WARNING

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

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.—

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) Failure to comply with order.— Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice Central West Region Brampton, Ontario

Parties

Between:

Her Majesty the Queen

-and-

Justin Quinn

and

Tara Samuel

Reasons for Judgment

Before: Duncan J.

1. Introduction

This is a ruling on committal/discharge following a preliminary inquiry.

2. Charges and Issues

The defendants are charged with a number of drug offences. In addition, the male defendant Quinn is charged with two counts of assault on police officers occurring during the course of their execution of a drug search warrant and his arrest. Committal is conceded with respect to those assault offences and two of the drug charges. With respect to the remainder of the drug offences, the issue is possession.

3. Facts of the Search

Following a brief period of surveillance, on November 10, 2011, police executed search warrants on two residences: #404 - 2301 Derry Road and #1411- 6599 Glen Erin. The two defendants were present at the Glen Erin residence. Drugs—cocaine and heroin—were found at both places with the following specifics:

At Derry Road:

• Powder cocaine – 39 grams in a bag in the pocket of a woman's coat hanging in the front hallway closet.
• Crack cocaine – three bags of 4, 3.15, 4.05 grams in the same coat pocket.
• Heroin - .95 grams in a deck in a plastic toy coffin-shaped container on the kitchen counter.

At Glen Erin:

• Crack cocaine – 3.95 grams in a sock in a drawer of the master bedroom.
• Heroin – .2 grams in a line on the kitchen counter.

4. Additional Items Found

In addition, in the kitchen cupboards at Derry Road, items associated with trafficking were found: three rolls of small baggies and a digital scale—as well as items associated with use: a rolled up bill and rolled up lottery ticket.

5. Expert Valuation

An expert report valued the cocaine and crack cocaine at about $100 per gram. The almost 40 grams of powder cocaine found at Derry was valued at approximately $4,000 and the 15.1 grams in total of crack found at both places was valued at approximately $1,500. The expert opined that these amounts were consistent with trafficking.

6. Condition of Derry Road Residence

The Derry Road residence appeared to be unoccupied and in the process of being painted. Aside from the woman's coat in the closet and a few men's shirts hanging in the same closet, there was no other clothing in the place. Photos show the kitchen to be devoid of the usual kitchen items. The only furniture was a leather couch which had apparently recently been delivered.

7. Connection of Samuel to Derry Road Residence

The defendant Samuel is connected to the Derry Road residence by:

• A rental agreement for that address dated September 2011 in her name as renter.
• A delivery receipt from The Brick for the leather couch dated November 5, 2011 in name of Samuel Tara for that address.

8. Connection of Quinn to Derry Road Residence

The defendant Quinn is connected to the Derry Road residence by:

• His current passport – found in an upper kitchen cupboard.
• A TD Canada Trust chequebook in the name Justin Quinn found in an upper kitchen cupboard.
• Benefits statement from Region of Peel dated October 26, 2011 in name of Justin Quinn with address 404-2301 Derry Road.
• A medical release form connected with the application for benefits dated October 25, 2011 in name of Justin Quinn with address of 404-2301 Derry Road.

9. Glen Erin Residence

The Glen Erin residence was not directly described in evidence, but indirectly, from the description of the events inside, it would seem to have been furnished in a manner consistent with normal occupancy. There was no evidence of any documentation related to either defendant in this residence. There was some evidence that there were children present and being babysat at the time of the search warrant. The parents of the children were later located at a restaurant and the children returned to them. Police advised the parents not to go home, suggesting they may have been living at the Glen Erin address.

10. Connection of Samuel to Glen Erin Residence

The defendant Samuel is connected to the Glen Erin residence by:

• Her presence at the time of the execution of the search warrant (about 8:30 pm).

11. Connection of Quinn to Glen Erin Residence

The defendant Quinn is connected to the Glen Erin residence by:

• His presence at the time of the execution of the search warrant.
• He was wearing pajamas and a housecoat at the time, suggesting that he lived or was staying there.
• He had been seen earlier in the day going out through the sliding glass patio door, having a brief interaction with another person and then returning through the same door.
• His passport found at Derry issued in July 2010 listed his permanent address as #1411- 6599 Glen Erin.

12. Legal Test for Possession

Possession requires knowledge and control. Knowledge means knowledge of the presence of the drug and its character. Control means control, not necessarily of the drugs themselves, but control in the sense of having the power to grant or withhold consent to their presence.

13. Applicable Case Law

I have been referred to (and have found on my own) a number of cases dealing with the difficult question of possession in respect of drugs and other items found other than on the person of an accused, in particular in a residence or, in some cases, a vehicle:

• Chambers v. The Queen, 20 C.C.C. (3d) 440
• R. v. Spalding, [1988] O.J. No. 1877 (O.C.A.)
• R. v. Grey, [1996] O.J. No. 1106 (O.C.A.)
• R. v. Pham, [2005] O.J. No. 5127 (O.C.A.), aff'd [2005] SCCA No 532 (SCC)
• R. v. Emes, [2001] OJ No 2469 (CA)
• R. v. Young, [2007] OJ No 3974 (CA)
• R. v. Mihalkov, 2009 ONCA 154, 243 CCC3d 173 (Ont CA)
• R. v. Medina, 2010 ONCA 261, [2010] OJ No 1416 (CA)
• R. v. Callejas, 2011 ONCA 393, [2011] OJ No 2232 (CA)
• R. v. Turner, 2012 ONCA 570, [2012] OJ No 4088 (CA)
• R. v. Beason, [2008] OJ No 2027 (Sup Crt)
• R. v. Savoury, [2008] O.J. No. 2896 (Sup Crt)
• R. v. Humphrey, 2011 ONSC 3024, [2011] O.J. No. 2412 (Sup Crt)
• R. v. Graham, 2012 ONCJ 638, [2012] OJ No 4915 (CJ)
• R. v. Williams and Robinson (unreported May 28, 2013 Ont CJ)

14. Standard at Preliminary Inquiry

Many of these cases are trial decisions or appeals therefrom, where the question was whether possession had been proven beyond a reasonable doubt. The issue before me is very different. Since this is a preliminary hearing, and the evidence is circumstantial, the question is whether there is any evidence from which a jury could infer the requisite knowledge and control on the part of each accused. On most counts, I think there is.

15. Analysis: Cocaine and Crack Cocaine

Much of counsel's argument focuses on the element of knowledge. In particular it is argued that the fact that the drugs were out of sight (other than the heroin) means there can be no inference of knowledge. While this submission may be correct in some cases, in my view it overlooks inferences of possession that may be available where the accused is a resident[1] having control of the premises where drugs having considerable value are found. Control, as defined above, will usually be present in the case of a resident—or at least it is an available inference. As for knowledge, it must be accepted that the drugs didn't walk into the place on their own. Someone, obviously having the requisite knowledge and control, brought them into the residence. A jury might well consider it unlikely that an outsider would bring in—and leave—thousands of dollars' worth of drugs in someone else's residence[2], and that it is far more likely that it was the resident himself who brought or invited them in and retained possession of them thereafter.

16. Inference of Possession at Derry Road

Using this path of reasoning and inference, in this case there is evidence from which a jury would be entitled to find that the two accused were the co-residents and only residents of Derry Road and that the valuable cocaine and crack cocaine found there belonged to one or both of them.

17. Individual or Joint Possession

If it is necessary at the preliminary inquiry stage to go further and determine which of the defendants is implicated, I am of the view that there is evidence that would permit a jury to make such a finding in respect of each or both:

• The drugs being in a woman's coat may be accepted as a circumstance that supports the inference that the drugs belonged to the female defendant Samuel.

• On the other hand, a jury could give this circumstance little or no weight, reasoning that a clever male drug dealer might well keep his stash in or with female clothing for its exculpating appearance. It may further consider that there is evidence that the male defendant Quinn was also a resident of Glen Erin where a package of crack cocaine was found in a similar quantity to the ones at Derry. And/or it might consider that the activity described by surveillance was indicative of trafficking, which in turn would have significance to the question of who the drugs in both of Quinn's residences belonged to: R. v. Lepage, [1995] 1 SCR 654 at par 36-37.

• Or a jury might give weight and significance to all of the above and infer that there was joint possession: that the presence of the drugs in a woman's coat suggests Samuel's complicity and assistance in—or at least knowledge of and consent to—what it might find to be Quinn's possession and trafficking activity. The presence of the scale and baggies in the kitchen might support the inference that handling and packaging of the product was being done openly in the common area of their shared residence.

18. Quinn's Possession at Both Residences

With respect to Quinn, the inferential path of reasoning applies in both directions. He was a resident of both addresses and, on the evidence, the only resident common to both. The drugs at his residence at Glen Erin support an inference of his possession of the drugs at his residence at Derry and the drugs at his residence at Derry support an inference of his possession of the drugs at Glen Erin. I have considered whether this amounts to boot-strap reasoning, but I am satisfied that it does not. Instead, it is simply looking at all of the evidence as a whole.

19. Analysis: Heroin

Both defendants conceded possession of the heroin found at Glen Erin. With respect to the heroin at Derry, a court may draw an inference of possession from evidence that a prohibited drug is found in a room under the control of an accused where there is also evidence from which an inference may properly be drawn that the accused was aware of the presence of the drug: Chambers at p. 448. As to knowledge, the heroin was in a small paper deck in a plastic container with a clear plastic lid, sitting on the kitchen counter. It was therefore neither plainly visible nor plainly out of sight. I think it would be up to the jury to determine the question of visibility and use its conclusion on that point together with other evidence—including the presence, conceded possession by both and apparent imminent use of the heroin at Glen Erin—and draw an inference of knowledge with respect to the heroin at Derry.

20. Conclusion: Quinn

For the reasons given above, Quinn is committed to stand trial on all counts with which he is charged (counts 6–12).

21. Conclusion: Samuel

With respect to Samuel, there is no evidence that she was a resident of Glen Erin, that she was staying there or was anything other than a found-in. Accordingly, there is insufficient evidence to support an inference that she had knowledge of the crack cocaine found in a sock in a drawer in a bedroom of that residence. She is discharged on that count (identified in submissions by Crown counsel as count 1). She is committed on all other counts—possession for the purpose of the crack cocaine (count 2) and cocaine (count 4) found at Derry; possession of heroin from Glen Erin (count 3) and from Derry (count 5).

November 25, 2013

B Duncan J.

E Ghebrai for Samuel; W Singer for Quinn

J Leising for the Crown

Footnotes

[1] By resident I mean the owner, tenant, usual or frequent occupier, as opposed to a visitor, found-in or other person with no or little proven connection to the place.

[2] At least unlikely that he would do so without the knowledge and consent of the resident.