SUPREME COURT OF PRINCE EDWARD ISLAND. Her Majesty the Queen. Gordon Robert Hippenstall. Before: The Honourable Justice Benjamin B.

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1 SUPREME COURT OF PRINCE EDWARD ISLAND Citation: R. v. Hippenstall 2012 PESC 1 Date: Docket: S2-GC-92 Registry: Summerside Her Majesty the Queen V. Gordon Robert Hippenstall Before: The Honourable Justice Benjamin B. Taylor Appearances: Matthew B. MacFarlane, solicitor for the Crown Patricia Cheverie, Q.C., solicitor for the Accused Place and Date of Hearing Summerside, Prince Edward Island October 31, 2011 and November 22, 2011 Place and Date of Oral Judgment Summerside, Prince Edward Island January 3, 2012

2 2 Criminal Law - Controlled Drugs and Substances Act - possession for the purpose of trafficking - evidence Cases Referred to: R. v. Taylor (1974), 17 CCC (2d) 36 (BCCA); R. v. Binkley (1982), 69 CCC (2d) 169 (Sask. C.A.); R. v. Gardiner (1987), 35 CCC (3d) 461 (Ont. C.A.) Acts Referred to: Section 2(1) of the Controlled Drugs and Substances Act Taylor J.: [1] GORDON ROBERT HIPPENSTALL of Summerside, Province of Prince Edward Island, stands charged that he did on Thursday, the 30 th day of December, 2010, at or near Sherbrooke, Prince County, Province of Prince Edward Island, possess a substance included in Schedule I of the Controlled Drugs and Substances Act, to wit: Hydromorphone, for the purpose of trafficking contrary to sections 5(2) and 5(3) of the Controlled Drugs and Substances Act and amendments thereto. [2] This decision follows the trial of Mr. Hippenstall on October 31 and November 22, There were four witnesses at trial: 1) Constable Jamie Jeffery, police officer with the R.C.M.P.; 2) Constable Nick Doyle, police officer with the R.C.M.P.; 3) Constable Scott Baker, police officer for the City of Summerside; and, 4) Sterling Culleton ( Mr. Culleton ) of Summerside, P.E.I. The accused did not testify, and called no evidence. [3] In addition, there were the following exhibits: 1) a certificate of analysis of drugs; 2) Ten hydromorphone capsules in a baggie; 3) one part-full hydromorphone capsule; 4) a diagram of an area in Sherbrooke, P.E.I., adjacent to Highway #2 which is the site of the Sherbrooke Mechanical building; and, 5) excerpt from Mr. Culleton s sentencing hearing on August 12, Mr. Culleton s Evidence [4] Sterling Culleton is 25. He is addicted to hydromorphone, a derivative of morphine, and has been so for two years. He has a girlfriend and they have a preschool aged daughter, and a baby daughter. He lives in Summerside with his mother and stepfather. To support himself, his family, and his drug habit, he steals, fishes oysters, and is on social assistance. [5] Mr. Culleton s evidence was as follows: On December 30, 2010, Mr. Culleton was pill sick and needed hydromorphone. In the past, he had gotten hydromorphone from Mr. Hippenstall, a dealer, so Mr. Culleton called Mr. Hippenstall to see if he could get a pill. Mr. Hippenstall came and picked up Mr. Culleton. They went to Mr. Hippenstall s house. Mr. Hippenstall made a telephone call to someone about getting pills, asked about getting ten pills, and then Mr.

3 3 Hippenstall and Mr. Culleton drove to Alberton in Mr. Hippenstall s truck. On the way there, Mr. Hippenstall told Mr. Culleton that their destination was the residence of a man named Steve, and Mr. Culleton was to take $500 into the residence, give the money to Steve, get pills and bring them back to Mr. Hippenstall. Mr. Hippenstall said he would then give Mr. Culleton some drugs, apparently a pill. Mr. Culleton said he had $10 or $20 on him, and gave it to Mr. Hippenstall as a kind of part payment for the drugs he would get from Mr. Hippenstall. [6] They arrived at a residence in Alberton. Mr. Hippenstall gave Mr. Culleton $500 made up of 2 x $50s and 20 x $20s. Mr. Culleton went into the residence, gave Steve the money and received pills in a baggie - reds, Big Reds, or hydro. Mr. Culleton took the pills in the baggie back to Mr. Hippenstall s truck, gave the pills to Mr. Hippenstall and Mr. Hippenstall put them in his left jacket pocket. Mr. Hippenstall and Mr. Culleton then drove back to Summerside with Mr. Hippenstall in the driver seat and Mr. Culleton in the passenger seat. They pulled into the parking lot of the Summerside Mechanical Property, where Mr. Hippenstall lived. At Mr. Hippenstall s request, Mr. Culleton had gathered up loose cups and other trash in the truck cab to carry into the apartment. The police vehicle driven by Constable Jeffery pulled in beside them. When Mr. Culleton started to get out, he was pulled to the ground by Constable Jeffery, then cuffed and searched. The trash he was carrying spilled out of his hands. Police Evidence [7] On December 30, 2010, Constable Jeffery was driving an unmarked car west on Route 2 when he met a truck with two occupants heading east. Constable Jeffery turned and followed the truck, called in the license plate number, and received confirmation it was the Mr. Hippenstall s truck. Constable Jeffery says he then contacted a proven reliable source, and was told Mr. Hippenstall and Mr. Culleton were up west buying Big Reds. Constable Jeffery continued to follow the defendants east on Route 2. He called Constable Baker and Constable Doyle and they travelled to Miscouche, waited for the Hippenstall vehicle to pass by, and identified Mr. Hippenstall as the driver. The two police vehicles followed Mr. Hippenstall along Route 2 for a short distance until Mr. Hippenstall turned left onto a driveway and into the Sherbrooke Mechanical building property. Constable Jeffery drove his vehicle right after the Hippenstall vehicle and pulled up alongside it to the right of the Hippenstall vehicle, with Constable Jeffery visible wearing his take down jacket which identifies him as police. The Hippenstall vehicle stopped and Constable Jeffery stopped his vehicle to the right of the Hippenstall vehicle, exited his vehicle, shouted they were under arrest, and forced Mr. Culleton to the ground as he exited the passenger door of the Hippenstall vehicle.

4 4 [8] Mr. Hippenstall tried to drive away by turning counterclockwise to get back to the driveway connecting the Sherbrooke Mechanical property with Route 2, but was headed off by the Baker/Doyle vehicle, and again came to a stop. Mr. Hippenstall was taken into custody. The police searched the area and Constable Baker found a baggie containing 10 capsules on the ice on the ground a foot or two away from where the driver s door in the Hippenstall vehicle had been when the Hippenstall vehicle stopped for the first time. Constable Baker said the small clear Ziploc bag was just sitting right on the ice. It was dry, no moisture inside or outside, nothing on top of it, just sitting there on top of the ice. The 10 capsules were subsequently analyzed and were so called Big Red pills containing hydromorphone. Mr. Hippenstall had a single part-full Big Red pill on his person. [9] The police arrested Mr. Hippenstall and Mr. Culleton, and took them in for questioning. At trial, Mr. Culleton freely admitted he lied repeatedly to the police when they first began questioning him. He said he was nervous, confused, sick, wanted a fix, wanted to avoid charges, and was trying to hide his using from his girlfriend because she was clean. He says he told a great many lies at the start of his session with the police, but ultimately told the truth. Mr. Hippenstall denied the drugs were his. [10] Mr. Culleton was subsequently charged and pled guilty to possession of hydromorphone and was sentenced to pay a fine of $700.00, plus a surcharge of $ A trafficking charge against him was withdrawn. [11] The evidence of possession for the purpose of trafficking is direct and circumstantial. [12] The direct evidence is the evidence of Mr. Culleton - his testimony is that Mr. Hippenstall arranged the purchase of a fixed amount of 10 hydromorphone (Big Reds) for a fixed price, travelled with Mr. Culleton to the Alberton area of P.E.I., had Mr. Culleton make the purchase for him, promised to give Mr. Culleton some of the drugs, received the drugs from Mr. Culleton, then transported the drugs from Alberton to Summerside, P.E.I. [13] The circumstantial evidence is the evidence of the police officers. After seeing Mr. Hippenstall on the Western Road, they obtained information which led them to follow his vehicle. When he turned into the parking lot where he lives, they stopped his vehicle, he attempted to leave and he was stopped again. He was found to have a part-full pill of hydromorphone on him, and 10 hydromorphone pills were found in a baggie on the ground in the parking area right next to where the driver s door of his truck had been the first time he stopped. Constable Baker testified it was a foot or

5 two from where the door had been. The driver-side window of Mr. Hippenstall s truck was part down, about four inches. The passenger-side window was up. [14] Defence counsel made the following submissions: Law 5 (1) Mr. Culleton s evidence is not credible. He admitted he lied repeatedly and was trying to save himself. (2) There could be many reasons why Mr. Hippenstall s window was down. (3) The precise location where the drugs were found was not well established. It may not have been next to where the driver s window was. (4) Mr. Culleton was a co-offender with an interest in the outcome and his evidence was not corroborated. (5) The police had tunnel vision and jumped to the conclusion Mr. Hippenstall was guilty and Mr. Culleton was not. [15] Section 4(3) of the Criminal Code defines possession. Traffic as defined in s. 2(1) of the Controlled Drugs and Substances Act means in part: (a) to sell, administer, give, transfer, transport, send or deliver, or (c) To offer to do anything mentioned in paragraph (a). [16] The charge in this case is possession for the purpose of trafficking, and if the evidence given by Mr. Culleton and the police proves the charge beyond a reasonable doubt, Mr. Hippenstall did possess the drugs and he did intend to sell or give some to Mr. Culleton. [17] R. v. Taylor (1974), 17 CCC (2d) 36 (BCCA) states that proof of possession for the purpose of trafficking requires possession by the accused plus the intent or purpose of physically making the narcotic available to others even if they are owners in common with the accused. [18] There are cases which state it is not possession for the purpose of trafficking where joint owners of drugs possess the drugs for their own use. In the present case,

6 6 according to Mr. Culleton, the accused purchased hydromorphone using Mr. Culleton as his agent, promised to sell or give some of the narcotic to Mr. Culleton, and transported the narcotic to Summerside and was still in the process of transporting it when the police stopped him for the first time in Summerside. Although it might be argued Mr. Culleton had some basis for a claim (or at least a hope) of future ownership of a small amount of the narcotics, he was not joint owner with the accused of all or any of the narcotics. The lack of joint ownership and the minimal amount to which Mr. Culleton might hope to have a future claim, distinguish this case. R. v. Binkley (1982), 69 CCC (2d) 169 (Sask. C.A.); R. v. Gardiner (1987), 35 CCC (3d) 461 (Ont. C.A.). [19] I should add that based on the testimony of the police officers, one or both of Mr. Hippenstall and Mr. Culleton had possession for the purpose of trafficking because they were transporting the narcotics as well. Discussion of Evidence and Findings [20] Mr. Culleton appears younger than his age. On the first day he testified, he was shaky and looked sick. He said he had been clean, but recently relapsed. He spoke in a very soft voice. He was clear in his testimony about what had happened. He frankly admitted he was messed up when he was originally questioned by the police and did not remember much he had said. He said he really needed the drugs that day. He admitted lying to the police at first, but said he eventually told the truth. In my experience it is normal for a guilty person who is arrested to deny, dodge, and obfuscate, before eventually getting down to the truth. On the second day Mr. Culleton testified, he looked better and was not shaky. In cross-examination, he freely admitted to the contrary statements he made at the beginning of his interrogation by the police, before getting down to the truth. [21] I found Mr. Culleton credible. His testimony at trial was not shown to be false in any significant way. He had nothing to gain by telling the truth and likely turned himself into a pariah in the drug world in which he used to live. I believe his evidence. In my assessment, Mr. Culleton was telling the truth when he testified. He was responsive to all questions, he did not try to dodge the questions, and his answers fully responded to the questions. When confronted with a question about where he was when he called the accused, he corrected himself. Other than that, his testimony is unchallenged by any other evidence. In his demeanor, he was not evasive. He looked at his questioners. He did not stall, and he did not act like someone who was not telling the truth. The second day he was in better shape, and again, I concluded he was telling the complete truth on all evidence relating to this charge.

7 7 Part-full Capsule [22] The case against Mr. Hippenstall is bolstered by his possession on his person of a part-full hydromorphone capsule at the same time and place as the charged offense. Location and State of the Baggie [23] The Crown did not need to prove exactly where the baggie was located on the ground where Constable Baker found it. There is no precise location which would definitely prove Mr. Hippenstall s possession. Rather, the baggie could have been tossed out the window or it could have been dropped out, and would have landed somewhere in an area near where the truck window was. The important point is that the baggie was found on the ice and snow approximately where the driver-side door of the Hippenstall truck had been when it first came to a stop in the Sherbrooke Mechanical property, it did not come out the passenger window or door, and Mr. Hippenstall s window was open. [24] The police finding of a baggie of narcotics on the ice is very important circumstantial evidence. It was not wet, it was sitting on the ice and snow. I conclude it could only have came from the truck. It is not at all credible to suggest otherwise. Consistent Evidence [25] Mr. Culleton s evidence is consistent with all of the police evidence and analyst evidence. There is no evidence that is inconsistent - just his admission he told a lot of unspecified lies to the police when they first started questioning him. I do not know what the lies were, and I will not speculate. Tunnel Vision [26] The police did not have tunnel vision - they initially charged both Mr. Hippenstall and Mr. Culleton. By the time Mr. Culleton testified, he had nothing to gain. The possession for the purpose charge against him had been stayed and he had been sentenced for possession. Conclusion [27] I am satisfied the Crown has proven beyond a reasonable doubt the drugs found on the ground on the parking lot could only have been hydromorphone pills

8 8 possessed by Mr. Hippenstall - the drugs he threw or dropped out of the open driverside window of the truck: (1) I am satisfied beyond a reasonable doubt as to the following: after buying drugs for Mr. Hippenstall in Alberton, Mr. Culleton gave Mr. Hippenstall a baggie of drugs which Mr. Hippenstall put in his left jacket pocket; (2) Mr. Hippenstall drove his truck from Alberton to Summerside and stopped for the first time where the police say it stopped. (3) I find the driver s window was open and the passenger s window was not. (4) I find the passenger s door was opened, but only Mr. Culleton and the trash he was carrying came out that door. (5) I find a baggie of drugs, similar or the same as what Mr. Culleton gave Mr. Hippenstall, was found on the ice and snow of the parking lot, right where Mr. Hippenstall s driver window had been when he was first stopped and that baggie of drugs contained hydromorphone. (6) I find Mr. Hippenstall was in possession of the hydromorphone drugs in the baggie. I find he did intend to sell or give some of those drugs to Mr. Culleton and I find he did transport these drugs from Alberton to Summerside for the purpose in part of selling or giving some of those drugs to Mr. Culleton, and find he had possession for the purpose of trafficking. [28] I am satisfied beyond a reasonable doubt Mr. Hippenstall had possession of hydromorphone for the purpose of trafficking and I find him guilty as charged. January 3, 2012 Taylor J.