REASONS FOR COMMITTAL AND DISCHARGE

DATE: May 1, 2017

PURSUANT TO S. 539(1) OF THE CRIMINAL CODE — The evidence taken in the course of this inquiry shall not be published in any document or broadcast or transmitted in any way before such time as the trial of each accused ends.

ONTARIO COURT OF JUSTICE Old City Hall – Toronto

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

KEVIN BROMFIELD and KAITLIN SMITHSON

COUNSEL:

• C. Josic, for the Crown
• L. Hochberg, for the Defendant Bromfield
• M. Bury, for the Defendant Smithson

HEARD: March 6 and 7 and April 13, 2017

BEFORE: MELVYN GREEN, J.

A. INTRODUCTION

[1] Between them, the defendants Kevin Bromfield and Kaitlin Smithson are charged with nine drug-related offences said to have occurred in Toronto on November 25, 2015.

[2] Bromfield is exclusively charged, in Counts 1 and 2 of the Information, with possession of approximately 19 grams of cocaine for the purpose of trafficking and with possession of the proceeds of crime (some $635), both of which were found on him when he was detained by the police. In Counts 5 and 6 of the Information, he is charged with possession for the purpose of trafficking of cocaine (672 grams) and marihuana (approximately one and a quarter kilograms) located, respectively, in the kitchen and a spare room or bedroom on the main floor of a house at 54 Sharpe Street during the execution of a search warrant following his arrest. The co-defendant Smithson, in Counts 8 and 9, is independently charged with possession for the purpose of trafficking of the same cocaine and marihuana as is Bromfield in Counts 5 and 6. The defendants are jointly charged, in Count 3, with possession for the purpose of trafficking of a further 342 grams of cocaine found in the basement of the same house. Finally, Smithson, in Count 4, and Bromfield in Count 7, are both charged with the possession of the same alleged criminal proceeds (some $220) found in the basement.

[3] Bromfield concedes committal only with respect to the cocaine and proceeds found in his possession upon his initial detention (Counts 1 and 2). For purposes of the preliminary inquiry, Smithson admits residing in the basement at 54 Sharpe. While not admitting its possession, she concedes there is sufficient evidence to commit her to trial with respect only to the 343 grams of cocaine found in the basement – that is, the cocaine particularized in Count 3 in the Information. Conversely put, Smithson challenges committal respecting the drugs (marihuana and cocaine) found elsewhere than in the basement. And Bromfield asserts that there is insufficient evidence to commit him to trial in regard to any drugs located anywhere at 54 Sharpe. Both defendants resist committal for possession of the alleged proceeds of crime found in the basement, the $220.

[4] The following chart encapsulates the charges (with those of "possession of a controlled substance for the purpose of trafficking" abbreviated as "P4P") and the relevant defendant's committal position respecting each:

Count	Charge	Defendant	Committal
1	P4P Cocaine (19 grams; found on Bromfield)	Bromfield	Conceded
2	Proceeds ($635; found on Bromfield)	Bromfield	Conceded
3	P4P Cocaine (342 grams; found in basement)	Bromfield	Contested
		Smithson	Conceded
4	Proceeds ($220; found in basement)	Smithson	Contested
5	P4P Cocaine (672 grams; found in kitchen)	Bromfield	Contested
6	P4P Marihuana (1¼ Kg; found in spare room)	Bromfield	Contested
7	Proceeds ($220; found in basement)	Bromfield	Contested
8	P4P Cocaine (672 grams; found in kitchen)	Smithson	Contested
9	P4P Marihuana (1¼ Kg; found in spare room)	Smithson	Contested

To be clear, although only jointly charged with regard to the cocaine found in the basement (Count 3), Bromfield and Smithson are otherwise each individually charged with possession of all of the other drugs and the proceeds located inside the house at 54 Sharpe.

[5] The Crown position, in brief, is that the totality of the evidence supports inferences of joint constructive possession by both defendants of the $220 and of all the drugs located by the police at 54 Sharpe. Assuming the legal standard for committal for each charge of drug possession is met, both defendants concede that there is ample evidence to further support committal for the unlawful purpose of trafficking in each instance.

B. EVIDENCE

(a) Introduction

[6] Seven witnesses testified, all police officers called by the Crown. Two were officers on uniform duty who, on instructions, detained, searched and then arrested Bromfield a few blocks from 54 Sharpe. The other five officers participated in the execution of a Controlled Drugs and Substances Act (CDSA) search warrant at 54 Sharpe. The warrant targeted Bromfield. No photographs were taken during the search. The entry and exit videos were not entered into evidence, nor were any sketches of the premises. Various testimonial accounts of the physical layout are sometimes inconsistent and more often uncertain. This reflects, it appears, the searching officers' indifference to physical details that may well have appeared unimportant at the time but have since assumed a potential forensic significance.

[7] 54 Sharpe is a two-story detached house with a finished basement. There are two bedrooms and a washroom on the main floor, along with a kitchen and living/dining area. While one of the rooms described as a bedroom was furnished as such, the evidence was inconsistent as to whether the second contained a bed or merely the gaming and computer equipment that was universally recalled. A staircase links the ground and second floors of the house.

[8] An enclosed landing greets visitors who enter the back door to the house. A few steps ascend from the landing to a kitchen on the ground floor. A longer second set of stairs descends from the same landing to a short hallway that leads to a door entering what several officers described as a self-contained basement unit or "apartment" housing its own kitchen and a dining area, washroom, bedroom and attached closet. A washer and dryer were arrayed on the left side of the hallway approaching the door to the basement unit.

[9] The police used a key found in the defendant Bromfield's possession upon his arrest to unlock the front door to 54 Sharpe. Although sometimes vague, I find the evidence supports the existence of a door at the back of the kitchen, opening to the back landing, and of a door at the end of the short hallway leading to the residential facility in the basement. There was no reliable evidence as to whether either of these two doors bore a locking mechanism nor, if so, whether either the kitchen backdoor or that leading to the basement unit was locked when first encountered by the police.

[10] Failing any evidence of locks or their engagement on these two doors, anyone in the basement unit could access the two upper floors of the house, and anyone on or with access to either the ground or second floor could equally access the basement unit. As to the door from the landing to the backyard, the evidence is again unsettled as to whether that door bore a lock or was locked when the police began their search. Based on evidence pertaining to the police release to the yard of an aggressive dog located on the landing, I infer that the door from the landing to the backyard, like that from the ground floor kitchen to the steps descending to the landing, was at least closed at the time of the police entry.

(b) The Defendant Kevin Bromfield's Arrest

[11] A team of officers held a briefing at 11am on November 25, 2015 in preparation for the execution of a CDSA search warrant at 54 Sharpe. Surveillance at that address spotted two pick-ups in the driveway: a white Ford F150 and a GMC. At 11:14am, a man in a green jacket left the front of 54 Sharpe. He boarded the GMC and drove off. The defendant Kevin Bromfield exited the front door at 11:20am and got into the Ford pick-up – a vehicle registered to a John Bromfield (not further identified) at a different address. Two uniformed officers were tasked with quickly stopping and detaining the defendant if he drove away.

[12] The Ford idled for 20 to 25 minutes in the driveway before the defendant Bromfield pulled out. He was stopped by the uniformed officers within a few minutes and immediately detained, cuffed and searched. Some $635 and 19.17 grams of powder cocaine were located on Bromfield, along with a spoon, a scale and baggies. His arrest for cocaine possession followed.

[13] Det. Jim Brons was the officer-in-charge of the execution of the warrant. He spoke to Bromfield immediately after his arrest. Bromfield told him there was a "friendly" pit bull at 54 Sharpe. He said nothing about the presence of any other persons. Brons safely parked the defendant's Ford F150. He retained the keychain to which, among others, the key to the Ford pick-up was attached.

(c) The Search at 54 Sharpe St.

[14] Brons then returned to 54 Sharpe. He gave the keychain to PC Fraser, a member of the search team, who opened the front door to 54 Sharpe at about 12:12pm using one of the keys on the chain. The police cleared the ground and second floor of the house; there was no one present. They hesitated checking the basement because a large and less-than-friendly dog occupied the landing that led to the basement.

[15] Once the police cleared the dog, Brons heard an inquiring woman's voice coming from the basement. The woman, identified as the defendant Smithson, was detained as she came up the stairs. For purposes of the preliminary inquiry, the parties agree that Smithson "resided" at 54 Sharpe as a "tenant" who "lived in the basement". There is no evidence as to the identity of Smithson's landlord.

[16] Det. Cst. Daryl Gazey searched the ground floor kitchen. He located an unsealed blue plastic bag containing vacuum-sealed bags of powder cocaine – totaling 672.09 grams – in a microwave oven above the stove. The cocaine appeared to have been "pressed", or compressed, but he could not say whether that reflected its original manufacture or a subsequent re-pressing. Nor did he testify as to the prevalence of evidence of "pressing" among police seizures of the drug. Gazey also found a digital scale in the kitchen and a vacuum sealer on an end table in the bed-furnished bedroom on the main floor, along with a second, larger scale in the same room.

[17] Cst. Kwang-Jac Lee searched the basement. An open den area adjoining the sole bedroom had been converted into a closet containing women's clothing and shoes. Lee found three Ziploc bags containing cocaine in a backpack in the closet. Smithson's passport was found in a dresser, along with $220 in cash in an envelope. There were also parts of what Lee identified as a disassembled cocaine press on the floor of the closet/den. He could not recall seeing any cocaine residue on the mechanism.

[18] Brons directed Cst. Robert Romano to arrest Smithson soon after Lee found cocaine in the basement. Romano himself located a pink wallet containing the defendant Smithson's identification in the basement. He also found a stash of marihuana – totaling approximately 1,245 grams – in a vacuum-sealed bag in a closet in the spare "bedroom" containing video and gaming equipment on the main floor of the house.

[19] Finally, Cst. Michael Limsiaco seized two passports (one current and one expired) in the defendant Bromfield's name from the top of a dresser in a bedroom on the second floor of the house. No other identification documents were located, but a money counter and unattributed men's clothing were found in the same room.

[20] No evidence was led of fingerprints or DNA matchings, or of any qualitative comparisons of the various cocaine seizures. None of the drugs seized at 54 Sharpe were found in "plain view". There is no evidence as to the owner, lessee or renter of the 54 Sharpe property. Nor is there evidence of any relationship, association or familiarity between the two defendants – or that they even knew or knew of each other.

C. ANALYSIS

(a) The Governing Law

(i) Introduction

[21] Apart from the three counts for which committal is conceded, there remain contested charges of possession of both drugs and criminal proceeds. As to the three caches of drugs seized by the police at 54 Sharpe, the core issue is whether there is sufficient evidence of each defendant's possession of the drugs to warrant his and/or her individual committal to trial. The Crown position is that, for purposes of committal, joint possession is made out respecting both defendants. Bromfield says there is an inadequate evidentiary nexus to any of the drugs found in the house to justify his committal for any drugs other than the cocaine found on his person. And Smithson says that, properly evaluated, her potential liability extends only to the cocaine found in the basement and to none of the drugs found on the main floor of the house at 54 Sharpe.

[22] The Crown theory of joint possession extends to the $220 located in the basement. In my view, the resolution of the "proceeds" charge turns on the alleged criminal colouration of the seized money. Accordingly, the sufficiency of the evidence bearing on its possession need not be addressed let alone determined.

[23] It is the drug counts, then, that necessarily attract a review of the legal meaning of "possession" in the context of this case. I begin, however, with the law governing the test for committal as it informs consideration of all the contested charges. That test, of course, turns on the "sufficiency" of the evidence.

(ii) The Test for Committal

[24] Any discussion of the sufficiency of evidence is buffeted by a current public debate about the rationale and even value of preliminary inquiries. One camp argues for the curtailment, if not elimination, of preliminary hearings on grounds, primarily, of trial efficiency and expedition. A second advocates for raising the bar for committal so as to more effectively filter out cases unworthy of prosecution. Meantime, the legal standard for committal, and the one by which I am bound, remains that in force for decades: "sufficient evidence" upon which a reasonable and properly instructed jury "could" – not "would" – convict: see R. v. Shephard, [1977] 2 S.C.R. 1067. The evaluation of witness credibility is not part of a presiding judge's task, nor is "any determination of the … cumulative weight of the evidence": R. v. Campbell (1999), 140 C.C.C. (3d) 164 (Ont. C.A.), at para. 4.

[25] The Shephard test for committal leaves very little room for the exercise of judicial discretion. In R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 21, the Supreme Court re-affirmed that a justice presiding at a preliminary inquiry must "commit the accused to trial 'in any case in which there is admissible evidence which could, if it were believed, result in a conviction'". The application of this test is part of the bread-and-butter work of provincial court judges. I, like many jurists who preside over preliminary inquiries or their review, have had occasion to aggregate the voluminous law governing the test for sufficiency. The following passages from R. v. Archer, 2014 ONCJ 521, at paras. 48-49, reflect one, if personal, effort to summarize the stable architecture of the law in this area, focusing, as here, on prosecutions dependent on circumstantial evidence:

The Shephard standard – generally abbreviated as the "any evidence" or "some evidence" test – obtains whether the evidence is direct or circumstantial. In the latter case, however, a limited weighing of the evidence is required because of the inferential gap between the evidence and the matter to be established. In other words, there must be a determination by the justice presiding at the preliminary hearing as to whether the circumstantial evidence is reasonably or rationally capable of supporting the incriminatory inferences the Crown invites: R. v. Arcuri, supra, at para. 23. If it does, a committal must follow for the offence or offences charged or those arising from the same transaction. On the other hand, the accused must be discharged if "no sufficient case is made out to put the accused on trial": s. 548(1) of the Criminal Code. (See, generally, R. v. Arcuri, supra, and R. v. Magno (2006), 210 C.C.C. (3d) 500 (Ont. C.A), at para. 15, and R. v. Munoz (2006), 205 C.C.C. (3d) 70, at paras. 18-22 (Ont. S.C.).)

Not infrequently, there is a legitimate dispute as to the permissible scope of the inferences available on a circumstantial evidentiary record. The law, at bottom, is that any reasonably and logically available inference consistent with guilt mandates committal. (See Munoz, supra, at paras. 23-31.) Even robust benign inferences must yield to committal where a rational inculpatory inference also lies. As said by the Court of Appeal in R. v. Magno, supra:

[I]t is jurisdictional error … for a justice presiding over a preliminary inquiry to discharge where there are competing inferences in the evidence and one of those inferences supports the charge before the court.

Further, permissible inferences need not be "easy", "likely" or "probable", so long they flow "reasonably and logically" from established facts: R. v. Katwaru (2001), 153 C.C.C. (3d) 433, at para. 40; R. v. Dwyer, 2013 ONCA 368, [2013] O.J. No. 2554, at para. 4; R. v. Kamermans, 2016 ONCA 117, at para. 20.

[26] Reason and logic require that secondary facts be anchored in established facts that support the inferential extrapolation invited by the Crown. I return to practical illustrations of the requisite nexus in due course but, as I wrote in R. v. Archer, supra, at para. 50:

[I]ncriminatory inference-drawing is not infinitely elastic. While the line is sometimes obscure, the principle is well recognized: inferences that neither rationally or logically flow from the evidence or which, put otherwise, are speculative cannot ground committal. (See, in addition to the earlier-cited authorities, R. v. Figueroa (2008), 2008 ONCA 106, 232 C.C.C. (3d) 51 (Ont. C.A.), at para. 41.)

[27] Preliminary hearing evidence not infrequently generates competing inferences, those both incriminatory and benign or, put otherwise, those subject to readings consistent with both guilt and legal innocence. The sufficiency assessment in these cases must be distinguished from those resulting solely in speculative inferences. Indeed, in R. v. Jackson, 2016 ONCA 736, at para. 11, the Court of Appeal recently cautioned about the risk of confusion between,

cases in which the circumstantial evidence read at its strongest for the Crown could not reasonably support an inference of guilt (see e.g. United States of America v. Huynh (2005), 200 C.C.C. (3d) 305 (Ont. C.A.)), [and] cases in which the evidence could reasonably support inferences necessary to a finding of guilt or inferences inconsistent with guilt: (see e.g. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804). The preliminary inquiry judge must discharge if the evidence falls into the first category of cases, but must commit for trial if the evidence falls into the second category. [Emphasis added.]

This division defines the dispute between the parties before me, with defence counsel reading this as a "first category" case and the Crown urging a "second category" construction that necessitates committal.

[28] The entirely circumstantial nature of the case patently complicates the sufficiency assessment exercise. In R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, the Supreme Court recently re-affirmed the care that must be taken to avoid the risk of miscarriage of justice in applying what is known as the rule in Hodge's Case (1838), 2 Lewin 227 – that is, the rule governing the use of the reasonable doubt standard at trial in cases founded on circumstantial evidence. The application of Villaroman to the sufficiency assessment of circumstantial evidence led at a preliminary hearing was addressed in R. v. Jackson, supra. The Court of Appeal, at para. 15, there made clear that the concerns animating the Court's judgement in Villaroman are not "germane to the function of the preliminary inquiry judge at the end of the preliminary inquiry". Indeed, the Court cautions that, "[i]nserting the jury instruction language from Hodge's Case into the analysis required to determine whether an accused should be committed for trial is confusing and potentially misleading".

[29] Given this jurisprudential history, it is hardly surprising that the threshold for committal at the conclusion of a preliminary inquiry is frequently described as a "low hurdle". However, it "must constantly be borne in mind", as said in the dissenting opinion of McLachlin J. (as she then was) in R. v. Charemski, [1998] 1 S.C.R. 679, at para. 35, that sufficiency must always be measured against the ultimate burden on the Crown: "sufficient evidence to sustain a verdict of guilt beyond reasonable doubt". The now-Chief Justice's reformulation of the proposition first enunciated in Shephard was unanimously adopted by a full bench of the Supreme Court in R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702, at para. 53, and, more recently, by the Court of Appeal in R. v. Turner, 2012 ONCA 570, 292 C.C.C. (3d) 69, at para. 16. Accordingly, whatever its likelihood, the probative force of a logically available incriminatory inference must, if accepted by a trier, be "sufficient" to establish that degree of legal certainty necessary to ground a conviction.

(iii) The Law of "Possession"

[30] As explained by the Court of Appeal in R. v. Pham, 203 C.C.C. (3d) 326, at para. 14; affd. 2006 SCC 26, [2006] 1 S.C.R. 940,

Section 4(3) of the Criminal Code creates three types of possession:

(i) personal possession as outlined in s. 4(3)(a);

(ii) constructive possession as set out in s. 4(3)(a)(i) and s. 4(3)(a)(ii); and

(iii) joint possession as defined in s. 4(3)(b).

[31] It is trite law that knowledge and control are essential elements of all forms of possession: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 15; R. v. Terrence, [1983] S.C.R. 357; R. v. Pham, supra, at para. 15. Other than the cocaine and alleged proceeds found on Bromfield (and for which committal is conceded), the notion of personal possession – in the sense of actual, physical possession – has no application to this prosecution.

[32] What are of moment are the doctrines of "constructive" and "joint" possession. As defined in clauses 4(3)(a)(i) and (ii) the Criminal Code, a person has "anything" in his "constructive" possession if he "knowingly",

(i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person.

It is the second clause of this definition that is invoked in this case. The Court of Appeal set out the essential elements of proof under this modality in R. v. Pannu, 2015 ONCA 677, at para. 156. Adapted to the committal stage of a preliminary inquiry (as reflected in the bracketed substitution below), "to establish constructive possession the Crown",

must [advance sufficient evidence] that an accused

(i) knows the character of the object;

(ii) knowingly puts or keeps the object in a place; and

(iii) intends to have the object in the place for his or her use or benefit or the use or benefit of some other person.

See also, R. v. Morelli, supra, at para. 17.

[33] Crown counsel, to be clear, expressly relies on "joint" possession to found committal. As defined in sub-s. 4(3)(b) the Criminal Code:

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.

[34] The Crown theory, then, is that irrespective of which of the two defendants is in "custody or possession" of each cache of drugs found at 54 Sharpe, the second defendant is equally liable by virtue of his or her "knowledge [of] and consent" to the other's possession. While the word "control" does not form part of the statutory definition, it is settled law that a measure of control must accompany "knowledge and consent" to ground joint possession. As put in R. v. Terrence, [1983] 1 S.C.R. 357, at 364, "a constituent and essential element of [joint] possession … is a measure of control on the part of the person deemed to be in possession". Framed somewhat differently in R. v. Williams; 125 C.C.C. (3d) 552, "mere passive acquiescence" is insufficient to satisfy the test for joint possession. (See also, R. v. Piaskoski (1979), 52 C.C.C. (2d) 316 (Ont. C.A.), at para. 6.)

[35] I bear in mind the doctrines constructive possession and, in particular, joint possession in conducting the sufficiency analysis that follows. I also bear in mind that the question of committal for each defendant must be assessed on an individualized basis with respect to each of the charges they face. Before conducting this assessment, I turn to some recent authorities that address, in roughly parallel circumstances, the appropriate application of the test for committal where "possession" – knowledge and control – of the impugned item or substance is the central issue.

(iv) Some Guiding Authorities

[36] An evaluation of the inferences available to a reasonable trier necessitates an appreciation of "the whole of the evidence" including, where relevant, the absence of evidence touching on matters that inform the assessment. (See R. v. Arcuri, supra, at para. 32; R. v. Bell, 2017 ONCJ 207, esp. at paras 11-13.) As suggested earlier, the line between an evidentiary foundation that may logically (although not inevitably) lead to a finding of guilt and one that depends on conjecture to reach the same result is sometimes difficult to draw. Nonetheless, the distinction must be scrupulously respected. United States v. Viscomi, 2015 ONCA 484, at paras. 21-22, affords a recent restatement of the importance of this principle:

[A] reasonable inference may not be based on speculation. Many cases have cautioned against conflating a reasonable inference, on the one hand, and mere speculation, conjecture, or even an educated guess, on the other. [Citations omitted.]

In R v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at para. 52, Doherty J.A. underscored the importance of an inference being grounded in established fact:

A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation.

[37] The reported cases founded on circumstantial evidence of possession of prohibited items are legion. I focus here on several decisions of recent vintage that address the exercise and limits of permissible inference-drawing in factually analogous scenarios. The case of R. v. Turner, supra, affords one instructive example. The police intercepted the accused inside a bedroom as they forcibly entered an apartment. No one else was in the room. The accused's driver's license lay on the floor of the same bedroom. Substantial amounts of cash were found on the night table and between mattresses in the same room, and in the pockets of two pairs of jeans in the room's closet. A loaded handgun was located in the same closet. The justice presiding at the preliminary inquiry discharged the accused of the several charges he faced arising from the finding of the gun. On Crown application for certiorari and mandamus, a judge of the Superior Court quashed the discharge and ordered the accused's committal to trial. On further review, the Court of Appeal reversed the Superior Court and reinstated the preliminary inquiry judge's order discharging the accused. Armstrong J.A. wrote for the Court of Appeal. After effectively dismissing the money found in the room as probatively insignificant, he concluded, at para. 26:

I now turn to the question whether the combination of the appellant standing alone in the bedroom at 5:00 a.m. with his driver's license on the floor leads to the conclusion that there was sufficient evidence to establish knowledge and control of the gun. I am satisfied that the combination of those facts does not change the conclusion reached by the preliminary inquiry judge.

In the procedural context of a review of a discharge following a preliminary inquiry, the Court's use of the phrase "sufficient evidence to establish" must be read as "sufficient evidence to establish proof beyond reasonable doubt at trial" or, in the exact language of Shephard, supra, "sufficient evidence upon which a reasonable trier could return a verdict of guilty".

[38] In restoring the accused's discharge the Court of Appeal was expressly guided by the now-Chief Justice's earlier-noted comments in R. v. Charemski, supra. Re-asserted in Turner, at para. 16:

[T]he sufficiency of evidence cannot be assessed without reference to the ultimate burden on the Crown to prove the case beyond a reasonable doubt. … [As] McLachlin J. said at p. 701:

... "sufficient evidence" must mean sufficient evidence to sustain a verdict of guilt beyond a reasonable doubt; merely to refer to "sufficient evidence" is incomplete since "sufficient" always relates to the goal or threshold of proof beyond a reasonable doubt. This must constantly be borne in mind when evaluating whether the evidence is capable of supporting the inferences necessary to establish the essential elements of the case.

[39] R. v. Allison, 2016 ONSC 3073 presents a still more recent illustration of the same principle in circumstances of disputed possession. The trial judge discharged the accused, Allison, of the various firearms and drugs offences with which he had been charged. The Crown then brought a certiorari application to quash the accused's discharges. Trotter J. (as he then was) summarized the factual background by way of a succinct "Introduction":

The police executed a search warrant in a small, one-bedroom apartment. Justin Allison was the only person there at the time. He was observed entering the apartment with a key a few hours earlier. The police found a loaded firearm and drugs [9.31 grams of cocaine] in a bin beside a makeshift bed. Mr. Allison's passport and other pieces of identification were found in close proximity.

As is clear from a later and fuller recitation of the evidence, Allison's passport, birth certificate and health card were all found in the very same bedside bin in which the loaded handgun and 9.31 grams of cocaine were located. An electronic scale, some small baggies and a further 1.19 grams of cocaine were found nearby. The unit was leased to a second man who was not present at the time the police entered. He was later located but not charged.

[40] The Allison case, as the one before me, is one founded entirely in circumstantial evidence. While acknowledging the categorical distinction drawn in R. v. Jackson, supra, at para. 11, Trotter J., at para. 16, explains why the reasoning urged by the Crown fails to meet the test for committal:

The Crown's main pitch is that, because Mr. Allison was in the apartment that day and his personal documents were found in a box near the futon, the futon was his bed and the tray table was his "night table." From this, the Crown contends that it can be inferred that everything in proximate the futon (shoes, ball caps, the contents of the bin) belonged to him. More specifically, it is argued that it can reasonably be inferred that Mr. Allison was aware of and exercised control over the contraband in the bin: R. v. Bui (2014), 2014 ONCA 614, 14 C.R. (7th) 149 (Ont. C.A.), at paras. 34 to 36. But [Crown counsel's] conclusion rests on a string of inferential leaps: see R. v. Savoury, [2008] O.J. No. 2896 (S.C.J.). The preliminary inquiry judge did not err by dismissing this chain of reasoning as being speculative (as opposed to refusing to draw permissible inferences favourable to the Crown). [Emphasis in original.]

[41] Jurists routinely assert that no two cases are factually identical. Turner and Allison are both factually and legally simpler than that before me. The evidence in each is also more facially inculpatory. Both cases present "locked box" scenarios in which the accused alone was found in the same closed room as were the prohibited items and, at least arguably, additional corroborative evidence of illegal conduct. Unlike the instant case, the evidence in Turner and Allison not only permits an inference of access to the impugned areas but as well, and unassailably, actual and concurrent occupancy of the enclosed space in which the prohibited items were located. The Crown effort to here ground the defendants' liability in a theory of joint possession is understandable in light of such authority.

(b) Applying the Law

(i) Counsels' Positions

[42] The position of the defence is that the inferences that may be drawn from the primary facts, viewed in combination, fail to meet the sufficiency standard for any offences other than those for which each defendant has conceded committal.

[43] There is no evidence, says Bromfield, that he resided at or at any time occupied the house at 54 Sharpe. He is seen leaving he premises on a single occasion. Although I find it of no moment to my task at this committal stage, Bromfield notes that while the key to front door is attached to the same key chain as was the key to the Ford F150 he was driving when arrested, the vehicle was neither registered to him or the 54 Sharpe address. Bromfield's past and current passports were found on a bedroom dresser, but, he points out, no other documentation bore his name. Further, even if he had some tenuous association with the main and second floors of the house it was insufficient, he says, to permit a properly instructed jury to infer both his knowledge and control of drugs that were, as here, not in plain view, and, even less so, any located in the basement.

[44] Smithson, as the parties agree, resided in the basement. She says, further, that on any reasonable construction of the evidence, the basement was her sole residence at 54 Sharpe. While the front door required a key to gain entry, there is no evidence that she possessed a copy of such key. There is no evidence of her presence on any floor of the house other than the basement. In short, while the evidence supports, as conceded, her committal to trial for the cocaine located in the basement unit, it is legally insufficient to ground her knowledge or control of any drugs located on the upper floors of the house and, thus, her committal for the counts related to those seizures.

[45] Unsurprisingly, Crown counsel takes a more expansive and vigorous view of the incriminatory scope of the evidence. In addition to Bromfield's surveilled presence at the house and his possession of a key to its front door, his passports, she notes, were located in a room with an exposed money counter – paraphernalia readily, if not exclusively, associated with commercial drug trafficking. The cocaine found on his person within minutes of leaving 54 Sharpe lends, she adds, further circumstantial support to his possession of the drugs located throughout the house.

[46] The dismantled press located in the basement area, says Crown counsel, is part of the totality of circumstances that permit one to reasonably infer that Smithson had knowledge and control of the pressed cocaine found in the microwave in the main floor kitchen. And while an inference of knowledge respecting the marihuana in the closet of the spare "bedroom" may be somewhat weaker, Smithson's possession of another controlled substance lends, she says, circumstantial weight to her committal for the cannabis-related charge as well.

[47] Finally, says the Crown, the evidence reasonably supports a finding that both defendants had physical access to the entire house. Crown counsel acknowledges that access alone is not dispositive. However, in her submission it reinforces the Crown theory of joint possession of all the drugs found at 54 Sharpe when read in combination with the posited association between the pressing mechanism in the basement and the pressed cocaine in the main floor kitchen and the presence of commercial quantities of cocaine on both levels and on Bromfield.

(ii) The Basement Proceeds Count

[48] As noted, Brownfield and Smithson both face, if by way of separate counts, the same charge of possession of criminal proceeds respecting the $220 found in an envelope in a dresser in the basement bedroom or closet area.

[49] I appreciate that a substantial amount of cocaine, although hidden in a backpack, was in the same or an adjoining room as the $220. Other than this physical proximity, there is no association between these two items. There is no evidence that the currency's serial numbers correspond with those involved in any drug transaction. There is nothing unusual or telling about the quantum of money, nor is there anything about its assembly, organization or denominations that suggests participation in a drug enterprise. Nor, further still, are any indicia of trafficking – such as scales, cutting or dilution agents, debt lists or packaging equipment – found in the vicinity. I am confident that no properly instructed trier could conclude beyond reasonable doubt that this relatively small sum of money was the proceeds of a criminal offence. To be clear, it would be open to a trier to infer that Smithson possessed the $220, but there is simply an insufficient evidentiary basis to conclude that the money was the product of criminal enterprise or, if so, that she knew of its nefarious origin. Accordingly, I discharge Smithson on Count 4. For the same reasons (but for declining to address the element of his alleged possession), I discharge the defendant Bromfield of the parallel charge, Count 7, on the Information.

(iii) The Drug Possession Counts

1. Introduction

[50] The remaining contested counts allege possession for the purpose of trafficking of the cocaine found in the basement, the cocaine found in the microwave oven in the main floor kitchen, and the marijuana found in a closet in a main floor bed- or spare room. The defendants are jointly charged with possession of the basement cocaine and each independently charged with possession of the cocaine and marihuana located on the main floor of the house.

2. The Evidentiary Landscape, Distilled and Processed

[51] With respect to these drug charges, the evidence led and not led at this preliminary inquiry, and the inferences of fact that I draw therefrom upon application of the limited weighing sanctioned by Arcuri, include the following:

• There is no evidence of drug trafficking or negotiations by either defendant.

• Other than the hour preceding the execution of the CDSA warrant, there is no surveillance evidence of 54 Sharpe.

• There is no evidence of the utilization of the premises other than that gleaned during the execution of the warrant and the preceding hour.

• Smithson resided in the basement at 54 Sharpe at the time the search was conducted. There is no evidence that she resided anywhere other than in the basement.

• While there is no evidence as to whether there was or was not a lock on the door to the basement unit, the area was entirely self-sufficient, containing its own kitchen, living room, bedroom, washroom and closet areas. There is no practical need for someone residing in the basement to enter any other part of the house.

• There is no evidence that anyone cohabited the basement with Smithson. There is no evidence of any clothes or shoes or accessories belonging to any anyone other than a woman. No identification papers or any other documents referable to anyone other than Smithson were located in the basement. Nor was any documentation or other identifying items attributable to Smithson found anywhere but in the basement unit.

• The short hallway extending from the door to the basement unit leads to stairs that ascend to a mid-floor landing from which, in turn, a door opens to a yard at the rear of the house. There is no basis to infer that Smithson had to or did traverse the main floor of 54 Sharpe to enter the basement unit in which she resided or, absent evidence of a key, that she could readily do so.

• There is no direct evidence – physical, documentary, forensic or otherwise – of Smithson's presence in any part of the house other than the basement. Nor is there evidence that Smithson possessed a key to the front door of 54 Sharpe or that one was found in the basement or elsewhere in the house. There is, in the end, no direct evidence, or evidence from which one may directly infer, that Smithson occupied, visited or ever attended the upper floors (main and second) of the house at 54 Sharpe. Absent something more, one cannot reasonably infer the secondary fact of entry from the primary fact of access.

• There is no direct evidence, or evidence from which it may be reasonably inferred, that Bromfield had ever been in the basement portion of the house.

• None of the drugs seized on the main floor of the house were in plain view. The cocaine was inside a microwave oven. The marihuana was in a closet in a spare room containing video and gaming equipment. A money counter rested unconcealed in the same second-floor bedroom in which Bromfield's current and expired passports were located on top of a dresser.

• Other than these two passports, no identifying documents, tickets, receipts, mail or any other papers bearing Bromfield's name were found anywhere in the house. Nor were the men's clothing, electronic devices or any other personal items or devices in any way sourced to Bromfield, or any other identified person.

• Bromfield was observed leaving the front door of 54 Sharpe on November 25, 2015. The vehicle he drove from the house was parked in its driveway – as was another vehicle that left minutes before Bromfield. When arrested, Bromfield possessed a key to the front door of the house. Although benign alternative explanations may well be available, one can reasonably infer that Bromfield had key-access to 54 Sharpe and that he had a sufficient sense of ambient security to leave his passports exposed on the top of a bedroom dresser. There is no evidence, however, from which it can be reasonably inferred that Bromfield resided at 54 Sharpe or that he had ever previously attended the address. Nor is there any evidence as to when Bromfield arrived at the house prior to his arrest or how long he had stayed there.

• Other than the stipulation that Smithson was a tenant in the basement quarters, there is no evidence as the ownership of the house or as to any leasehold or rental arrangements.

• No fingerprint, DNA or other forensic evidence associates either defendant with any of the drugs or other suspect paraphernalia located at 54 Sharpe.

• No statements or utterances speak to knowledge or control of the drugs found in the house or of any association between the two defendants.

• Baggies containing what is described as "pressed" cocaine were found in a microwave oven in the main floor kitchen. Disassembled parts of what is described as a "press" were located in the basement unit. There is no evidence:

  • of any cocaine residue on the press;

  • as to whether the cocaine found in the basement and on Bromfield was or was not "pressed";

  • that the cocaine found in the microwave had markings that correspond with impressions or indentations characteristic of the press;

  • as to the general prevalence of "pressed" cocaine;

  • as to whether a pressed form of the drug is unusual or distinctive, or whether, for example, it is as commonplace or generic in the illicit trade as the use of Ziploc-style baggies.

  Although clearly suspicious, in my view other than by way of conjecture there is no evidence from which a trier could reasonably infer that the disassembled parts located in the basement bore any physical, mechanical or production-related association with the cocaine found in the kitchen.

• There no direct evidence that the two defendants were in a romantic or business relationship, that they had any personal familiarity, or that they even knew or knew of each other. Nor, short of speculation or reasoning from a presumed result, is there evidence from which a reasonable trier could infer such relationship.

3. Applying the Law

[52] This preceding summary of the evidence and the primary facts to which that record admits explicate the Crown's reliance on the doctrine of joint possession to fuel committals on the disputed charges. No evidence implicates either defendant in actual or personal possession of the caches of drugs, cocaine and marihuana, found on the main floor of the house.

[53] There is, as Smithson concedes, sufficient evidence to commit her to trial for constructive possession of the cocaine located in the basement, but any nexus to Bromfield depends on application of the doctrine of joint possession. As regards the drugs on the main floor of 54 Sharpe, the evidence does not reasonably support an inference of constructive possession. As defined by the Supreme Court in R. v. Morelli, supra, at para. 17:

Constructive possession is established where the accused did not have physical custody of the object in question, but … (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his "use or benefit" or that of another person. [Italicization in original.]

Other than by way of impermissible assumptions respecting each of these essential elements, one cannot reasonably conclude that one or the other of the defendants had constructive possession of the cocaine and/or marijuana found on the main floor of the house or that Bromfield, unlike Smithson, was party to the possession of the cocaine found in the basement. One can readily infer that someone placed the drugs in their hiding places on the main floor and it is tempting to assign that responsibility to the one of both of the defendants. However, the evidence necessary to complete the chain of inferences, to fill the gap between speculation and the requisite standard for committal on the basis of constructive possession, is simply absent.

[54] The Court of Appeal addressed a similar issue in United States of America v. Huynh, supra, an extradition appeal that engages a functionally identical test for committal as that employed at a preliminary inquiry. The narrow issue on appeal in Huynh was whether the cash involved in a cross-border money laundering operation was the proceeds of drug trafficking, as alleged, or some other crime. As Doherty J.A. explained, at para. 7:

The material identified by the respondent certainly permits the inference that the cash was the proceeds of some illicit activity. Drug trafficking comes readily to mind as one possible source. The process of drawing inferences from evidence is not, however, the same as speculating even where the circumstances permit an educated guess. The gap between the inference that the cash was the proceeds of illicit activity and the further inference that the illicit activity was trafficking in a controlled substance can only be bridged by evidence. The trier of fact will assess that evidence in the light of common sense and human experience, but neither is a substitute for evidence. [Italics added.]

The Court of Appeal reproduced and endorsed this passage in U.S. v. Viscomi, supra, at para. 34. It then added, by way of repetitive emphasis, "As Doherty J.A. points out, speculation, educated guesses, and even common sense and human experience cannot provide a substitute for such evidence".

[55] Focusing on Smithson, one can reasonably infer that she had access to the upper floors of the house but the evidence does not, in light of my assessment of the highly tenuous, if any, probative value of the "press", permit a trier of fact to reasonably infer that she ever exercised that access or that she had knowledge or control of the drugs in the main floor kitchen and bedroom.

[56] Similarly, one can infer that Bromfield had access to 54 Sharpe but not that he had ever been there before the day of his arrest, that he had ever attended the basement unit, that he had any familiarity with the pressing mechanism, or, like Smithson, that he knew of or controlled the drugs found on the main floor and, and even less so, those in the basement. Assuming, not unreasonably, that Bromfield did not intend to abandon the current passport left on the dresser in the second-floor bedroom, one can logically infer that he planned to return to the house. It is a mistake, however, to reason from such intention Bromfield's knowledge or control of any drugs in the same house. The logic that drives the reasonableness of Bromfield's likely return visit is the inherent value of his passport. Absent some independent nexus, this inference does not arise from or support the possession of drugs. To borrow Trotter J.'s locution in R. v. Allison, supra, it is the Crown's reliance on a "string of inferential leaps" that undermines the legal propriety of committal under the head of constructive possession. Nor, in my view, does the presence of a money counter in the same room as the passports, absent more, add anything of material value to the assessment.

[57] Even if one were to infer that the drugs secreted on the main floor belonged to either Bromfield or Smithson, committal for their possession would not lie under this doctrine alone. As illustrated in the hypothetical example employed by the Court of Appeal in R. v. Jackson, supra, at para. 12:

[A]ssume that the Crown's evidence consists of testimony that "A" and "B" were in the room with the deceased immediately before he was killed. No one else was in the room, and there was no evidence of any joint enterprise between "A" and "B". On this evidence nothing points to "A" as opposed to "B" as the killer. It would be unreasonable for a jury to infer from "A's" presence in the room (the primary fact) the further fact that he was the killer. "A" must be discharged at the preliminary inquiry.

Other than the basement cocaine, the presenting scenario here generates the same result – but for the viability, if any, of the application of the doctrine of joint possession to the immediate facts.

[58] Focusing, then, on the cocaine and marihuana found on the main floor at 54 Sharpe, there is no evidence from which a reasonable trier can infer actual or constructive possession by either defendant. Their committal for possession of one or both of these drugs caches turns on application of the doctrine of joint possession: that is, the theory that either Bromfield or Smithson had the drugs in his or her "custody or possession" and the second defendant, by virtue or her or his "knowledge and consent" of the first's custody or possession is "deemed" equally liable. The evidentiary foundation for this theory, as canvassed earlier, is that of shared joint access to the main floor of the house and the correspondence (if only generic) of commercial quantities of cocaine in the kitchen, the basement and on Bromfield at the time of the police entry. A jury may in the end not be satisfied beyond reasonable doubt that the guilt of the defendants follows, but the reasonableness of such inference leaves, says the Crown, a sufficient basis to commit both accused to trial for the main-floor drug possession offences and, in addition, Bromfield for possession of the cocaine found in the basement.

[59] With respect, I do not accept this proposition. It asks a trier to suppose a relationship between Bromfield and Smithson and to infer from that a common intention or purpose when there is no evidence to support the predicate "fact". As canvassed earlier, there is simply no evidence of any relationship, or even familiarity, between the two defendants. It is only by presuming a commercial or personal relationship that, through bootstrap reasoning, does it then become possible to weave the evidence into a tapestry of joint enterprise or, more specifically, shared knowledge, consent and a measure of control. As said by the Court of Appeal in U.S. v. Viscomi, supra, at para. 34, "speculation, educated guesses, and even common sense and human experience cannot provide a substitute for such evidence".

[60] The evidence here is simply not sufficient to commit either defendant for the ground-floor marihuana and cocaine possession offences. On similar reasoning, I find no basis from which to conclude that it is open to a reasonable trier to infer to the requisite standard that Bromfield is a party to or joint possessor of the cocaine found in the basement.

[61] For the reasons already developed, I find that the "press", like the cash in Turner, is of no material value in the requisite sufficiency assessment. There is nothing, on the evidence before me, that elevates it from the generic to the distinctive, from prejudice to probity. Duncan J. recently addressed a similar issue in R. v. Bell, supra, at para. 10:

[T]the limited weighing referred to in [R. v. Arcuri] means no more than that the body of circumstances must be sufficiently probative to reasonably support the inference to be drawn. For example, if the description of a masked robber was that he was six feet tall, white and made his get-away in a black Toyota, evidence that the defendant possessed those characteristics would clearly be too commonplace and indefinite to support an inference that he was the robber. But if other circumstances, or even a single distinctive circumstance were added – say, the robber and the defendant both had an anchor tattoo on his arm – the totality of circumstances would be much more probative of the inference of identity and the judge on the preliminary would have to consider whether it was sufficient to meet the test for committal.

I add only that if the "press" did properly factor into the incriminatory side of the sufficiency calculus (an assessment, to be very clear, I do not endorse), its probative worth would, in my view, extend only to Smithson and only to the cocaine in the kitchen and not the marihuana in the second room on the main floor.

[62] In the result, the defendants are discharged on all counts other than those three for which they have conceded committal.

D. CONCLUSION

[63] For the reasons set out, the defendant Bromfield is committed to trial on Count 1 (possession of cocaine for the purpose of trafficking) and Count 2 (possession of criminal proceeds). The defendant Smithson is committed to trial only with respect to Count 3: possession of cocaine for the purpose of trafficking. Both defendants are discharged on all other counts.

Released on May 1, 2017

Justice Melvyn Green