Court File and Parties

Court File No.: Central East - Newmarket 13-03392 Date: 2014-08-27 Ontario Court of Justice

Between: Her Majesty the Queen — and — Jerry Wallace

Before: Justice P.N. Bourque

Judgment

Released on August 27, 2014

Counsel: R. Warren for the Crown D. Lakie for the accused, Jerry Wallace

BOURQUE J.:

Overview

[1] As part of a larger drug investigation, the York Regional Police executed a search warrant upon a home where the defendant resided. In that home the police discovered 5 oxycodone pills, a lighter which also had a spring loaded blade and a pair of nunchaku sticks. The defendant faces charges of possession of the oxycodone and two counts of possession of prohibited weapons without a license under section 91(3) of the Criminal Code.

The Evidence

[2] The crown's case consisted of viva voce evidence of 4 police officers who participated in the execution of the search warrant at 45 Aurora Heights Drive in Aurora, Ontario. Their evidence and the exhibits filed, established the following:

(a) The defendant resided at 45 Aurora Heights Drive in Aurora, Ontario;

(b) The police executed a search warrant at the home at just after 6:00 a.m. on April 18, 2013;

(c) Filed as Exhibit #1 is a sketch map showing the general layout of the home;

(d) Upon entry to the home, an adult woman and two children, ages 5 and 15, were present in the home;

(e) The defendant had just left the home before the execution of the warrant and was arrested outside the home, nearby;

(f) 5 oxycodone pills were found loose on the top of a dresser which had women's clothes inside it, but some of defendant's paraphernalia on top of it;

(g) A combination lighter and knife was found in a downstairs television room. It was on top of a bookcase but in view of 6 foot 3 inch tall officer standing on the floor;

(h) A pair of nunchaku sticks was found in a chest in the living room. The chest was underneath a reptile aquarium and may have held the aquarium off the floor;

(i) Filed as exhibits of other items found in the house were:

(i) A printed card which could be a Christmas greeting card with the name Loner Motorcycle Club printed on it. The card did not have any handwriting on it and contained no indication as to whom it was addressed to;

(ii) 3 pellet guns were also found in the chest (not illegal weapons)

(iii) A safe with items in it including a rifle which may have not been designed to fire (not an illegal weapon);

(iv) A set of scales found in the bedroom.

[3] As a result of that search the defendant was charged with the possession of the 5 pills, the lighter/knife and the nunchaku sticks.

Jerry Wallace

[4] The defendant testified. He stated that he had an old criminal record and the most recent entry was 25 years old, and was for drinking and driving. He stated that he owned an auto and motorcycle repair shop. He stated that he, at the time of the search, lived at that home with his wife and two children. He stated that he had a total of 11 children and step children who had lived in the home along with a previous spouse.

[5] With regard to the nunchaku sticks, he stated that he was not aware that they were there and did not know whose they were. He stated that the chest where the officer said they were found was an old chest that was holding up the terrarium where his sons' pet lizard was kept. He had not looked in the chest for some 13 years, around the time he separated from his previous wife. He stated that there were other miscellaneous items and some were not his.

[6] With regard to the lighter/knife combination, he stated that the top of the case was over 6 feet and he was some 5 foot 10 inches tall. He did not know that the knife was there and did not know about it at all. There were some bigger items on the case (model motorcycles) that he could see.

[7] With regard to the oxycodone pills, he stated that his wife had just recently found them in their bathroom on the floor where a plumber had been recently working. She put them on his dresser. He had contacted the plumber who said he had a prescription for them and was going to come to get them. The plumber was a friend of his who took the painkillers as a result of an industrial accident several years ago.

Arnold Brown

[8] Arnold Brown testified that he is a very old friend of the defendant. He has a criminal record of some 7 items including a conviction for manslaughter. He stated that around 2007, he was in an industrial accident and has also recently been diagnosed with spondylitis. As a result, he takes many medications including oxycodone, which he refers to as Percocet's. He stated that around the middle of April, 2013, he had gone over to the defendant's house to unclog a sink. He said that in order to perform the work he had to bend down. He stated that he had put some 5 oxycodone pills in his shirt pocket and later when he went home, the defendant called him and told him that they had found his pills. The witness produced a statement from his pharmacy showing approximately a year's statement of his drug prescriptions. They contain a prescription for oxycodone of about 160 pills per month.

[9] The witness was shown Exhibit 3 with the picture of the pills on the dresser. He identified those pills as the ones that were prescribed to him.

Analysis

[10] The burden remains upon the Crown at all times to prove the case beyond a reasonable doubt. In our case, the Crown had to not only prove that there were drugs and prohibited weapons in the house occupied by the defendant, they must also show that they were in his possession.

[11] As stated in R. v. Lifchus at paragraph 36:

• The burden of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence;

• Reasonable doubt is not a doubt based upon sympathy or prejudice;

• Rather, it is based upon reason and common sense;

• It is logically connected to the evidence or absence of evidence;

• It does not involve proof to an absolute certainty, it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and,

• More is required than proof that the accused is probably guilty - a judge or jury which concludes only that the accused is probably guilty must acquit.

[12] In this case, the defendant has testified and has denied that any of these prohibited goods or substances are his. In addition, he has produced a witness who states that the pills found by the police were his.

[13] I apply the doctrine of R. v. W.D. which states:

• First, if you believe the evidence of the accused, obviously you must acquit.

• Secondly, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit.

• Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, in the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[14] The defendant was not seriously shaken in cross-examination. With regard to the prohibited weapons, he stated that they were not his and he had no knowledge of their existence. With regard to the oxycodone, he stated that the pills were definitely not his and, in fact, were his friend's. The evidence of Arnold Brown confirms this part of his testimony. Mr. Brown was not seriously shaken in his cross-examination. Both of the witnesses have criminal records but both admitted readily to them and did not attempt to make any excuses for any of the entries. They were old friends and I am cognizant of the fact that they may be inclined to help one another. It was not seriously suggested in any evidence that they would commit perjury to help each other.

[15] There are other items in the house, namely the scales and the Christmas card from the motorcycle club. Quite frankly all of those items are equivocal and do not lead to any conclusions. With regard to the lighter/knife device and the nunchaku sticks, there was little to connect them to each other and certainly nothing to connect them to the defendant.

[16] On balance, I am inclined to accept the evidence of the defendant. When I also consider the evidence of Arnold Brown, I would say that with regard to the pills, they were clearly not in the possession of the defendant. The confirmation of that important fact also adds credibility to his denials that he was in possession or had knowledge of the other items.

[17] In any event, I would have to say that even if I did not accept in totality the evidence of the defendant, it would have left me with a reasonable doubt. The location of the items in the various locations and the existence of the 5 pills randomly spread on the dresser, do not point exclusively to the defendant. At best, the evidence of possession is circumstantial, and in accordance with the rule in Hodge's Case, the circumstantial evidence does not point only to the conclusion that the defendant possessed those items. Any number of the persons who came through and based on the house throughout the years could have left one or more of those items. None of the prohibited items were in locations which suggested any recent use.

Conclusion

[18] Based upon all of the above, I am not satisfied beyond a reasonable doubt that the defendant was in possession of any of the items alleged in any of the counts. The defendant will be found not guilty of all charges.

Signed: Justice P.N. Bourque

Released: August 27, 2014