Court Information

Ontario Court of Justice

Date: August 2, 2014

Between:

Her Majesty the Queen

— AND —

Matthew Ward-Jackson

— AND —

Sanya Vasiljevic

Before: Justice K. Caldwell

Reasons for Judgment released on: August 2, 2014

Counsel

Mr. Lucas Price — counsel for the Crown

Mr. Deepak Paradkar — counsel for the accused Mr. Ward-Jackson

Mr. Dean D. Paquette — counsel for the accused Ms. Vasiljevic

Judgment

K. Caldwell J.:

[1] Mr. Ward-Jackson and Ms. Vasiljevic are jointly charged with possessing cocaine, both crack and powder, for the purpose of trafficking, possessing $13,000 in cash as proceeds of crime, and possessing marihuana for the purpose of trafficking. Mr. Ward-Jackson is charged alone with possession of a further amount of marihuana for the purpose of trafficking and possession of a further $120 as proceeds of crime.

[2] This judgment contains my reasons on the joint directed verdict motion. Mr. Ward-Jackson concedes that there is sufficient evidence to meet the directed verdict test in relation to the counts on which he is solely charged. He and Ms. Vasiljevic jointly argue, however, that there is not sufficient evidence regarding the joint counts.

OVERVIEW OF THE EVIDENCE

[3] Mr. Ward-Jackson and Ms. Vasiljevic were arrested in a taxi cab shortly after they left 4247 Dundas Street West. At the time of the arrest, Mr. Ward-Jackson had 8.83 g of marihuana on him, along with $120. These items are the subject of the sole counts.

[4] A search warrant had been obtained for the Dundas Street West location. This address is a strip mall that has two or three apartments above the stores. The police focus was on one of the apartments and it is contended that Mr. Ward-Jackson and Ms. Vasiljevic lived together in that apartment.

[5] Once inside, the police located 439.16 g of powder cocaine and 7.81 g of crack cocaine in a bag under clothing in a bedroom closet. They also located $13,000 in a safe located in another closet in a hallway. Small suspected amounts of marihuana were found under a couch in the living room and between the mattresses of the bed in the bedroom. It appears that the marihuana inadvertently was never seized by the police.

THE ISSUE

[6] Both applicants argue that there is insufficient evidence of possession to meet the directed verdict test. It is conceded that the drugs were for the purpose of trafficking, and that the money is proceeds of crime.

TEST FOR POSSESSION

[7] Section 4(3) of the Criminal Code defines possession and that definition is adopted by the Controlled Drugs and Substances Act ("CDSA"). Possession can be actual, constructive or joint. Actual possession requires the individual to have the item in his or her possession. Constructive possession involves having the item in a place for the use or benefit of himself or herself, or a third party. Joint possession involves one or more than one person having an item in his or her possession with the knowledge and consent of others in which case the item is deemed to be in the possession of all.

[8] In all instances, both knowledge and control are required to establish possession. In joint possession cases, consent must also be established but this element is an aspect of control.

FINDING ON THE MOTION

[9] I find that there is sufficient evidence of possession of the crack and powder cocaine and the $13,000 to meet the directed verdict test regarding both Mr. Ward-Jackson and Ms. Vasiljevic. I find that there is insufficient evidence regarding the marihuana found in the apartment and I therefore discharge both individuals on that count.

TEST FOR A DIRECTED VERDICT AND THE LAW OF INFERENCES

[10] The test for a directed verdict is the same as that for committal at the end of a preliminary inquiry — is there some evidence upon which a reasonable jury properly instructed could convict?

[11] This statement is not as simple as it appears at first blush. "Some evidence" does not mean that the Crown only has to present a bit of evidence pointing towards guilt. As Chief Justice McLachlin stated in R v Charemski, the evidence must be sufficient to allow a reasonable jury properly applying the law to be convinced beyond a reasonable doubt of the accused's guilt. The Crown's evidence must be assessed through the prism of that reasonable doubt standard.

[12] Further, the preliminary inquiry judge does not weigh the evidence to determine if it is credible or true. There is a slight modification of this principle in circumstantial cases. In a circumstantial case there will be "an inferential gap" between the evidence and the fact which needs to be proven. In such instances the judge must weigh the evidence but only to determine if it is reasonably capable of supporting the inferences that the Crown will ask the jury to draw.

[13] It can be difficult to determine if the evidence is capable of such reasonable support as it is often difficult to determine the difference between speculation and a logical conclusion.

[14] A properly drawn inference does not amount to speculation. Speculation is akin to guesswork and proof beyond a reasonable doubt cannot flow from hunches, speculation or guesses.

[15] Justice Ducharme has outlined the two-step process required to draw a proper inference. First, the jury must determine if the primary facts underlying the inference have been proven.

[16] Once the jury has determined the primary facts, then the jurors must determine if they are convinced beyond a reasonable doubt that these primary facts establish the inference requested by the Crown.

[17] At the preliminary hearing stage, the judge must determine first whether there is evidence of the primary facts. If there is such evidence, then the judge must determine if that evidence is capable of reasonably supporting the requested inferences.

[18] It can be very difficult to make the assessment required by the second step in this process. Justice Watt has noted that it is very difficult to precisely define the line between reasonable inferences and impermissible speculation.

[19] Justice Moldaver has noted that reasonable inferences needn't be those that are the most obvious or easily drawn. Instead, he stated, "all that is required is that the inference be reasonable and logical. The fact that an inference may flow less than easily does not mean that it cannot be drawn".

[20] On the other hand, Justice Fairgrieve of this Court has commented, "[s]imply because a possibility cannot be excluded does not necessarily mean that a reasonable trier could be justified in reaching such a conclusion on the evidence".

[21] This statement brings me back to Justice McLachlin's comments that the evidence must be sufficient to allow a jury properly applying the law to be convinced beyond a reasonable doubt. In both Charemski and Arcuri, the Chief Justice was speaking of this test for committal in the context of circumstantial cases.

[22] She stated, "the question is whether the evidence is capable of supporting a verdict of guilt beyond a reasonable doubt". She recited with approval Professor Delisle's comment, "[l]ogically….it would seem to be wrong to let a case go to the jury if the trial judge believed that no reasonable jury could be satisfied beyond a reasonable doubt". Specifically regarding circumstantial cases, she stated, "the judge must determine whether, assuming the circumstantial facts are proved, it would be reasonable to make the inference necessary to establish the facts in issue".

[23] In R v Arcuri, "the preliminary inquiry judge must, while giving full recognition to the right of the jury to draw justifiable inferences of fact and assess credibility, consider whether the evidence taken as a whole could reasonably support a verdict of guilty". Further, "[t]he judge asks only whether the evidence, if believed, could reasonably support an inference of guilt".

[24] The Chief Justice was, of course, careful to clarify that the preliminary inquiry judge oversteps when asking if he or she would draw the requested inferences. She summarizes the two different roles as follows:

The difference between the judge's function on a motion for a directed verdict and the jury's function at the end of the trial is simply this: the judge assesses whether, hypothetically, a guilty verdict is possible; the jury determines whether guilt has actually been proved beyond a reasonable doubt.

[25] These passages assist in differentiating between a proper inference on the one hand and inappropriate speculation and guesswork on the other hand. It is clear from the foregoing passages that the test of "beyond a reasonable doubt" informs the process throughout, including the inference drawing process. If, to reiterate Professor Delisle, it would be wrong to let a case go to a jury if the trial judge believed no reasonable jury could be satisfied beyond a reasonable doubt, then it follows that a case built upon inferences that could not be reached beyond a reasonable doubt also should not be left to a jury.

[26] Throughout it also must be remembered that there is a crucial distinction between "could" and "would". It is not for the preliminary hearing judge to determine if she or he would draw a given inference beyond a reasonable doubt but it is for that same judge to determine if a given inference could be reached beyond a reasonable doubt.

[27] Keeping in mind the test outlined above, I turn then to the possible primary facts and the inferences that could be drawn from such facts.

THE PRIMARY FACTS

[28] A jury could find the following primary facts from the evidence:

• Police conducted surveillance on four dates over a one month period;
• A black Mercedes was located in the parking lot outside 4247 Dundas St. W. on each of those occasions;
• Mr. Ward-Jackson either drove that car or removed a bag from it on three of the four occasions;
• Ms. Vasiljevic drove the same car alone on one occasion and was a passenger in it on a second occasion;
• The car was registered to Mr. Ward-Jackson;
• Mr. Ward-Jackson entered 4247 Dundas St. W on three of these occasions;
• Ms. Vasiljevic enters or exits the address on two of the occasions;
• A search warrant was conducted on the address on the fourth surveillance date shortly after Mr. Ward-Jackson and Ms. Vasiljevic exited the address and were arrested;
• There were two bedrooms in the searched unit;
• One of the bedrooms contained a bed plus a small quantity of men's and women's clothing and a few purses in the closet;
• The second bedroom had a couch, a pole in the center, with clothing and a duvet scattered around the room along with piles of other items;
• The powder and crack cocaine, with a monetary value of between $17,000 and $52,680, were found in a bag with the top folded over under a pile of clothing in the bedroom containing the bed;
• A safe containing $13,000 in cash and which had to be pried open by the police was found in a hall closet;
• A small amount of marihuana was located between the box spring and mattress of the bed in the bedroom that contained the cocaine;
• A small amount of marihuana was found on a tray under the living room couch;
• A copy of a probation order in Mr. Ward-Jackson's name and listing his address as 4247 Dundas St. W. was found on the floor of the bedroom with the bed;
• That order went into effect eighteen days before the search warrant was executed;
• Eleven months prior, Mr. Ward-Jackson entered a recognizance listing the same address;
• A condition of that recognizance required that Mr. Ward-Jackson live with his surety, Ms. Vasiljevic, whose address was also listed as 4247 Dundas St. W.;
• That recognizance expired eighteen days prior to the search warrant, once Mr. Ward-Jackson was sentenced and placed on the probation order found in the bedroom.

INFERENCE OF A HAND-TO-HAND DRUG TRANSACTION

[29] I find that a reasonable jury could not infer that Mr. Ward-Jackson participated in a hand-to-hand drug transaction on October 12, 2012, approximately two weeks before the search warrant execution.

[30] The only evidence on this issue was that Mr. Ward-Jackson drove to a nearby Walmart and, as he sat in his car outside the main doors, another man came to his driver's side window. The two men touched clenched fists and the officer testified that an object "appeared" to be exchanged. Mr. Ward-Jackson then lowered his hand out of view, raised it again, and the same action was repeated. The actions were quick, and the officer never saw an object pass between them but simply assumed that had occurred from their actions.

[31] Bearing in mind the ultimate standard of proof, would it be possible for a properly instructed jury to reasonably conclude that a hand-to-hand drug transaction had taken place? I find that a reasonable jury could not reach such a conclusion and thus find that this is not an available inference.

[32] There is no question that these actions are suspicious. Suspicion cannot equate to proof, however. I find that the jury would have to engage in speculation and guesswork to conclude that the touching of fists on two occasions without more amounted to a hand-to-hand transaction.

[33] I find, then, that this evidence does not assist in determining possible inferences of possession of the drugs and money in the apartment. Such evidence could only be of use if it could be inferred as a primary fact that Mr. Ward-Jackson was engaged in a drug deal. This primary fact could then be added to other factors in determining if an inference of possession of the drugs and money could be drawn.

INFERENCE OF RESIDENCY

[34] I find that a reasonable jury could draw an inference beyond a reasonable doubt that Mr. Ward-Jackson and Ms. Vasiljevic lived at 4247 Dundas St. W. on the date the search warrant was executed.

[35] I find that the following primary facts allow for this inference:

• Mr. Ward-Jackson entered into a probation order just eighteen days earlier listing that address as his residence;
• The same probation form was found on the floor of the residence;
• Ms. Vasiljevic signed as surety for Mr. Ward-Jackson just eleven months prior and listed that address as her residence;
• Mr. Ward-Jackson had been ordered to live with her as a term of that recognizance;
• Both parties had been seen at the address in the days just preceding the execution of the search warrant and in fact had left that address just moments before the warrant was executed.

[36] Both accused argued that the lack of a unit number specification in the court papers and the lack of a key found on either of them would require the jury to merely speculate that the unit searched was the unit of residence given that there appeared to have been more than one residential unit above the shops at that address.

[37] I find, however, that adding in the evidence of the probation order in Mr. Ward-Jackson's name found in the very unit searched could allow the jury to draw the residency inference regarding Mr. Ward-Jackson. In terms of Ms. Vasiljevic, the fact that a recognizance that had expired just days prior signed by her and requiring Mr. Ward-Jackson to live with her, when combined with the location of the probation order listing the same address, would allow a jury to conclude that this was her residence unit as well.

[38] Further, it was argued that the necessary inference could not be drawn regarding Ms. Vasiljevic as the recognizance had actually expired as of the date of the warrant. Given, however, that she had been seen at that address on the date of warrant execution and given that the recognizance expiry had been less than three weeks prior, I find that the jury could draw the necessary inference bearing in mind the standard of proof required.

INFERENCE OF BEDROOM OCCUPANCY

[39] If the jury were to infer that Mr. Ward-Jackson and Ms. Vasiljevic lived in the unit, I find that it could further be inferred that the bedroom containing the marijuana under the mattress and the cocaine in the closet was their joint bedroom.

[40] A DVD of the residence was made during the search warrant execution. That DVD reveals evidence of two bedrooms in unit. One bedroom has a neatly made bed, clothing described in evidence as men's and women's, and appears to be occupied. The marihuana and cocaine were found in this bedroom. The second bedroom is extremely messy, contains a couch, no bed, and is filled with various piled items. I find that a jury could infer that the second bedroom was unoccupied. That inference then allows for the further inference that the other bedroom was the only bedroom used as such by the occupants.

[41] I find that a jury also could infer that Mr. Ward-Jackson occupied that bedroom given:

• The men's clothing found in the closet;
• His probation order on the floor;
• The lack of occupancy of the second bedroom;
• The lack of evidence of any other tenant other than Ms. Vasiljevic.

[42] I find that a jury could also infer that Ms. Vasiljevic occupied that bedroom given:

• The women's clothing found in the closet;
• The lack of occupancy of the second bedroom;
• The lack of evidence of any other female tenant.

INFERENCE OF KNOWLEDGE AND CONTROL OF THE COCAINE IN THE CLOSET

[43] I find that a reasonable jury could infer that both Mr. Ward-Jackson and Ms. Vasiljevic had knowledge and control of the cocaine in the closet.

[44] The analysis is the same regarding both parties. I will discuss this analysis in relation to Mr. Ward-Jackson. First the jury would have to find as primary facts that Mr. Ward-Jackson both lived in the unit and occupied the bedroom, reaching those inferences through the process outlined above.

[45] Assuming the jury reached those conclusions, this case would be distinguishable from R v Turner and R v Grey. A fundamental component in each of those cases that led to the conclusion that there was insufficient evidence was the fact that the men in both instances were mere visitors as opposed to occupants, albeit a frequent overnight visitor in the case of Mr. Grey.

[46] Given that I have found that it would be open to the jury to infer both residency and bedroom occupancy, I find that the cases of R v Chambers and R v Fredericks are more helpful. It is the blending of the rulings in those cases that leads me to conclude that it would be open to a jury to infer both knowledge and control on the part of Mr. Ward-Jackson.

[47] In Chambers, the Court held that though the drugs appeared to be primarily in the possession of Ms. Chambers' boyfriend, the fact that they were in Ms. Chambers' bedroom meant that she could give or withhold her consent to their presence and therefore could allow for the inference of a measure of control. It was conceded in that case, however, that there was evidence of knowledge and in that respect Chambers can be differentiated from this case. Further, Ms. Chambers was the sole permanent occupant of the bedroom – arguably the inference of control from occupancy alone is harder to draw in a joint occupancy situation.

[48] It is at this point, however, that I turn to Fredericks. In that case, the value of the cocaine was substantial, valued at over $1,000,000. The Court in Fredericks found that a reasonable jury could infer that such a valuable amount of drugs would not be left in a bedroom without the express knowledge of the other occupants as it would be too easy for one of the occupants to discover the drugs and dispose of them. Further, it would be reasonable to infer that such expensive drugs would not be left unguarded thus the presence of one individual alone in the vicinity of the drugs could allow for the inference that the individual was acting as the keeper of the drugs for that period of time.

[49] I find that a reasonable jury could infer that even if the cocaine did not actually belong to Mr. Ward-Jackson, it would not be left in a bedroom that he occupied without his knowledge and some degree of control particularly given that it would be open to the jury to find on the evidence that Mr. Ward-Jackson was in the apartment at times without his co-occupant, Ms. Vasiljevic.

[50] I find that the same analysis could be applied to Ms. Vasiljevic.

INFERENCE OF POSSESSION OF THE $13,000 CONTAINED IN THE SAFE

[51] Assuming that a jury were to reasonably infer that Mr. Ward-Jackson possessed the cocaine as outlined above, I find that such an inference could reasonably allow for an inference that Mr. Ward-Jackson also therefore knew of the proceeds of trafficking, namely, the $13,000.

[52] Further, following a similar analysis as that outlined above, I find that a reasonable jury could infer that Mr. Ward-Jackson would not be left alone in the presence of such a substantial amount of cash without both his knowledge and consent given the similar concerns that would apply to such a large amount of cash.

[53] I find that the inference is somewhat more difficult to draw in the case of the cash given that it was in a safe that had to be pried open by the police and was not easily discoverable as was the case with the drugs. Referring back, however, to Justice Moldaver's holding in R v Katwaru, reasonable inferences needn't be those that are most obvious or easily drawn. As there is evidence that the police were able to pry open the safe and discover the cash, it would be open to a jury to infer that an occupant of the unit would be able to do the same and thus would not be left alone in the apartment with the safe without the occupant's knowledge. Similarly, as in Fredericks, it could be inferred that the person alone with the cash was one of the keepers of that cash thus allowing an inference of control.

[54] I find that the same analysis can be applied to Ms. Vasiljevic.

INFERENCE OF POSSESSION OF THE MARIHUANA FOUND IN THE APARTMENT

[55] I find that an inference of knowledge and control of the marihuana, either that found under the mattress or that found under the couch in the living room, could not be drawn as the analysis outlined above breaks down with respect to the marihuana.

[56] There is no weight or value attributable to either stashes of marihuana given the police failure to seize either stash. All of the evidence, however, points to a very small quantity in both cases. The marihuana was not in plain view. The analysis in Fredericks is totally inapplicable as the only inference that could reasonably be drawn is that the value of the marihuana was minimal.

[57] I find, therefore, that a jury would have to resort to guesswork and speculation in attempting to assess possession of the marihuana. Keeping in mind the test for committal outlined in the early part of this judgment, I find that a reasonable jury could not infer that the marihuana was in the possession, either individually or jointly, of either party.

CONCLUSION

[58] I therefore find that there is evidence sufficient to meet the directed verdict test regarding counts 1, 3 and 4 in the Information. I make this finding with respect to both Mr. Ward-Jackson and Ms. Vasiljevic. I find that there is insufficient evidence to meet the test for either individual regarding count 6.

[59] It is my understanding that it is conceded that the test is met regarding counts 2 and 5 which Mr. Ward-Jackson faces alone.

[60] I thank all three counsel and Mr. Paquette's associate Ms. Lauren Wilhelm for the very high calibre of their written submissions.

Released: August 2, 2014

Signed: "Justice K. Caldwell"