Court Information

Court File No.: Not provided

Date: 2013-04-26

Ontario Court of Justice

Parties

Between:

Her Majesty the Queen

— and —

Kern Thompson

Before: Justice Mara Greene

Reasons for Judgment released on: Friday, April 26, 2013

Counsel

S. Thompson ……..…………………………………………………………… for the Crown

B. Alvarez ………………………………………………………………... for Mr. Thompson

Judgment

Introduction

[1] Mr. Thompson is charged with possession of cocaine for the purpose of trafficking and possession of cocaine in relation to almost 73 grams of cocaine found on a kitchen counter at 1049 Lawrence Avenue, unit 100. At the close of the preliminary inquiry counsel argued that there was insufficient evidence to commit Mr. Thompson to stand trial and argued that he should be discharged on all counts.

Evidence Presented at the Preliminary Inquiry

[2] On December 14, 2011, PC Carter responded to a call at 1049 Lawrence Avenue, apartment 100. Upon arriving, he heard sounds of a female being hit, she was crying and a male was yelling. He knocked on the door, announced his presence, but no one responded. Fearful for the safety of the woman in the apartment, the officer knocked open the door and entered the apartment.

[3] Upon entering the apartment, PC Carter saw a male and female in the washroom. The male, later identified only as a Mr. Thompson, was arrested, handcuffed and taken to the police car and then to the police station.

[4] The woman in the apartment was interviewed; the police noticed injuries to her and then proceeded to search the apartment, looking for a potential weapon.

[5] During the course of this search, PC Carter entered the kitchen area and saw a quantity of cocaine and drug paraphernalia on the counter top. He had not been able to see these items until he entered the kitchen. PC Carter seized these items and took them back to the station.

[6] The total amount of cocaine seized was approximately 73 grams. It was divided into four different bags. The officer also seized a scale and four cellular telephones.

[7] Det. Lipkus, an officer who was qualified to give expert evidence on drug packaging and indicia of possession of drugs for commercial purposes as opposed to personal use, testified that the possession of 73 grams of cocaine by itself would generally suggest that the person who possessed this cocaine did so for commercial purposes. The presence of a scale and a number of cellular telephones is further indicia that the person who possessed the cocaine did so for the purpose of selling it.

Issues Raised at the Preliminary Inquiry

[8] Prior to starting the preliminary inquiry counsel for Mr. Thompson advised the Court that everything was in issue and that he was unable to make any concessions. At the close of the preliminary inquiry counsel articulated three discrete issues:

a) Was there any evidence that Mr. Thompson was in fact the person found in the apartment and arrested on December 14, 2011;

b) Was there any evidence that Mr. Thompson was in fact in possession of the cocaine found in the apartment; and,

c) Was there any evidence that the person who in fact was in possession of the cocaine, was in possession of it for the purpose of trafficking.

[9] This latter point I can address quickly. Det. Lipkus was qualified to give expert opinion evidence on this point. In light of his evidence, I am satisfied that if there is some evidence that the person before the court was in possession of the cocaine found in the apartment, then there is some evidence that he was in possession of it for the purpose of trafficking. I will now turn to the first two issues raised by counsel.

Analysis

Role of a Preliminary Inquiry Judge

[10] As a preliminary inquiry judge, I have a very limited function. My role is limited to determining whether there is any evidence upon which a properly instructed jury, acting reasonably could return a verdict of guilty. Under this test, I must commit any accused to stand trial where there is admissible evidence which could, if it were believed, result in a conviction (R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21 (S.C.C.)).

[11] As a preliminary inquiry judge I am not permitted to assess credibility. Where there is direct evidence of the offence, the person must be committed to stand trial. Where, however, the Crown's case is based on circumstantial evidence, the preliminary inquiry judge must determine if the elements of the offence may reasonably be inferred from the circumstantial evidence. As was noted by McLachlin C.J.C in R. v. Arcuri, supra at p.31:

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. . . .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 guilt.

[12] Where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered. The preliminary inquiry judge is not to choose between competing inferences nor should the preliminary inquiry judge engage in speculation. For an inference to be relied upon it must be reasonable and based on the evidence presented at the preliminary inquiry. Having said that, the inference need not be an easy inference or the most likely inference, as long as there is some evidence to support the inference (see R. v. Katwaru (2001), 153 C.C.C. (3d) 433 (Ont.C.A.)).

[13] Where the issue at the preliminary inquiry is whether there is some evidence of identification, the preliminary inquiry judge is not permitted to weigh a positive identification. The preliminary inquiry judge must, however, determine if there is sufficient evidence of identification so that a reasonable jury properly instructed could convict. As was stated by McCombs J. in R. v. Herrera, [2008] O.J. No. 3040 at ¶23:

For the purpose of committal, there is a distinction between cases involving frail identification, as in Mezzo, supra, and cases where, on the whole of the evidence, the identification does not meet the threshold requirement of positive identification. While a preliminary inquiry judge is not permitted to weigh a positive identification, he or she is required to consider the whole of the evidence and determine whether an unsure "identification", or a statement that a person "looks familiar" amounts to an identification at all, much less an identification on which a reasonable jury, properly instructed, could convict.

[14] In other words, the role of the preliminary inquiry judge is very limited. The preliminary inquiry judge serves as a gate keeper to make sure that where there is no evidence of an essential element of an offence that the case not proceed to trial. If there is some evidence, no matter how weak and unlikely the Crown's case is, the accused must be committed to stand trial.

Was There Any Evidence That Mr. Thompson Before the Court Was the Mr. Thompson Who Was Arrested on December 14, 2011?

[15] In the case at bar, P.C. Carter testified that he arrested a person named Mr. Thompson on Dec 14, 2011 after being called to 1049 Lawrence Avenue, apartment 100. He further testified that this person was detained, placed in a cruiser and taken to the police station. At no point during the course of his evidence did the officer provide the court with Mr. Thompson's first name nor did he identify the Mr. Kern Thompson who was in court as the person he spoke to and detained on the December 14, 2011.

[16] The officer did, however, at one point refer to the person he detained as "the accused". I note that the officer did not say "this accused" nor did he point to Mr. Thompson when he said "the accused".

[17] I appreciate that the term "the accused" can be ambiguous and may not necessarily mean that the officer was identifying the accused before the court. It is, however, one possible inference that could be drawn and therefore it is some evidence that Mr. Thompson was the person found in the apartment with the cocaine on December 14, 2011. I am satisfied that there is some evidence that it was Mr. Kern Thompson who was in the apartment, arrested and charged with possession of the cocaine and possession of cocaine for the purpose of trafficking.

Is There Any Evidence That Mr. Thompson Was in Possession of the Cocaine Found in the Apartment?

[18] It is well established that possession involves knowledge of the item in issue and a measure of control over that item (see R. v. Beaver (1957), 118 C.C.C. 129 (SCC), R. v. Martin (1948), 92 C.C.C. 257, and R. v. Williams (1998), 125 C.C.C. (3d) 552 (Ont.C.A.)). In order to commit Mr. Thompson to stand trial on possession of cocaine and possession of cocaine for the purpose of trafficking, there must be some evidence that Mr. Thompson knew the cocaine was in the apartment and that he had some control over the cocaine.

[19] In the case at bar, the Crown argues that as Mr. Thompson was in the residence when the drugs were located and the drugs were in plain view, on a kitchen counter top, this provides some evidence of knowledge and control.

[20] Respectfully, I disagree. This is not a case like in R. v. Chambers, [1985] O.J. No. 143 (C.A.), where the committal to stand trial was upheld by the Court of Appeal because there was some evidence that the apartment belonged to the accused. In the case at bar, there was no evidence that the apartment belonged to Mr. Thompson or even that he regularly frequented the apartment. In fact there is a complete absence of evidence linking Mr. Thompson to the apartment except for his mere presence there on December 14, 2011 in the company of a third party.

[21] There was no admissible evidence as to who regularly lived in the apartment, there was no admissible evidence as to who was in fact renting the apartment, there was no admissible evidence addressing how long Mr. Thompson had been in the apartment that day, there was no admissible evidence that Mr. Thompson had ever been in that apartment before that day, there was no evidence that any of his belongings were located in the apartment and there was no evidence that he had even entered the kitchen area. Moreover, there was a second person in the apartment, whose relationship to the apartment was also not explained through admissible evidence.

[22] While I appreciate that since the cocaine was in plain view on a kitchen counter, there is arguably some evidence that Mr. Thompson had knowledge that the drugs were in the apartment, in my view there is no evidence that Mr. Thompson had any control over the apartment or any of the items found in the apartment.

[23] In my view it would be pure speculation to conclude that Mr. Thompson had any control over the items in the apartment given the absence of evidence linking him to the apartment beyond being a one-time visitor.

[24] For these reasons I find that there is no evidence upon which a reasonable jury properly instructed could convict Mr. Thompson of being in possession of the cocaine. Mr. Thompson is discharged on all charges.

Released on April 26, 2013

Justice M. B. Greene