Court File and Parties

Court File No.: 13-14562

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Shiva Dhanna

Before: Justice Paul F. Monahan

Heard on: May 27, 2015

Reasons for Judgment

Released on: June 4, 2015

Counsel:

Ms. V. Rivers — for the Public Prosecution Service of Canada

Mr. D. Paradkar — for the defendant Shiva Dhanna

Introduction

[1] The accused Mr. Shiva Dhanna is charged with possession of marijuana for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act ("CDSA"). He is also charged with breach of probation but it was agreed between the parties to defer the hearing of that charge pending a decision on the CDSA charge. He was only arraigned on the CDSA charge. A further weapons charge related to a knife was withdrawn.

[2] The accused was pulled over driving a car in the City of Mississauga on November 11, 2013. Many of the facts are not in issue but there are some factual disputes between the parties as to what occurred. The officer testified that he saw some marijuana shavings fall out of a piece of paper which Mr. Dhanna took out of the glove compartment. The officer says he immediately arrested Mr. Dhanna for possession of marijuana. Mr. Dhanna denies that there were any marijuana shavings. It is common ground that the vehicle driven by Mr. Dhanna was ultimately searched and a backpack was located on the floor behind the driver's seat. In the backpack was approximately 202 grams of marijuana.

[3] It is the defence's position that there were no reasonable and probable grounds for the arrest and that, as a result, there was a section 8 Charter violation relating to the search of the vehicle. The defence further disputes that the vehicle could be searched even if there were reasonable and probable grounds to arrest Mr. Dhanna for simple possession. The defence also submits that there was a section 9 Charter violation. The defence submits that the evidence of the contents of the backpack should be excluded pursuant to s. 24(2) of the Charter.

[4] The defence also submits that even if the evidence of the 202 grams of marijuana is admissible, the Crown has not established beyond a reasonable doubt that Mr. Dhanna was in possession of the marijuana.

[5] There was a concession by the defence that the substance in the backpack was in fact marijuana and continuity with respect to the substance is admitted. It is conceded by the defence that if the evidence of the marijuana in the backpack is admissible and possession by Mr. Dhanna is established, then the amount of marijuana is sufficient to support the charge of possession for the purpose of trafficking.

[6] It is the Crown's position that the police had reasonable and probable grounds to make the arrest and that there was no section 8 or 9 Charter violation. The Crown also submits that the evidence establishes that Mr. Dhanna was in possession of the 202 grams of marijuana.

[7] On consent, the trial and the Charter voir dire were conducted on a blended basis.

[8] There were only two witnesses in the case: the Crown called one witness, Constable Colin Luckhurst. The defence called Mr. Dhanna on both the Charter voir dire and the trial proper. To hear the entire trial and Charter application took only just over two hours. While the trial was brief, the issues raised by it were somewhat complex and nuanced.

Facts and Evidence

Constable Colin Luckhurst

[9] For reasons which I will outline below, I largely accept Constable Luckhurst's version of events. Where there are parts of his evidence that are contested, I will address and resolve those matters in the issues section below. I also accept certain aspects of Mr. Dhanna's testimony and that too will be made clear in my analysis of the issues.

[10] Constable Luckhurst has been with the Peel Regional Police for nine years. He testified that on November 11, 2013 he observed the accused's vehicle northbound on Cawthra Road in the City of Mississauga near Dundas Street. The vehicle had a temporary validation tag/sticker on it. The officer testified that often a temporary validation is used when there is some issue with respect to insurance or an emissions test that has not been done. It is usually good for 30 days. The officer testified that he ran the sticker through his police computer system and that it came back that the tag had expired October 17, 2013. Defence counsel submitted that the evidence of the sticker being expired was hearsay but that it could go in for reasonable and probable grounds and I accept this as an accurate characterization of the nature of this evidence. The defence also submitted that the tag had not in fact expired.

[11] The officer initiated a traffic stop at 11:46 AM and asked for Mr. Dhanna's licence, ownership and insurance. Mr. Dhanna said to him that the vehicle was new and that he was waiting for the emissions test and that this was the reason for the temporary tag. The officer said that Mr. Dhanna appeared nervous.

[12] The vehicle Mr. Dhanna was driving was a four door Honda Civic. Mr. Dhanna had what was referred to as a G1 licence, meaning that he could only drive with another fully licenced driver. There was no one else in the vehicle with Mr. Dhanna.

[13] Constable Luckhurst testified that Mr. Dhanna went to retrieve the ownership out of the glove compartment. In addition to the ownership, the officer said Mr. Dhanna pulled a folded white piece of paper out of the glove compartment and opened it up and a small amount of a green leafy substance fell out of the piece of paper and into Mr. Dhanna's lap. The officer testified that Mr. Dhanna brushed it off his lap and it went into the "crack between the driver's seat and the center console" and onto the floor of the vehicle. The officer testified that the green substance appeared to be marijuana. He said he reached this conclusion based on his experience as a police officer and his training at the Ontario Police College. He told Mr. Dhanna that he was under arrest for possession of a controlled substance. He handcuffed him and put him in the back of his cruiser. He then read him his rights to counsel and caution at 11:53 AM. When he read him his rights to counsel, the accused indicated he would like to speak with a lawyer.

[14] After reading his rights to counsel the officer returned to the vehicle and searched the vehicle "incident to arrest". He located a black backpack in the back seat on the floor in the foot well behind the driver's seat. Inside it were two bags containing a substance which looked like marijuana. Subsequent tests later confirmed that it was marijuana and that there were 202 grams of it. The officer then returned to the police vehicle and told the accused that he was under arrest for possession of marijuana for the purpose of trafficking. He again read him his rights to counsel and gave him a further caution. The second reading of the rights to counsel occurred at 12:02 PM. In response to the question about whether or not he wished to call a lawyer, the accused said that he wished to call duty counsel.

[15] The officer was asked further questions in cross-examination regarding the green leafy substance he said he saw. It was suggested to the officer that there was in fact no green leafy substance seen by him and that this was a fabrication. The officer disagreed. The officer was asked if he retrieved the marijuana that fell on the floor and he said that he had not as it was a "small amount" and was not "really collectible". He said "it would not be possible to collect it without taking out the driver's seat".

[16] The officer was challenged on a number of other points. In particular, it was suggested that he did not know about the expired temporary vehicle permit until after the fact and it was suggested to him that the temporary permit had not expired at all. It was pointed out that there was nothing in his notes to indicate that he told the accused the tag was expired. He did have a note that the tag was expired but no note that that fact was put to Mr. Dhanna in conversation with him at the roadside. The officer agreed that there was no note of having mentioned it to Mr. Dhanna that his temporary tag was expired but he maintained his evidence that it had expired, that the officer was aware of that at the time he pulled the vehicle over and he implied that he had discussed this with Mr. Dhanna.

[17] The officer and Mr. Dhanna did not leave the roadside until 12:17 PM. The officer testified that he was dealing with the vehicle and the possessions of the accused prior to that time.

[18] They arrived at the station at 12:30 PM. Duty counsel was contacted at 12:36 PM. Duty counsel returned the call at 12:40 PM. The accused spoke to duty counsel at 12:41 PM and that call was complete by 12:44 PM.

[19] The accused's mother attended at the station at 2:08 PM. At 2:11 PM, she indicated to Constable Luckhurst that she would like for her son to call the family's lawyer and she gave the name of the lawyer (Mr. Cantor) and the phone number to Constable Luckhurst.

[20] The officer said that he told Mr. Dhanna about his mother's request to have him contact Mr. Cantor. In cross-examination, it was suggested to the officer that he had not told Mr. Dhanna that at all. It was pointed out that he had no note of having told him this and that the next note he had after 2:11 PM was at 2:14 PM when he referred to the tow slip and ownership.

Mr. Shiva Dhanna

[21] Mr. Dhanna testified on the Charter voir dire and the trial proper. He is currently 19 years of age. At the time of the events in question he was 18 years of age. He said that on November 11, 2013 he was going to his girlfriend's place from his own home. He was living in Etobicoke and his girlfriend lived in Oakville near Mavis Road and McLaughlin. He was driving a four-door Honda Civic by himself. His mother owns the car.

[22] He was asked if he ever took guests in the car and he said that he did. He said that the previous day he had been at the Square One shopping mall with a friend known as Ahmed Mattar. He said he gave a ride to Mr. Mattar. He said Mr. Mattar had a black backpack and some books. He testified that the bag which Constable Luckhurst located in the back of his vehicle must have belonged to Mr. Mattar. He said it wasn't his backpack and he did not know what was in it.

[23] He testified that there was a temporary sticker for the vehicle's licence because he was waiting to get an emissions test. It was a 2002 vehicle which had apparently been recently purchased.

[24] He testified that when the officer pulled him over the officer did not say to him that his temporary tag had expired. The officer asked him for his driver's licence and ownership/registration and Mr. Dhanna gave it to him from his wallet. He said he gave him his insurance without being asked as he thought that was what you were supposed to do. He denied that he was acting nervous. He denied that he took anything out of the glove compartment or that there was any white paper with marijuana leaves in it. He said the officer asked him to exit the vehicle and said he was under arrest. He was asked if the officer told him why he was under arrest and he said the officer did not tell him. His testimony was that the officer said to him "you are under arrest or something like that". He said he was put in the back of the cruiser. Shortly thereafter she was told that he was being charged with "possession with intent".

[25] He did not recall whether the officer advised him of rights to counsel. He did recall that at some point he asked to speak to duty counsel when he was at the station. He said he had no knowledge that his mother had attended at the station nor any knowledge that his mother had put forward the name of a lawyer to Constable Luckhurst for Mr. Dhanna to call. He said if the officer had mentioned that to him he would have called the lawyer.

[26] He said he did not know that there was a backpack in the back seat on the floor or what was in it. He said the officer never showed it to him or asked him anything about it. He said the police just took it out and said it was his.

[27] In cross-examination, he indicated that he had been at Square One mall for 45 minutes the day before with Mr. Mattar. He said that Mr. Mattar had a backpack and was holding some books. He said he didn't remember what time it was but it was still light out but getting late. Mr. Dhanna offered to drive Mr. Mattar home and he did so. Mr. Mattar got in the front seat but did open the back door as well.

[28] Mr. Mattar did not try to contact him that night or the next day to say that he had left his backpack. It was established in re-examination that Mr. Dhanna said he called Mr. Mattar after Mr. Dhanna was arrested but it was not clear precisely when this was said to have occurred.

[29] He indicated that his mother owns the car. He acknowledged that he does not have a full licence. He acknowledged that he is not supposed drive without a licenced driver. He initially said he had asked his mother if he could take the car on November 11, 2013. However, when it was pointed out to him that his mother would not likely have let him drive the car by himself without a proper licence, he quickly changed his evidence and said that he did not ask her. He just told her he was going out.

[30] He testified that he thought he was insured to drive despite the fact that he only had a G1 licence. He testified that he was not nervous when he was pulled over driving his mother's car knowing he only had a G1 licence. He tried to suggest in cross-examination that this was because the officer had no concern about it. He said he thought he was just being pulled over for a wrong lane change and that he was not concerned about it.

Issues

[31] The following issues arise for decision in this case:

1. Has the Crown established that the police had reasonable and probable grounds to arrest Mr. Dhanna for simple possession?

2. Did the arrest of Mr. Dhanna for possession of marijuana entitle the police to search the vehicle incident to arrest?

3. Has the Crown proved beyond a reasonable doubt that Mr. Dhanna was in possession of the 202 grams of marijuana found in the backpack in the vehicle he was driving?

[32] I will consider each issue in turn.

Issue 1: Has the Crown Established That the Police Had Reasonable and Probable Grounds to Arrest Mr. Dhanna for Simple Possession?

[33] The defence submitted that Constable Luckhurst did not have reasonable and probable grounds to arrest Mr. Dhanna for simple possession because there simply were no marijuana shavings. The defence submits that the officer made this up after the fact to justify the search of the vehicle in which officer found the 202 grams marijuana. As part of this submission, the defence submits that the officer's notes were largely fabricated after the fact. The defence submits that the search of the vehicle, made without reasonable and probable grounds to arrest Mr. Dhanna for possession of marijuana, was a violation of s. 8 of the Charter and that the detention of Mr. Dhanna was contrary to s. 9 of the Charter.

[34] The Crown submits that the officer did see what the Crown referred to as a small amount of what he thought was marijuana shavings which counsel referred to as "marijuana shake". The Crown submits that this gave the officer reasonable and probable grounds to arrest Mr. Dhanna for possession of marijuana and to search the vehicle incident to that arrest. Accordingly, the Crown submits that there were no Charter breaches.

[35] To decide the issue of whether the officer had reasonable and probable grounds requires a determination of the credibility of Constable Luckhurst and Mr. Dhanna on the question of whether or not Constable Luckhurst saw what he thought were marijuana shavings. Even if he did subjectively believe that he saw was marijuana, the Court must consider if that belief was objectively reasonable so as to constitute reasonable and probable grounds for the arrest for simple possession.

[36] Generally speaking, the accused bears the burden on a balance of probabilities of persuading the Court that a Charter breach or infringement has occurred. However, where there is a warrantless search or seizure as occurred here, the Crown has the burden of establishing, on a balance of probabilities, that the search or seizure was a reasonable one: R. v. Collins, [1987] 1 S.C.R. 265 at paras. 21-23. The determination of reasonable and probable grounds does not involve a mathematical assessment of facts with one right answer. It is a common sense standard about which reasonable people can differ: R. v. Campbell (2010), 2010 ONCA 588, 261 C.C.C. (3d) 1 (Ont. C.A.) at paras. 52-54.

[37] In order to establish that a search or seizure was reasonable, the Crown must show that the police had reasonable and probable grounds to conduct the search or seizure. This is not a particularly high standard. Reasonable and probable grounds do not require proof beyond a reasonable doubt or even the establishment of a prima facie case for conviction: R. v. Bush (2010), 2010 ONCA 554, 259 C.C.C. (3d) 127 (Ont. C.A.) at para. 37 and R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527 at para. 23.

[38] Reasonable and probable grounds have both a subjective and objective component. The subjective component requires the officer to have an honest belief that the suspect committed a crime. In addition, the officer's belief must be supported by objective facts: see Bush, supra at para. 38.

[39] The principal submission of the defence was that the officer arrested Mr. Dhanna without seeing the marijuana "shake" or shavings and that he waited five or six hours to make his notes at which time he simply made up the evidence about the marijuana shake to justify the search of the vehicle leading to the discovery of the backpack. In support of this position, the defence submits, among other things, that Constable Luckhurst made no effort to retrieve the marijuana shavings which would be necessary to support his charge of possession, nor was Mr. Dhanna ever charged with simple possession of marijuana. The defence further submits that the officer's notes contain no record of having told Mr. Dhanna that the temporary licence permit had expired and no record of having told him about his mother wishing to have them contact Mr. Cantor. The defence submits that these undermine the credibility of the officer and, further, the method of taking notes five or six hours after the event brings the entire record of the matter into serious question.

[40] The officer indicated that his practice was to take as many notes as he could at the time but that he typically went back after an investigation and made more detailed notes at that time. He estimated that after he dealt with another charge against the accused which was not proceeded with it was 5:21 PM. He estimated that at about 6 PM he would have sat down and completed his notes.

[41] On the other hand, the defence submits that Mr. Dhanna was credible in his evidence, including when he denied the presence of the marijuana shavings or the white piece of paper and when he denied knowledge of the backpack or its contents.

[42] I am satisfied that Constable Luckhurst saw something when a piece of paper was pulled out of the glove compartment by Mr. Dhanna that the officer subjectively thought was marijuana shavings. It is clear to me, considering all of the evidence, that he followed a two-step process. The first step was an arrest for the possession of the marijuana followed by the placing of Mr. Dhanna in the police cruiser. Rights to counsel and caution were provided at this time. Constable Luckhurst's evidence was careful and precise in this regard and he knew the specific times when each of these events had occurred. Then there was a second step which involved a search of the vehicle in which the backpack and the 202 grams of marijuana were located. Mr. Dhanna was then advised that he was arrested for possession for the purpose of trafficking and advised of his right to counsel and caution again.

[43] Mr. Dhanna confirmed in his evidence that there was a two-step process but he differed as to the content of the two steps. He confirmed that prior to the backpack being located he was first advised that he was under arrest and placed in the cruiser. He said that he was not told initially what he was under arrest for. I reject his evidence on this point. It seems highly unlikely to me that the officer would simply say to him that he was under arrest and handcuff him but not give him any reason at all. Mr. Dhanna's memory of what was said at this time did not strike me as clear and that is perhaps understandable given the stress associated with being placed under arrest. For example, he did not remember being advised of his rights to counsel but he clearly was so advised (twice in my view) as is evidenced by the fact that he sought to speak to duty counsel and did speak to duty counsel. I find that the officer did see what he thought was a very small amount of marijuana and he did place Mr. Dhanna under arrest for possession of marijuana and he told him that. He ultimately did not charge him with possession of the marijuana once the 202 grams were located.

[44] On the other hand, I found Mr. Dhanna's evidence to be problematic and lacking in credibility in many respects. He seemed to tailor his evidence to suit what he thought would be the answers most favourable to his case. For example, he was asked if he had asked his mother for permission to take the car that day. The car was registered in her name. He first said that he had asked her. It was then pointed out to him that he only had a G1 licence and he acknowledged that his mother knew that fact. He was then asked if his mother was fine with him driving by himself without another licenced driver (contrary to the terms of his G1). Realizing this did not make a lot of sense, Mr. Dhanna immediately changed his evidence and said that he must not have asked his mother if he could use the car. He just told her he was going out.

[45] I also found him to be incredible on the point that he was not nervous when the officer pulled him over. He acknowledged that he had never been pulled over by police before and that he knew he could not drive alone with just a G1 licence. He tried to argue with Crown counsel on this point and said that the officer was not concerned about his failure to be properly licenced, rather than just answer the questions he was asked in cross-examination. There can be no doubt that he must have been nervous when he was pulled over and this dovetails with, and supports, Constable Luckhurst's evidence.

[46] It also appeared incredible to me that his friend Mr. Mattar would leave his backpack in Mr. Dhanna's vehicle which apparently contained 202 grams of marijuana, an amount which was sufficient for the purpose of establishing possession for the purpose of trafficking, but not contact him very shortly afterwards to ask about his backpack. This does not make a lot of sense and I don't believe it.

[47] In addition, while I am conscious and aware that a Court needs to be cautious about using a witness' demeanor against them in assessing credibility, I do think that Mr. Dhanna's demeanor in the witness box suggested that he was not being entirely truthful concerning his nervousness at the time of the traffic stop, what occurred during the traffic stop and the story about Mr. Mattar's bag. I recognize as well that Mr. Dhanna is only 19 years of age and the Court should not impose on him too high a standard with respect to his demeanor when called to testify in a case such as this one. Having said all that, he struck me as unduly hesitant and tentative in the way he answered questions and too willing to be flexible in his answers depending upon how it suited him. This demeanor and, more importantly, the substance and content of his testimony, gave me serious concerns about his credibility. I wish to be clear that I am not saying that I necessarily disbelieved him when he said that he did not know the existence or content of the backpack ultimately found in the car he was driving. I will address this issue when I consider whether the Crown has proved beyond a reasonable doubt that he had possession of the 202 grams of marijuana. To be clear, I disbelieve him on his denial about the marijuana shavings and the story about Mr. Mattar's bag.

[48] As concerns Constable Luckhurst, he was subject to a rigorous cross-examination. He was challenged in many respects including on his notes and his note-taking practices. I was not troubled by the fact that he prepared much of his notes later on during his shift. It seems to me that his practice with respect to taking some notes at the time of the events followed by recording more detailed notes later in the shift after he has dealt with an accused person is not an unreasonable approach to note taking. I agree with the defence that it is odd that he didn't record in his notes having told Mr. Dhanna that his sticker was expired. Having said that, it seems to me that the police officer was not particularly concerned with the various provincial offences which Mr. Dhanna appeared to have committed. Mr. Dhanna had only a G1 licence, meaning he could not drive without another licenced driver. Constable Luckhurst referred in his testimony to this as a "technical" violation which in my view is an understatement. As I understand it, Constable Luckhurst made no note of having told Mr. Dhanna that he was driving, contrary to his licence's terms. In my view, this absence on the G1 issue assists Constable Luckhurst because it shows that he was not concerned with the provincial offences. His bigger concern was the issue of drugs.

[49] I also find it troubling that the officer did not seek to retain the marijuana shavings he said he saw. That should have been done. Notwithstanding this concern, I still believe that he did see the marijuana shavings he testified to.

[50] To summarize, considering all of the evidence, I accept that Constable Luckhurst saw something which he thought was a small quantity marijuana fall out of a piece of paper from the glove compartment and onto Mr. Dhanna's lap. He placed him under arrest for possession of marijuana; read him his rights to counsel and caution; conducted a search of the vehicle incident to the arrest and located the backpack with the marijuana. He then advised Mr. Dhanna that he was under arrest for possession of marijuana for the purpose of trafficking and read him his rights to counsel and cautioned him a second time.

[51] I also accept that the officer believed that the temporary licence for the vehicle had expired and that the officer had this information prior to pulling the vehicle over. Mr. Dhanna testified that the sticker had not expired and I am not in a position to make a determination one way or the other, nor does it matter. Whether it had or had not in fact expired, I accept that Constable Luckhurst thought it had expired based on a computer search he did immediately prior to pulling the vehicle over.

[52] Whether he told Mr. Dhanna about his mother's suggestion for a lawyer is of no great moment. Constable Luckhurst had already facilitated a call with duty counsel and Mr. Dhanna. Constable Luckhurst said he did tell Mr. Dhanna about his mother's suggestion for a lawyer and Mr. Dhanna said he did not. I have found Mr. Dhanna to be lacking in credibility on numerous points which leads me to believe that the officer likely did tell Mr. Dhanna about the lawyer. It is possible that Constable Luckhurst did not tell him and that he is mistaken in his memory on this point. I do not consider it to be a significant point affecting his credibility one way or the other.

[53] Accordingly, I accept that Constable Luckhurst had a subjective belief that Mr. Dhanna was in possession of a very small quantity of marijuana. I must say that the more difficult question for this Court is whether or not his belief was objectively reasonable. On his own evidence, the marijuana which he thought he saw was not "readily collectible". In closing submissions, when asked by the Court as to why the officer had not tried to retrieve the marijuana, Crown counsel said that the marijuana shavings the officer had seen were like "dust" which were simply dispersed in the car and could not be recovered.

[54] I accept Mr. Dhanna's evidence that this vehicle was registered in his mother's name. Constable Luckhurst did not suggest otherwise in-chief and Mr. Dhanna was not challenged on this point. Accordingly, the officer must have known that this vehicle was not registered to Mr. Dhanna.

[55] Therefore, what Constable Luckhurst had was an 18 year old person driving a car that was not registered to him and was therefore not owned by him. Mr. Dhanna pulls a piece of paper out of the glove compartment and out falls some green leafy substance which the officer subjectively believes is marijuana. The green leafy substance was immediately "dispersed" like "dust" into the vehicle (as the Crown submitted) and not "readily collectible" (as the officer stated). No effort is made to recover it or the white piece of paper or to closely examine the substance to determine if the officer's subjective belief was reasonable. No charges are laid with respect to this marijuana. Within a second or two of seeing it, it is simply gone and seemingly forgotten. No questions are asked about it. Mr. Dhanna is immediately under arrest for possession of marijuana and handcuffed and placed in the cruiser.

[56] In R. v. Polashek (1999), 45 O.R. (3d) 434 (C.A.) the Court of Appeal for Ontario considered a case in which an officer smelled recently burnt marijuana but did not see the substance itself. Justice Rosenberg, for the Court of Appeal, upheld the trial judge's finding that there were reasonable and probable grounds to arrest for possession of marijuana in that case. Those grounds were the smell of the burnt marijuana, the denial by the accused in reference to the smell, the high crime area in which the stop occurred and the time of night. Justice Rosenberg, for the Court, called it a "close case" and stated that if it had been based on the odour of marijuana alone, that would not have been sufficient to provide reasonable and probable grounds to arrest the accused for possession in that case, although it might in other cases depending upon the experience of the officer.

[57] In R. v. Newton, [2009] O.J. 176 (Ont. Sup. Ct.) at para. 30, Justice Smith of the Ontario Superior Court found that an officer had reasonable and probable grounds to arrest for possession of marijuana where (i) an officer saw a small amount of marijuana on the floor of the vehicle which was described as marijuana "shake"; (ii) the officer smelled burnt marijuana coming out of the vehicle which smell was denied by the accused; (iii) the officer was aware that the accused had multiple previous convictions for possession of narcotics for the purpose of trafficking; (iv) the officer was aware that the vehicle was registered in the name of the accused and was being driven by him; and (v) the passenger in the vehicle said she had recently smoked a joint.

[58] In the case at bar, the fact that the officer actually saw what he subjectively believed were marijuana shavings is stronger in my view than the mere odour of marijuana which the Court of Appeal in Polashek said would not constitute reasonable and probable grounds in that case. However, the immediate dispersal of the shavings into the carpet in the car driven by Mr. Dhanna results in a circumstance not all that different than marijuana that simply goes up in smoke. On the other hand, unlike the case of Newton, the vehicle in the case at bar was not registered to Mr. Dhanna and there was no admission by a passenger about recently smoking a joint. This case is not as strong as Newton.

[59] The defence's submission in this case is that there were no marijuana shavings and I have rejected this submission as part of my findings of fact. I note that there was no submission by the defence that if the marijuana shavings did exist that this would not constitute reasonable and probable grounds. Constable Luckhurst said that he was familiar with the look of marijuana by virtue of his experience and his training at police college. It was daytime and he therefore had a clear view of the substance, albeit only briefly. An experienced officer's honest subjective belief, while not conclusive in itself, is some evidence that the belief was objectively reasonable: R. v. Biccum 2012 ABCA 80 at para. 21. Further, an officer's training may provide an "objective experiential…basis" for grounds of a belief: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220 at para. 47. I note that Chehil was considering a "reasonable suspicion" standard but the point that an officer's training may provide some objective support for a belief is nevertheless relevant to the case at bar. See also R. v. Amare, 2014 ONSC 4119, [2014] O.J. No. 5225 (Ont. Sup. Ct.) (per Hill J.) at para. 83. Accordingly, Constable Luckhurst's subjective belief had some objective support. In the unique circumstances of this case, I find that Constable Luckhurst had reasonable and probable grounds to arrest Mr. Dhanna for simple possession, although but just barely in my view.

Issue 2: Did the Arrest of Mr. Dhanna for Possession of Marijuana Entitle the Police to Search the Vehicle Incident to Arrest?

[60] The defence submits even if the marijuana shavings were seen on Mr. Dhanna's lap and the police had reasonable and probable grounds to make the arrest for possession of marijuana, that still would not justify a search of the vehicle. No authority was provided for this proposition. This argument appears directly contrary to the decision of the Ontario Court of Appeal in Polashek. See also R. v. Caslake, [1998] 1 S.C.R. 51. In short, once it is established that Constable Luckhurst had reasonable and probable grounds to arrest Mr. Dhanna for possession of marijuana then, in my view, Constable Luckhurst had the authority to search Mr. Dhanna's vehicle and open the backpack as there was a reasonable prospect of locating further evidence in support of the charge for which he was being arrested.

Issue 3: Has the Crown Proved Beyond a Reasonable Doubt That Mr. Dhanna Was in Possession of the 202 Grams of Marijuana Found in the Backpack in the Vehicle He Was Driving?

[61] The defence submitted that the Crown had not proved beyond a reasonable doubt that Mr. Dhanna was in possession of the marijuana in the backpack. The Crown submitted that possession by Mr. Dhanna of the backpack and the marijuana contained in it was the only reasonable inference that could be drawn in the circumstances. No case authority was provided by either counsel on this issue.

[62] The definition of possession for the purpose of the CDSA is contained in s. 4(3) of the Criminal Code. It includes personal possession, constructive possession and joint possession. In Beaver v. The Queen, [1957] S.C.R. 531, the Supreme Court of Canada stated that to establish possession by the accused of an illegal drug the Crown must prove that the accused had knowledge of the existence of the substance in question and of its nature. The Court stated at page 541:

The essence of the crime is the possession of the forbidden substance and in a criminal case there is in law no possession without knowledge of the character of the forbidden substance.

[63] Proof of the offence of possession under the CDSA requires proof of actual knowledge or willful blindness as to the presence of the drug, not mere recklessness: R. v. Sandhu (1989), 50 C.C.C. (3d) 492 (Ont. C.A.).

[64] Knowledge may be proved by direct evidence or inferred from other facts which have been proved. In some cases, there will be circumstantial evidence such as where the accused's fingerprints are found on the container or bag in which the drugs are located. See for example R. v. Lepage, [1995] 1 S.C.R. 654.

[65] When dealing with circumstantial evidence, the trier of fact must be satisfied that the only rational inference that can be drawn from the evidence is that the accused is guilty. The mere existence of any rational non-guilty inference is sufficient to raise a reasonable doubt. The circumstantial evidence must be considered as a whole. See R. v. Amare, 2014 ONSC 4119, [2014] O.J. 5225 (Sup. Ct.) (per Hill J.) at para. 108 citing R. v. Griffin (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 (S.C.C.) at paras. 33-34.

[66] I note as well that not everyone who drives or rides in a car containing some concealed illegal item necessarily knows of the presence of the illegal item. When the Crown alleges unlawful possession of a concealed illegal item, something more than mere proximity to the item will generally be required: R. v. McIntosh, [2003] O.J. 1267 (Sup. Ct.) (per Hill J.) at para. 53.

[67] Each case must of course be decided on its own facts. Nevertheless, the British Columbia Court of Appeal's decision in R. v. Anderson, [1995] B.C.J. No. 2655 is of interest and has some parallels with the case at bar. In that case, the accused was charged with possession for the purpose of trafficking. The accused was driving a van which was pulled over and was the subject of a search pursuant to a search warrant. A gym bag was found behind the driver's seat on the floor which contained two plastic bags, one with marijuana and the other was cocaine. There were no identifiable fingerprints on the packaging of the narcotics inside the gym bag in the van. The van was not registered in the accused's name but rather was registered in the name of the accused's brother. The British Columbia Court of Appeal set aside the conviction of possession for the purpose of marijuana and entered an acquittal. The Appeal Court stated as follows at para 41:

As stated earlier, in a charge of possession for the purposes of trafficking, there must be proof of possession. That requires proof of knowledge, which in this case depends on circumstantial evidence. There are other rational conclusions that could be drawn from the evidence, in particular, that the appellant's brother, whose van it was, had placed the drugs in the vehicle without the appellant's knowledge.

[68] Similarly, in R. v. Amado (1996), 32 W.C.B. (2d) 156 (B.C.S.C.), Justice Bouck of the British Columbia Supreme Court acquitted two persons who were driving in a vehicle containing a nylon bag located behind the passenger seat. Inside the bag were two illegal handguns. The two accused persons were charged with possession of the illegal handguns. The two accused persons were driving in a suspicious manner before they were stopped. The trial judge stated that he was "highly suspicious" that the accused persons did know what was in the nylon bag, but he concluded that the evidence did not establish guilt beyond a reasonable doubt. It was not the only reasonable inference to be drawn from the proven facts.

[69] While this is not a "he said she said" case as concerns the issue of possession of 202 grams of the marijuana, it is nevertheless appropriate to consider the W.D. framework in the case at bar. In R. v. W. (D.), [1991] 1 S.C.R. 742 Supreme Court of Canada said trial judges and juries should use a three-step process as follows at para. 28:

First, if you believe the accused, you must acquit;

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

Third, even if you are not left with a reasonable doubt by the evidence of the accused, you must ask yourself whether, on 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.

[70] In the case at bar, I have expressed concerns about the credibility of the accused and I have found that he was not credible when he said there was no marijuana shavings on his lap. I also did not believe his story about his friend Mr. Mattar. However, the fact that he may not be telling the truth about the marijuana shavings or Mr. Mattar does not prove that he had possession of the marijuana in the backpack.

[71] The story about Mr. Mattar is not helpful to Mr. Dhanna's case. While the Crown did not submit this, one might argue that Mr. Dhanna made up the story about Mr. Mattar because Mr. Dhanna himself in fact had possession of the backpack and its contents. In my view, the fact that he made up the story about Mr. Mattar does not inevitably lead to the inference that Mr. Dhanna knew what was in the backpack.

[72] Even though I have not believed the testimony of Mr. Dhanna on the marijuana shavings, precisely what occurred at the time he was pulled over and the story about Mr. Mattar does not mean that I disbelieve him when he says he did not know about the backpack and its contents. While I am skeptical of Mr. Dhanna's denial of knowledge of the content of the backpack, I cannot say with sufficient clarity that he is lying on this point. It simply does not follow that the Crown has proved beyond a reasonable doubt that he had possession of the 202 grams of marijuana. In the case at bar, there is no direct evidence that the accused had knowledge of the presence of the backpack in the car or the presence of the marijuana in the backpack.

[73] Apart from the story about Mr. Mattar which I have disbelieved, what the Court has on this issue in this case may be summarized as follows:

(i) the accused was driving a vehicle which was not registered to him. It was registered in his mother's name. There is evidence that he had driven the vehicle the day before. He also had some knowledge about the temporary permit for the vehicle and the need to get an emissions test. His mother apparently has another vehicle in addition to this one. That is it as to Mr. Dhanna's connection to the vehicle;

(ii) beyond the evidence that the owner of the vehicle was Mr. Dhanna's mother, there was no evidence as to who controlled access to the car. Common sense would suggest the owner of the vehicle controls overall access to the vehicle. The driver controls access to the vehicle while he is driving or using it. The Crown could have sought to show that Mr. Dhanna had a greater control over the vehicle by questioning Mr. Dhanna on this issue at trial to attempt to establish that he exercised dominant or virtually exclusive control over, or access to, the vehicle. The Crown did not do so;

(iii) Mr. Dhanna appeared nervous when he was pulled over. However, there are a number of reasons why he might have been nervous, including the fact that he did not have a proper driver's license;

(iv) the officer saw what he thought was a small amount of marijuana shavings or "shake" in Mr. Dhanna's lap. While I have found that this was sufficient to give rise to reasonable and probable grounds for the arrest for possession of marijuana, it is valueless as part of the Crown's case on the possession for the purpose of trafficking charge as there is no evidence as to the true nature of the so-called marijuana shake;

(v) in the back seat of the four-door vehicle on the floor behind the driver seat was located a backpack which contained the 202 grams of marijuana. There was no direct evidence as to whether the backpack was open or closed but the reasonable inference is that it was closed. There was certainly no evidence to say that it was open or that the contents of it were otherwise visible just by looking at;

(vi) there was no evidence that the backpack belonged to Mr. Dhanna. There was no evidence that his name was on it or that any of his routine belongings such as clothing or books or other items were located in it. There is no evidence as to how the backpack was searched and what else, if anything, was in it other than the marijuana;

(vii) unlike the Lepage case, there was no evidence of Mr. Dhanna's fingerprints on the backpack or the packaging of the drugs; and

(viii) there was no evidence that Mr. Dhanna was asked by police about the backpack or its contents nor is there any evidence that he said anything about it.

[74] This is a circumstantial evidence case. That Mr. Dhanna was in possession of the marijuana in the backpack is not the only rational inference that can be drawn from the circumstantial evidence. The backpack was located in a car owned by his mother which he was driving. The evidence does not establish that Mr. Dhanna had any other connection to that backpack or its contents. The owner of the vehicle has to control overall access to the vehicle. The vehicle is the owner's property. Someone else may have put the backpack there. I am not suggesting for a moment that it was his mother who put it there. The Court does not know how it got there. It probably was Mr. Dhanna's backpack. However, "probably" is not the standard. Considering all the evidence on the record as it stands in this case, I am not satisfied that it has been proved beyond a reasonable doubt that Mr. Dhanna was in possession of the 202 grams marijuana. By that I mean it has not been proved beyond a reasonable doubt that he had actual knowledge or was willfully blind as to the contents of the backpack.

[75] In summary, for the reasons outlined herein there will be an acquittal on the charge of possession for the purpose of trafficking.

Released: June 4, 2015

Justice Paul F. Monahan