Court Information

Ontario Court of Justice

Date: 2017-06-02

Court File No.: Brampton 3111 998 16 1825

Parties

Between:

Her Majesty the Queen

— AND —

Kamaljit Singh

Judicial Officer and Counsel

Before: Justice G. Paul Renwick

Heard on: 29 May 2017

Reasons for Judgment released on: 02 June 2017

Counsel:

• D. Quayat, counsel for the Public Prosecution Service of Canada
• The defendant, Kamaljit Singh, on his own behalf

RENWICK J.:

INTRODUCTION

[1] The defendant, Mr. Kamaljit Singh, is charged with possession of opium and methamphetamine, both of which are a Schedule I substance, contrary to the Controlled Drugs and Substances Act.

[2] Essentially, the allegations are that a motor vehicle owned and operated by Mr. Singh was stopped by police for the purposes of ascertaining his sobriety. During their interaction with the defendant, two police officers observed a brown tar-like substance wrapped in clear plastic in the centre console cup-holder beside the driver. Police believed that the substance was opium, and immediately had the defendant exit his car so that he could be arrested for possession of a Schedule I substance. During a search of the automobile incident to arrest, police discovered in a light above the sun visor on the driver's side a plastic bag containing more of the brown substance, a green post-it note with a white, powdery, crystal-like substance, along with a straw, a lighter, tin-foil, and a clear plastic bag. The brown substance and the white powder were sent to Health Canada for testing and were found to be opium and methamphetamine, respectively.

[3] The defendant testified on his own behalf. He denied knowledge of the items found in his car. The defendant believes that one of his employees may have left the items that were found. When the defendant confronted his staff about anything left in his car nobody came forward. No other witnesses were called to testify by the defendant.

[4] The only issue for my determination is whether or not the prosecution has proven beyond a reasonable doubt that the defendant was in possession of opium and methamphetamine.

ANALYSIS

[5] In order to find Mr. Singh guilty of these offences I have to be satisfied beyond a reasonable doubt of the following three things:

i. Mr. Singh was in possession of the brown substance and the white powdery substance found by the police;

ii. The substances found by the police are opium and methamphetamine; and

iii. Mr. Singh knew that the substances were opium and methamphetamine.

The Evidence

[6] The evidence of police constables Statham and Thompson was admitted without challenge. Neither officer was cross-examined by the defendant.

[7] Just after 10:00 p.m. on 05 January 2016, the police observed a white Lexus motor vehicle operating northbound, ahead of their police vehicle, on Torbram Road, in Mississauga. At times, the vehicle seemed to be moving slower than the posted speed limit and close to the dotted lines separating the two northbound lanes. Officer Thompson decided to pull over the motorist to check on the driver's level of sobriety.

[8] Police quickly learned that the driver, who was the defendant, was not intoxicated, but merely tired. Within two minutes of approaching the driver, both officers noticed a brown tar-like substance in a clear plastic wrapping in the cup-holder located in the centre console beside the driver. Each officer believed that the substance was opium and the defendant was told to get out of his car, at which point he was immediately arrested.

[9] Officer Statham advised the defendant of the reason for his arrest and the officer provided the defendant with his rights to counsel and caution. The defendant was handcuffed and placed into the unmarked police cruiser. During this time, Constable Thompson was searching the defendant's Lexus incident to the arrest.

[10] While searching the defendant's car Constable Thompson found more substances which he believed were drugs and drug paraphernalia secreted in the area of the light above the driver's side sun visor.

[11] Subsequently, at the police station, Constable Statham weighed the suspicious substances and deposited them into the repository for items to be tested by Health Canada. Exhibit 2 included the Certificate of Analysis received from Health Canada. The brown tar-like substance was analysed and it is opium. Likewise, Exhibit 4 included the Certificate of Analysis in respect of the white crystal-like substance. That white powdery substance is methamphetamine.

[12] The defendant testified on his own behalf. The entirety of his evidence in chief is as follows:

• whatever was found in the vehicle;
• the officer testified himself that the vehicle was clean, neat;
• I have a small metal shop in Mississauga;
• to get painting or whatever done, I have four or five people working there, I assign it to any one of them and send it;
• I don't know if one of them placed it [the drugs and paraphernalia] there;
• I went the following day and asked them, I didn't tell that them that I was arrested by the police, but I told them that I found some things in the vehicle, and none of them accepted that that was theirs;
• I don't know what to say;
• the same policeman already followed me three times;
• he checked my vehicle even afterwards, same police officer, Adam [Thompson];
• there was nothing in my car;
• that's all I can say;
• I didn't have any knowledge about that;
• this is just being forced on me; and
• I do accept that the vehicle is mine.

[13] In cross examination the defendant was asked whether he noticed the opium found in the cup-holder in the centre console. The defendant testified that it was late, he was stopped about one kilometre from his business and he was tired and did not notice the (thumb-nail sized) item. He concluded his evidence by saying "the vehicle was mine, that's the mistake, I agree."

[14] I also note that the suggestion that one or both of these police officers had stopped Mr. Singh either before or subsequent to the events on 05 January 2016 was never put to the prosecution witnesses by the defendant, but there is some support for this part of the defendant's evidence. Constable Statham testified in chief that he had met Mr. Singh before and he was comfortable with him. In contrast to this evidence, Constable Thompson testified in chief that he did not recall ever dealing with the defendant before this date. Regardless, I do not believe that the police were mistaken or misleading the Court when they testified to having seen and found the drugs which were recovered from the defendant's car that night. If it was the defendant's intention to float the possibility of police impropriety by that part of his evidence, I am completely unpersuaded by it.

Credibility

[15] This case raises the issue of credibility. In saying that, I recognize that I cannot decide this case as if it were simply a contest of competing versions of events where I am permitted to prefer one version over the other. That is never permissible for a trier of fact because it ignores the presumption of innocence and the unending burden upon the prosecution to prove the offences charged beyond a reasonable doubt. In fact, even if I totally reject the defendant's evidence, I must acquit him unless I am not left with a reasonable doubt about his guilt based upon the evidence I do accept.

[16] Nonetheless, in this case, I do not necessarily have to decide the credibility of the prosecution's witnesses, because this is not an all or nothing, if one side is true the other must be untrue, type of case. The evidence of the defendant and the police witnesses can co-exist. Theoretically, it is possible that both sets of evidence are true. Moving from what is theoretically possible to what happened in this case, I must decide which, if any, evidence I believe, and determine whether or not I am satisfied beyond a reasonable doubt that these offences were committed by the defendant.

[17] As a starting proposition, I accept the prosecution's evidence without hesitation. There was nothing in the evidence for either side which gives me reason to question or doubt the officers' evidence. I am completely satisfied that the drugs and related items the police found were in the defendant's car in the places where they were discovered.

[18] However, if I believe the evidence of the defendant, I must acquit him. As well, even if I do not believe the defendant's evidence but I am left in a reasonable doubt by it, I must acquit him. Lastly, even if I am not left in doubt by the evidence of the defendant, I must ask whether, on the basis of the evidence I do accept, I am convinced by the evidence of the defendant's guilt beyond a reasonable doubt.

[19] To be clear, I have difficulty accepting the evidence of the defendant. It seems unlikely that somebody using his car for a brief period of time would go to the effort to hide drugs and related items within the lighting above the driver's sun-visor, and also leave some opium in a cup-holder in plain sight.

[20] It makes no sense to hide contraband in a motor vehicle unless there was certainty that the drugs could be accessed whenever they were needed. Hiding drugs in a car makes the most sense for someone with unlimited access to that car. This is also the case because in addition to their extrinsic (market) value, drugs also have intrinsic value to their user, and especially, if the person is addicted to the substance.

[21] Relying on common sense, I am satisfied that it is much more likely the case that the defendant is the one who possessed the opium and left it in the cup-holder beside him as he drove. However, that is not the end of the matter. A finding that the defendant likely or even very likely put the opium in the cup-holder is not enough to support a conviction. Wrongful convictions are built upon this type of foundation.

[22] After hearing the defendant testify, reviewing my notes, and replaying the digital recording of the defendant's evidence, I cannot say that I completely reject his evidence as untrue. The defendant's denials are definitely implausible, but his state of unknowing is not impossible. There was nothing in the defendant's evidence which leads me to conclude that he is lying. I suspect it, but this is merely the hallmark of reasonable doubt, and I acknowledge its presence in this case.

CONCLUSION

[23] Accordingly, and despite my suspicions, I have a reasonable doubt about the defendant's guilt of these offences and Kamaljit Singh is acquitted of both counts.

[24] Mr. Quayat is to be commended for the fairness of his conduct during this trial.

Released: 02 June 2017

Justice G. Paul Renwick