Ontario Court of Justice
Her Majesty the Queen -vs- Andre Betton
Before: The Honourable Madam Justice M.T. Devlin
Location: Courtroom #402, Oshawa, Ontario
Publication Ban in Effect
Appearances
- J. Bruce, Esq. – Counsel for the Federal Crown
- T. MacDonald, Esq. – Counsel for the Accused
Ruling on Committal – Preliminary Inquiry
Wednesday, June 10, 2015
Ruling on Committal
(Orally, Devlin J)
This is the ruling on committal in the case of Andre Betton. Mr. Betton is charged with two offences: possession for the purpose of trafficking and possession of a controlled substance. The charges stem from an incident which occurred on November 14th, 2013, which resulted in baggies of crack cocaine and cocaine being discovered in the front console of the car Mr. Betton was driving. The Crown relied on the evidence of Constables Mintz and Hoover. The defence did not call any evidence.
The main issue is whether the Crown has proven the two requirements of possession, namely knowledge and control. The defence properly conceded that the facts establish control over the hidden drugs. Therefore, the issue is whether the Crown has established a prima facie case that Mr. Betton had knowledge of the hidden drugs.
Legal Analysis
I turn now to the legal analysis. The test for committal was established by the Supreme Court of Canada in its 1977 decision of United States of America v. Shephard, [1977] 2 S.C.R. 1067 as follows: "Whether there is some evidence upon which a jury properly instructed and acting judicially could register a conviction." Counsel agree that the Shephard test involves a low threshold.
Counsel provided me with a number of helpful cases from the Ontario Court of Appeal, the Superior Court of Justice, and the Ontario Court of Justice:
- R. v. Collins, [2003] O.J. No. 820
- R. v. Freeman, [2006] O.J. No. 1021
- R. v. Grizzle, [2013] O.J. No. 6184
- R. v. Nakhla, [2015] O.J. No. 1732
- R. v. Palmer, an unreported decision of Justice McLeod, Ontario Court of Justice, November 30th, 2010
- R. v. S.D., [1974] O.J. No. 535
- R. v. Sappleton, [2006] O.J. No. 5718
- R. v. Turner, 2012 ONCA 570 , [2012] O.J. No. 4088
These cases support the principle that where there is no direct evidence (such as the case before me), the preliminary hearing judge must engage in a limited weighing of the circumstantial evidence. (See R. v. Turner supra which cites two Supreme Court of Canada decisions of Chief Justice McLachlin in dissent in R. v. Charemski, [1988] 1 S.C.R. 679, and writing for the majority in R. v. Arcuri, 2001 SCC 54 , [2001] 2 S.C.R. 828). I will now apply these legal principles to the facts of the case before me.
Facts
At approximately 2:50 a.m. on November 14th, 2013, Mr. Betton was stopped by the police for speeding. Constable Mintz saw Mr. Betton's hands near the centre console, and for a moment, he seemed to be clenching an item in his hands. Once Mr. Betton exited the vehicle, the officers found a scale with white residue on the driver's seat, near the console. They therefore arrested Mr. Betton for possession of a controlled substance.
A search of the vehicle post-arrest uncovered a black satin bag and a small scale with residue inside the console. Inside the black satin bag were three baggies as follows:
- 3.8 grams of crack cocaine
- 20.5 grams of crack cocaine
- 5.3 grams of powder cocaine
Two wallets with identification for Mr. Betton were found on the front passenger seat. Two cell phones were also found, although it is unclear where they were found.
Crown's Submission
The Crown submits that knowledge of the drugs hidden in the console can be inferred because Mr. Betton was the lone occupant of the vehicle, and a scale with white residue was found in plain view on the driver's seat beside the console.
Defence Submission and Court's Analysis
The defence disagrees. It submits that even if knowledge could be reasonably inferred, it is not the only reasonable inference, and therefore there is insufficient evidence to support committal.
I agree with the defence. There is no evidence who owned the vehicle Mr. Betton was driving, nor how long he had been driving prior to the police spotting him and stopping him within a two-minute interval. There was also no evidence regarding the residue on the large scale found in plain view.
I therefore conclude that it is not reasonable, based on the facts of this case, to infer that Mr. Betton had knowledge of the hidden drugs, although I am suspicious. Even if I am wrong, and the inference of knowledge could properly be made, I would still conclude that because it is not the only reasonable inference, the test for committal has not been made out. I therefore discharge Mr. Betton on both counts before the court.
Certificate of Transcript
Form 2 Certificate of Transcript Subsection 5(2) Evidence Act
I, Julie Coussons, certify that this document is a true and accurate transcript of the recording in the matter of R. v. Andre Betton, in the Ontario Court of Justice, held at 150 Bond Street East, Oshawa, Ontario, and taken from recording #2811-402-20150610-090500_10_DEVLINM, which has been certified in Form 1 by Betty Midgley.
Julie Coussons – CCR/ACT Certified Court Reporter Authorized Court Transcriptionist