would be the property of Victoria Police2Department.3

Q And then the next photograph --4THE COURT: Sorry.5MR. ECCLES: -- Number 30 --6THE COURT: Sorry, I want to make sure I got that7

straight. Is this a police scale, or is it one8found in the apartment?9

A My Lord, this photograph wasn't taken by myself.10However, I believe it would be property of the11Victoria Police Department. I can't say with12certainty.13

THE COURT: Thank you.14

MR. ECCLES:15Q Photograph 39 is the same scale, with the16

marihuana on it, showing a weight of .08, correct?17A That's correct, My Lord.18Q And then Photograph 40 is a close-up of the green19

plant-like material that analyzed as marihuana,20correct?21

A That's correct, My Lord.22Q And Photograph 41 and 42, what are we looking at?23

It seems to be two photographs of the same thing.24What is it?25

A My Lord, Photographs Number 41 and 42 are of26

Exhibit Number 17 that was seized from the27 apartment. My Lord, the exhibits that were seized28from the apartment were placed in brown paper29bags. A majority of the liquid had -- was solid30when we had seized it, because it had been31refrigerated. However, when we placed it in our32property and supply secure lockers, overnight it33liquefied, creating oil, that when -- when the34investigators removed it from the property lockers35it broke through the brown paper bag, breaking on36the floor of the Victoria police station.37

Q These are two the photos of the broken jar on the38floor, correct?39

A Yes, My Lord. And that would be Exhibit Number4017.41

Q Now, throughout the exhibit flow chart, as I42understand that's Exhibit 3, there are these43various H numbers for H-envelopes that various44samples were taken from the identified exhibits45and put into, correct?46

A That's correct, My Lord.47


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Q And in the usual and ordinary course, you -- the1Victoria Police Department receives back a2certificate of analysis that identifies what was3analyzed to be in an identified H-envelope,4correct?5

A That's correct, My Lord.6Q And each certificate corresponds to one of these7

H-envelopes on the list, and then each certificate8identifies which H-envelope analyzed as what,9correct?10

A Yes, that's correct, My Lord.11Q And you've brought with you to court today the12

originals of the certificates that correspond to13all of these H-envelopes, correct?14

A Yes, that's correct, My Lord.15MR. ECCLES: My Lord, I've had a brief discussion with16

my friend, and what we propose, subject to Your17Lordship's direction, is rather than entering each18envelope individually, given there's no issue, but19there were some that didn't analyze, what we20propose is to enter all -- what I propose is to21enter these certificates as a single exhibit, and22then with my friend we'll be able to resolve which23specific items on the flow chart did not analyze24as containing a prohibited substance. I believe25there's seven of them that didn't analyze. And26

we'll be able to cross match them and provide Your27 Lordship with basically a concordance, which will28expedite the evidence. I don't think this is29contentious, but I'm being cautious.30

THE COURT: You're not proposing to tender then the31envelopes and their contents?32

MR. ECCLES: No, My Lord. Not in light of the33admission. It's just --34

THE COURT: All right.35MR. ECCLES: -- to facilitate being able to track36

what's what at the end of the day.37THE COURT: So Exhibit 4 will be the certificates38

relating to those envelopes?39MR. ECCLES: Yes, My Lord.40THE COURT: And how many of them?41MR. ECCLES: Forty-one, I believe, is the count that I42

have, My Lord.43MR. TOUSAW: Without objection, My Lord.44THE COURT: All right. Forty-one certificates of45

analysis, then, will form Exhibit 4. I think for46bookkeeping purposes we'll start at the top of the47


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pile and name them 41 -- or, sorry, 4.1, 4.2, down1through 4.41, so that when counsel identify the2seven that did not analyze as anything of any3significance to this matter, you can simply tell4me what numbers they are.5

MR. ECCLES: Certainly, My Lord. And we'll also6provide Your Lordship with a sheet listing what7didn't analyze and which exhibit number it is on8the flow chart, so that there's no confusion for9anyone.10

THE COURT: All right. Thank you.11MR. ECCLES: Thank you, My Lord.12Q Do you have those certificates with you, Constable?13A I do, My Lord.14

MR. ECCLES: Please produce them to Madam Clerk.15It's 4.1 through 4.41 collectively, My Lord.16

THE COURT: All right. Thank you.1718

EXHIBIT 4.1 (on voir dire #1): Original19 Analyst Report No. 09 14838 V 20

21


24


27 EXHIBIT 4.4 (on voir dire #1): Original28 Analyst Report No. 09 14803 V 29

30


33


36


39


42


45

EXHIBIT 4.10 (on voir dire #1): Original46 Analyst Report No 09 14809 V 47


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3EXHIBIT 4.12 (on voir dire #1): Original4

Analyst Report No. 09 14811 V 56


9


12





21


24



30


33


36


39


42


45



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Analyst Report No 09 14827 V 56


9


12





21


24



30


33


36


39


42


45

MR. ECCLES:46Q Now, Constable, as we've been going through the47


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photographs you've mentioned what appears to be a1syringe that we saw in one of the photographs next2to the -- the pill counting or pill press tray,3and if we look at Photograph Number 10, we can see4a clear view of that particular item in the bottom5right of the photograph, as one looks at it6sideways, correct? I'll just -- saves us rooting7about for it. Photograph Number 10 is this8particular syringe, correct?9

A Yes, that's correct, My Lord.10Q That -- from looking through your exhibit flow11

chart, it doesn't appear that that particular item12was actually seized. Can you just check and let13me know whether I've missed something?14

A Yes, My Lord. The -- the syringe was not seized15from the apartment.16

THE COURT: Okay.17MR. ECCLES:18Q It was simply overlooked?19A Yes, My Lord.20Q Now, you've also mentioned that you DV -- you21

filmed the events as they occurred, correct?22A That's correct, My Lord.23Q And you have the original of the DVD, and you've24

also provided copies for myself and a copy for25Mr. Tousaw, correct?26

A That's correct, My Lord.27 Q And on the -- the video, it's a video camera; does28it have the capacity to record sound as well as29image?30

A Yes, it does, My Lord.31Q And while you were filming were you providing a32

narrative on the disk?33A My Lord, prior to entering into the suite I34

provided a brief narrative indicating the time and35date and -- prior to entering the suite. Upon36entering the suite, I filmed the entire suite,37panned in and out, but did not provide a narrative38while actually filming.39

Q So the filming -- the visual images are without40audio accompaniment?41

A That's correct, My Lord.42Q The audio accompaniment is prior to entering,43

where you're identifying who you are, the time,44and the location, is that fair to say?45

A Yes, that's correct, My Lord.46MR. ECCLES: My Lord, we're having some difficulties47


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with our technology here. Apparently the power1bars for the back table don't work. What I'm2proposing, subject to anything my friend might3say -- he has a copy of this particular disk, he's4going to review it over the lunch hour, and if5there's a need for the officer to give evidence6about the disk, I can ask the officer to re-attend7at my friend's convenience, and if not, I'm8proposing, with my friend's and the court's9concurrence, that the DVD disk showing these items10be entered as an exhibit by admission.11

MR. TOUSAW: I have reviewed the DVD evidence, My Lord.12I have no objection.13

THE COURT: All right. Constable, have you got the14

original?15A I do, My Lord, yes.16THE COURT: You've looked at it, and it's accurate as17

to what you recall the day you entered this18apartment?19

A I have, My Lord. I reviewed it prior to attending20today, and it is accurate.21

THE COURT: Are you tendering this now?22MR. ECCLES: Yes, My Lord.23THE COURT: As Exhibit 5?24MR. TOUSAW: Without objection, My Lord.25THE COURT: Thank you.26

MR. ECCLES:27 Q Could you produce the disk to Madam Clerk, please,28Constable?29

A Yes, My Lord.3031

EXHIBIT 5 (on voir dire #1): DVD containing32scene video images33

34

MR. ECCLES:35Q I'm providing you now a copy of that disk that you36

made for the Crown. Can you just confirm that37what I've given to you is indeed an exact copy of38Exhibit 5?39

A Yes, My Lord. This is an exact copy of the40original that I provided.41

MR. ECCLES: Thank you. Could I have that back,42please?43

For Your Lordship's ease of reference, should44you need it, this copy is for Your Lordship. I45don't know whether we want to mark it as an46exhibit for identification, just out of an47


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abundance of caution.1THE COURT: This is just a copy of Exhibit 5?2MR. ECCLES: Yes, My Lord. It's just so that Your3

Lordship has one, and should you wish to review it4in your chambers --5

THE COURT: You're assuming my technical ability is6greater than that of the Court Services Branch,7where you apparently can't plug something in?8

MR. ECCLES: We're optimistic, My Lord.9THE COURT: Oh, I see. All right.10MR. TOUSAW: My Lord, I can advise that I had no11

problem on my MacBook playing the disk. It's a12series of MPEG files, only the last of which13contains the video. The prior ones are audio.14

THE COURT: I see. All right. Thank you.15MR. ECCLES:16Q And, Constable, having heard Mr. Tousaw's17

description of what's on the disk, is that18accurate?19

A Yes, that's correct, My Lord.20THE COURT: All right.21MR. ECCLES: Thank you, My Lord. Those are my22

questions -- those are my questions for the23officer.24

THE COURT: All right. Mr. Tousaw.25MR. TOUSAW: Thank you, My Lord.26

27 CROSS-EXAMINATION ON VOIR DIRE BY MR. TOUSAW:2829

Q Constable, just a bit of a -- bit of background.30When you took the photographs that you describe in31Exhibit 2, the Crown's book of photographs in this32matter, was this prior to or subsequent to other33members of Victoria Police entering the apartment?34

A My Lord, this was after entry into the apartment.35Q To the best of your knowledge, are the exhibits36

and the items depicted in the photographs in the37location they were in when Victoria Police entered38the apartment to execute the search warrant?39

A Yes, My Lord.40Q You mentioned that you did not yourself take the41

photograph shown at Photograph 38 in Exhibit 2,42the small bit of marihuana on the scale. Do you43know who did take that photograph?44

A I don't, My Lord. To the best of my knowledge it45would be the investigating officers, Constables46Gill or Sark who took those photographs as they47


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Colin Brewster (for Crown)cross-exam on voir dire by Mr. Tousaw

processed the exhibits.1Q And again, just to the best of your knowledge,2

would that -- would those photographs, 38, 39, and340 of the small amount of dried cannabis on the4scale, would those have been taken at the scene,5or would those have been taken somewhere else?6

A Those would not have been taken at the scene.7They would have been taken, to the best of my8knowledge, at the Victoria police station.9

THE COURT: You didn't see them taken?10A No, I did not, My Lord.11MR. TOUSAW:12Q I know from the exhibit flow chart and your13

descriptions of the scene, this appears for all14

intents and purposes to be a bakery set up in an15apartment; is that a fair description?16

A Yes, it is, My Lord.17Q There's cookware, as you've described, mixing18

equipment, flour, those kinds of supplies19consistent with baking the cookies that you've20seen in these photographs, correct?21

A Yes, it appeared that way, My Lord.22Q Do you recall with respect to the handwritten23

recipes that are described and shown in Exhibit 2,24Photographs 12 and 13, did you take individual25photos of each of the recipes?26

A No, My Lord, I don't -- I don't believe we did.27 They were taken as lies there on the -- on the28table.29

Q Did you, or to your knowledge any other member of30the Victoria Police Department, look through the31recipes?32

A Not to my knowledge, My Lord.33Q So you're not in a position to testify here today34

as to whether or not for example the term35"Ryanol", which appears for example in Photograph3610, appears in any of those recipes?37

A No, I can't, My Lord.38Q You did not see or seize from the scene any39

isopropyl alcohol?40A No, we did not, My Lord.41Q And you did not see or seize from the scene any42

butane or ether or other chemical solvents, is43that correct?44

A That's correct, My Lord.45Q Were you present at the time the jar that's46

depicted in Photographs 41 and 42, the accident47

7/30/2019 R. v. Smi

r. v. smith transcripts volume 1

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