Court Information

Ontario Court of Justice

Between: Her Majesty the Queen — and — Sabrina Adatia and Alexander Lacroix

Before: Justice C. Kehoe

Decision released on: March 14, 2013

Counsel:

• Mr. J. Neubauer for the Crown
• Ms. D. Hayton for the Federal Crown
• Mr. L. Shore for the accused, Sabrina Adatia
• Mr. O. Abergel for the accused, Alexander Lacroix

Decision

KEHOE, J.:

Introduction

[1] Ms. Adatia and Mr. Lacroix are jointly charged with a number of weapons offences and with possession of proceeds of crime, and possession of cannabis marijuana for the purposes of trafficking.

[2] This is a decision concerning committal on a preliminary inquiry.

[3] At the close of the Crown's case, the Federal Crown advised the court that the Federal Crown was seeking committal on a simple possession rather than possession of the marijuana for the purposes of trafficking. The Federal Crown also advised that they are not proceeding with the possession of property, i.e. money, obtained as proceeds of crime.

[4] Mr. Abergel, representing Mr. Lacroix conceded that there was sufficient evidence for committal on the remaining charges. Mr. Lacroix has been committed to stand trial on the remaining charges.

[5] Mr. Shore, on behalf of Ms. Adatia, conceded that there is sufficient evidence to commit Ms. Adatia to stand trial on the possession of marijuana found in plain view in the dining room, an amount of 26.3 grams. Mr. Shore submits that Ms. Adatia should not be committed to stand trial on any of the remaining charges because the Crown has failed to prove that she was in possession of the remaining marijuana, i.e. 189.4 grams contained in the closed knapsack found on the dining room floor, or for the possession of the handgun or brass knuckles or any of the charges resulting or attached to the weapons' possession.

[6] Mr. Shore submits that the Crown has failed to provide evidence of any knowledge or control of the remaining marijuana and/or the weapons because these items were not in plain view and there is no evidence that Ms. Adatia would have seen, had knowledge of or control over the items. Additionally, he submits that there is nothing in terms of identifying features concerning the weapons or the knapsack that would link either to Ms. Adatia.

[7] Mr. Neubauer, on behalf of the Provincial Crown submits that concerning the possession of the weapons, there is some evidence that Ms. Adatia was in possession, actual, constructive or joint. He submits that there is some evidence that Ms. Adatia had knowledge and some measure of control over the items. He submits that it does not matter who owns the gun or the brass knuckles but who was in possession of the weapons. He submits that both Ms. Adatia and Mr. Lacroix could be in possession of the weapons.

[8] Mr. Neubauer submits that the test concerning committal is whether there is any evidence that if put before a jury, the jury could find that she knew the gun was there and had some measure of control over it.

[9] Mr. Neubauer submits that the evidence is that the gun is in her home, is in her bedroom, and in a dresser drawer where although there is male clothing in the drawer, her passport along with Mr. Lacroix's passport are in the same drawer.

[10] Mr. Neubauer submits that there is no argument that Ms. Adatia is in possession of her passport which she kept in Mr. Lacroix's drawer and the fact that she keeps her passport in the same drawer as the gun, connects her to the dresser and the gun. He submits that the passport being kept in the same drawer and Ms. Adatia being in possession of her passport provides ample evidence for the purposes of committal. He submits that a jury could conclude that her passport is in the drawer and therefore she had knowledge and some measure of control over the gun.

[11] Mr. Neubauer submits that even without Ms. Adatia's passport being found in the same drawer as the gun, there is no issue for committal purposes.

[12] Mr. Neubauer agrees that the possession of the brass knuckles by Ms. Adatia is in a different category because they are found in a man's jacket in a closet in the same bedroom. He submits that the jury could conclude that the jacket did not belong to Ms. Adatia and the question is whether the jury could conclude that she is aware of the contents of the pockets. He submits that it is possible given that the jacket is in the closet in her bedroom.

Facts

[13] The evidence heard, and I make no findings, is that police have had Mr. Lacroix's residence, 97 Rita Avenue, Ottawa, Ontario, under surveillance and execute a search warrant on February 10, 2011. Ms. Adatia is seen leaving the residence that day and returns at some point before the execution of the warrant. Prior to police entering the residence, Mr. Lacroix leaves the residence with a young baby in the vehicle with him. Mr. Lacroix is stopped in order to ensure that he does not return to the residence. Officers are concerned with safety because they are executing a warrant to search for a firearm. Mr. Lacroix is arrested and the baby and Mr. Lacroix's vehicle are turned over to Ms. Adatia. Ms. Adatia is told not to return to the residence. Ms. Adatia is arrested later when she turns herself in.

[14] Cst. Robert Henderson searches Ms. Adatia and Mr. Lacroix's bedroom at 97 Rita. The home is located in a heavily populated subdivision. It is a single family dwelling.

[15] Cst. Henderson finds a semi-automatic Kimber custom 2 firearm in the second drawer of a dresser in the bedroom. He testified that the firearm was under some white t-shirts and that there was other male clothing in the drawer. Cst. Henderson testified that the magazine was in the firearm but there was no bullet in the chamber. There were six rounds of ammunition in the magazine which was inserted into the handgun. Cst. Henderson found two passports in the same drawer one in Ms. Adatia's name and one in Mr. Lacroix's name with a roll of US currency located at the front left of the drawer. There was nothing over or below the passports and money in the drawer. The firearm was at the back right hand side of the same drawer under the t-shirts.

[16] Cst. Henderson found the brass knuckles in the closet in the pocket of a male's leather jacket. The closet and jacket were located immediately to the right of the dresser where he found the firearm. Cst. Henderson testified that there were two closets in the room, one in each corner he believed.

[17] Cst. Henderson agreed in cross-examination that there may have been another dresser in the bedroom and that it may have contained only female clothing.

[18] He disagreed that the passports were found on top of the "female" dresser and with the suggestion that all of the money was in the "female" dresser.

Legal Framework

Preliminary Inquiry Committal Standard

[19] Section 548(1) of the Criminal Code gives directions to a judge presiding at a preliminary inquiry. It reads:

When all the evidence has been taken by the justice, he shall

if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or

discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.

[20] A judge acting at a preliminary inquiry must commit the accused to stand trial if there is evidence before the court upon which a reasonable jury, properly instructed, could return a verdict of guilty. See, United States of America v. Sheppard, [1997] 2 S.C.R. No. 1067, 30 C.C.C. (2d) 424 at 427. In Arcuri v. The Queen, 2001 SCC 54, [2001] 2 S.C.R. No. 828, 157 C.C.C. (3d) 21 at 24, the court affirmed the common law rule expressed in Sheppard, supra, that a judge presiding at a preliminary inquiry is required to commit an accused person for trial "in any case in which there is admissible evidence which could, if it were believed, result in a conviction."

Circumstantial Evidence at Preliminary Inquiry

[21] Whether the evidence at the preliminary inquiry is direct or circumstantial, the test for committal remains the same. However, the nature of the judge's responsibility varies according to the type of evidence that the Crown tenders. In Arcuri, above, at paragraph 23, McLachlin C.J. described the nature of the judge's task where the Crown's evidence is circumstantial:

[23] The judge's task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence – that is, those elements as to which the Crown has not advanced direct evidence – may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established – that is, an inferential gap beyond the question of whether the evidence should be believed: see Watt's Manual of Criminal Evidence, supra, at s. 9.01 (circumstantial evidence is 'any item of evidence, testimonial or real, other than the testimony of an eyewitness to a material fact. It is any fact from the existence of which the trier of fact may infer the exitence of a fact in issue'); McCormick on Evidence, supra, at pp. 641-42 ('circumstantial evidence…may be testimonial, but even if the circumstances depicted are accepted as true, additional reasoning is require to reach the desired conclusion'). The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilty.

[22] Each offence in the Criminal Code has its own essential elements, which may be proven by either direct or circumstantial evidence. It follows from Arcuri, above, that the Crown must adduce evidence sufficient to permit a properly instructed jury acting reasonably to find each essential element established. See, R. v. Charemski, [1998] 1 S.C.R. No. 679, 123 C.C.C. (3d) 225, 229, per Bastarache, J. Where the evidence on an essential element is circumstantial, a judge presiding at a preliminary inquiry must determine whether the evidence is reasonably capable of supporting the inference necessary to establish the essential element.

The Law of Possession

[23] In this case, concerning Ms. Adatia, the issue concerns the elements of possession, for the firearm, the brass knuckles and the marijuana found in the knapsack.

The basic definition of 'possession' appears in s. 4(3) of the Criminal Code. It is rendered applicable to drug offences pursuant to s. 2 of the Controlled Drugs and Substances Act (CDSA)…Section 4(3) of the Code reads:

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.

This definition anticipates three different types of possession; personal, constructive and joint possession.

Personal possession is simply the situation where a person has actual care, through some form of physical contact, of the item in question. However, the criminal law requires more than simply having physical possession of the item. The criminal law requires three distinct elements: physical custody, knowledge and control.

What is required in order for there to be possession is not only physical custody, but also knowledge, both of the actual presence of the item and its general character. Thus, possession in the criminal law is not established until the accused has knowledge of what the item being handled is.

The law incorporates a third element to possession. It adds the element of control, to the elements of physical custody and knowledge. Where it appears there is no intent to exercise control over the item, guilt should not be inferred. See, R. v. Christie, 41 C.C.C. (2d) 282 (N.B.C.A.).

[24] See R. v. Junius [2012] O.J. No. 5397 (OCJ), paragraphs 22 to 45.

Application to Ms. Adatia

Firearm

[25] The evidence in this case is circumstantial. The question is whether the evidence is capable of supporting the inference that because Ms. Adatia's passport is found in the drawer where the firearm is located, that she would have had knowledge of the firearm and control over it. Even taking the Crown's case at its highest, there is no evidence establishing that Ms. Adatia would have any knowledge of the firearm. The firearm is at the back of the drawer and hidden under male clothing. There is no evidence capable of supporting that she would have had occasion to be in the drawer either to put clothing in or to disturb the clothing. To obtain her passport she would only have to open the drawer and take it out without disturbing anything else in the drawer. The US money may have caused her to ask questions about the source of the money, but it does not infer a connection to the gun or any knowledge of it.

Brass Knuckles

[26] The evidence concerning Ms. Adatia's knowledge and control over the brass knuckles does not support an inference that she knew they were there or that she had any control over the weapon.

Marijuana in Knapsack

[27] Similarly, with the knapsack, while it is in plain view, the contents are not. There is nothing other than its placement in the dining room that would support an inference of knowledge and/or control over the knapsack. There is nothing linking her to the knapsack or its contents. While the marijuana that is found in plain view, along with the scales found in the kitchen and the money, could support an inference that Ms. Adatia would have known or should have known or should have inquired whether there was drug trafficking activity on-going in the house, the possession for the purposes of trafficking and the possession of the money as proceeds of crime have been withdrawn by the Crown. The only inference is that the marijuana, including the marijuana in the knapsack were for personal use which makes the link between the money, the scales and the knapsack that might lead to an inference of wilful blindness less significant.

Disposition

[28] Ms. Adatia will therefore be committed to stand trial on the possession of the 26.3 grams of marijuana only.

[29] All other counts concerning Ms. Adatia are dismissed.

Released: March 14, 2013

The Honourable Justice C. Kehoe