ONTARIO COURT OF JUSTICE
sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1, as amended;
CITATION: R. v. M.C., 2017 ONCJ 211
DATE: March 14, 2017
COURT FILE No.: Toronto 14-Y133886
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
M.C., a young person
Before Justice M. L. Cohen
Reasons for Judgment released on March 14, 2017
A. Martin … counsel for the Crown
J. Louch … counsel for the accused M.C.
COHEN, M. L. J.:
1MC is charged with two counts of possession of cocaine for the purposes of trafficking on October 31, 2014.
2This judgment arises from the accused’s second trial on these charges. The first ended in a mistrial.
The facts may be summarized as follows:
3Two officers, PC Blakely and PC Trenouth, were on general patrol in a police vehicle shortly after 1:00 a.m. when they observed a male on a bicycle weaving side to side and entering into a traffic lane without looking. They stopped the male, later identified as Herbert, and, when they spoke to him, the officers observed a strong smell of alcohol on his breath. On further investigation, the officers learned Herbert was the subject of a bench warrant for a theft under charge. The officers arrested him, and agreed to take his bicycle to his residence on the way to the police division.
4When the officers arrived at Herbert’s apartment, they knocked on the door. There was no answer and no sound within. The officers noted a smell of marijuana in the hallway. Herbert provided the key to the premises, and the officers were able to enter.
5The apartment was very small, estimated by one police witness to be ten feet by ten feet, with the living room and kitchen area in one room. There were four males in the apartment. An adult male, later identified as Jordan Davis, was standing by the kitchen counter a few feet from the entrance. The officers observed a black scale, and a steak knife next to the scale on the counter. There was white residue on the scale, knife and counter. Also on the counter, they observed a torn yellow grocery bag on top of a Pizza Pizza box.
6A second adult male, Jason Jaggernaut, was sitting on a chair facing the centre of the apartment. There was white powder on the floor next to him.
7A few feet from the entrance way, two males were sitting on wooden chairs at either side of a table. One was an adult male, variously referred to in the evidence as Nembhard Walker, Javante Watson, and finally identified as Jaimal Nembard- Walker. On the table were some zig zag papers and a marijuana grinder. Across the table from Walker was the accused youth, MC, sitting with his back to the wall.
8The males remained in their positions while Blakely radioed for back up. Herbert was seated near the fridge, so at this point there were seven people in the small apartment. Other officers soon arrived, including Kerr, Reigert, Braganza and Hibbit.
9When the backup officers arrived, Blakely informed them that the males were going to be arrested for possession of cocaine. The males were all handcuffed and seated. The officers testified that the scene was calm.
10Blakely stated that at that time
We observed Mr. C. slide a white plastic bag with his foot, back under the table using his left foot, at which time Police Constable Kerr picked it up.
11Kerr testified that she walked into the apartment and stood directly in front of MC. She stated that when she stood in front of him, he was sitting upright in the chair. She stated that MC turned his left toe outward very slowly, and then began to draw it back very slowly, and that she observed him pushing a white plastic bag
...back towards him, towards the chair, it was a very controlled movement and very slight. It was a very slight controlled movement. It didn’t go very far before I stopped it. I would say two to three inches...
12Kerr stated that she reached out with her right foot, stepped on the bag, and pulled it towards herself, leaving it by her foot. She then arrested the accused.
13On a pat down search of the accused, she located one cell phone and a “wad of cash”, neither of which were seized or in evidence at trial. The meaning of “wad”, and the amount of money found on the accused, was not established.
14Kerr testified that the white bag had a knot at the top. Inside the bag there was a green plastic bag which contained a silver plastic bag. The silver bag contained a clear Ziploc baggie which contained 89.76 grams of cocaine.
15MC was arrested and transported to the police station where he was searched. A pouch was located in the fly area of his jeans. The pouch held three small pieces of crack, weighing 1.19g, wrapped in grey plastic and knotted.
16There was a blue nylon bag front of where MC was sitting. There was no coherent or consistent account of exactly where the bag was located, nor was it clear which officer dealt with it. The bag was found to contain 2.9 g. of cocaine wrapped in grey plastic and 5.54 g of marijuana in a zip lock bag. There was no evidence establishing who owned or possessed this bag.
17Given the generic nature of grey plastic bags, about which I take judicial notice, the fact that the cocaine was in a grey plastic bag, and the accused had a grey plastic bag in his pants is not sufficient, in my view, to tie the drugs in the blue nylon bag to the accused.
18Riegert arrested Jordan Davis. Davis had been seated by the police, and 1.76 grams of crack were found by the foot of his chair. When Davis stood up, Reigert stated that “a huge crack rock fell out of his pants”, and that when he was taken out to the hallway, more crack cocaine, cocaine powder and rock fragments fell from his waist band and pant legs. Additional loose crack cocaine fell from his pant leg during a level 3 search at the police division. In addition the officer located $550 in cash, two cell phones, and identification belonging to other persons, on Davis. In total Davis was found in possession of 105.77 grams of crack cocaine.
19Trenouth dealt with Jaggernaut. The officer had Jaggernaut stand up, and, as he did so, a solid white substance, apparently crack cocaine, fell to the ground. Jaggernaut was cuffed, searched, and arrested. The drug on the floor was seized. Jaggernaut had two cell phones and a small amount of money on his person. The weight of cocaine found on or near Jaggernaut totalled 8.05 grams.
20Blakely dealt with Walker, the male sitting opposite side of the table from MC. Walker was arrested and searched. Walker had 9.56 grams of marijuana in his vest pocket, a sandwich bag containing 17.71 grams of cocaine in a pocket of his shorts, a further 8.5 g of cocaine in a knotted plastic bag in the front pocket of his shorts, and 6 smaller bags of crack and powder cocaine in the waistband of his pants. Walker was also found to possess $480 Canadian, $9 American, and two cell phones.
21According to the expert testimony, the value of the drugs found in the apartment was close to $30,000.
Undisputed Facts
Undisputed Facts
22I am going to deal first with the undisputed facts:
23There is no dispute that MC had possession of cocaine in a pouch sewn into the front of his pants.
24There is no dispute that the knife and scales with white residue on them were on the kitchen counter in plain view. There is no dispute there was white powder on the counter.
25There is no dispute there was cocaine on the floor near Jaggernaut and Davis.
26There is no dispute that Davis, Jaggernaut and Walker had large quantities of drugs on their person.
27There is no dispute that the drugs located tested as marijuana, crack cocaine and powdered cocaine, nor is there any dispute as to the quantities and likely value of the substances seized.
28There is no dispute that the quantity of cocaine found in the accused’s pants is consistent with personal use, and that the quantity of cocaine found in the plastic bags allegedly moved by MC, is consistent with possession for the purpose of trafficking.
Disputed Facts
Disputed Facts
29I turn then to what is in dispute.
30The principle dispute is whether the crown has established that the accused moved the white bag with his foot. The evidence on this question may be summarized as follows:
At the first trial, Trenouth said the plastic bag was on the ground between the chair legs, either under or in front of the chair;
At the trial before me, Blakely said that he saw the accused sliding the bag with his left foot with a sideways motion;
At the first trial Kerr testified that she “observed MC with his left foot very slowly with the outside of his foot scooch a bag or push it very slowly towards underneath to the side of this chair;”
In cross-examination Kerr stated that “If he cocked his toe out and pushed the bag, it would have been just to the outside of the leg, the left leg of the chair,” and that “I saw him pushing it to the side of the chair. Back towards underneath to the side of the chair. It wasn’t directly under his bum. It was just to the side of the chair.”
In her notes Kerr wrote that MC used his left foot to push the plastic bag sitting on the floor backwards under chair.
Findings regarding the accused’s foot movements
Findings regarding the accused’s foot movements
31While I acknowledge the inconsistencies in the foregoing evidence, I note the following: The apartment was small and full of people. There was a lot going on. The movements described were slight and subtle. The distance the bag was moved was a few inches. The officers were standing in different spots relative to the accused, which could account for differences in their observations. Kerr’s observations were corroborated by Blakely.
32Taking all of these circumstances into account, the inconsistencies do not affect my overall assessment of the evidence of the officers. I found their testimony credible and reliable on the question of whether the accused moved the white bag with his foot. I find that he did.
33The issues in this case are these:
Has the crown has established beyond a reasonable doubt that the accused was in personal possession of the crack cocaine located on his person?
If the amount of crack is consistent with personal use, has the Crown established beyond a reasonable doubt that the accused was in joint or constructive possession, or a party to the possession of the other drugs in the apartment? If so, is it established that he was in possession of the drugs for the purpose of trafficking?
Has the crown has established beyond a reasonable doubt that the accused was in personal possession of the powder cocaine located in the white plastic bag, and if so is it established that he was in possession of the cocaine for the purposes of trafficking?
If the Crown has failed to establish that the accused had personal possession of the cocaine in the white bag, was the accused a party to, or in joint or constructive possession of the drugs in the bag, and/ or the drugs found on others or present in the apartment, and, if possession is established, is it also established beyond a reasonable doubt that the accused’s possession was for the purposes of trafficking?
34The Crown and defence agree that the evidence on all of these issues is largely, but not entirely, circumstantial.
Possession
Possession
35Possession is defined in section 4 of the Criminal Code as follows:
4 (3) For the purposes of this Act,
(a) a person has anything in possession when he has it in his personal possession or knowingly
(i) has it in the actual possession or custody of another person, or
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
36Section 4(3)(a) defines personal possession.
37Section 4(3)(a)(i) and (ii) defines constructive possession.
38Section 4(3)(b) defines joint possession.
Personal Possession
Personal Possession
39In order to prove the accused guilty of personal possession the Crown must establish
(1) manual or physical handling of the prohibited object;
(2) knowledge; and
(3) control.
R v Beaver 1957 CanLII 14 (SCC), [1957] S.C.R. 531 (SCC).
40The Crown submits that the accused had personal possession of the crack cocaine in his pants. The crown argues that the fact the crack is “literally sewn into his pants” enables the court to draw the inferences that the accused physically handled the object, exercised control thereby, and had knowledge of the nature of the substance. The crown argues that these inferences are exceptionally strong, given that the crack cocaine was located in an intimate area of the accused’s clothing.
41The accused concedes that he was in personal possession of the crack cocaine in his pants.
42The expert evidence is that the quantity of crack in his pants is consistent with personal possession, and does not necessarily imply possession for the purposes of trafficking.
43For the reasons articulated by the Crown, and conceded by the defence, I find that the crown has established beyond a reasonable doubt that the accused had personal possession of the cocaine in the bag sewn into his pants.
Personal Possession of the Cocaine in the white bag
Personal Possession of the Cocaine in the white bag
44To establish personal possession of the drugs in the white bag, the crown must establish manual handling, knowledge and control of these drugs.
45The manual handling is found in the evidence of the movement of the bag by the accused.
46To establish knowledge, the crown must prove that the accused was aware that he had physical custody of the thing in question, was aware of what the thing is, and was aware of the criminal character of the thing: R. v Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 (par.16), R. v. Midwinter, 2015 ONCA 150, [2015] O.J. No. 1099 (Ont. CA).
47I infer that MC had knowledge of the presence of prohibited drugs in the bag from his attempt to move the bag out of view of the police. The movement was subtle and it was surreptitious. My conclusion that it was surreptitious rests not only on the cautious and measured nature of the movement of the accused’s foot, but also on the context of what was visible to him at the time: there was a scale and knife on the kitchen counter bearing white residue, and cocaine was visible on the floor. In these circumstances, I conclude the accused was aware that drugs were being packaged in the apartment, and would have known or strongly suspected that the bag contained prohibited drugs.
48The third and essential element to be proved is control. It is here that the question of possession becomes difficult.
49The fact that the movement of the bag by the accused was momentary and brief does not exclude a finding that the accused is in possession. In R v Terrence (1983), 1983 CanLII 51 (SCC), 4 C.C.C. (3d) 193 (SCC)), the Supreme Court held that a “measure of control” is sufficient. Momentary contact can be sufficient to establish control.
50On the other hand, there are cases where personal possession has not been made out, notwithstanding proof of knowledge and control.
51In R v York 2005 BCCA 74, [2005] B.C.J. No. 250, the British Columbia Court of Appeal said:
Personal possession is established where an accused person exercises physical control over a prohibited object with full knowledge of its character, however brief the physical contact may be, and where there is some evidence to show the accused person took custody of the object willingly with intent to deal with it in some prohibited manner.
52In York, the accused was the operator of a warehouse with several business partners. He discovered vans with furniture inside parked outside the warehouse, and realized the goods were stolen. He drove the vans away in order to take them off his property. At trial, the judge convicted York on the grounds that he knew that the goods were stolen, and exercised physical control over them without notifying the police or the rightful owners. On appeal to the British Columbia Court of Appeal, the Court held that while York knew the property was stolen, and exercised control over it,
The blameworthiness of this conduct fell short of that required for a conviction for a crime of dishonesty. The circumstances here are not all that dissimilar to those in Christie, supra. The appellant's conduct was inconsistent with any intention to retain or deal with the goods.
53It is clear from the reasoning in York, and the cases cited therein, that the “intent to deal with the object in some prohibited manner” refers to the existence of a blameworthy state of mind which is specifically related to a particular offence [1]. In other words the blameworthy state of mind was not found in the intention to remove the goods from his property. The blameworthy state of mind would be found in the intention to retain or deal with the stolen goods.
54In the case at bar, the blameworthy state of mind would be the intention to possess or traffic in the drugs contained in the bag.
55Thus, while the movement of the bag was a momentary exercise of physical control, the question remains whether the evidence is sufficient to establish the type of control described in R. v. York. Expressed in another way, is the act of control described in the evidence sufficient to establish that the accused took custody of the drugs with intent to personally possess them, or deal with them in some other prohibited manner?
56As Justice Hill observed in R. v. Gordon,
What will constitute proof of an act or measure of control, sufficient to attract criminal liability, will of course vary with the factual circumstances of each case. (par. 134)
57Applying the reasoning in York, to the exercise of control in this case, I have considered inferences to be drawn from direct and circumstantial evidence. The direct evidence of the officers is that, with an officer standing in front of him, and other officers nearby, the accused made a slight subtle movement of his foot, and, over a matter of seconds, dragged the bag for a few inches towards and under or beside the chair he was sitting on.
58The circumstantial evidence includes the following:
The accused was the only youth in the room and was significantly younger than Davis and Jaggernaut;
There is no evidence the accused was in possession of any items commonly associated with trafficking such as large sums of money or multiple cell phones;
The accused was the only person in the room not in possession of such items;
The apartment did not belong to the accused, and there is no evidence he resided there or had any control of the premises;
The accused was aware that he had a quantity of crack cocaine on his person;
The cocaine on the counter and on the floor, the knife and the scales with residue on them were all visible to the police and the accused;
Anyone in the apartment at the time would have been aware that drugs were being cut up, weighed and packaged for the purposes of trafficking;
Marijuana was being smoked as evidenced by the smell of marijuana in the hallway outside the apartment and rolling papers and a marijuana grinder on the table where the accused was sitting but there is no evidence the accused was smoking marijuana;
The police were arresting the occupants of the apartment and Kerr was standing directly in front of the accused.
The white bag contained three levels of packaging of the drug. There is no evidence the accused opened the bag or had any contact with its contents;
59What reasonable inferences can be drawn from these circumstances?
60In R v Villaroman, 2016 SCC 33, [2016] S.C.J. No. 33 (SCC), the Court cautions that
“in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence” the court should not “too readily draw inferences of guilt” (par. 30), and
If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt. (par. 35)
61The court states (at paragraph 37) that when assessing circumstantial evidence, the trier of fact is required to consider "other plausible theories” and "other reasonable possibilities" which are inconsistent with guilt. The inferences do not have to arise from proven facts, but the "other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. (par. 37).
62The court states that the line between a "plausible theory" and "speculation" is not always easy to draw, but
the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.
63In this case, the plausible theory rests on the following: the accused was 16 years of age. He had a small quantity of crack cocaine hidden in his clothes. Davis was packaging Cocaine at the counter. There was powdered cocaine on the floor near Jaggernaut. The white bag was on the floor near MC. The officer was standing in front of him. The room was full of police officers. The other occupants were being handcuffed and arrested. While the contents were not visible, in the circumstances it is likely the accused strongly suspected or knew the bag contained drugs. The accused knew he was in serious trouble. .
64There is no evidence the bag and its contents belonged to the accused or were entrusted to him. There is no evidence, other than the brief movement of his foot on the bag, that he actually handled the drugs that were triple wrapped inside. His actions were confined to moving the bag out of the line of sight of the police.
65In these circumstances, the accused’s actions are reasonably capable of supporting the inference that the youthful accused knew he was in trouble by being in the apartment in the company of the others, and in the presence of drugs being cut up and weighed, and that he moved the bag to avert the police discovery of the contraband in order to protect himself. In other words, “viewed logically and in light of human experience, MC’s actions did not denote an intention to keep or use the drugs, or “deal with the drugs in some prohibited manner,” but rather to conceal the drugs so he would not be arrested for possessing the bag. The circumstantial evidence is reasonably capable of supporting an inference other than that the accused is guilty.
66Thus I find that the Crown has not proved that the accused was in possession of the drugs in the white bag.
67To establish the offence of possession for the purposes of trafficking, the crown must prove, beyond a reasonable doubt, not only that the accused had possession of the drugs, but also that he had the intent to traffic. Notwithstanding my finding that the accused was not in possession of the bag and contents, I find in any event that the crown has not proven the intention to traffic beyond a reasonable doubt.
68My conclusion that the accused moved the drugs to protect himself from investigation does not translate into proof of an intention to traffic.
Joint or Constructive Possession or Party
Joint or Constructive Possession or Party
69Although I have found that the crown has failed to establish personal possession, the accused may still be found guilty of joint or constructive possession of the drugs in the apartment, or as a party to the possession of all the drugs in the apartment.
70The Crown argues that when one looks at the whole of the evidence, this is a joint enterprise between a number of people, and joint and constructive possession is established.
71Constructive possession is defined in s. 4(3)(a)(i) and s. 4(3)(a)(ii) of the Code and joint possession s. 4(3)(b).
72In Regina v Pham 2005 CanLII 44671 (ON CA), [2005] OJ No. 5127, Kozak, JA, sets out the requirements for proof of constructive and joint possession:
15 In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. See R. v. Caldwell (1972), 1972 ALTASCAD 33, 7 C.C.C. (2d) 285 (Alberta Supreme Court, Appellate Division); R. v. Grey (1996), 1996 CanLII 35 (ON CA), 28 O.R. (3d) 417 (C.A.).
16 In order to constitute joint possession pursuant to section 4(3)(b) of the Code there must be knowledge, consent, and a measure of control on the part of the person deemed to be in possession. See R. v. Terrence, 1983 CanLII 51 (SCC), [1983] 1 S.C.R. 357 (S.C.C.); R. v. Williams (1998), 1998 CanLII 2557 (ON CA), 40 O.R. (3d) 301 (C.A.); R. v. Barreau, 1991 CanLII 241 (BC CA), 9 B.C.A.C. 290, 19 W.A.C. 290 (B.C.C.A.) and Re: Chambers and the Queen (1985), 1985 CanLII 169 (ON CA), 20 C.C.C. (3d) 440 (Ont. C.A.).
73In R. v. Morelli (2010), 2010 SCC 8, 252 CCC (3d) 273 (SCC), the Court defines the requirements for proof of constructive possession:
17 Constructive possession is established where the accused did not have physical custody of the object in question, but did have it "in the actual possession or custody of another person" or "in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person." (Criminal Code, s. 4(3)(a)). Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his "use or benefit" or that of another person.
74Thus both sections require proof of some measure of control.
75In addition to the circumstantial evidence I have already described, I have also considered the following:
- Other than the crack cocaine in the clothing of the accused, and the cocaine in the white plastic bag, and the cocaine on the counter, scales, knife and floor, the rest of the cocaine was discovered when the police arrived and had the other males stand up or searched. The drugs fell from their clothing, or were located during a search of their person. There is no evidence those drugs were visible before the police entered the room and commenced the investigation;
● Furthermore, even if it were proven the accused had knowledge of the presence of other drugs in possession of the other individuals in the room, which I do not find, there is no evidence the knowledge was more than “quiescent.”
I reject the suggestion that the presence of pizza boxes and empty pop cans nearby the accused are evidence he had been in the room for some time, eating in the room with the others, and participating in a joint enterprise as argued by the crown. Even if he had been eating pizza with the others, this hardly brings him into joint control of the drugs in their possession. Nonetheless, the fact is that there is no evidence about when the accused first entered the apartment, and what he did there prior to the police arrival;
Indeed, it is possible there was no joint enterprise, and that this was a room occupied by a few individual drug dealers who were engaged individual operations. The inference urged on me by the crown that the drugs were hurriedly secreted in the clothing when the police knocked at the door is speculative, and does not dislodge the prescription that possible theories inconsistent with guilt must be considered.
The argument that an inference should be drawn that those who possessed the drugs would not allow the accused to be present unless he were part of the alleged enterprise is similarly speculative based on the circumstance I have described.
76The only cocaine that was in plain view in the apartment was the white powder and residue on the counter, scales and knife, and the powder on the floor next to Jaggernaut. Davis was clearly in control of the drugs on the counter, scales and knife. The accused was not at the counter. The powder on the floor was not next to or nearby the accused.
77There is no evidence the accused ever “knowingly put or kept the objects in a particular place”, or exercised any measure of control over any of the drugs other than those I have previously dealt with. The fact the accused was present in the room may establish knowledge of the presence of some drugs, but does not establish control.
78In my view, the evidence, circumstantial or otherwise, does not lead to an inference that the accused had any measure of control over any of these drugs.
79In the result, I find that the crown has failed to establish that the accused had possession of these drugs under the theory of joint or constructive possession.
80The crown’s final argument is that the accused is a party to the offence of possession for the purposes of trafficking.
81Section 21 of the Criminal Code provides that
21 (1) Every one is a party to an offence who
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.
Common intention
(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.
82In this case there is no evidence of a common intention or a common purpose entertained by all the persons in the room, or by the accused in concert with any one of them to traffic in the cocaine.
83The individuals in the room may have had a common purpose or, equally, they may have had individual intentions and were merely gathered in the room together.
84I do not find the accused aided or abetted any other party in the room. In my view, it is a reasonable inference that MC’s actions in moving the white bag were to protect himself and not others.
85The young person should not have been present in that apartment, but I do not find that his mere presence in a room with three adults carrying large quantities of cocaine on their person, one of whom was packaging cocaine, makes him a party to the offences they were committing.
86In the result, in relation to the drugs on his person, MC will be found not guilty of possession of cocaine for the purposes of trafficking, but guilty of simple possession of the crack cocaine;
87On Count 2, MC is acquitted on the charge of possession for the purposes of trafficking.
Released: Signed: Justice M. L. Cohen