Court Information

Court: Ontario Court of Justice, Old City Hall - Toronto

Date: March 7, 2018

Between: Her Majesty the Queen

And: Tianna Zachar

Before: Melvyn Green, J.

Counsel:

• I. Glasner, for the Crown
• P. Scully, for the Defendant

Heard: January 18, 19 and 22 and February 1, 2018

Reasons for Judgement

A. Introduction

[1] The Guns and Gangs Task Force of the Toronto Police Service (TPS) was investigating Sharla Turnbull. Members of the TPS followed her from her residence to an industrial mall on the afternoon of October 21, 2016. A Honda pulled into the same plaza, picked up Turnbull and drove off. The police followed and stopped the Honda, and then arrested its two occupants: Turnbull and, seated in the driver's seat, the defendant Tianna Zachar. Two small baggies, one containing 26 grams of crack cocaine and the second 23 grams of heroin, were seized from a black sports bag on the Honda's rear seat. The defendant is charged with possession of both drugs for the purpose of trafficking. She is also charged with a single count of possession of the proceeds of crime – some $350 found in close proximity to the drugs.

[2] The case against the defendant is entirely circumstantial. It rests on the evidence of six witnesses, all police officers, called by the Crown. The defendant did not testify nor did she advance any other evidence. As in all criminal prosecutions, the defendant cannot be convicted of any offence unless the Crown establishes the essential elements of that offence to the appropriate legal standard, that of proof beyond reasonable doubt.

[3] The critical issue in this case is that of "possession" – that is, has the Crown, with respect to each alleged offence, proved that the defendant had both control of the seized items and knowledge of their illicit quality. The criminal source of the seized money is also at issue. The defence does not contest the police evidence respecting the prohibited nature, weights or continuity of the seized drugs. Further, the defence concedes that the weight and value of the drugs are such that the alleged unlawful purpose, that of trafficking, is made out if the defendant's knowing possession of the drugs is adequately established.

B. The Evidence

[4] Turnbull occupied an eighth-floor unit in an apartment building on Royal York Road in Toronto. Police surveillance of and in the building began the morning of October 21, 2016. Turnbull buzzed two men into the lobby at 11:27am. At Turnbull's request, a female "friend" was admitted to the building some seven minutes later and, like the two men before her, made her way to the eighth floor.

[5] Just after 1:00pm, Turnbull, the woman whose entry she had earlier authorized and a third woman crossed the lobby and entered a taxi. The police followed them to and from a restaurant. They returned to the Royal York address at 2:10pm. The three women took the lobby elevator to the eighth floor. Other than their purses, none of the women was observed carrying anything to or from the restaurant.

[6] About a half-hour later, at 2:40pm, two women emerged from the lobby elevator. One was identified as one of the two women who earlier accompanied Turnbull to and from the restaurant. The two women wheeled a large luggage bag through the lobby and into a cab in which they left the area. The police did not follow the cab.

[7] At 3:21pm, one of the two men Turnbull buzzed in at 11:27am walked through the lobby with a black backpack. He left in a Chrysler 300 that had just parked at the building entrance. Police followed the Chrysler.

[8] Turnbull was next observed a few minutes later, on the balcony of her unit. At 3:38pm she exited the lobby elevator, crossed the lobby and entered a dark Mazda that had pulled up seconds earlier. Turnbull did not appear to be carrying anything, and certainly nothing larger than a purse. The police followed the Mazda to an industrial plaza at Fenmar and Garyray Drives where, at about 4:25pm, it parked near a shop bearing the name "Casino Auto". Turnbull left the Mazda and appeared to try and get the attention of someone inside the shop. She returned to the Mazda and then back to Casino Auto where she gained admission at about 4:26pm.

[9] A taxi stopped near the front of Casino Auto at 4:42pm. A woman carrying a black duffel bag moved from the taxi to the backseat of the Mazda while Turnbull remained inside Casino Auto. Minutes later, at 4:49pm, a maroon-coloured Honda entered the same plaza, stopping near the Mazda. A woman left the Honda and entered the Mazda. She returned to the driver's seat of the Honda a few minutes later. The best positioned surveillance officer was confident he did not observe this woman carry anything on either entering or leaving the Mazda, although he conceded that his sightline may have been somewhat obscured.

[10] Turnbull stepped out of Casino Auto at 4:52pm. She did not appear to be carrying anything. She entered the passenger seat of the Honda which immediately drove east on Garyray. Police vehicles closely followed and then boxed-in the Honda at about 5:02pm. The defendant was behind the wheel. She and Turnbull were immediately apprehended.

[11] Det. Cst. Hockaday "detained" the defendant with respect to possession of a firearm and placed her in his unmarked vehicle. (Although the TPS investigation was focused on firearms, none was found in the Honda or otherwise in Zachar's possession.) The defendant promptly identified herself and her date of birth: she had turned 19 about a week earlier.

[12] Det. Cst. Coroghli searched the Honda. A topless cigarette package containing a small plastic baggie and several conspicuous buds of marijuana rested on the console between the two front seats. Coroghli left the Honda to advise Hockaday of his discovery. Hockaday, in turn, arrested the defendant for possession of the drug. The defence rightly concedes that the marijuana was in "plain view".

[13] Coroghli returned to the Honda. There were two bags on the rear seat: a black Adidas sports bag and a smaller brown Louis Vuitton purse-like bag. The tip of a plastic baggie noticeably protruded from a small brown clutch resting in an unzipped pouch at one end of the sports bag. On closer examination, Coroghli located two small baggies in the clutch, containing, respectively, what was later identified as 23 grams of heroin and 26 grams of crack cocaine. His search of the clutch also yielded some $350 cash, a cellphone, keys and some cosmetics. A digital hand-scale was located in the Louis Vuitton bag. On being advised of the results of Coroghli's search of the Honda, Hockaday arrested the defendant for possession of the seized heroin and cocaine.

[14] Expert evidence fixed the value of the seized cocaine at between $1,300 and $1,700 (if sold at the "ounce" level) and $5,100 if trafficked through street sales. Applying the same two-tier pricing analysis, the value of the seized heroin ranged from approximately $4,500 (if sold as a single unit) to between $6,900 and $11,500 on the street. (As noted, the defence concedes the prohibited commercial purpose if possession is established.)

[15] The TPS executed a search warrant for firearms at Sharon Turnbull's apartment at approximately the same time as the defendant was being investigated. An extended ammunition magazine, digital scales and crack cocaine were among the items seized in the apartment. No evidence was led of any effort to qualitatively compare the cocaine found at Turnbull's residence with that seized from the Honda.

[16] None of the items seized from the Honda (including the two bags in the rear seat, the drug-containing cellophane baggies, the cash, several cell phones and the keys and make-up) were submitted for fingerprint or DNA analysis. No evidence was led of the ownership of the various cellphones or of the occupants or owners of any of the properties with which the keys were associated. Nor is there any evidence of the owner of any of the garments or other items located in the black Adidas bag.

[17] The Honda in which the defendant was apprehended was registered to a numbered company at an address in Brampton. No evidence was led as to the directors of the company or of the defendant's association with that company or the Brampton address. There is no evidence of any identification being found in the Honda. Nor is there any evidence of the defendant being on police radar until such time as the Honda was first sighted in the mall parking lot.

C. Analysis

(a) The Governing Legal Principles

(i) Introduction

[18] Two legal constructs – one substantive and one evidentiary – are of central importance to the proper resolution of this case. The substantive consideration pertains to the legal meaning of "possession" – the generic offence underlying each of the three charges faced by the defendant. The evidentiary issue is a function of the nature of the evidence led by the Crown in proof of its case. That evidence is entirely circumstantial and, as such, is subject to a second order of inference-drawing that does not obtain in prosecutions dependent solely on direct evidence. I address each of these constructs, beginning with the concept of "possession".

(ii) The Law of "Possession"

[19] As explained by the Court of Appeal in R. v. Pham, 203 C.C.C. (3d) 326, at para. 14; affd. 2006 SCC 26, [2006] 1 S.C.R. 940:

Section 4(3) of the [Criminal] Code creates three types of possession:

(i) personal possession as outlined in s. 4(3)(a);

(ii) constructive possession as set out in s. 4(3)(a)(i) and s. 4(3)(a)(ii); and

(iii) joint possession as defined in s. 4(3)(b).

[20] It is trite law that knowledge and control are essential elements of all forms of possession: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 15; R. v. Terrence, [1983] S.C.R. 357; R. v. Pham, supra, at para. 15.

[21] The doctrine of "personal possession" – in the sense of actual, physical, immediate possession – has no application to this prosecution. Nor does the Crown here advance a theory of "joint possession". What is of moment is the doctrine of "constructive possession". As defined in clauses 4(3)(a)(i) and (ii) the Code, a person has "anything" in his "constructive" possession if he "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.

[22] Given that the drugs and alleged criminal proceeds at issue were located on the rear seat of the car driven by the defendant, and not in "the actual possession of custody of another person", it is the second clause of this definition on which the Crown relies to ground criminal liability. The Court of Appeal addressed this form of possession in R. v. Pannu, 2015 ONCA 677, 328 C.C.C. (3d) 149, at para. 156:

Constructive possession does not involve an accused having physical custody of a subject-matter. Constructive possession is established where an accused has the subject-matter … in any place, whether belonging to or occupied by the accused or not, for the benefit of the accused or someone else. To establish constructive possession the Crown must prove beyond a reasonable doubt that an accused:

i. knows the character of the object;

ii. knowingly puts or keeps the object in a place; and

iii. intends to have the object in the place for his or her use or benefit or the use or benefit of some other person. [Emphasis in original; citations omitted.]

[23] (See also R. v. Morelli, supra, at para. 17.)

[24] In the absence, as here, of any direct evidence, proof of each of these elements depends on the cumulative probative force of the circumstantial evidence, a matter to which I soon turn. Although the word "control" does not form part of the statutory definition, it is settled law, as already noted, that a measure of control must accompany "knowledge" to ground possession. Further, knowledge and control are distinct elements, each of which must be satisfied to the requisite standard to establish guilt. Control, for example, cannot necessarily be inferred from knowledge. Nor, as said by Laskin J.A. for the Court of Appeal in R. v. Grey (1996), 47 C.R. (4th) 40, can one "prescribe a firm rule for inferring knowledge from occupancy". While the locus in Grey was a residence, the same proposition applies to occupancy of a motor vehicle. The strength of the inculpatory inferences invited by the Crown in aid of a finding of constructive possession will depend on a variety of factors, including the nature and location of the item at issue and the accused's relationship with the place or conveyance occupied.

(iii) Circumstantial Evidence

[25] There are no eyewitness accounts, confessions or other direct evidence of the defendant's "possession" of the impugned drugs and money. The case she confronts is founded entirely on circumstantial evidence from which the Crown asks me to infer the material facts at issues – that is, the defendant's control of the seized items and her knowledge of their illicit character. As already noted, the alleged criminal source of the seized money – the basis of the proceeds charge – is also at issue.

[26] The law governing the application of circumstantial evidence is well rehearsed. Like most criminal court judges, I have had occasion to craft an analytical template. An abbreviated version of one such effort, as earlier set out in the case of R. v. Hwang, 2016 ONCJ 319, at paras. 68-70, follows:

Ultimately, there is no distinction in the probative worth of direct versus circumstantial evidence: R. v. Cooper, [1978] 1 S.C.R. 860. The conventional formula that a finding of guilt lies only where proof beyond reasonable doubt is established obtains whether the evidence is direct, circumstantial or some combination of the two. However, the probative assessment of a prosecution founded on circumstantial evidence requires an additional inferential step beyond that employed in cases solely reliant on direct evidence. The Supreme Court addressed the distinction in R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 88 and 89:

By definition, the only conclusion that needs to be reached in [a direct evidence] case is whether the evidence is true: see Watt's Manual of Criminal Evidence (2001), at § 8.0: "[d]irect evidence is evidence which, if believed, resolves a matter in issue"; …

Circumstantial evidence is "evidence that tends to prove a factual matter by proving other events or circumstances from which [either alone or in combination with other evidence] the occurrence of the matter at issue can be reasonably inferred" ( Merriam-Webster's Dictionary of Law (1996), at p. 172).

Accordingly, when dealing with circumstantial evidence a trier must, in addition to testimonial credibility, as well consider the range and valence of the inferences that arise from such evidence, viewed both independently and globally. Put simply, as it is by the Supreme Court in R. v. Griffin and Harris, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 33:

[I]n order to convict, [a trier] must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty. [Emphasis added.]

[27] This latter proposition has frequently been re-affirmed, most recently in R. v. Villaroman, 2016 SCC 33; [2016] 1 S.C.R. 1000, at para. 16. Framed as appropriate jury instructions, the Supreme Court directs, at para. 30, that in cases in:

… which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by too quickly overlooking reasonable alternative inferences.

[28] The concluding reference to "reasonable alternative inferences" clearly alludes to those reasonable inferences inconsistent with or pointing in a direction other than guilt.

[29] By way of further clarification, the Supreme Court expressly addressed the relationship between circumstantial evidence and proof beyond reasonable doubt. As said at paras. 35-38 and 41 (citations omitted):

In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.

… [A] reasonable doubt, or theory alternative to guilt, is not rendered "speculative" by the mere fact that it arises from a lack of evidence. … A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

… "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.

Of course, 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.

… [T]o justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative. [This is] a helpful way of describing the line between plausible theories and speculation.

[30] These passages from Villaroman are hardly radical. They are fundamentally a restatement of settled principles regarding the use of circumstantial evidence.

(b) Applying the Law

[31] There is no doubt that the defendant was the driver of the maroon Honda. Nor is it disputed that a sports bag containing heroin, cocaine and money was found on the backseat of the same vehicle. That Honda did not enter police consciousness until it pulled into the industrial plaza at Fenmar and Garyray on the afternoon of October 21, 2016.

[32] The police testimony pertaining to the preceding events is of narrative value. When combined with that bearing on the close police surveillance of the Honda and the Mazda in the plaza, it also serves another purpose: read compendiously, the police testimony effectively eliminates any plausible theory as to how the defendant, the drugs and the cash came to be in the same vehicle other than that this concurrence took place sometime before the Honda drove into the mall at 4:49pm and continued to the point of the defendant's arrest.

[33] Short of impermissible conjecture, there is no direct evidence, nor evidence or its absence from which it can be reasonably inferred, that anyone transferred the Adidas bag to the Honda after the Honda was first observed in the plaza. Nor is there evidence of or from which it may be reasonably inferred that the defendant surreptitiously carried the heroin and cocaine from the Mazda to the Honda and then secreted them in the Adidas bag. (Such thesis, if grounded in uncontradicted evidence, would be effectively conclusive of the defendant's guilt.) Put otherwise, I am satisfied that the Adidas bag and its impugned contents were already in the Honda when the defendant drove to the plaza and that they remained there until discovered by the police.

[34] While the directors of the corporate owners of the Honda are unknown, there is no evidence that anyone other than the defendant ever drove the car. She was certainly its sole driver during the interval at issue. She had exclusive occupancy of the vehicle, along with the Adidas bag, before Turnbull entered the passenger seat. There is no evidence associating Turnbull with the Honda other than that she entered that vehicle with, I infer, the defendant's consent. The defendant was behind the wheel of the car when stopped by the police. As her counsel rightly concedes, the defendant was in control of the Honda.

[35] The defendant, in my view, also had control and knowledge of the contents – at least the conspicuously visible contents, such as the Adidas bag – of the passenger compartment of the Honda. There is no evidence associating the Adidas bag with Turnbull or any other person. It was located in a prominent position: on top of the rear seat, a couple of feet, at most, from the defendant. The bag, which (along with related photographs) was entered as an exhibit, is of substantial size and was filled to near capacity. It was exposed rather than covered or surrounded or shielded by other items. No reasonable inference other than that the defendant had knowledge and control of the Adidas bag is available on the evidence or any lacunae in that evidence.

[36] The remaining question, and that of greatest contention, is whether the Crown has adequately established that the defendant had knowledge of the illicit nature of those items that give rise to this prosecution – that is, the cocaine, heroin and the impugned cash.

[37] Knowledge of a container does not necessarily imply knowledge of its contents or their illegal character. One can readily imagine a fact-pattern in which an accused claims to have been asked to deliver a benign-looking package without any foreknowledge or obvious indicators of its unlawful contents. The 'blind mule" defence advanced in some drug importation cases is one illustration of such scenario. Although each case turns on its own facts, this defence is unlikely to find purchase absent some credible or at least doubt-provoking assertion of innocence or evidence, or its absence, from which uncertainty as to the defendant's guilty knowledge may be reasonably inferred. Said differently, the search for hypotheses consistent with innocence or negativing guilt depends on more than merely being able to verbalize an exculpatory scenario in closing submissions.

[38] As applied to the instant case, one can imagine an acquaintance, by way of favour, asking the defendant – young, trusting, eager to ingratiate herself – to borrow his Honda to deliver a sports bag and, if only incidentally, Turnbull to some address. By way of further embellishment, one can conceive of circumstances in which there is no reason to suspect foul deeds or where the hypothetical acquaintance offered an everyday explanation for the request and an equally credible description of the benign contents of the bag. The difficulty, however, for the defence is that, other than conjecture, there is no direct or circumstantial evidence supportive of this scenario or of any other factual thesis inconsistent with an inference of guilty knowledge.

[39] The question then remains: irrespective of the absence of any defence-led evidence, does that tendered by the prosecution establish proof of the defendant's knowledge that the Adidas bag contained drugs? In my view, it does. The defendant maintained control of the bag. No evidence linked the bag or any of its contents to anyone other than, by natural inference, the driver of the car in which the bag was conspicuously situated. The same can be said of the smaller Louis Vuitton bag in which the scales were located. Further, a small piece of cellophane, in which some of the seized drugs were wrapped, visibly protruded from a side pouch of the Adidas bag. Further still, illegal drugs, if marijuana rather than heroin or cocaine, were plainly visible in an open package in the centre console, within inches of and to the immediate right of the defendant driver's right arm.

[40] The value of the drugs found in the Adidas bag (estimated to total as much as $16,000) is an additional evidentiary circumstance that factors into the inference-drawing calculus. The guidance of Court of Appeal in R. v. Pannu, supra, at para. 157, is here directly germane:

As with other offences, Crown counsel may prove the essential elements of constructive possession by direct evidence, by circumstantial evidence or by a combination of direct and circumstantial evidence. Where the subject matter of which an accused is alleged to be in possession is a controlled substance of significant value, it may be open to a trier of fact to infer not only knowledge of the nature of the subject, but also knowledge of the substance itself: R. v. Blondin (1970), 2 C.C.C. (2d) 118 (B.C.C.A.), at p. 121; R. v. Fredericks, [1999] O.J. No. 5549 (C.A.), at paras. 3-4; R. v. To; and R. v. Bryan, 2013 ONCA 97, at para. 11. It is a reasonable inference that such a valuable quantity of drugs would not be entrusted to anyone who did not know the nature of the contents of the bag or other container.

[41] (See also: R. v. Bains, 2015 ONCA 677, 127 O.R. (3d) 545, at para. 527, leave to appeal refused, [2015] S.C.C.A. No. 478; R. v. DaCosta, 2017 ONCA 588, at para. 21; and R. v. Wei, 2016 BCCA 75.) The "reasonable inference" identified by the Court in Pannu is not ineluctable. Like all circumstantial evidence, it is but part of the complex of available inferences probative of the Crown theory that the defendant knew that the Adidas bag under her control contained the suspect drugs.

[42] The strength of the current prosecution may be contrasted with those circumstantial cases where incriminatory inferences compete with those consistent with innocence or where evidentiary gaps leave room for reasonable doubt. R. v. Grey, supra, is one oft-cited example of a prosecution for drug possession in which the circumstantial evidence was held incapable of grounding a conviction. As summarily explained by Laskin J.A. for the Court of Appeal:

[T]here was no direct evidence of knowledge, the drugs were hidden, the apartment was rented by the co-accused [whose conviction was not disturbed], other persons frequented the apartment, and the appellant was not a permanent occupant. The circumstantial evidence does not therefore support a finding that the appellant had knowledge of the crack cocaine.

[43] R. v. Thompson, [2010] O.J. No. 2997 (Sup. Ct.), in which Code J. microscopically details the evidence in Grey, affords another illustration of a case in which lacunae in the circumstantial evidence "leave open", as said at para. 47, "the rational possibility" that the accused had neither control nor the requisite knowledge of the drugs seized at their shared residence. As already noted, there is no such "rational" – as opposed to speculative – "possibility" available on the evidence in the case before me.

[44] To be clear, there is no obligation on a defendant, no legal burden, to testify or otherwise tender evidence and the failure to do so is not a circumstance, a "make-weight", from which guilt may be inferred. As explained in R. v. Johnson, (1993) 3376, 12 O.R. (3d) 340 (C.A.), at p. 348:

[T]he accused's failure to testify is not an independent piece of evidence, to be placed on the evidentiary scale. It is rather a feature of the trial which may assist in deciding what inferences should be drawn from the evidence adduced.

[45] As the Court of Appeal further observed, if the cogency of the Crown's case is such that it "cries out for an explanation, an accused must be prepared to accept the adverse consequences of his decision to remain silent". (The critical passages in R. v. Johnson were approvingly adopted by the Supreme Court in R. v. Lepage, [1995] 1 S.C.R. 654, at para. 29.) The conclusion reached in R. v. Noble, [1997] 1 S.C.R. 874, at para. 82 (and very recently re-affirmed in R. v. Bokhari, 2018 ONCA 183, at para. 3) is to the same effect:

No inference of guilt is drawn from the silence of the accused. Rather, the silence of the accused fails to provide any basis for concluding otherwise, once the uncontradicted evidence points to guilt beyond a reasonable doubt.

[47] Here, the inferences I draw solely from the Crown-led evidence persuade me to the requisite standard that the defendant had knowledge and control, and thus possession, of the heroin and cocaine in the Honda. Accordingly, the defendant is guilty of the two drug-related offences.

[48] She is not guilty, however, of the third charge as I am not convinced that the $350 located in the same Adidas bag were criminal proceeds. Other than its proximity to the drugs, there is nothing about the quantum, denominations or organization of the money that speaks to an illicit source. There is no debt list nor evidence that the amount seized reflects a common commercial price point, or that any of the individual notes are traceable to police "buy money" or any unlawful transaction. While the physical coincidence of drugs and money inevitably attracts suspicion, the probative value of the incriminatory inferences arising from these circumstances fall short of establishing the alleged criminal character of the $350.

D. Conclusion

[49] In the result, I find the defendant not guilty of possession of the proceeds of crime but guilty of the two remaining charges – those of possession of heroin and cocaine for the purpose of trafficking.

Released on March 7, 2018

Justice Melvyn Green