COURT OF APPEAL FOR ONTARIO
Rosenberg, Blair and Tulloch JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Raymond Lincoln
Appellant
Raymond Lincoln, acting in person
Vincenzo Rondinelli, as duty counsel
Jeremy Streeter, for the respondent
Heard:
On appeal from the conviction entered on and the sentence imposed on March 22, 2012 by Justice William F. Fitzgerald of the Ontario Court of Justice.
ENDORSEMENT
1Mr. Lincoln seeks to set aside his convictions for (a) possession of cocaine for the purposes of trafficking, (b) possession of the proceeds of crime, and (c) breach of probation. He was the operator of a rental vehicle stopped by police in Sudbury. Upon investigation, the police discovered "a substantial amount" of cocaine under the steering column of the vehicle and $800 Canadian currency in his wallet. Mr. Lincoln was on probation at the time.
2The main issue on appeal of the charge of possession for the purposes of trafficking is whether there was sufficient evidence of knowledge and control of the substance to justify a finding of possession. The trial judge held that there was. The thrust of the trial judge's reasoning in making that finding, however, is found in the following passage from his brief reasons:
What I am concerned about in the allegation of possession is whether there is sufficient evidence of knowledge and control to make a finding of possession. Mr. Lincoln is the operator of the vehicle. Anything that is found in that vehicle is in his de facto possession prima facie, because as the operator [he] has control of the vehicle and also is considered to have control of the contents, unless there is evidence indicating otherwise. There is not any here. [Underlining added.]
3This line of reasoning constituted an error in law, in our view. It in effect applied a presumption that, because Mr. Lincoln was the operator of the vehicle at the time, he is deemed to have knowledge and control of its contents, unless there is evidence to the contrary. No rebuttable presumption of knowledge and control for purposes of determining possession, based solely on the fact that a person is the operator with control of the vehicle, exists at common law or under the Controlled Drugs and Substances Act, S.C. 1996, c. 19. To give effect to such a premise would constitute an impermissible transfer of the Crown's burden of proof to the accused. While the fact that a person is the operator with control of the vehicle, together with other evidence, may enable a trial judge to infer knowledge and control in appropriate cases, it cannot, standing alone, create such a rebuttable presumption. See R. v. Watson, 2011 ONCA 437, at paras. 11-13.
4The appellant's conviction on the charge of possession for the purposes of trafficking cannot stand.
5The police found Canadian currency in the amount of $800 in Mr. Lincoln's wallet. The trial judge made a finding of guilt on the charge of possession of that currency knowing that it was obtained from the proceeds of crime as a finding "flowing from" his finding of guilt on the charge of possession for the purposes of trafficking. In doing so, he applied the same sort of rebuttable presumption reasoning, concluding that because in the circumstances there was no evidence to the contrary indicating possession of the currency for any other purposes, the charge had been made out.
6The conviction for possession of currency knowing that the currency was obtained through the commission of a crime must therefore be set aside as well.
7Since the conviction for breach of probation was founded on the convictions for the other two offences, it too must fall.
8Accordingly, the appeal from convictions on all three charges is allowed and a new trial ordered on all charges.
"M. Rosenberg J.A."
"R.A. Blair J.A."
"M. Tulloch J.A."
