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make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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

Court: Ontario Court of Justice

Date: December 14, 2016

Court File No.: 4811 998 15 150 154 21 01-02 Toronto

Parties

Between:

Her Majesty the Queen

— AND —

Jordan Marushiak

— AND —

Andrew Marushiak

Before: Justice K. Caldwell

Heard on: May 16-17, July 26, September 7, November 8, 2016

Reasons for Judgment released on: December 14, 2016

Counsel

Ms. Arielle Elbaz — counsel for the Crown

Mr. Marco Sciarra — counsel for the accused Mr. Jordan Marushiak

Mr. Sean Robichaud — counsel for the accused Mr. Andrew Marushiak

Judgment

K. Caldwell J.:

[1] Mr. Jordan Marushiak and Mr. Andrew Marushiak are brothers. They are jointly charged with possession of cocaine, possession of cocaine for the purpose of trafficking, and possession of proceeds of crime.

Brief Overview

[2] Surveillance was conducted on the brothers over two days, March 22nd and March 25th, 2015. It is alleged that they engaged in hand to hand drug transactions during that time period. A search warrant was executed on March 25th on a home at 4 Skelton Street in Toronto leading to the discovery of both drugs and money. Both brothers were on the premises at the time.

[3] As this case is circumstantial, I will deal first with the law regarding inferences and circumstantial cases. Next I will turn to the evidence in this case and the inferences that can be drawn from it.

The Test for Committal in a Circumstantial Case

[4] The test for committal in all cases, whether circumstantial or direct, is set out in United States of America v 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.

[5] 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.

[6] 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.

[7] 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.

[8] 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.

[9] 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).

[10] 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.

[11] 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.

[12] 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.

[13] 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 defense 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 defense. 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 defense, 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.

[14] 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".

[15] 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".

[16] 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.

[17] 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 Evidence

The Surveillance Evidence

[18] Around 1:30 pm on March 22nd the brothers were seen in a silver Mercedes. Jordan was in the driver's seat and Andrew was in the passenger seat. An unknown male got into the rear passenger seat.

[19] Shortly after 3 pm the car pulled into the Mimico GO station. An unknown male approached the front passenger side and had a conversation with Andrew. Andrew, using a clenched fist, put something into the male's hand and the male then unclenched his fist to look at the item. The officer making these observations recalled that the item was wrapped. The male then retrieved his knapsack and got into the car. The four men drove to a nearby Royal Bank of Canada ("RBC"). The male with the knapsack got out of the car, entered the RBC, and then returned to the car a short time later. He got in briefly, then exited with his knapsack, and walked away on Lakeshore Ave.

[20] Around 3:30 pm the Mercedes parked facing the lake in a Green P lot on Marine Parade Drive near the lakeshore. Both brothers were in the car. Andrew got out of the car and walked towards the lake. A male came towards him and Andrew removed something from his pocket, placing it in the male's hands. The male placed the item in his pocket and gave Andrew an item. They then parted ways and Andrew returned to the car into the front passenger side. Another male got out of the rear passenger side of the car and walked away.

[21] Around 4:20 pm, Andrew is walking in the area of Royal York Road. He meets with three unknown individuals, two men and a woman, by a convenience store in a strip plaza. They are in a huddle, and Andrew hands each of them an item, which they then hold in their clenched fists. One of the men then takes the female's item and puts it in his right pocket. Those two individuals walk south on Royal York Road, and the other male remains with Andrew, moving to a bench on the other side of the Mimico GO tracks.

[22] Shortly after that time, the silver Mercedes is seen at the 4 Skelton Street address. Both brothers get out of the car and enter the house. Shortly after that, Andrew comes back out of the house and heads northbound on foot on Skelton Street. The Mercedes reverses out of the driveway around the same time but no observations were made of the driver.

[23] On March 25th around 3:30 pm the Mercedes driven by Jordan moved southbound on Lakeshore, ending up around 245 Lakeshore Road. Jordan parked the car and walked to the north side of the road, meeting up with a male who had come out of a white panel van. There was a brief interaction during which Jordan put an item into the left hand of the male.

The Search Warrant Evidence

[24] On March 25th, Andrew left the Skelton Street residence driving a Volkswagen SUV. Officers detained him just before the search warrant was executed. He possessed keys, two cell phones and $430 in cash.

[25] Jordan was found sitting at a kitchen table with a grey jacket hanging from the back of the chair. A set of house keys and a cell phone were found in the jacket. There were two cell phones and open real estate textbooks on the table.

[26] The keys found in Andrew's possession and the keys found in the grey jacket opened the deadbolt on the house's main door.

[27] An armoire in hallway contained an insurance card and TD information in Jordan's name and a scale.

[28] There was a small bedroom on the second floor with a single bed and a dresser. A TV was on top of the dresser. There was a chair at the foot of the bed containing folded male clothing. There was a closet that also contained male clothing.

[29] In the top dresser drawer there was a bundle of cash with a $50 bill on top.

[30] In the second drawer there was a large zip lock bag one quarter full of white powder that later tested as cocaine. Under that were two other packages, one with a fist sized piece of white powder in a knotted zip lock bag and a smaller white plastic bag with a rock like substance in it. Also in that drawer was a piece of plain white paper with Andrew, Andy and Adrienne written all over it.

[31] In the second drawer from the bottom there was a TD bank document in the Skelton address plus a valid driver's license, both in Jordan's name. The license was issued on July 3, 2012 and set to expire on January 20, 2018. There was also a disclosure package dating from March, 2013 relating to a case involving both Andrew and a co-accused (the co-accused was not Jordan).

[32] In the bottom drawer there was a clear plastic bag with white powder of a volume that would fit in both palms.

[33] A Brown's shoe store bag was found with eight bundles of currency in a lighter green plastic bag within the shoe bag. In total, $27,490 was found in the bedroom.

[34] Ziploc bags and a scale was found near a small bar in the basement.

[35] The powder and rock-like items found in the dresser tested as powder and crack cocaine, 202.86 grams of powder and 37.64 grams of crack.

Inferences That Can be Drawn

Possession of the Drugs

[36] I find that there is a strong inference that can be drawn that the drugs were in the joint possession of both Jordan and Andrew. Both men were found either in or in close proximity to the house when the warrant was executed. Both men possessed keys that opened the front door of the house. There were documents or papers in both men's names found in the dresser containing the drugs. The documents were very current and a couple were the type that would not be thoughtlessly discarded – I note in particular the current driver's license in Jordan's name and the disclosure package in Andrew's name.

[37] There was some evidence of the presence of a sister at the residence as well. She was seen leaving the home at one point and documents in her name were found in the basement. I have considered this evidence but still find that a reasonable jury could conclude that the brothers possessed the drugs. Nothing in the bedroom suggested any tie between the sister and that room.

Possession of the Money

[38] For the same reasons, I find that it could be inferred that both men were in joint possession of the cash as the cash was in very close proximity to the drugs.

Purpose of the Drugs and the Money

[39] I also find that a reasonable jury, properly instructed, could draw the inference that the drugs were possessed by both men for the purpose of trafficking and that the money was the proceeds of drug trafficking.

[40] I turn first to their individual actions as seen via police surveillance.

[41] Both men were acting in a manner that was in the very least suspicious during the time period of March 22nd and March 25th.

[42] Andrew was seen on three occasions engaged in activity involving five different individuals. A reasonable jury could infer that all five individuals received an item or items from Andrew given the hand-to-hand contact and the examination by at least some of these individuals of the contents of their palms after these interactions. The contact with all of these individuals was quick and involved little or no conversation. On one occasion it could be inferred that money was obtained by one of the individuals after the exchange given the visit to the RBC immediately following the hand-to-hand contact and the individual's brief entry into and emergence from the silver Mercedes after the bank visit.

[43] On two of those meetings, Jordan was waiting in the car while his brother engaged in the contact described above, and Jordan drove the car to the RBC.

[44] On a fourth occasion, Jordan was seen engaged in similar activity with the individual in the white panel van.

[45] This type of behaviour certainly raises the spectre of drug trafficking. Standing alone, however, I would find that these actions have parallels to the fact scenario in the USA v Huynh decision of the Ontario Court of Appeal. Mr. Huynh faced charges in the United States of conspiracy and money laundering in relation to drug trafficking. A very large quantity of cash was found in a secret compartment of the gas tank of Mr. Huynh's car. In overturning the extradition order, Justice Doherty said that the behaviour and concealment allowed for an inference that the cash came from an illicit activity but did not allow the further inference that the illicit activity was drug trafficking. The latter link amounted to speculation and was not a link that could be "bridged by evidence".

[46] I must, however, look at the whole of the evidence and it is at this point that the drugs and cash found in the home come into play – and differentiate this case from the Huynh scenario. If the inferences are drawn by the jury that both men possessed the drugs and cash, I find that these inferences, in combination with the surveillance observations, would allow a reasonable jury to draw the inference that the actions of the two men constituted drug transactions.

[47] The cash in this case was very substantial, approximately $27,500. The drugs are also significant, 240.50 grams or 8 ½ ounces (over ½ lb.). I find that the sheer volume of drugs and cash combined with the surveillance observations and inferences that could be drawn from such observations would allow a reasonable jury, properly instructed, to conclude that the purpose of the drugs was that of trafficking and that the money was the proceeds of such activity.

[48] I reach this conclusion bearing in mind that the jury would have to reach such a conclusion beyond a reasonable doubt.

[49] Both Mr. Sciarra and Mr. Robichaud argued in their oral submissions, and in further written submissions on the part of Mr. Sciarra, that I could not reach these conclusions without taking inappropriate judicial notice of the behaviour of drug traffickers and drug and cash volumes. No expert testimony was led in this case.

[50] I appreciate the efforts that were made in making those submissions, particularly Mr. Sciarra's further written submissions. Expert evidence is not a requirement in these cases though it can certainly add to the Crown's case and, depending upon the evidence, may be an essential component before such inferences could be drawn. I find in this case, however, that the sheer volume of drugs and money, combined with the surveillance observations, would allow a jury to reach such conclusions as a matter of common sense.

Conclusion

[51] I therefore order both men to stand trial on all three counts.

Released: December 14, 2016

Signed: "Justice K. Caldwell"