WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. Identity of offender not to be published. —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. Identity of victim or witness not to be published. — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. No subsequent disclosure. — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court Information

Court File No.: Belleville, Ontario Y120090

Date: 2013-01-29

Ontario Court of Justice

sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1

Parties

Between:

Her Majesty the Queen

— and —

J.M.S., a young person (or "young persons")

Court Details

Before: Justice E. Deluzio

Heard on: December 21, 2012

Reasons for Judgment released on: January 29, 2013

Counsel:

• P. Hurley for the Crown
• J. Easton, counsel for the defendant J.M.S.

Judgment

Deluzio J.:

[1] On March 1, 2012 police executed a search warrant at a residence located at 296 Vanderwater Road, Tweed, Ontario. At that time the accused youth, J.M.S. lived in that residence with his younger sister M.S., his mother J.S., and his mother's boyfriend P.H. The accused was jointly charged, with J.S. and P.H., with one count of production of marijuana and one count of possession of marijuana for the purpose of trafficking. At the conclusion of the trial the Crown conceded that the evidence against the accused on the production charge was weak and did not seek a conviction on that count. I agree that the Crown failed to prove the charge beyond a reasonable doubt and count one is therefore dismissed.

[2] The warrant was executed at 7:50 a.m. The accused, his mother and sister, and P.H., were all present. The only witness called by the Crown was the investigating and exhibits officer, Detective Constable Sarles. As the exhibits officer it was his job to photograph, record and seize items during the search. He also prepared the exhibit list. Sarles described the residence as split into an upper unit and a lower unit. The accused testified that his grandmother, who owns the residence, and his uncle lived in the two bedroom lower unit; and the accused and his family lived in the upper portion of the home. There are three bedrooms in the upper unit. Detective Sarles testified that it was obvious from the clothing and personal items located in each bedroom, which bedroom belonged to the adults, which bedroom was the bedroom of a male teenager, and which bedroom belonged to a younger female. Detective Sarles identified the accused's bedroom as "room #2" and testified that when the officers entered the residence at 7:50 a.m. he observed the accused coming out of room #2, dressed only in his underwear.

[3] The issue is whether the evidence establishes beyond a reasonable doubt that the accused young person aided and abetted his mother and P.H. in the criminal enterprise of possession of marijuana for the purpose of sale.

[4] Officers seized 54 marijuana plants, 4.7 pounds of marijuana bud and 5 pounds of marijuana shake from the residence. All of the plants and most of the marijuana was located in the adult bedroom (room #1). During their search of the accused's room (room #2) police located, in plain view, four plastic baggies containing marijuana sitting on a shelf of the entertainment cabinet and plastic baggies and digital scales sitting on top of a small black nightstand. Police also found four mason jars and 3 baggies containing marijuana hidden in a clothes dryer which was also in room #2. The accused testified that a washer and dryer were in his room because the room was the only room connected to the main water line.

[5] Detective Sarles described room #2 as containing a futon rather than a bed, and clothing, and personal items, including a wallet and identification cards, paintball gun, and personal mementos, belonging to the accused.

[6] The accused testified. He was the only defence witness. During his evidence the accused maintained that room #2 was not his bedroom, but instead was a recreation/laundry room used by the entire family. When first asked by his lawyer to describe the layout of his residence, the accused said there were three bedrooms and one bathroom. His lawyer then asked who lived in those bedrooms and in response to this question the accused referred to the third bedroom as a laundry room/rec room. He said his mom had a room, his sister had a room and "the other room is a laundry room/ rec room". The accused testified that he has lived in that residence with his mother and sister since he was five or six years old yet he maintained that throughout that ten year period he never slept in the bedroom that contained a futon and all of his personal belongings, but instead he always slept on one of the couches. He said he kept all of his clothing and personal items in the room so that he could change in private but he didn't sleep in the room and exercised no control or privacy over this room.

[7] Throughout his testimony the accused gave evidence that was internally inconsistent, contradictory and at times implausible.

[8] Under cross-examination the accused was questioned about the fact that on the morning of the search, officers had observed him coming out of room #2 dressed only in his underwear and looking as though he had just woken up. The accused maintained that he had not slept in that room, and that it was just a coincidence that he had entered room #2 to dress for the day at the same moment that police entered the residence. I note that there are no pillows or bedding on the couches photographed by Detective Sarles that morning.

[9] The accused testified that everyone used room #2 to play games and watch movies and his mother did the laundry there. While the washer and dryer in the room may support the inference that the room was used by his mother to do the family's laundry, the presence of mason jars and baggies filled with marijuana in the dryer makes this inference less obvious. At least at the time of the search, it is clear that the dryer was used as a hiding place for drugs, and not as a place to dry clothes. The photographs taken by Detective Sarles show a large television set in the living room area, and a smaller television set in the adult bedroom. Under cross examination the accused agreed that there were other places in the residence to watch TV and play video games. He said he didn't always watch TV or play video games in his room and in fact spent most of his time in the living room and dining room because "there were television sets, game systems and DVD players out there too". The accused was asked about hand drawn pictures of his name surrounded by hearts and arrows, hanging on the wall in room #2 and he explained that the pictures were drawn by his girlfriend who wanted him to be able to see them every day when he woke up and went in to the room to change his clothes.

[10] During his testimony in chief, the accused gave evidence suggesting that at the time of the search he was aware that the marijuana was in the residence:

Q: Now can you tell me about the marijuana in your home?

A: Its my mother's and P's.

Q: Who was growing it?

A: P.H.

Q: And who used it?

A: My mom and P. used it.

Q: Were you aware that it was there?

A: I was aware it was there.

Q: And how did it end up in the rec room, the room that you identify as the rec room?

A: I have no idea why it was there, but I imagine it was put there by either my mother or P. at some point in time.

Q: And is there any reason why you didn't see that marijuana and report it to the police?

A: Well I'm not exactly calling the cops on my mother, the only person that has been there since I was born, and I've never like, I knew marijuana was in the house but I never went searching for it. I don't do drugs so ah, I just didn't want to call the cops on my mom, I never looked for it, never was interested in it.

[11] Under cross examination the accused contradicted his evidence in chief, saying that on the day of the search he wasn't aware that marijuana was being grown in the residence and that it came as a surprise to him to find out on the day of the search that there were marijuana plants in the house. He testified that other than seeing his mother with the occasional joint, he had never seen marijuana in the house prior to the search and it came as a complete shock to him when the police found marijuana in the home.

[12] The accused testified that before the police search he had not seen the marijuana sitting in baggies on top of the nightstand. He said he didn't see it there because he "did not go searching for marijuana around the house". When asked about the baggies in his room, the accused said that he had not seen the baggies either but offered that the baggies were used by his mother for arts and craft materials used to make jewellery.

[13] The accused's explanation for why there were digital scales in room #2 was completely implausible and obviously manufactured. When asked about the digital scales in plain view on a shelf in the entertainment unit in the room the accused admitted that he had seen the scales before the search and testified that he used the scales to weigh his food. He explained that for the month before the search he had been trying to lose weight and weighing fruits, nuts, and "powdered nutritions you buy from nutrition shops" on a daily basis. As the Crown's questions became more specific the accused's answers became more ridiculous. When asked why the scales were in the bedroom and not in the kitchen where the food was the accused said he would carry food from the kitchen to this room to weigh the food. The accused said that sometimes the scales would be in the kitchen, and sometimes he kept the scales in his pocket. The accused was then asked to explain why he was weighing the food in that room at night when he wasn't using the room as his bedroom. His response was that he had probably just brought the scales into the room the night before the search because he was changing into his pyjamas.

[14] The accused's overall credibility and his testimony about his lack of interest or awareness about marijuana in general was weakened further by his admission under cross-examination that in October 2010, he was charged at school with possession of marijuana for the purpose of trafficking after he was found in possession of a water bottle containing 13 grams of packaged marijuana. The charge was diverted through the Extrajudicial Sanctions program which requires, as a pre-condition to acceptance into the program, that the accused accept responsibility for the facts underlying the charge.

[15] I do not believe the accused and I do not accept his evidence. I do not believe his testimony about never sleeping in the bedroom where he kept all of his personal belongings. He kept special mementos and his wallet and identification in that room. There was a futon in that room to sleep on and no evidence in the photographs to suggest that anyone was sleeping on the couches. The television sets and game systems in the room do not suggest that the room was used by the rest of the family as a recreation room. As the accused himself testified there were televisions sets, DVDs, and game systems in the living room that were accessible to the other members of the family. It is common for teenagers to have their own television sets and games in their bedrooms. The accused's evidence about using the digital scales in his room to weigh fruits and nuts was preposterous.

[16] The accused's testimony went beyond simple inconsistencies and contradictions. His evidence, including his explanation that the scales in his room were there as an effective dietary aid, and the extra plastic baggies, which were exactly the same as the baggies containing the marijuana, were used by his mother for her arts and crafts, was manufactured and contrived to lead the Court away from convicting the accused. The accused was so intent on misleading the Court about his involvement with the drugs in his home that he volunteered to the Court that he "didn't do drugs and wasn't interested in marijuana", thereby opening the door to a cross-examination that revealed the extent to which the accused was prepared to lie and mislead the Court.

[17] To prove that the accused was in possession of the marijuana in his room, the Crown must prove beyond a reasonable doubt both knowledge of and control of the marijuana by the accused. The defence argues that because the accused was a dependent 15 year old living with his mother, even if he did know about the drugs in his bedroom, he did not have any power or control over them.

[18] I am mindful that the Crown bears the burden of proving beyond a reasonable doubt the offence of possession for the purpose of trafficking, and that a reasonable doubt can remain even if I do not believe the accused and even if I reject the defence evidence absolutely and entirely.

[19] Four plastic baggies containing a total of 7.6 grams of marijuana, extra plastic baggies, and a weigh scale were found in plain view in the accused's bedroom. The one room in a home over which a teenager exercises the most control is his bedroom. The accused kept all of his personal belongings in that room, and among his personal belongings he also kept marijuana packaged for sale. The circumstantial evidence offered by the Crown supports the reasonable inference that the accused knew the drugs were in his room. It is also reasonable to infer from the evidence that the marijuana had been weighed and individually packaged in the accused's bedroom so that it could be sold.

For the reasons outlined above, I find that the Crown has established the guilt of the accused beyond a reasonable doubt. The accused was either in constructive or joint possession of the marijuana in his room, and he was either a principle or an aider and abetter of Mr. H. and his mother in the criminal enterprise of possession of marijuana for the purpose of sale. I therefore find the accused guilty of the offence of possession of marijuana for the purpose of trafficking.

[20] Released: January 29, 2013

Signed:

Justice E. Deluzio