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R. v. Hopkins, 2017 NWTSC 32            S-1-CR-2015-000030

 

 

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

 

 

IN THE MATTER OF:

 

 

 

HER MAJESTY THE QUEEN

 

 

- v -

 

 

MICHAEL HOPKINS AND CHRIS MATHERS

_________________________________________________________ Transcript of the Reasons for Judgment delivered by The Honourable Justice A.M. Mahar, sitting in Yellowknife, in the Northwest Territories, on the 29th day of March, 2017.

_________________________________________________________

 

 

APPEARANCES:

 

 

 

Mr. D. Praught:               Counsel for the Crown

Ms. K. Oja:                   Counsel for the Accused

 

 

(Charges under s. 5(2) of the Controlled Drugs and Substances Act and 91(1) of the Criminal Code of Canada)


 

1               THE COURT:             I will deal first with the

2                         issue of the voir dire.  I indicated that I would

3                         give more formal reasons at the time of the

4                         actual decision.  There is an Agreed Statement of

5                         Facts that was filed.  It is an exhibit, and it

6                         will be made an exhibit to this decision.  I will

7                         say at the outset that I reserve the option of

8                         significantly editing this decision if I choose

9                         to do so.  If I do choose to do so, the edited

10                         version is the final decision.  It is not going

11                         to impact in terms of what I am doing, but it

12                         might impact in terms of how much information I

13                         put in the decision.

14                                     First, with respect to the voir dire, what

15                         is essentially at issue is evidence of cocaine

16                         possessed for the purpose of trafficking and

17                         actual trafficking at another location which was

18                         raided on the same day as the residence at issue

19                         in this trial.  While Mr. Hopkins was not

20                         charged, there is surveillance evidence as well

21                         as documentary evidence that ties him to that

22                         location.  The Crown is seeking admissibility to

23                         show knowledge in the context of the narrative of

24                         the case, not strictly speaking propensity

25                         evidence but evidence that Mr. Hopkins is

26                         somebody who is aware of the cocaine trade and

27                         knows what is going on and is, therefore, someone


 

1                         who is more likely to know what is going on in

2                         the residence which we are actually dealing with.

3                         The defence is objecting to this, claiming that

4                         the evidence is inadmissible as propensity

5                         evidence.

6                                     I have to balance the probative value of the

7                         evidence against any unfair prejudice to the

8                         accused.  This case is somewhat unique in this

9                         regard because the evidence is helpful, but it is

10                         not just helpful to the Crown.  It is helpful in

11                         my assessment of the possible inferences that I

12                         can reasonably draw from the evidence.  I find

13                         that the evidence is admissible in the specific

14                         circumstances of this case.  It gives me a more

15                         complete, factual background from which I can

16                         assess the circumstantial evidence and, as I have

17                         said, the reasonable inferences to be drawn from

18                         it.

19                                     Moving, then, to the case itself.  This is a

20                         circumstantial case, and I can do no better than

21                         to quote from Justice Cromwell of the Supreme

22                         Court of Canada in the case of Villaroman,

23                         2016 SCC 33, discussing the test that the court

24                         should apply when dealing with circumstantial

25                         evidence.  Referring to paragraph 37:

26                                     When assessing circumstantial evidence, the trier of fact should

27                                     consider “other plausible theo[ries]” and “other reasonable possibilities”


 

1                                     which are inconsistent with guilt... I agree with the appellant that the

2                                     Crown thus may need to negative these

reasonable possibilities, but

3                                     certainly does not need to “negative every possible conjecture, no matter

4                                     how irrational or fanciful, which might be consistent with the

5                                     innocence of the accused”...

“Other plausible theories” or “other

6                                     reasonable possibilities” must be based on logic and experience applied

7                                     to the evidence or the absence of evidence, not on speculation.

8

9          Paragraph 38:

10                                     Of course, the line between a “plausible theory” and “speculation”

11                                     is not always easy to draw.  But the basic question is whether the

12                                     circumstantial evidence, viewed logically and in light of human

13                                     experience, is reasonably capable of supporting an inference other than

14                                     that the accused is guilty.

15                                                                         To sum up the case generally

16                         and the level of proof required on the issue of

17                         who had possession, was there co-participation

18                         such that both parties were in a position to

19                         exercise even a small measure of control over the

20                         drugs, I find that both accused were present in

21                         the apartment at some point with the drugs.  The

22                         question is whether they were in possession

23                         jointly, and if not, in whose possession the

24                         drugs were in.  In the context of this

25                         circumstantial case, does the evidence reasonably

26                         support any inference other than their collective

27                         guilt?  That is really the issue that I had to


 

1                         struggle with in this case.

2                                     In terms of the evidence relied on and the

3                         facts found, I will say at the outset that I

4                         accept as proven that the roughly 37 grams of

5                         crack cocaine found in the two baggies on the

6                         ground outside of the apartment building came

7                         from Unit 405 in the Fort Garry apartments.  It

8                         was possessed for the purpose of trafficking

9                         indicated not only by the amount of drugs, which

10                         is beyond what would be expected for personal

11                         consumption, but from the presence of assorted

12                         drug trafficking paraphernalia -- scales, score

13                         sheets, and doctored baggies.  I also find that

14                         both Mr. Hopkins and Mr. Mathers were in the

15                         apartment just prior to entry by the police.

16                                     This case was part of a larger investigation

17                         that went on for a number of months.  There was

18                         an extensive investigation and surveillance of a

19                         number of individuals.  Mr. Hopkins was seen on a

20                         number of occasions in the company of other

21                         suspected individuals around both an apartment of

22                         interest at Bison Holdings and in the general

23                         area of the Fort Garry apartments.  Mr. Mathers

24                         was not mentioned other than in passing either in

25                         connection with Mr. Hopkins or at any of the

26                         other locations of interest or persons of

27                         interest.


 

1                                     At approximately 5:10 a.m. on December the

2                         6th, 2013, police executed a search warrant at

3                         Apartment 405 in the Fort Garry Apartments.  They

4                         did this in the early hours of the morning in

5                         order to surprise the occupants and maintain any

6                         evidence that was present in the residence.  They

7                         attended at 5:10 a.m.  They announced their

8                         presence, forced the door with a ram, and threw a

9                         flash-bang or a distractionary device into the

10                         residence.  I was told -- and I have no reason to

11                         doubt -- that it took only a matter of seconds

12                         for the police to enter the residence.  When they

13                         entered, they found the bedroom door to the right

14                         ajar with Mr. Mathers' hands around the door.

15                         Mr. Mathers was indicating that there was a dog

16                         in the bedroom and simply wanted the police to be

17                         aware of that so that the situation did not

18                         escalate.  The police could not say if the

19                         balcony door was open.  They did, however, find

20                         evidence of a disturbance at the railing and on

21                         the ground below.

22                                     Mr. Hopkins was found injured a short

23                         distance away in another apartment alcove.  While

24                         there might have been some suggestion of other

25                         possibilities, I find it improbable to the point

26                         of impossible that any other set of circumstances

27                         could have resulted in Mr. Hopkins indicating


 

1                         that he fell from a third-floor balcony and being

2                         found a short distance away mere minutes after

3                         the events in question.  He was taken to the

4                         hospital.  He was actually quite badly injured.

5                         His injuries included a cracked vertebrae.  What

6                         appears to have happened and what I accept

7                         happened is he attempted to scale the balcony.

8                         There was an unstable surface on the balcony

9                         railing below because of a number of planters.

10                         One of the planters was dislodged as a result of

11                         that, and this resulted in the fall.

12                                     The bedroom window upon entry into the

13                         bedroom was open, and a roughly 65-pound Pitbull

14                         mix was halfway out the window with its rear legs

15                         hung up on the window sill.  It had apparently

16                         been panicked by the flash-bang, had voided

17                         itself in the room, and was attempting to flee.

18                         After the dog had been removed from the window,

19                         police looked outside.  They could see the screen

20                         lying on the ground, and they could see three

21                         plastic baggies in a radius of approximately 5

22                         feet in the area basically below the window.

23                                     They found Mr. Hopkins' identification in

24                         his wallet on the coffee table in the living

25                         room.  When he was found, he had no shoes on, no

26                         socks, certainly not dressed for minus-40-degree

27                         weather.  He was not wearing a coat.  Again, I


 

1                         take from this that he fled the residence very

2                         quickly.

3                                     On the coffee table, in the area of the

4                         coffee table near the couch was found a wallet,

5                         scales, 1.9 grams of crack cocaine divided into

6                         four separate pieces, basically street grams.  Of

7                         the three baggies found outside, two contained

8                         what were found to be cakes of crack cocaine, one

9                         contained powder that was believed to be cocaine

10                         but was never actually tested.  So what I was

11                         left with is approximately 37 grams of cake crack

12                         cocaine found outside the residence.  There was

13                         loose cash on the coffee table.  There was also

14                         loose cash on the bedside table where Mr. Mathers

15                         was found, and there was also $700 in

16                         Mr. Mathers' jacket.

17                                     Score sheets were found in the kitchen

18                         cupboard.  There was no evidence before me of

19                         whose handwriting produced the score sheets.

20                         There is no evidence of any fingerprints having

21                         been found on the score sheets.

22                                     There was a pistol found under the fridge.

23                         It was tested for DNA and was found to not be

24                         connected to either one of the accused.

25                         Likewise, I had no evidence linking the accused

26                         to a rifle that was found or a crossbow.

27                                     In the bedroom where Mr. Mathers was found


 

1                         was found some marijuana and some cigarettes.

2                         There was evidence of smoking.  A fan was

3                         present.  The police could not indicate that

4                         there was any strong odour of tobacco or

5                         marijuana in the room indicating that while

6                         smoking had been taking place, there had been at

7                         least an attempt made to empty the smoke out of

8                         the room.

9                                     Also found in the residence were the

10                         identification of a number of other individuals,

11                         approximately five.  The apartment is in another

12                         party's name.  There were personal items found

13                         throughout the apartment from other parties

14                         including autographed posters on the walls.

15                         There were no personal items apart from the ID

16                         that was found for Mr. Hopkins and some clothing

17                         attributable to either one of these accused.  So

18                         basically no indication that either one of them

19                         was living there for any extended period of time,

20                         apart from documentary evidence which indicates

21                         that for a fair period of time Mr. Hopkins had

22                         been responsible for payments on the residence.

23                                     I take the Crown's evidence as proving that.

24                         Mr. Praught did a very good job of taking me

25                         through the chronology of the documentary

26                         evidence which clearly establishes that even

27                         though the apartment was in somebody else's name,


 

1                         even though there was evidence that a lot of

2                         other people had access to that apartment,

3                         Mr. Hopkins at least had some control over the

4                         apartment in terms of the payments for the

5                         utilities and taking care of that issue.

6                         Mr. Hopkins was also found to have similar sort

7                         of control over two other apartments, including

8                         the Bison Holdings apartment that was referred to

9                         in the voir dire.

10                                     Finally, again, there was very little time

11                         between the time that these individuals became

12                         aware of the police presence and the entry by the

13                         police.  I have had to take this into account in

14                         considering what reasonable possibilities I can

15                         draw from the evidence.  Neither one of these men

16                         had an opportunity to do very much.  I have to

17                         take that into account.

18                                     I move on, then, to plausible theories

19                         suggested by the evidence.  The first one, the

20                         one essentially suggested by the Crown, is that

21                         Mr. Hopkins escapes over the railing while

22                         Mr. Mathers dumps the drugs out of his window.

23                         Mr. Hopkins is fully aware of the drugs, and they

24                         are, therefore, both guilty.  This inference is

25                         supported by the location of the drugs, by the

26                         evidence of trafficking in the apartment -- the

27                         scales, the baggies, the cocaine packaging and


 

1                         scale in the living room where Mr. Hopkins was --

2                         also with Mr. Hopkins' connection to the

3                         apartment.  This is also borne out by his wallet.

4                                     Another plausible scenario:  Mr. Hopkins

5                         escapes over the railing with the drugs.  This is

6                         supported by the location of the scales close to

7                         the baggy, the saleable pieces, Mr. Hopkins'

8                         clear connection to ongoing drug trafficking on

9                         the basis of the evidence allowed in the voir

10                         dire, and basically the evidence generally

11                         pointing to his active involvement.  He either

12                         throws the drugs to one side from the balcony

13                         before attempting to climb down or more likely

14                         throws the drugs away once he is injured and

15                         realizes he is not going to be able to get away.

16                         He is going to be apprehended.

17                                     This is plausible because the drugs were

18                         found only 10 feet or so from where Mr. Hopkins

19                         apparently hit the ground.  It was a disturbed

20                         area, and it was obvious that this was where

21                         Mr. Hopkins had fallen.

22                                     I am able to make the inference reasonably

23                         that the drugs were not thrown from the bedroom

24                         window based on the following evidence:  I found

25                         that there was evidence that smoking went on in

26                         the room and that the window might have been

27                         open.  The fan would be indicative of this as


 

1                         well as the lack of any indication of a smoking

2                         smell in the room.  The dog may well have knocked

3                         the screen out.  This possibility would normally

4                         be absurd, but for the fact that the dog was

5                         actually found halfway out the window by the

6                         police.

7                                     In the above scenario, either Mr. Mathers

8                         knows about the drugs and has at least a small

9                         measure of control or he does not.  Based on his

10                         presence in the unit, the cash in his jacket and

11                         on the bedside table, it is plausible that he

12                         knew about the drugs.  In that event, they would

13                         both be guilty.

14                                     Or Mr. Mathers is just staying in the

15                         apartment and has no involvement with the drugs.

16                         This is plausible because of a lack of any

17                         evidence of continuing occupation, connection to

18                         the unit through paperwork, or any surveillance

19                         evidence linking Mr. Mathers and Mr. Hopkins.

20                         There is evidence of many other occupants or

21                         persons with connections to the unit.  It is

22                         reasonably possible Mr. Mathers and Mr. Hopkins

23                         are not closely connected.

24                                     The location of the money in various

25                         discrete places, not mingled, is also suggestive

26                         of something other than a joint enterprise, as is

27                         the quantum of the drugs.  We are dealing with


 

1                         something shy of 40 grams of cocaine.  While it

2                         is a significant quantity of drugs, it is not

3                         such a large quantity of cocaine that it would

4                         immediately bring me to the conclusion that

5                         knowledge of the drugs must have been shared.

6                                     This lack of evidence of connection between

7                         the two accused leads me to the final theory,

8                         that Mr. Mathers threw the drugs out of the

9                         window, that Mr. Hopkins tried to escape because

10                         of his involvement with the other unit and the

11                         drug trade generally, and an outstanding warrant

12                         in another jurisdiction for dangerous driving.

13                         On this scenario, Mr. Hopkins either does not

14                         know or is not connected to Mr. Mathers'

15                         activities with the larger quantity of drugs.

16                         The evidence forming the basis for this scenario

17                         is the evidence that I have just referred to

18                         about the lack of connection between these two

19                         men.

20                                     Over an extended period of surveillance,

21                         there was no surveillance indicative of any

22                         contact between the two of them.  There is no

23                         indication in any of the documentary evidence

24                         that was found in the residence that Mr. Mathers

25                         had anything to do with the place other than the

26                         fact that he was found in there at 5:10 in the

27                         morning on December the 6th.  Again, the location


 

1                         of the money, divided; loose money in the bedroom

2                         where Mr. Mathers is staying, loose money in the

3                         living room, $700 in Mr. Mathers' jacket pocket

4                         points to a lack of connection.  There is an

5                         absence of evidence as well.  There is no

6                         fingerprint evidence; there is nothing on the

7                         baggies apart from the mere fact that they are

8                         found.  This is the least likely scenario.  I

9                         struggled with whether the possible inference was

10                         reasonably supported by the evidence or lack of

11                         it, or was I engaging in improper speculation?

12                                     Mr. Hopkins' clear involvement in the

13                         cocaine business, his location close to the

14                         scales, the small quantity of cocaine apparently

15                         packaged for sale, his financial control of the

16                         unit all suggest involvement no matter who threw

17                         the drugs to the ground.  If the bedroom window

18                         was not open, there would be no question.  If the

19                         drugs had been found anywhere other than under

20                         the open window, again, no question.  If

21                         Mr. Hopkins' fingerprints had been found on the

22                         baggies, no question.  If there was no other

23                         plausible reason for Mr. Hopkins to attempt to

24                         climb down the outside of the apartment building,

25                         again, no question.  And if there was any

26                         evidence beyond the mere presence of being in the

27                         apartment at the time of the raid connecting


 

1                         these two men, again, I would find Mr. Hopkins

2                         guilty.

3                                     In the end, I have no doubt that Mr. Hopkins

4                         was in possession of the 1.9 grams on the coffee

5                         table.  I do have a doubt about his possession of

6                         the drugs found outside of the apartment.  It is

7                         not a large doubt, but it is not trifling.  The

8                         police expert would not conclusively say that the

9                         1.9 grams was for the purpose of trafficking.

10                         The circumstances would highly suggest it, but

11                         the amount is simply too small.  While it is

12                         tempting to go beyond the expert's opinion, I

13                         have to concur.

14                                     I find Mr. Mathers not guilty.  I find

15                         Mr. Hopkins not guilty of the charge as laid but

16                         guilty of the lesser and included offence of

17                         simple possession of the 1.9 grams of cocaine.

18                                     Crown, do you have any submissions to make

19                         with respect to the money that was found in the

20                         residence?

21               MR. PRAUGHT:           With respect to forfeiture,

22                         Your Honour?

23               THE COURT:             With respect to forfeiture.

24               MS. PICHE:             Yeah, I may.  I'm not sure

25                         what my friend's position is with respect to the

26                         timing of sentencing.

27               THE COURT:             What I was going to suggest in


 

1                         terms of the forfeiture, because it is something

2                         that I put my mind to, the money, like the drugs,

3                         is difficult to connect specifically to one

4                         individual.  It is easy to connect to

5                         trafficking.  Well, not easy.  I will leave it to

6                         you, Mr. Praught.  I will just say that you'll

7                         have a sympathetic audience in terms of a

8                         forfeiture application.  I will leave that to you

9                         and Ms. Oja.

10                                     Ms. Oja, I can indicate that in terms of

11                         Mr. Hopkins' status, the Court is seriously

12                         considering a very short period of incarceration

13                         and any adjournment is going to leave Mr. Hopkins

14                         in custody.  So I am prepared to hear the matter

15                         later this week.  I am prepared to hear it later

16                         this afternoon.

17               MS. OJA:               I am unfortunately unable to

18                         speak to this this afternoon, and I'm in a prelim

19                         tomorrow.  But potentially Friday afternoon would

20                         be --

21               THE COURT:             Do you want to take a break

22                         and do it later this morning?  I mean, Supreme

23                         Court tends to take a very different route than

24                         Territorial Court would.  But most of my practice

25                         as a lawyer and most of my sitting as a judge has

26                         been in a very different environment.  If you are

27                         prepared to deal with it quickly, we can do it


 

1                         later this morning.

2               MS. OJA:               I would prefer to have a

3                         couple of days just to get some submissions

4                         together, Your Honour.

5               THE COURT:             Okay.  I just leave you that

6                         opening.  I was not pushing it.  I have civil

7                         chambers on Friday morning.

8               MS. OJA:               And I'm in a trial -- a

9                         Territorial Court trial on Friday morning, but it

10                         should be fairly brief.  And so Friday afternoon.

11               THE COURT:             Why don't we say 1:30 Friday

12                         afternoon.

13               MS. OJA:               Sure.

14               THE COURT:             Actually, I have got a --

15                         let's say 1:30 Friday afternoon.

16                                     There will be an order remanding the accused

17                         to 1:30 Friday afternoon -- or the convict to

18                         Friday afternoon at 1:30, Form 19 to that time

19                         and date.

20                                     Mr. Mathers, you are free to go.

21               MS. OJA:               Thank you very much,

22                         Your Honour.

23               MR. PRAUGHT:           I don't know if Mr. Sheriff is

24                         here to escort Mr. Hopkins downstairs.

25                         Otherwise, I can ask the RCMP to come.

26               THE COURT:             Why don't we continue court

27                         until we have that --


 

1               THE SHERIFF:            It will be addressed,

2                         Your Honour.

3      _____________________________________________________

4      PROCEEDINGS ADJOURNED TO MARCH 31, 2017, AT 1:30 P.M.

5      _____________________________________________________

6                  CERTIFICATE OF TRANSCRIPT

7

8                         I, the undersigned, hereby certify that the

9               foregoing pages are a complete and accurate

10               transcript of the proceedings taken down by me in

11               shorthand and transcribed from my shorthand notes

12               to the best of my skill and ability.

13                         Dated at the City of Edmonton, Province of

14                         Alberta, this 11th day of May, 2017. 15

16                                     Certified Pursuant to Rule 723

17                                     Of the Rules of Court. 18

19

 

 

21                            __________________________

22                                                                        Joanne Leah McKenzie

23                                                                           RPR, CRR, CRC, RSA, CSR(A)

24                                                                        Court Reporter

25

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