Court File and Parties

Ontario Court of Justice

Date: January 23, 2017

Court File No.: Newmarket 4911-998-15-04037-01/02

Between:

Her Majesty the Queen

— and —

Michael Lewis & Savannah Young

Before: Justice John McInnes

Heard on: November 21, 22, 28, 29 and December 20, 2016

Reasons for Judgment released on: January 23, 2017

Counsel

Brian McCallion — counsel for the Crown

Susan Von Achten — counsel for the accused Michael Lewis

Daisy Bygrave — counsel for the accused Savannah Young

Judgment

McINNES J.:

[1] Introduction

[1] Michael Lewis and Savannah Young were charged with possessing marihuana, cocaine, methamphetamine and ketamine for the purpose of trafficking. On December 20, 2016, following their preliminary inquiry, I discharged both accused on all four counts. I gave a brief oral summary of my reasons at that time and indicated full written reasons would follow. These are my reasons.

I. The Evidence

[2] The issue in this case is whether there was sufficient evidence that the accused possessed the controlled substances to warrant committing them to stand trial. The evidence of possession was entirely circumstantial. The investigating police officers unexpectedly discovered the controlled substances when executing a search warrant at townhouse Unit 68, 3950 Erin Centre Blvd. in Mississauga ("Unit 68") on May 17, 2015. They were searching Unit 68 in response to a report they received from a man named Zhen Song who told them he had been abducted and held captive there until he managed to escape on May 15. The warrant authorized the investigators to search for various personal items belonging to Mr. Song as well as items used in the alleged kidnapping.

[3] The police did not know who, if anyone, lived in Unit 68 before the search. Neither accused was a target of the investigation and it was not a drug investigation in any case. Police were given information from Mr. Song that two black men abducted him at gunpoint on May 14 and took him to a house where he was bound with duct tape and held captive by two Asian, two white and two black men. The next day, all but one of the captors left the house and Song managed to escape and obtain assistance from Robert Beale who lived in Unit 80 within the same townhouse complex. Police later identified the specific unit where Mr. Song had been held by tracking his cellphone which was left behind when he escaped.

[4] A Peel Regional Police tactical team entered Unit 68 first and found no one inside. Forensic identification officers then entered and photographed and marked certain plainly visible evidence in situ before the investigators came in to complete the search. They found the townhome in a messy state, "as if it had been left in a hurry", as one of them testified. On the main floor there was a kitchen and living area. Upstairs there were three bedrooms including a master bedroom. The basement was a finished rec-room with a sliding door walkout to the backyard.

[5] Food containers, pop cans and similar detritus were spread across much of the kitchen counter space. Clear bags containing cocaine, methamphetamine and ketamine were found in plain view on the adjoining breakfast counter space next to some mail which included an unopened letter addressed to Michael Lewis. A fourth bag containing a large quantity of marihuana was found on a chair immediately next to the breakfast counter.

[6] Mr. Lewis and Ms. Young became suspects after several documents in their name were found during the search of the master bedroom and a photograph of them together with a child was found on a shelf in the living room. The investigators also found identification belonging to various other persons who were never identified or otherwise linked to the case by any evidence before me; they also found several items such as duct tape whose presence was consistent with Mr. Song's account. In total, the search uncovered the following evidence:

In a Shoebox in the Master Bedroom Walk-in Closet

• a Canadian passport in the name of Michael Quentin Lewis;
• a MasterCard in the name of Savannah Young;
• a SIN card in the name of Sage Renee Lynn Cosby;
• two Ontario birth certificates in the names of Savannah Rae-Lynn Young and Sariyah Isabella Lorna Lewis, respectively, located in the same plastic cover.

In the "Male Sock Drawer" in the Master Bedroom

• three Ontario Provincial Offences Act tickets and a "letter of conviction", all in name of Michael Lewis;

In the "Female Sock Drawer" in the Master Bedroom

• a Canadian passport in the name of Ercolani Maurizio;

In the Living Room

• a blue Prada wallet containing identification and credit cards in Mr. Song's name (i.e. the alleged victim of the abduction);
• a Quebec Health Card in the name of Lin Yang;
• a framed portrait-style photograph of Michael Lewis, Savannah Young and a small child;

On the Breakfast Counter

• a set of keys to a Honda vehicle;
• a white iPhone;
• three bags containing white powder (which turned out to be methamphetamine, cocaine and ketamine);
• an unopened letter addressed to Michael Lewis laying on top of other mail and obscuring the addressee(s);
• three clear bags containing white powder (which turned out to be methamphetamine, cocaine and ketamine);
• a clear bag containing marihuana (on the chair right next to the breakfast counter);

In the Basement

• pieces of duct tape;
• a small bag of marihuana and some roaches;
• a balaclava (found just outside the sliding door).

[7] Chiyan Tsang testified she owned Unit 68 and rented it out for a 12 month period commencing October 1, 2014 to two individuals who identified themselves as Michael Lewis and Consuela Lewis on the lease agreement. The rental was organized through real estate agents Ms. Tsang had no contact with them then or during the subsequent tenancy. She was given post-dated rent cheques embossed with the account-holder name "Michael Lewis". Her mother, who did not testify, picked the cheques up from the new tenants and gave them to her. Ms. Tsang never met Michael Lewis and did not recognize him in court.

[8] She was able to identify Savannah Young as the person she briefly met in Unit 68 a short time after the May 17 search. Ms. Tsang's understanding was that Unit 68 was unoccupied after the search. A woman who later identified herself as Consuela Lewis arranged to meet her at Unit 68 to negotiate early termination of the lease and payment for damage to the front door caused by the tactical team during entry. They met outside and entered Unit 68 together. A short time later Savannah Young arrived. She said hello but did not participate in their discussion. She stayed for about an hour and left. Ms. Tsang testified she understood Ms. Young had been one of the tenants in Unit 68 and that Consuela Lewis was Michael Lewis' sister but no corresponding admissible evidence was led.

[9] The Crown led no evidence of either accused's whereabouts before, on or after May 17, 2015 or otherwise linking them to the controlled substances.

[10] While waiting to enter Unit 68 with the other investigators Constable LaCroix, spoke to a man who refused to identify himself but advised the officer that he lived in the complex and had seen a black van pull up to Unit 68 two days earlier, i.e. on Friday May 15. A black male who "was not the father of the child who lived there" hurriedly exited the van and ran into the house. A moment later the same man returned to the van and spoke to the driver for a moment before getting back in the van which then sped away.

[11] Robert Beale testified that as a member of the condo board for 3950 Erin Centre Blvd., he knew Unit 68 was a rental unit and that the occupants kept a low profile. He had never seen them and recalled that when he knocked on their door while canvassing for the condo board election no one answered the door although he did see someone inside furtively glancing at him through a window blind which was then hastily shut. Mr. Beale recognized neither accused in court.

II. Issues and Positions of the Parties

[12] The Crown invites me to commit the accused on four counts of possession simpliciter as there was no evidence relating the quantities of the seized drugs to the purpose of trafficking. The defence concedes the evidence regarding the nature of the substances is sufficient for committal. The only contested issue is whether the evidence of possession is sufficient for committal.

[13] Crown counsel acknowledges the evidence of possession is entirely circumstantial. He submits that a jury could reasonably infer from the presence of the various documents in the accused's names, the portrait photograph of them and a child, the letter addressed to Michael Lewis and Ms. Tsang's evidence that they both lived in, or had control over, Unit 68 and therefore must have had knowledge of and control over the four clear bags of drugs the police found sitting out on the breakfast counter and chair in conspicuously plain view.

[14] Defence counsel both emphasize the absence of evidence of Mr. Lewis' and Ms. Young's whereabouts in the days preceding the search or that otherwise links them to the controlled substances. They argue that the Crown's case perhaps establishes that each of them had spent time there and at least one of them likely lived there after the lease began in October, 2014 but permits no conclusion about their joint and several status there "on or about May 17", i.e. the timeframe in which the Crown alleges they were in possession of the controlled substances. Consequently, the inference they had knowledge and control would be speculative.

III. Analysis

[15] Section 548(1) of the Criminal Code requires me to commit if in my opinion there is "sufficient evidence to put the accused on trial for the offence charged". The phrase "sufficient evidence" means "any evidence upon which a reasonable jury properly instructed could return a verdict of guilty" or, put another way, if "there is admissible evidence which could, if it were believed, result in a conviction": United States of America v Shephard, [1977] 2 SCR 1067 at p.1080; R v Arcuri, 2001 SCC 54 at para. 21.

[16] The Shephard standard must be met with respect to every element of the alleged offence. Here, the only disputed element is "possession" which is defined in s.4(3) of the Criminal Code:

4(3) For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or 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 ...

[17] The Crown submits that the accused were either in personal possession [s.4(3)(a)] or constructive possession [s.4(3)(a)(ii)] of the controlled substances "on or about" the date of the search, May 17, 2015.

[18] For personal possession, "the accused must be aware that he or she has physical custody of the thing in question, and must be aware as well of what that thing is. Both elements must co-exist with an act of control": R v Morelli, 2010 SCC 8, [2010] 1 SCR 253 at para. 16. Since neither accused had "custody" of the controlled substances at the time of the search, the alleged physical custody must have occurred at an earlier point in time "on or about" May 17.

[19] Constructive possession "is…complete where the accused: (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": Morelli, para.17.

[20] The terms "knowledge" and "control" are essential elements common to both personal and constructive possession: Morelli, para.15. They serve as useful shorthand for the fuller exposition of personal and constructive possession set out in Morelli.

[21] As this is a circumstantial case I must determine whether knowledge and control "may reasonably be inferred from the circumstantial evidence". This determination entails "a limited weighing of the evidence" to bridge the "inferential gap between the evidence and the matter to be established…beyond the question of whether the evidence should be believed": Arcuri, para. 23. I am mindful that I must assess sufficiency in relation to each accused individually.

[22] I agree with the Crown that s.548(1) contemplates an assessment of evidential sufficiency and nothing more; I must not draw factual inferences, choose between competing inferences, assess credibility or consider the inherent reliability of the evidence itself. Instead, I must assume a jury would resolve every factual issue in favour of the Crown and then determine whether the evidence viewed in that light "could reasonably support an inference of guilt", i.e. an inference that one or both accused had the requisite knowledge and control to establish the element of possession: Arcuri, paras. 23 and 30.

[23] However, Crown counsel further submits that if one "reasonable interpretation" of the circumstantial evidence is that the accused had knowledge and control then there is "some evidence" of possession and I must commit, even if the contrary interpretation is equally plausible. Because I may not choose between competing inferences, moreover, I could only discharge the accused if the evidence supporting innocence were so "overwhelming" that a reasonable and properly instructed jury could not convict.

[24] While certain language in the jurisprudence may seem to support this interpretation of the Arcuri test, in my respectful view it is untenable because it ignores the crucial distinction between inferring guilt and inferring a subsidiary fact. The former requires proof beyond a reasonable doubt whereas the latter does not engage any particular standard of proof: R v Quidley, 2008 ONCA 501.

[25] In the present case, for example, a jury could compare the signature on the lease agreement with the one in Mr. Lewis' passport and infer from their apparent similarity that it is very likely the same person signed both: R v Abdi, 116 CCC (3d) 385 (Ont. C.A.), paras. 22 to 26. Another jury conducting the same comparison might be less confident about the similarity and decline to draw that inference. Neither jury, if properly instructed, would apply the reasonable doubt standard in making the determination: R v Rodgerson, 2015 SCC 38, [2015] 2 SCR 760 at para.23; R v Miller, [1991] OJ 2010, 68 CCC (3d) 517 (CA), paras. 66 to 73; R v Morin, [1988] 2 SCR 345 at pp.210 to 211. It is certainly true that I must resolve all competing inferences of that nature in the Crown's favour.

[26] In contrast, a jury cannot infer a fact constituting an element of the offence unless satisfied that fact has been proven beyond a reasonable doubt. My task is to ensure "there is evidence in the record upon which a properly instructed jury could rationally conclude that the accused is guilty beyond a reasonable doubt": R v Fontaine, 2004 SCC 27, [2004] 1 SCR 702, para. 53 [emphasis in original]. Writing for the full bench in Fontaine, Fish J. also cited with approval the following elaboration of this point in R v Charemski, [1998] 1 SCR 679, per McLachlin J. (as she then was), dissenting on other grounds, para. 35:

... "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. [Emphasis added by Fish J.]

Fontaine, para. 50; see also, paras. 51-53.

[27] As the Supreme Court recently re-affirmed in R v Villaroman, 2016 SCC 33, a jury cannot infer guilt beyond a reasonable doubt on the basis of circumstantial evidence unless it is satisfied that guilt is the only reasonable inference to be drawn on the evidence. Accordingly, I cannot commit the accused for trial unless in my opinion a "trier of fact, acting judicially, could reasonably be satisfied that the accused's guilt was the only reasonable conclusion available on the totality of the evidence": Villaroman, paras. 26 to 30, 56; R v Biggs, 2016 ONCA 910, para. 17. It follows that I must consider the viability of alternative conclusions as part of the "limited weighing" exercise.

[28] With these principles in mind I now turn to the evidence. I have examined the signature on the lease agreement [Exhibit #1], the signature and photograph in the passport that police found in the shoebox in the closet of the master bedroom [Exhibit #3] and the family photograph found on the living room shelf [Exhibit 5j]. At the time Exhibits 3 and 5j were entered I compared the images therein to Mr. Lewis, and in the case of Exhibit 5j, to Ms. Young, who were both present in court. Defence counsel conceded these photographs were of their clients.

[29] In my opinion a jury could conclude beyond a reasonable doubt based on those particular exhibits, the other seized items bearing the name of one or the other accused and the evidence of Chiyan Tsang, that:

• the accused Michael Lewis and the person whose picture is displayed in the passport and family photo are the same person: R v Nikolovski, [1996] 3 S.C.R. 1197 [defence counsel conceded this point for the purpose of the preliminary inquiry];

• the signatures in the passport and lease agreement were written by the same person, the accused Michael Lewis: Abdi, supra at paras. 22 to 26; and consequently,

• Mr. Lewis and Ms. Young resided at Unit 68 for some period of time after October 1, 2014.

[30] In my view, however, the evidence could not support the further inference that on or about May 17, 2015 one or both accused had knowledge of and a measure of control over the controlled substances.

[31] Before explaining that conclusion, I pause to address the evidence pertaining to the alleged abduction of Mr. Song that came in through his out-of-court utterances and the comment the unidentified neighbour made to Constable LaCroix. Defence counsel urged me to rely on this evidence because if true it would establish that several people other than the accused were involved in serious criminal activity in Unit 68 in the days preceding the search. Seized items pertaining to the alleged kidnapping, including Mr. Song's iPhone, were found in close proximity to the controlled substances. A jury might well infer that the drugs likely belonged to one or more of the alleged kidnappers. Since the kidnappers were all male, according to Mr. Song, and the neighbour's comment all but excludes Mr. Lewis as one of them, a jury would all but certainly find the accused not guilty.

[32] While I agree with defence counsel that this evidence would likely have an exculpatory effect, I see no basis for admitting it under any categorical or principled exception to the hearsay rule. Consequently, I have disregarded it entirely in my assessment of the sufficiency of the Crown's case.

[33] I thus agree with Crown counsel that the specific positive inference that the drugs belonged to the kidnappers would be speculative on this record. On the other hand, given the paucity of evidence implicating the accused a reasonable jury could not fail to conclude that there are many reasonably possible explanations for the presence of the drugs in Unit 68 that do not involve the accused. Unlike a specific positive inference, "a reasonable doubt, or theory alternative to guilt, is not rendered 'speculative' by the mere fact that it arises from a lack of evidence"; indeed, in determining whether to infer guilt from circumstantial evidence a jury "should consider 'other plausible theor[ies]' and 'other reasonable possibilities' which are inconsistent with guilt": Villaroman at paras. 36 to 37. The inference that someone other than the accused brought the drugs there without their knowledge or control is "reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense": Villaroman, para. 36.

[34] R v Allison, 2016 ONSC 3073 is illustrative. In that case, police found the accused alone in an apartment after having seen him enter with a key several hours earlier. Cocaine and a firearm were found in a pink bin beside a makeshift bed. A small black box containing the accused's birth certificate, passport and health card was also found in the pink bin and a smaller quantity of cocaine and a scale were found in plain view. The accused was discharged by the preliminary inquiry justice who noted there had been no surveillance between the time Mr. Allison was seen entering with the key and the execution of the warrant hours later. Moore J. also noted the absence of evidence such as fingerprints or a statement to shed light on Mr. Allison's connection to the apartment.

[35] Trotter J. (as he then was) dismissed the Crown's subsequent application for prerogative relief. He noted the Crown had "relied heavily on Mr. Allison's occupancy in the Apt. 611" but that "standing alone, occupancy is generally insufficient to establish knowledge". Trotter J. then elaborated:

Mr. Allison was seen entering the apartment with a key earlier in the day. He was there when the warrant was executed. Whether Mr. Allison had stayed in the apartment in the interim is a matter of speculation. It was unknown whether he had ever been there before. And while Mr. Allison's possession of a key earlier in the day is an interesting piece of evidence, without more, it too can only give rise to speculation.

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 [citation omitted]. But his conclusion rests on a string of inferential leaps [citation omitted]. 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).

Allison, supra at paras. 18 and 19; see also, R v Grey, 28 OR (3d) 417 (CA), paras. 16 and 22; R v Savoury, [2008] OJ 2896 (SCJ).

[36] The evidence of knowledge and control in the present case is, if anything, weaker than the evidence in Allison. Instead of a surveillance gap of hours we have no surveillance at all or, for that matter, any evidence as to the accused's whereabouts in the 229 days between the date the lease commenced and the date of the search. Perhaps one or both of them moved out days, weeks or months before May 17 but left behind some belongings. Perhaps one or both of them was on vacation in the days preceding May 17, or in hospital, or incarcerated or at an out-of-town funeral. Perhaps another occupant of Unit 68 brought the drugs there without the accused's knowledge and/or control or allowed others to. The list of such possibilities is endless.

[37] The Crown relied heavily on the presence of the letter addressed to Michael Lewis found on the counter very near the three bags containing the white powdery substances. I note that this letter sits atop other mail such that it obscures the addressees on the letters beneath. One of the other pieces of mail had been opened and appears to be a bill. The letter addressed to Mr. Lewis has not been opened. Since it is clear Mr. Lewis lived in Unit 68 at some point and had some belongings there I do not see how an unopened letter on the breakfast counter adds much weight to the Crown's case. We have no idea who picked up the mail or put it there. If anything, the fact the letter was unopened whereas at least one other piece of mail had been opened weakens the inference that Mr. Lewis put it there. Even if he did put it there, it may have been hours or days before the drugs were put there.

[38] I appreciate that the Crown is not required to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused": R v Bagshaw, [1972] SCR 2, at p. 8. But the evidence must be capable of disproving plausible and reasonable theories inconsistent with guilt that arise "based on logic and experience applied to the evidence or the absence of evidence, not on speculation": Villaroman, para. 37 [emphasis added].

[39] I also acknowledge that the presence of documents in a residence can sometimes be sufficient proof of knowledge and control for conviction: R v Emes, [1999] OJ 1311 (Gen. Div.), affd, [2001] OJ 2469, 157 CCC (3d) 124 (CA). As Hill J. noted in Emes, however, in general "the existence of the papers at the location in question could be as a result of the documents being stolen, or simply stored there, or abandoned". The sheer volume of documents in that case including "documents relating to the subject matter of marihuana cultivation…found in close proximity to those personal papers identifying [the accused]" as well as extrinsic evidence of occupation led Hill J. to conclude that "such explanations do not…accord with the factual probabilities of the circumstances". The richness of the documentary evidence in Emes is in stark contrast to the handful of documents found in this case which, I note, were found alongside identification documents belonging to other unknown persons.

[40] In my opinion, it cannot be said the inference the accused had knowledge and a measure of control is the only reasonable inference to be drawn from the whole of the evidence adduced at this preliminary inquiry even taken at its highest in favour of the Crown. Consequently, a reasonable and properly instructed jury could not convict on the whole of the evidence and I must discharge both accused on all counts.

Disposition

Released: January 23, 2017

Signed: "Justice John McInnes"

Footnotes

[i] At the outset of the preliminary inquiry I made a non-publication and non-broadcast Order pursuant to subsection 539(1) of the Criminal Code. That order fell out of effect at the time I discharged the accused: s.539(1)(c).

[ii] Both accused were also originally charged with kidnapping in relation to this alleged incident. The Crown did not proceed on that count because no Cantonese interpreter could be made available before the completion of the preliminary inquiry and, consequently, the Crown was unable to call Mr. Song as a witness.

[iii] When Cst. Rapson testified on November 21 he identified this document from his notes as a birth certificate in the name of Savannah Rae-Lynn Young. The next day when shown the document for the purpose of having it entered as an exhibit Cst. Rapson identified it as a birth certificate in the name of Sariyah Isabella Lorna Lewis. I have examined the item and determined it is a plastic cover containing two separate birth certificates in the two names the officer identified at separate points in his testimony.

[iv] The witness was not specifically asked if he recognized the defendants in court but did testify in cross-examination that he recognized none of the people entering and leaving the courtroom over the course of the several hours he spent on the bench outside court waiting to testify.

[v] Ms. Von Achten initially suggested that a continuity gap in the handling and marking of the drug evidence left the evidence of the nature of the substances insufficient but she ultimately abandoned that point.

[vi] A recent example is para. 24 of R v Wilson, 2016 ONCA 235:

Any reasonable interpretation or permissible inference from the evidence, beyond conjecture or speculation, is to be resolved in the prosecution's favour. At the preliminary inquiry stage, if more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered: R v Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18. To weigh competing inferences is to usurp the function of the trier of fact: R v Clarke, 159 O.A.C. 221, at para. 4. [emphasis added]