R. v. Adelberg, 2001 BCCA 637
[7] The appellant was convicted by the Honourable Judge DeCouto of having in his possession for the purpose of trafficking the heroin that was seized from him. That heroin consisted of three flaps of a total quantity of somewhere in the order of .6 or .8 grams. It was said by an expert to be sufficient, normally, to look after an addict’s needs for something in the order of two to three days. That was a material consideration that was before the judge for him to consider in deciding whether or not the Crown had made out a case beyond a reasonable doubt on Count 2 of possession of heroin for the purpose of trafficking.
[13] This is a case that is circumstantial in nature, and it was, I suggest, not improper for the trier of fact to refer to the proposition that in certain circumstances if the proof of a case has reached a certain stage, then in the absence of any evidence that would lead to another conclusion, the conclusion proof of guilt beyond a reasonable doubt follows because the evidence bears only that construction and supports that conclusion. It seems to me that in general that was what the learned trial judge was stating in the passage that I have referred to.
[14] The significant factor in this case that leads me to conclude that this was not an unsafe or unreasonable conviction is that, viewed in its totality, the evidence, it seems to me, was only consistent with the proposition that the appellant had that drug in his possession for the purpose of trafficking and not for personal use. What I view as of particular significance is the fact that the flaps that were found on the person of the appellant bore the same characteristics as the heroin that was discovered in the apartment occupied by himself and Ms. Akapew. It seems to me that there is considerable force in the argument advanced by counsel for the respondent that it was certainly an inference that was open to the judge that in light of the circumstance that Adelberg, the appellant, had access to those drugs in the apartment, that it was not requisite for him to be carrying about on his person any substantial quantity of drugs for his own personal use. To me that is a significant factor that in this case tips the scale to the conclusion that the Crown had proved its case beyond a reasonable doubt, that the appellant was in possession of heroin for the purpose of trafficking.
[15] The expert had testified that the amount that he had was entirely consistent with that. This is not a situation where an individual is found with a relatively modest quantity of drugs, which I would call this, but in this case the person who is found with that quantity of drugs, which is tied back to another larger quantity of drugs is present in his household. It seems to me that that circumstance bears powerfully in this case in favour of the proposition that those drugs seized from Mr. Adelberg were possessed by him for the purpose of trafficking.
[16] In my view, it was certainly a conclusion that was open to the learned trial judge to conclude on the evidence as he did that it was proven beyond a reasonable doubt that those drugs were possessed for the purpose of trafficking. I do not consider that he imposed a burden on the appellant to testify, but he was merely in the passage in the judgment that I have referred to merely adverting to the proposition that considered in its totality the evidence of the Crown led to no other rational conclusion, and he being satisfied to the requisite degree that this was so, I do not consider that any error has been demonstrated in his conclusion adverse to the appellant that the appellant was guilty of possession of heroin for the purpose of trafficking.
[17] I accordingly would not accede to the arguments advanced on the appeal, and I consider that the appeal should be dismissed. Before leaving the matter I should simply like to observe that both counsel, I consider, advanced helpful arguments and we are indebted to them for rational and competent arguments.
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