Court File and Parties

Ontario Court of Justice

Date: 2014-07-03

Court File No.: Walkerton 12-1087 and 12-1088

Between:

Her Majesty the Queen

— and —

Joshua James Munro

Before: Justice Brophy

Dates Heard: 9 January, 11 March, 1 May and 4 June, 2014

Reasons for Judgment Released: 3 July 2014

Counsel

Elizabeth Barefoot — counsel for the Crown

Hedley Thompson — counsel for the accused Joshua James Munro

Reasons for Judgment

BROPHY J.:

Introduction

[1] Joshua James Munro has been charged with two offences. He stands charged that on or about the 14th day of November in 2012 in the municipality of Arran-Elderslie, in the County of Bruce, he was in possession of marijuana under 3 kg for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act. He is also charged on that same date and place with having in his possession break in instruments contrary to section 351(1) of the Criminal Code.

[2] The possession for the purposes of trafficking charge is an indictable offence with absolute jurisdiction in the Ontario Court of Justice. With respect to the possession of the break in tools the Crown election was to proceed summarily. It should be noted as well that although the charges appear on two separate Information's the defence consented to proceeding with one trial.

[3] There was an agreement at the outset of the trial that continuity was not in issue, that there was in fact an Authorization to Possess Marijuana (a Marijuana Possession Licence), that the Certificates of Analysis did in fact confirm that the marijuana found by the police was in fact cannabis marijuana and that the text messages produced pursuant to a production order with respect to the cellular phone of Mr. Munro were as set out in the schedules produced by the Crown.

[4] The defence brought a Charter Application seeking the exclusion of evidence. Counsel agreed that there should be a blended hearing so that the evidence could be received in both the trial proper and the Charter Application. The trial commenced 9 January 2014 with the larger part of the Crown's evidence being received that day. Further evidence for the Crown was called on 11 March 2014 following which it was agreed that counsel would provide written submissions on the Charter Application and the matter was adjourned to 1 May 2014 for a ruling on same.

[5] On 1 May 2014, the Charter Application was dismissed.

[6] The defence called the accused to give evidence on 4 June 2014 and after argument the matter was adjourned to 3 July 2014 for judgment.

Issues

[7] The general principles apply in this case as in all criminal cases. The accused is presumed to be innocent until the Crown has satisfied the burden of proof and has established guilt beyond a reasonable doubt. That burden never shifts.

[8] The nature of the two charges means that the Crown will of necessity seek to prove the two charges by way of circumstantial evidence. A conviction based on circumstantial evidence requires the trier of fact to be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts.

Facts

[9] When the Charter Application ruling was made the facts were set out in detail with respect to the initial interaction of the police with the accused as it related to detention and arrest, reasonable and probable grounds, search incident to arrest and rights to counsel. I do not propose to repeat all of those details except as is necessary to describe the context of the event and the allegations themselves.

[10] The facts are that in the early morning hours of 14 November 2012 two OPP police constables, Officers Christopher Fagan and Vicky McGough, were on patrol in an unmarked police cruiser in the town of Chesley, which is in the municipality of Arran-Elderslie. They observed a motor vehicle they did not recognize parked in front of 39 1st Avenue. As the cruiser was passing they saw a man approach the subject vehicle and then go back into the building. The vehicle was parked in front of a building that the officers associated with drug dealing and stolen property and the officers thought that this individual did not want to deal with the police and that is why he walked back onto the building. They conducted a license plate check on the motor vehicle and the registration came back with the accused as the registered owner and as a suspended driver for unpaid fines.

[11] The officers continued up the street for several blocks and then parked to see whether the man would return to the vehicle. It was now approximately 4:28 am. Shortly thereafter they saw a person come out of the building and get into the vehicle and drive off. The officers decided to follow.

[12] The vehicle left the town following an unusual route. It first drove through a grocery store parking lot and then headed west along some back streets and not on one of the north-south routes ordinarily used to leave the town.

[13] The officers stopped the motor vehicle at 4:35 am just on the western edge of Chesley. Both officers exited the cruiser and approached the accused motor vehicle. The accused was the operator and that he was alone.

[14] Mr. Munro was arrested at 4:42 am for driving while under suspension. Mr. Munro was handcuffed for officer safety and to allow a search of Mr. Munro for weapons.

[15] After Mr. Munro was placed in the rear of the police cruiser Officer Fagan made inquiries about the service of the Notice of Suspension. Meanwhile Officer McGough saw a 4 gram bag of marijuana in a small compartment of the driver's door which had been left open. This provided the officer grounds to arrest the accused for possession of marijuana under 30 grams. At 4:45 am the officer started to search the motor vehicle for marijuana.

[16] At some point the accused told Officer McGough that he had a medical licence to possess marijuana. During the search of the car the officer found what appeared to be a medical marijuana licence behind a visor. Officer McGough's evidence is that she did not know if the license was "real" and thought it would be necessary to confirm it with Health Canada.

[17] At 4:47 am the police communication centre advised the officers that the notice of suspension had not been sent. Officer Fagan's evidence is that he was going to write a Notice of Suspension and then release Mr. Munro. However at that point Officer McGough advised Officer Fagan about the marijuana. Officer McGough then arrested Mr. Munro on the possession of marijuana charge.

[18] Officer McGough indicated in her evidence that the motor vehicle would not have been searched as an incident to arrest for driving while under suspension. It was only searched incident to arrest with respect to the possession of the marijuana.

[19] Between 4:59 am and 5:23 am the police waited for another officer to arrive to deal with the motor vehicle and at 5:49 am the officers arrived with Mr. Munro at the police station and by 6:16 am Officer Fagan had placed a call to duty counsel.

[20] The two investigating officers found in the motor vehicle proper a number of plastic baggies and other containers with marijuana inside them. They found 14 different containers with differing amounts of marijuana in them. Most notably there was 4.2 grams of marijuana bud in a baggie located in the driver's side door console, there were four individual bags of cannabis marijuana bud totaling 10.1 grams located under the front driver's seat, there was a further baggie located under the driver's seat containing 3.1 grams of marijuana. In addition the officers found 10 empty clear plastic baggies located under the front passenger seat and a functioning AWS digital scale located in a black bag on the back seat. It should also be noted that when Mr. Munro was searched he had in his possession $382.75.

[21] Also found in the motor vehicle were various tools, including a small pry bar, screwdrivers, a lock picking set and a very strong magnet. This was in addition to the mountain of material of a consumer products nature that was piled up in the backseat.

[22] After the arrest and the towing of the subject motor vehicle to the OPP station in Walkerton, a search warrant was obtained to search the trunk of the motor vehicle. In the trunk were found numerous plastic bags and other containers with marijuana in them, including 30.8 grams in two Health Canada foil bags. There was also found a white digital weigh scale located in a black bag. Finally they found a plastic bag containing various packaging material, including clear plastic baggies, a bong, a straw, and rather oddly some clear plastic baggies with "alien" heads.

[23] The total amount of marijuana found in the motor vehicle was 211 grams. The medical authorization permitted possession of 45 grams only.

[24] The police also obtained a production order to obtain from Rogers Communication the SMS text messages sent and received between 22 October 2012 and 14 Nov 2012 by the cellular phone seized from the accused. Two schedules setting out those messages were filed with the court.

[25] The Crown called Detective Constable Charles Rau to testify as an expert with reference to street jargon associated with drug dealing. This was to assist the court with reference to the text messages that were discovered on the phone that was seized from Mr. Munro. The Crown also asked that he be qualified to testify with respect to the price of marijuana and its normal rate of usage. The defence did not quarrel with the qualification of the police officer for those purposes.

[26] The text messages include a number of conversations with other persons using language that is clearly consistent with the accused being engaged in low-level trafficking in marijuana:

• 26 October 2012: Someone texts the accused and says "yo man .. can I grab some bud?" The accused responds "Okay. I am about to leave the restaurant soon so you can drop by here too."

Officer Rau indicates that the word "bud" in this context is a street term used to reference cannabis marijuana bud.

• 30 October 2012: A different person texts the accused and says "Hey I lookin to get rid of qp or hp! Know anyone?" That person goes on to say "2 types to choose from". The accused then says "How much you looking for?" The first person then says "Would like to get 550". He then adds "Take 1000 for hp tho and it good quality." Mr. Munro responds "You want cash or other items for trade, work too?" The initiating person then says "could use some cash but open to suggestions lol."

Officer Rau tells the court that the term qp or hp refers to a quarter pound or half pound of cannabis marijuana. Further the phrase "2 types" references two different strains of cannabis marijuana. There is then a discussion about price and quality for the marijuana and in Officer Rau's opinion the prices are average. Finally Officer Rau testifies that often times the sellers of marijuana will take items in trade along with cash.

• 9 November 2012: Another series of communications took place on this date. The accused texts to the same individual he was dealing with on 30 October "I found one of those 3d ps3 tvs if your bud is still interested?" That person then replies "Ill text him now!" He adds "Hes tight on the paper end of things but if an oz and a q works for you still then yes will take it". Mr. Munro then says "That works for me". In this exchange the conversation continues about what could be used in trade for the marijuana.

Officer Rau indicates that the word "paper" is a street term for money, "oz" is referencing an ounce of product and "q" refers to a quarter ounce of product.

[27] With respect to the value of the marijuana Officer Rau testified that the 211 grams of marijuana that were seized could have a value ranging from $1,506.00 to $4,220.00. The range is a product of whether the marijuana was sold by the gram with a market value of $10-$20 per gram or was sold by the ounce which has a market value of $200-$250 per ounce.

[28] Officer Rau also testified that approximately 5 joints can be rolled from 1 gram of marijuana. The heavy user of marijuana smokes between 5 to 7 marijuana cigarettes per day. This would mean that the 211 grams would be a 150 to 211 day supply if it was being used for personal use. Mr. Munro had at least a five month's supply of marijuana in his motor vehicle if it was all to be consumed by him.

[29] The evidence of Officer Rau was detailed, thorough, compelling and not shaken in cross-examination.

[30] The accused testified and explained that he suffered from an inherited joint problem particularly affecting his knees. He has had multiple medical interventions and has been on serious pain medications for a long time. He said that he began to use marijuana to deal with the pain and ultimately obtained his medical marijuana authorization. It is noted that the authorization had only been in effect for approximately one month prior to his arrest.

[31] He also testified that he worked in a kitchen management position in a restaurant in Chesley. In that regard in November 2012 the busy season had started and he was working very hard and he was experiencing significant pain. As a result he was highly dependent on marijuana. His evidence was to the effect that he used the authorized marijuana and then in addition consumed marijuana that exceeded the legal limit. To do so he was required to buy marijuana from illicit sources.

[32] He was uncomfortable with the security at his place of residence and as a result kept most of his important things in his motor vehicle. This is how he explains why there was the large quantity of marijuana in the vehicle. He did not feel it was safe to leave it any place else.

[33] Essentially he said that he used marijuana heavily to manage his pain, that he kept his marijuana in the motor vehicle where it would be safe, and that all of the marijuana was for his personal use.

[34] Mr. Munro presented himself as a likable individual with an unusual lifestyle. I accept that he has some medical difficulties, notwithstanding the lack of corroborative detail concerning same. He did in fact have the medical authorization for possession of marijuana in a strictly regulated amount and that gives some foundation for his statement about his constant pain.

Analysis

Section 351(1) – Criminal Code – Possession of Break in Tools

[35] Section 351 of the Criminal Code is as follows:

351. (1) Every one who, without lawful excuse, the proof of which lies on them, has in their possession any instrument suitable for the purpose of breaking into any place, motor vehicle, vault or safe under circumstances that give rise to a reasonable inference that the instrument has been used or is or was intended to be used for such a purpose,

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

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

[36] The phrase "a reasonable inference", in a criminal statute, requires proof beyond a reasonable doubt. Accordingly, the burden on the Crown to prove every element of the offence beyond a reasonable doubt requires proof beyond a reasonable doubt of (a) possession by the accused of the instruments specified in the information, (b) the suitability of the instruments for the prohibited purpose and (c) an intention to use the instruments for the prohibited purpose. See R. v. Holmes, [1988] 1 S.C.R. 914.

[37] It is not necessary for the Crown to establish a nexus between the accused's possession of instruments and a "target". However the absence of a nexus in time and place between the possession of instruments and a particular place is a significant factor in determining whether it is appropriate to draw an inference of intent to use instruments for the prohibited purpose. See R. v. K. (S.), 103 C.C.C. (3d) 572.

[38] In my view in this case the Crown has not proven beyond a reasonable doubt that a reasonable inference can be drawn that the tools were for the purpose pleaded. I say so for the following reasons.

[39] The tools themselves were perfectly legal. Mr. Munro had them in his possession and they were capable of being used to access buildings and motor vehicles. The question is whether or not Mr. Munro had the intention to use them for an improper purpose.

[40] He was found with them in the early morning hours. That in itself is part of the context but is not determinative. The police had some information that the building that Mr. Munro came out of was associated with criminal activity. However that has not been proven and the police suspicion is not compelling.

[41] He did have in his motor vehicle numerous consumer items in their original packaging. However there is no nexus between Mr. Munro and any criminal activity other than the possession of the marijuana, and most significantly the police were not able to establish that any of the items found in his motor vehicle had been the subjects of theft or other nefarious activity and indeed all of those items were returned to him after the police investigation concluded.

[42] Lastly I would indicate that the items he had in his possession save and except for the lock picks and the magnet were completely ordinary. The lock picks and the magnet raise suspicions, but they are not illegal items, he is entitled to have them in his possession, and there is no other reason to think that he was engaged in breaking into places using these instruments.

[43] The strength of the inference to be drawn from any item of circumstantial evidence depends on in the context provided by the rest of the evidence. Here the context is insufficient to satisfy the court beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts as it relates to the various tools.

[44] The Crown has not proven the Section 351(1) charge beyond a reasonable doubt and it is dismissed.

Section 5(2) – Controlled Drugs and Substances Act - Possession for the Purpose of Trafficking – Marijuana

[45] The possession for the purposes of trafficking charge is different.

[46] The Crown called Officer Rau as an expert with respect to street jargon and its meaning and also rates of consumption and the value of marijuana. I accept his evidence for that purpose only. See R. v. Sekhon, 2014 SCC 15.

[47] The facts are clear that the accused had in his possession numerous plastic baggies containing marijuana. There is no rational reason for someone who is using marijuana for their own personal use to divide the marijuana in such a manner. That combined with the presence of the two digital scales, the cash, and the text messages clearly indicating trafficking activity, in my view proves that the marijuana in the possession of Mr. Munro on the morning in question was clearly for the purposes of sale to other persons when opportunities presented themselves.

[48] The medical marijuana license and the state of medical problems of Mr. Munro, which drove him to consume more marijuana than he was licensed to possess, does not explain the way in which the marijuana was packaged, the presence of the scales, and the text messages.

[49] Indeed the explanation offered by Mr. Munro that he used the scales to measure his own marijuana flies in the face of common sense. He was using marijuana on a constant basis, according to his evidence, and he would for that purpose have developed a complete understanding of how much marijuana to use without the necessity of measuring each and every joint with precision. That is not in accordance with human nature.

[50] The circumstantial evidence is comprehensive and the only reasonable inference to be drawn from the evidence as a whole is that Mr. Munro was trafficking in marijuana and that the marijuana in his possession was for that very purpose.

[51] In my view the Crown has proven the possession of the marijuana for the purposes of trafficking charge under Section 5(2) of the Controlled Drugs and Substances Act beyond a reasonable doubt and there will be a finding of guilt.

Released: 3 July 2014

Signed: "Justice Brophy"