WARNING

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

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

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

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

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

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

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

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

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

Court Information

Ontario Court of Justice

Date: December 7, 2016

Court File No.: Toronto 15-15023077

Parties

Between:

Her Majesty the Queen

— AND —

Gregston Hunter

— AND —

Tharold Hamrose Simms

Judicial Officer and Counsel

Before: Justice K. Caldwell

Heard on: June 27, 28, 29, July 4, September 29, 30, October 21, 31, 2016

Reasons for Judgment released on: December 7, 2016

Counsel:

• Mr. C. Desa and Ms. S. Virk — counsel for the Crown
• Mr. J. Miglin — counsel for the accused Mr. Hunter
• Mr. D. Usher — counsel for the accused Mr. Simms

Reasons for Judgment

Introduction

[1] Mr. Hunter and Mr. Simms are jointly charged with two counts of possession of cocaine for the purpose of trafficking and possession of proceeds of crime. Mr. Hunter is also charged with a fourth count – a further possession of cocaine for the purpose of trafficking.

Overview

[2] A team of police officers conducted surveillance on Mr. Hunter over a five month period. They made observations that could lead to the inference that he was engaged in a series of hand-to-hand drug transactions. Eventually Mr. Hunter was arrested and drugs were found hidden behind the front passenger console of the car he was driving shortly before his arrest.

[3] On that same date, a two-bedroom apartment was searched. Both bedrooms were locked. Mr. Simms was responsible for and paid the rent. Substantial cash was found in bedroom #2 and drugs were found in bedroom #1. Cocaine was also found in a pair of jeans in a laundry bin in the laundry room.

[4] Committal for trial on count #4 (drugs found in the car) is conceded. Both Mr. Simms and Mr. Hunter contest committal on the remaining counts, arguing that there is no evidence sufficient to meet the test in United States of America v Shephard of knowledge and control.

[5] As this is a circumstantial case, I will turn first to the test for committal in such cases.

The Test for Committal in a Circumstantial Case

[6] The test for committal in all cases, whether circumstantial or direct, is set out in Shephard: whether there is some evidence upon which a reasonable jury, properly instructed, could return a verdict of guilt. The application of this test is generally straightforward in direct evidence cases. It becomes much more complicated in circumstantial cases. In fact, the very interpretation of the meaning of Shephard in the circumstantial context has been the subject of a great deal of appellate analysis, let alone its application in a given case.

[7] The most recent broad, first-principles Supreme Court of Canada pronouncement on the issue is the 2001 decision of R v Arcuri and therefore it is that case that I rely upon most heavily for guidance.

[8] Much of the interpretative confusion seems to flow from portions of appellate decisions that can appear to be contradictory when juxtaposed against other passages from other decisions. Chief Justice McLachlin acknowledged this issue in Arcuri when she spoke of "certain confusing language" in two previous SCC decisions on this issue, R v Mezzo and R v Monteleone.

[9] Further, there can be confusion regarding the import of the majority and minority decisions in R v Charemski. Again, the Chief Justice referenced this issue in Arcuri at paragraph 27. She explicitly rejected the appellant's contention that the Court disagreed on the approach to circumstantial evidence in preliminary hearings, noting that the majority and minority parted ways regarding the test's application to the Charemski evidence but she was emphatic that there was agreement concerning the test itself. Given that agreement, it is the minority judgment that is the most helpful as the Chief Justice, writing for the minority, discussed the test extensively. The majority dealt with the test quite briefly.

[10] Further, the Arcuri judgment was a unanimous judgment of the entire nine judge court, including Justice Bastarache who had written the majority in Charemski. Clearly Arcuri was the Court's definitive word on the topic. Any seeming conflict between any prior court decisions, given any "confusing language", and Arcuri must be resolved in favour of the Arcuri wording.

[11] Arcuri should also be read in light of another SCC decision written the same year, R v Hynes in which the Chief Justice stated:

The primary function of a preliminary inquiry justice is to determine whether the Crown has sufficient evidence to warrant committing the accused to trial: Criminal Code, s. 548(1); Caccamo v. The Queen, [1976] 1 S.C.R. 786. The preliminary inquiry is not a trial. It is rather a pre-trial screening procedure aimed at filtering out weak cases that do not merit trial. Its paramount purpose is to "protect the accused from a needless, and indeed, improper, exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process": Skogman v. The Queen, [1984] 2 S.C.R. 93, at p. 105. (emphasis added).

[12] The purpose of the preliminary hearing must be kept in mind as it is against that backdrop that the line is drawn between what is permissible and impermissible on the part of the prelim judge. "Filtering out weak cases" must not be interpreted as allowing the prelim judge to assess credibility or take the final step of choosing which inferences to accept as assuming these functions would usurp the jury's role. On the other hand, the evidence must be assessed through the prism of the reasonable doubt standard.

[13] At paragraph 23, the Chief Justice wrote:

The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.

[14] Turning back to Mezzo, Justice McIntyre stated that an acquittal could be directed only if there is "no evidence" of an essential element of the offence. He said that the preliminary hearing judge could not weigh the evidence. The Chief Justice noted that these statements in Mezzo could lead to the interpretation that the preliminary hearing judge could commit the accused to stand trial even if the Crown evidence could not support an inference of guilt. She clarified that by "no evidence", Justice McIntyre meant "no evidence capable of supporting a conviction" and that the prohibition against weighing the evidence referred to the ultimate determination of guilt and not to the determination of whether the evidence could reasonably support a finding of guilt. The former is within the sole purview of the trier of fact while the latter is within the purview of the preliminary hearing judge. The preliminary hearing judge does not determine guilt but she does determine if guilt is an available inference based on the evidence.

[15] In Arcuri the issue of defence evidence arose. The Chief Justice held that the Court must consider the defense evidence as to do otherwise would be inconsistent with the Court's mandate under section 548(1). Further:

… it would undermine one of the central purposes of the preliminary inquiry, which is to ensure that the accused is not committed to trial unnecessarily: see R. v. Russell, [2001] 2 S.C.R. 804, 2001 SCC 53, at para. 20. Thus the traditional formulation of the common law rule should not be understood to foreclose consideration of defence evidence. It remains true that in certain cases (such as, for example, where the Crown adduces direct evidence as to every element of the offence) the case will necessarily go to the jury regardless of the exculpatory evidence proffered by the defence. This is the inevitable consequence of the principle that credibility determinations are within the exclusive province of the jury. This result is not inconsistent, however, with the preliminary inquiry judge's mandate under s. 548(1). Whatever the evidence of the Crown and defence, the judge must consider "the whole of the evidence", in the sense that she must consider whether the evidence, if believed, could reasonably support a finding of guilt. The question is the same whether the evidence is direct or circumstantial. The only difference is that, where the evidence is direct, the evidence will by definition support a finding of guilt, the only remaining question being whether the evidence is to be believed, which is a question for the jury.

[16] The language in both Charemski and Arcuri make it clear that the reasonable doubt standard informs the process. In assessing whether the evidence is sufficient for committal, the Chief Justice has spoken of "evidence capable of supporting a conviction" and "evidence reasonably support[ing] a finding of guilt".

[17] Further, in Charemski 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".

[18] 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.

[19] 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.

Overview of the Apartment

[20] Mr. Raybourne Stephens, originally charged with Mr. Hunter and Mr. Simms, is the lessee of the apartment. He testified at the preliminary inquiry that he had not lived there in a number of years and that he sublet the apartment to Mr. Simms in 2001 or 2002. Mr. Simms paid the rent and continued to do so at the time of these charges.

[21] Keys fitting the outer door were found on Mr. Hunter upon arrest. Those keys were used to open the front door when executing the warrant. Both bedrooms in the unit were locked and the doors needed to be breached in order to enter.

Surveillance of Mr. Hunter

The Evidence

[22] Around 3:30 am on October 21, 2014, Mr. Hunter walked to a portion of Metropolitan Church Park in the Queen and Victoria Streets area. He kept walking but people begin gathering around him. They each went to him and then walked away, looking at their palms.

[23] On December 16, 2014, at around 3:45 am, Mr. Hunter was at Queen and Berti streets walking with seven people in tow. He stopped, and one of the males was clenching something in his right hand that he dropped into Mr. Hunter's palm. Mr. Hunter turned away and appeared to dispose of the item by depositing it on his right side. He removed something from his mouth and placed it in the male's hand. He then walked in a different direction from that of the group. A few minutes later the male was seen sitting alone nearby smoking out of a crack pipe.

[24] Just before 4 am on the same date, Mr. Hunter approached a female in the Queen and Victoria Streets area. She extended a closed fist to Mr. Hunter's right hand that was opened and cupped. An object exchanged hands. Mr. Hunter put the object in his pants pocket and then put his hand to his mouth, after which he extended his hand to the female, dropping an item in it. The woman then walked away.

[25] On January 13, 2015, just before 4 am, he met with a female in the Queen and Victoria streets area. They moved south on Victoria Street on the west side and appeared to be talking. Mr. Hunter took off his right glove and reached into his jeans pocket. He then appeared to hand something to her that she put in her pocket. She put something in his right hand and he put it in his coat pocket.

[26] Shortly after that, Mr. Hunter was on Queen Street near Bond Street in the church parkette. He walked eastbound, met a male, and then he emptied the contents of his hand into the male's hand. The officer saw the motions of emptying but didn't see actual items exchange hands as the officer was 30 feet away.

[27] At 4:08 am Mr. Hunter was seen walking eastbound in the same area near the Green P parking lot near St. Michael's hospital. Once at Church Street he met four or five people on the corner who surrounded him. The officer had to continue on and did not see what if anything happened between them.

[28] At 4:50 am he was in bus shelter and met an unknown woman. He took his glove off and handed her an item. She then emptied the contents of her hand into his hand.

[29] On March 7, 2015 he was approached by a group of people in the Queen and Berti Streets area. They all clustered around him and each appeared to take a turn speaking with him. One male was seen to place his right hand down but in an open position. Mr. Hunter then placed his hand over that hand and dropped something into the other male's hand. Shortly after that, this male was seen tucked into a nearby laneway, appearing to smoke crack.

The Available Inferences

[30] The surveillance evidence was both extensive and detailed. The following factors would allow a jury to draw the strong inference that Mr. Hunter was engaged in the business of drug dealing up to a few days prior to the takedown and warrant execution:

• the early morning hours of the observations, times that common sense dictates would allow for covert activity to go undetected;
• the very short meetings with groups of people;
• the exchange of small items hand to hand in a covert manner;
• the observations on two occasions of some of these individuals immediately engaged in smoking crack.

The Money in Bedroom #2

The Evidence

[31] Six bundles of American and Canadian cash were seized from the top of a dresser, and inside the dresser drawers in Bedroom #2.

[32] Two pieces of mail were found in one of the drawers, both in Mr. Hunter's name. One had the Kipling Street search address, the other was in an Octillo Blvd. address. That drawer also contained a February 15, 2015 receipt for freight movement in Mr. Hunter's name.

[33] Elsewhere in the dresser a driver's license was found in Mr. Hunter's name with a February 27, 2014 expiry. There were Jamaican birth registration forms and a Canadian permanent residence card in Mr. Hunter's name plus other assorted items including a Manulife Financial card in the name of Corrie Mackinnon.

[34] There was clothing in the room that would fit a larger build – I note that Mr. Hunter's build is stocky while Mr. Simms build is slim. There were well cared for clothes folded, and dirty clothes on the floor. One officer described the room as appearing lived in given a plugged in and powered on cell phone, plus a TV and stereo. The bed had a fitted sheet but no sheets or blankets on top. Two suitcases were found with the tags in Mr. Hunter's name.

[35] A great deal of coin was found, some of it rolled. Finally, there was a small scale with no power and no lid.

[36] Over $20,000 was seized from the two bedrooms with the majority of the cash coming from Bedroom #2.

The Available Inferences

[37] An inference could be drawn that Mr. Hunter was tied to the apartment given that he was seen driving to the Kipling Street building and parking in the spot reserved for that apartment unit. Most significantly, however, the keys found in his possession opened the apartment door.

[38] Counsel for Mr. Hunter argued that the fact that the bed was not properly made up for sleeping pointed away from the inference that Mr. Hunter lived in the apartment. The Crown does not have to prove residency, however, it simply needs to establish knowledge and control of the funds.

[39] The following factors would allow a jury to draw the inference that Mr. Hunter had both knowledge and control of the money and that the money was the proceeds of drug dealing:

• Mr. Hunter's keys and access to the apartment
• the documents in his name including very recent documents found in close proximity in the bedroom to the bundles of cash;
• the sheer volume of cash (both bills and coins);
• the extensive surveillance evidence outlined above that allows for the inference that Mr. Hunter was engaged in the business of drug dealing.

[40] I reach this conclusion bearing in mind that the jury would have to be able to draw this inference beyond a reasonable doubt. The decision to actually draw the inference is within the sole purview of the jury; I simply determine whether such an inference could be drawn. I find that this inference is available despite the presence of other documentation in other individuals' names such as that in the name of Corrie Mackinnon.

The Drugs in Bedroom #1

The Evidence

[41] Inside Bedroom #1, a large ziplock bag containing cocaine the size of a softball was found inside a black toiletries bag on the top left shelf of the closet. At least three scales were found in the same vicinity. In a shoebox on the right side of the closet floor, pieces of mail in Mr. Simms name were found in two addresses, 30 Fontenay Court Unit #103 and 2901 Kipling Ave, Unit 1007 which is the address that was searched. There appears to be some confusion regarding the specifics of which pieces of mail were the items found in the shoebox but it appears clear that the mail is dated, extending back approximately ten years prior.

[42] Also in the bedroom were money counting machines and water cooler jugs filled with coins. Further, when the bedroom mattresses were flipped a "brick" of cash was found inside one box spring. Papers and letters in Mr. Simms name were found in a briefcase under the bed. Two more digital scales were found under the bed.

[43] An ID card in the name Tharold Simms was found on a dresser along with an expired Canadian passport dating from 2009 in Mr. Simms' name. Two cancelled Jamaican passports were also found, both quite dated.

The Available Inferences

[44] I find that a jury could infer that Mr. Simms had knowledge and control of the drugs.

[45] I appreciate that all of the documents date back a number of years and that no current documents were found. The passports in particular, however, are documents of a type that would allow a jury to conclude that an individual would not leave them in an area to which he did not have access and control.

[46] Further, Mr. Simms was responsible for and still paying the rent for the apartment. According to Mr. Stephens, he was the only person that paid Mr. Stephens rent. There were comments made by Mr. Stephens about a possible sub-lease by Mr. Simms but such comments, though made, were inadmissible hearsay for the truth of their comments and could not be sourced as Mr. Stephens didn't remember when or from whom he heard the comments.

[47] It is the combination of the documents with the evidence of Mr. Simms' current ongoing payments of rent that allow for the inference, bearing in mind the beyond a reasonable doubt standard facing the jury. The presence of the documents alone absent the rent payments might have led to a different conclusion on my part but the combination of these factors allows for the inference to be drawn.

Mr. Hunter and the Drugs; Mr. Simms and the Money

[48] I have found that a jury could infer that Mr. Hunter possessed the bulk of the money and that Mr. Simms possessed the bulk of the drugs. But what of Mr. Hunter's possession of the drugs and Mr. Simms' possession of the money?

[49] Section 4(3)(b) of the Criminal Code defines joint possession as follows:

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

[50] The courts have also held that a measure of control must be present.

[51] Both bedrooms were locked. None of the keys that were located were tested in the locks thus there is no evidence as to how many sets of keys fit the locks or who possessed those keys.

[52] The evidence would allow a jury to conclude that both men were running a joint drug dealing operation. In reaching this conclusion, I am not attributing to Mr. Simms the actions of Mr. Hunter as witnessed through police surveillance. I find that the evidence quite apart from those observations would allow a jury to reach the conclusion that there was a joint operation on the part of both men.

[53] The presence of such a large quantity of cash in an apartment also containing such a large quantity of drugs allows for the inference that the cash was connected to the drugs. Further, there was drug paraphernalia within the apartment that was accessible to anyone having access to the apartment – namely, three scales in the kitchen. Further, three scales were found in Bedroom #1. Kitchen scales are a common household item but the sheer volume of scales in this case and their presence in an apartment with such a large volume of drugs and cash allows for the inference that they were used for drug weighing purposes.

[54] Common sense would allow for the inference that both men had both knowledge and a measure of control over the two most vital aspects of the operation – the drugs and the money. It defies logic to conclude that one man would have had sole control over the money while the other man had sole control over the drugs.

The Drugs in the Laundry Room

The Evidence

[55] The laundry room was small and narrow. It had a door, but no lock. There were dirty clothes in the laundry hamper. Near the top of that clothing pile large softball sized quantities of powder cocaine were found in the bulging front right pocket. Baggies were found in the other front pocket. The size of the pants wasn't checked but they appeared to be "full size".

[56] The physical size of the drugs is substantial. Further, they were not hidden at the bottom of the laundry hamper. They were easily accessible and discoverable by anyone having access to the apartment. Further, and most significantly, I have already made comments above concerning the available inference that this was a joint operation.

[57] I therefore find that an available inference is that both men had possession of the drugs found in the laundry room.

Conclusion

[58] I order both Mr. Simms and Mr. Hunter to stand trial on the joint possession counts 1 through 3. I also order Mr. Hunter to stand trial on the fourth count.

Released: December 7, 2016

Signed: Justice K. Caldwell