Court File and Parties

COURT FILE NO.: CR-18-90000180-0000 DATE: 20190418

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – ANDREW ANTHONY KNIGHT

COUNSEL: D. Lumba, for the Crown N. Gorham, for Mr. Knight

HEARD: April 1-2, 2019

REASONS FOR JUDGMENT

SCHRECK J.:

[1] Sixty grams of cocaine and a gram of heroin were hidden in the false bottom of an aerosol can found in the trunk of a car registered to and operated by Andrew Knight. The Crown alleges that Mr. Knight knew the drugs were there and that he is guilty of possessing them for the purpose of trafficking. Mr. Knight denies knowledge of the drugs, which he says belonged to a woman he was in a relationship with and who shared the car. As in many cases where contraband is found in a car, the Crown relies on circumstantial evidence and the issues the court must determine are whether Mr. Knight’s denial is believed or raises a reasonable doubt and, if not, whether his guilt is the only reasonable inference to be drawn from the evidence the court does accept.

I. EVIDENCE

A. Crown Case

(i) Surveillance

[2] On March 30, 2017, members of the Toronto Police Service began an investigation of Mr. Knight. A number of officers set up surveillance on a residence on Falstaff Avenue which they had reason to believe was associated with Mr. Knight. At 7:03 p.m., Mr. Knight was observed leaving the residence in a 2000 silver Mercedes Benz. He was followed to a nearby plaza, where he got out of the car and walked up to another vehicle. At 7:13 p.m., Mr. Knight opened the passenger side door of this vehicle, got in, and then got out again four minutes later. He then went into a restaurant in the plaza and came out a short while later carrying a container of food. He then left the plaza in the Mercedes.

[3] After leaving the plaza, Mr. Knight filled his car at a gas station and then drove to a liquor store, which he entered. He exited the liquor store at 7:46 p.m. with a bag, which he put into the trunk of the Mercedes.

[4] Mr. Knight left the liquor store, drove eastbound on Highway 401, and then northbound on Highway 400. At this point, it began to snow heavily. The Toronto police officers contacted the Ontario Provincial Police (“OPP”) and advised them of their investigation. At some point thereafter, Mr. Knight was stopped by members of the OPP.

(ii) The Search of the Car

[5] The police had earlier applied for a warrant to search Mr. Knight’s car. When the warrant was obtained, they began to search the car, which was by then in an OPP facility in Barrie, at 9:06 p.m.

[6] The trunk of the Mercedes was full of a number of items, including the liquor store bag which had been placed there earlier, several plastic shopping bags, two pairs of shoes, and two aerosol cans. One of the aerosol cans, which was marked “Autobrite Tire Shine”, was found to have a false bottom in which was secreted two small packages. Inside the packages was 59.6 grams of crack cocaine and one gram of a mixture of heroin, furanyl and fentanyl.

[7] Mr. Knight’s wallet containing his identification was seized from the centre console of the Mercedes. Inside the glove compartment, the police found a number of papers including parking tickets with the Mercedes’s licence plate number on them, a parking infraction notice with Mr. Knight’s name and the Falstaff Avenue address on it, and a number of Western Union documents. The Western Union documents showed that Mr. Knight had sent money to and received money from Jamaica on a number of occasions between August and December 2016.

[8] It was an agreed fact that the crack cocaine that was seized was worth $4720 to $5900 if sold by the gram and $2600 to $3200 if sold by the ounce. A kilogram of cocaine would cost $45,000 to $52,000 if purchased in Canada and $5,000 to $12,000 if purchased from a source or intermediary country.

(iii) The Search of the Residences

[9] The Mercedes was registered in Mr. Knight’s name at an address on Clay Brick Court in Brampton. At the time of his arrest, Mr. Knight’s driver’s licence had the Clay Brick Court address on it. Ministry of Transportation records showed that his licence had been registered at the Falstaff Avenue address in the past.

[10] The police also executed search warrants at the Falstaff Avenue and Clay Brick Court addresses on the same day. Present at the Falstaff Avenue address were two children and an adult female, Kayon Eunick, who was later discovered to be Mr. Knight’s wife. Present at the Clay Brick address was one child, an adult male, Carl Garcia, and an adult female, Carlene Garcia. There was no evidence of anything of evidentiary value being found at either address.

B. Defence Case

(i) The Car

[11] Mr. Knight testified. He is employed as a barber. He has been married for 11 years and lives at the Falstaff Avenue address with his wife, Kayon Eunick, his daughter and two stepchildren.

[12] Mr. Knight testified that at the time of his arrest, he had been involved in an extramarital relationship with Carlene Garcia, one of the people who had been present at the Clay Brick Court address when the police executed a search warrant there. Ms. Garcia lived at that address with her brother and nephew. Mr. Knight’s wife did not know about the relationship, although she found out after Mr. Knight was arrested.

[13] According to Mr. Knight, the Mercedes belonged to Ms. Garcia. However, when she drove it, she was frequently stopped by the police because the police believed her to be associated with another individual who had been arrested for drug offences. As a result, Ms. Garcia asked Mr. Knight to register the Mercedes in his name as he did not have a criminal record. He agreed and the ownership of the vehicle was transferred to him in April 2016. Ms. Garcia continued to pay for the insurance on the vehicle. At trial, Mr. Knight produced documentation showing that the Mercedes was insured in Ms. Garcia’s name. The Crown accepts that these documents are authentic.

[14] Mr. Knight testified that he and Ms. Garcia shared the Mercedes. Each of them had a set of keys. She mostly used the car during the week and he used it on weekends. His wife believed that the Mercedes belonged to him.

(iii) Movements on March 29 and 30, 2017

[15] On March 29, 2017, Mr. Knight met Ms. Garcia at a coffee shop and she gave him the Mercedes. It was his belief that she then took a taxi or an Uber home. On March 30, 2017, Mr. Knight picked his daughter up from school in the Mercedes and took her home. Later in the day, he left home and drove to a restaurant to get something to eat. When he arrived at the plaza where the restaurant was, he saw a friend of his in the parking lot. He entered his friend’s vehicle, had a quick chat, and then got out. After buying food at the restaurant, he bought gasoline and then went to the liquor store to buy wine. From there, he began to drive to a friend’s house. On his way there, he was stopped and arrested.

[16] Mr. Knight testified that the bag of wine and the two pairs of shoes in the trunk of the Mercedes were his. Everything else in the trunk belonged to Ms. Garcia. He had noticed the aerosol can in which the drugs were hidden, but had never thought anything of it. He testified that he did not put the drugs into the car and was not aware that they were there. It was his belief that the drugs belonged to Ms. Garcia, although he had no knowledge of her being a drug trafficker.

II. ANALYSIS

A. Overview

[17] Mr. Knight is charged with possessing the drugs found in the aerosol can for the purpose of trafficking. There is no issue that the value and quantity of the drugs was such that whoever possessed them did so for the purpose of trafficking. It is well established that to prove possession, the Crown must prove that Mr. Knight had both knowledge and control of the drugs: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 15; R. v. Bains, 2015 ONCA 677, 127 O.R. (3d) 545, at para. 155. Mr. Knight concedes the control has been proven, as he was operating the Mercedes and it was registered in his name. Thus, the only issue that I must determine is whether the Crown has proven beyond a reasonable doubt that Mr. Knight had knowledge of the drugs.

B. Circumstantial Evidence – Legal Principles

[18] As in many cases where knowledge is in issue, the Crown relies on circumstantial evidence. The approach to be taken to circumstantial evidence was discussed by the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, where Cromwell J. explained how juries should be instructed with respect to this type of evidence (at para. 30):

... [I]n a case 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.

[19] Cromwell J. went on to caution that in considering whether the circumstantial evidence gives rise to reasonable inferences other than guilt, those alternative inferences need not be based on proven facts (at paras. 35-37):

At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts”: see R. v. McIver, [1965] 2 O.R. 475 (C.A.), at p. 479, aff’d without discussion of this point , [1966] S.C.R. 254. However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149, at para. 28. 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.

When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: R. v. Comba, [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff'd , [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: R. v. Bagshaw, [1972] S.C.R. 2, at p. 8. “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.

[20] It is important to keep in mind that the issue is whether the circumstantial evidence supports inferences other than guilt. Such alternative inferences must be reasonable, but need not be as strong or as compelling as the inference of guilt. Put another way, it is not enough for the Crown to prove that guilt is the strongest reasonable inference. It must be the only reasonable inference.

[21] In considering whether an inference is reasonable, it is instructive to consider the cases respecting the test for committal at a preliminary inquiry in cases where the Crown relies on circumstantial evidence. It is clear from those cases that in order to be reasonable, an inference need not be “easily drawn”, “likely” or “probable”: R. v. Kamermans, 2016 ONCA 117, at para. 20; R. v. Katwaru (2001), 52 O.R. (3d) 321 (C.A.), at para. 41; R. v. Dwyer, 2013 ONCA 368, at para. 4.

C. Mr. Knight’s Testimony

[22] Mr. Knight testified and denied knowledge of the drugs. Obviously, if his evidence is believed or raises a reasonable doubt, he is entitled to an acquittal.

[23] I have considerable difficulty with many aspects of Mr. Knight’s evidence. His explanation for registering the car in his name is, in my view, suspicious. In addition to registering the car in his own name, the MTO documents showed that he switched the address on his driver’s licence back and forth from the Falstaff Avenue address to the Clay Brick Court address more than once. His explanation for doing so was that Ms. Garcia asked him to, which makes little sense in the circumstances. As well, putting his paramour’s address on his driver’s licence is inconsistent with his evidence that his affair with Ms. Garcia was kept secret from his wife. In addition to this, he claimed to have no knowledge of Ms. Garcia being involved in the drug trade, even though on his own evidence, he agreed to register the car in his name because she was being stopped by the police because of her association with a drug dealer.

[24] Given the difficulties with Mr. Knight’s testimony, I am unable to rely on most of it, with the exception of his evidence that Ms. Garcia used the Mercedes. There are two reasons why I accept this aspect of his testimony. The first is that the car was insured in Ms. Garcia’s name. As a matter of common sense, it is unlikely that Ms. Garcia would have insured the car in her name unless she made use of it. The second is that the car was registered to the Clay Brick Court address, and Mr. Knight’s evidence that Ms. Garcia lived at that address was confirmed by the fact that she was present when the police attended there on March 30, 2017.

D. Application to This Case

[25] In assessing whether the Crown has proven knowledge, I accept the following primary facts:

• Mr. Knight was the registered owner of the Mercedes and made frequent use of it.
• He was the only occupant of the vehicle on the day on which the drugs were found.
• Items belonging to Mr. Knight were in car, including in the trunk where the drugs were found.
• The drugs were well hidden and not visible.
• There is no evidence that Mr. Knight’s fingerprints or DNA were found on the aerosol can.
• The drugs were of considerable value.
• Ms. Garcia also had access to and made use of the car.

[26] The issue I must determine is whether the only reasonable inference to be drawn from this evidence is that Mr. Knight had knowledge of the drugs. Put another way, I must consider whether there is a reasonable possibility that somebody else put the drugs there without Mr. Knight’s knowledge.

[27] The Crown relies heavily on the value of the drugs, pointing out that as a matter of common sense and human experience, it is unlikely that somebody would leave drugs of this value unattended or in the control of somebody who was unaware of their presence or value: Bains, at para. 157; R. v. Bryan, 2013 ONCA 97, at para. 11; R. v. Bonilla-Perez, 2016 ONCA 535, at para. 16. There is no doubt that the value of contraband can lead to an inference of knowledge in some circumstances. It is not, however, an inference that must be drawn in all cases, particularly where the contraband is well hidden. Ultimately, this is one piece of evidence which must be considered together with all of the other circumstances.

[28] The circumstantial evidence in this case clearly leads to the inference that Mr. Knight had knowledge of the drugs hidden in the aerosol can. Not only is this an available inference, it is a strong one. But that is not the issue. The issue is whether it is the only reasonable inference. Mr. Knight submits that an alternative inference is that Ms. Garcia put the drugs in the car without Mr. Knight’s knowledge. If she did, she was most careless. Mr. Knight might have tried to use the aerosol can and discard it when it did not work. However, people are sometimes careless. Having considered all of the circumstances, I am unable to say that the defence theory is not a “plausible” or a “reasonable possibility”. It is unlikely, but not to the point of being “irrational or fanciful.” Put another way, after considering all of the evidence, I am left with a reasonable doubt. Mr. Knight is very likely guilty, but the evidence falls short of proving his guilt to the requisite standard.

III. DISPOSITION

[29] For the foregoing reasons, Mr. Knight is found not guilty on Counts 1 and 2.

Justice P.A. Schreck

Released: April 18, 2019.