The first trial of a suspect from the RCMP’s Project Fanalyst concluded last week without a decision.
Madelaine Esquivel, 20, of Surrey, British Columbia stood accused before Judge Ross Green of one count of possession of the proceeds of crime.
In making the case for the Crown, prosecutor Dave Rusnack called as witnesses five RCMP members and Chad Wonsiak, another one of the arrestees from the five-month operation that resulted in 20 arrests and 88 charges.
The police officers testified to the events of January 16, 2013 that led to Esquivel’s arrest. Essentially they had convened that day in the late afternoon to “take down” Davi Estrada, who they suspected was trafficking cocaine.
After witnessing Estrada leave his apartment on 7th Avenue and allegedly make two drug transactions, the first in a taxi and second in a late model black Grand Prix, they arrested two alleged buyers the second of whom was Wonsiak.
After the alleged transaction with Wonsiak in his Grand Prix, Estrada returned to the apartment, then left again a few minutes later. After Estrada got into a third vehicle, the decision was made to make a traffic stop and arrest him. Two members in a cruiser put on the lights and siren to stop the car, but it didn’t pull over right away. Fearing Estrada might be calling the apartment to have Esquivel destroy evidence, the officers radioed a team — led by Sgt. James Morton, the officer in charge of the Yorkton Provincial General Investigations Section (GIS) — that was waiting to enter the dwelling.
Morton decided it was time to move into the apartment at that point in case Estrada was indeed trying to call Esquivel. The sergeant testified he could see the young woman standing in the kitchen at the stove cooking. He knocked on the door and she answered identifying herself as Maddy. When the officers entered they found the premises also occupied by a four-year-old girl who turned out to be Esquivel and Estrada’s daughter
Rusnack entered several photographs depicting the state of the kitchen when the team entered and the evidence they seized as a result of a search conducted after obtaining a warrant. This included $810 in various denominations, sandwich bags and a notepad, which Morton described as a “score sheet” typical in his experience for keeping track of drug transactions. These were found in a drawer in the kitchen island directly beneath Esquivel’s purse according to the witnesses.
Public defender Richard Yaholnitsky, representing Esquivel, cross-examined all the Crown witnesses, but did not call any witnesses for the defence or tender any evidence.
During final arguments, Rusnak used the testimony of his witnesses, the photographs and the Saskatchewan Court of Queen’s Bench decision in R. v. Switucka to illustrate the grounds for the possession charge against Esquivel.
He argued that RCMP testimony established Esquivel was the only other adult besides Estrada living at the residence and that neither had any source of legitimate income.
He said because Wonsiak testified he had given Estrada $300 and the amount of cash Estrada had on him when he was arrested didn’t match, he had clearly deposited some or all of that money in the residence when he returned there after the transaction with Wonsiak.
Furthermore, he said the fact she gave no explanation for the source of the money bolstered the Crown’s case.
He cited R. v. Swituka in which the judge discusses the three types of possession as established by the Ontario Court of Appeals case R. v. Pham, personal possession, constructive possession and joint possession. Personal possession is self-explanatory. Constructive possession requires knowledge beyond passive involvement and some measure of control. Joint possession also requires consent in addition to knowledge and control.
Rusnak said given the facts, the only reasonable inference in the Esquivel matter was that she had knowledge of the money, gave consent to the activities leading to its procurement and had control of it constituting joint possession.
In Swituka, the defendant, Travis Swituka was found guilty of possession of cocaine for the purpose of trafficking even though he was not in personal possession of the drugs nor was he even in the residence where they were found at the time.
However, because he had keys to the safe in which the coke was found on his key chain with those of his truck, the judge concluded: “The only reasonable inference that can be drawn from the facts was that Swituka had knowledge, consent and control over the safe and its contents. He was in constructive and/or joint possession of the cocaine found by the police in the apartment.
Yaholnitsky started his defence by reminding the Court that no accused person has any obligation to provide an explanation, that the onus is on the Crown to prove, beyond a reasonable doubt, that the defendant is guilty.
He noted the amount of money was only $800, hardly an unusually large amount that might be associated with drug trafficking.
“If the Court is to make any inference, it is that the state supports any mother,” he said.
He said the Crown had not produced any evidence that Esquivel knew the money was there nor that she would have known it was the proceeds of crime.
He called into question Wonsiak’s testimony saying there was no way of connecting the money in the drawer to the alleged transaction and contrary to the Crown’s assertion that it had been established Estrada was dealing drugs, it is yet to be proven because Estrada is still awaiting trial. But even if he was, Yaholnitsky added, the Crown had produced no evidence he had ever done it at home suggesting Esquivel may not have even known how Estrada was obtaining his income if indeed it was illicit.
“The evidence doesn’t meet any kind of logical inference at all,” the defender said.
Yaholnitsky also countered R. v. Swituka with half a dozen decisions in which the test of constructive or joint control was not met and the defendants were acquitted.
He wrapped up saying, based circumstantial nature of the Crown’s evidence and on bulk of the case law, the Crown first had to prove a crime was committed, that at least some of the money in the drawer was the proceeds of crime, that his client knew it was the proceeds of crime and that, even if she did know, that she approved not just acquiesced.
He submitted the Crown’s case failed on all of these tests.
Judge Green will render his decision September 20.