WARNING

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

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

539. ORDER RESTRICTING PUBLICATION OF EVIDENCE TAKEN AT PRELIMINARY INQUIRY

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

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

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

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

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

(3) FAILURE TO COMPLY WITH ORDER

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

Court Information

Court: Ontario Court of Justice

Date: 2017-12-08

Court File No.: Brampton 3111 998 17 14443

Between:

Her Majesty the Queen

— AND —

D.H. and R.W.[1]

Before: Justice G.P. Renwick

Heard on: 04, 05, 06, 07 December

Reasons for Judgment released on: 08 December

Counsel

S. Stackhouse — counsel for the Crown

M. Luft — counsel for the defendant D.H.

B. Alvares — counsel for the defendant R.W.

Preliminary Hearing Ruling on Committal

RENWICK J.:

Introduction

[1] Last December, Tyler Edwards was shot as he rode in the rear-seat of Brandon Bunbury's car, while it was stopped in heavy traffic. The police investigated D.H. for the shooting because, among other reasons, he was known to drive a silver, 4-door BMW, which matched the general description of the suspect's vehicle.

[2] After conducting some physical surveillance of Mr. H., police believed he was living with a relative and occasionally staying with R.W. Police arrested Mr. H. in a high-risk stop of the BMW and then executed a search warrant on that car. Discovered hidden behind the interior climate control panel of the BMW was a 9mm Smith and Wesson model 915 handgun with 15 rounds of ammunition. This weapon was not traced to the shooting of Tyler Edwards.

[3] Police also obtained search warrants for an apartment that was believed to be the residence of Ms. W., as well as the home of a relative of Mr. H.'s.

[4] Inside the apartment believed to be the residence of Ms. W., police found $1055 and 14.55g of marihuana in a drawer in the master bedroom nightstand, and 8.6g of methamphetamine and 34.4g of heroin, both of which were found in an unlocked safe in a cabinet in the ensuite bathroom connected to the master bedroom. Ms. W. faces four counts in relation to these items.

[5] At the conclusion of the preliminary hearing the prosecutor did not seek committal of Mr. H. in relation to the shooting of Mr. Edwards or the drugs and alleged proceeds of crime found in the master bedroom and ensuite bathroom. Also, Mr. H. conceded his committal to stand trial for the firearm found concealed within the BMW. At issue for my determination is whether or not R.W. should stand trial for the drugs and alleged proceeds found in the apartment where she was initially detained. In these reasons I will discuss why I must commit Ms. W. to stand trial for some of these offences.

The Evidence

[6] The evidence was heard over four consecutive days. The prosecution called 17 witnesses and introduced photographs, diagrams, maps, and exhibit lists into evidence. Neither defendant made a statement, but Mr. H. called one of the lead investigators to testify. I have considered all of the evidence and the exhibits produced during this preliminary hearing, but it is not necessary to review all of the evidence, given that most of the evidence related to Mr. H. There is little contest between the parties about the evidence that pertains to Ms. W. At issue is the import of the evidence and its sufficiency. I will refer to specific pieces of evidence in the discussion below.

The Law

[7] In this part, I will discuss my role as a preliminary hearing justice and the test for committal upon these offences.

[8] In order to commit Ms. W. to stand trial for these offences, I have to be satisfied that there is some evidence on each element of all offences, upon which a properly instructed jury could reasonably rely to find the defendant guilty of these crimes beyond a reasonable doubt.

[9] The two essential elements of the offence of possession are knowledge of the presence of the item and control over the item. Possession can involve actual (or personal) possession, constructive possession, or joint possession of the item by more than one person, with the other's consent.

[10] Actual possession means physical custody of something on one's person or within one's immediate possessions. Constructive possession exists where an item is not physically on the person, but nonetheless the person has knowledge of where the item is kept and has an ability to access and control the possession of the item. Joint possession involves knowledge of the existence and location of an item by more than person, or possession of the item by one person on behalf of another person or persons.

[11] In consideration of all of the evidence before me, this case does not involve actual or joint possession. Instead, the prosecution asserts that because Ms. W. is in possession of her apartment she can be inferred to have knowledge of and control over the contents of her master bedroom and bathroom.

[12] Control over an item will not generally be inferred from mere knowledge of the existence or location of an item. Rather, control exists where there is a measure of access and authority to restrict or permit access, or to direct or restrain the use of the item. The Crown submits that if I find that Ms. W. was found inside her own residence it would be reasonable to infer that she had knowledge of and control over the items found in her bedroom and the ensuite bathroom. I accept the soundness of this logic.

[13] The defendant relies upon the analysis of the Ontario Court of Appeal in R. v. Turner, 2012 ONCA 570, for the standard of evidence sufficiency at a preliminary hearing. The evidence before the court in Turner was similar to the situation in which Ms. W. was found. In that case, the preliminary hearing justice found that the evidence was insufficient to establish that the defendant was in possession of a firearm found in the closet of the bedroom where he was arrested in the early morning hours. The Court of Appeal reversed the prerogative application judge and affirmed that finding. As will be seen below, I have come to a different conclusion in this case.

[14] In my role as the trier of inference, the law is clear that my jurisdiction includes:

i. Assessing the whole of the admissible evidence;

ii. Considering the sufficiency of the evidence; determining if there is some evidence, even if only a scintilla exists, on each essential element for each offence alleged;

iii. Considering only the inferences favourable to the prosecution, regardless of other reasonable inferences which could exculpate the defendant;

iv. Performing a limited weighing of the evidence to determine whether the inferences sought by the prosecution are reasonable;

v. Refraining from speculating or making educated guesses on the basis of the evidence; and

vi. Employing common sense and human experience in considering the whole of the evidence rather than isolating individual pieces of evidence from a greater context.

[15] It is trite to note that I need not actually draw factual inferences nor determine credibility or the inherent reliability of evidence in my limited role as a preliminary hearing justice: see R. v. Arcuri, 2001 SCC 54, at paragraphs 23, 30, and 33, and R. v. Kamermans, 2016 ONCA 117, at para. 15.

[16] In order to commit Ms. W. to stand trial for these offences, I have to be satisfied that there is some evidence of each element of each charge, which if believed, would satisfy a properly instructed jury, acting reasonably, of the defendant's guilt beyond a reasonable doubt.[2]

[17] The sole issue in this case is whether there is some evidence, which if believed, could satisfy a jury beyond a reasonable doubt that Ms. W. possessed the drugs and proceeds of crime found in the nightstand and bathroom cabinet of the apartment where she was detained during the execution of the search warrant.

Discussion

[18] There is no direct evidence that Ms. W. possessed the contraband found by the police. I am also aware that there is no forensic evidence linking the defendant to the drugs or money recovered, such as DNA or fingerprints. Nor was there any mail, documents with Ms. W.'s address, or keys to the apartment discovered by the police.

[19] The prosecutor urges me to infer that the defendant's presence, her photographs and passport within the master bedroom, and a small child with her all help to establish her residency in that apartment. While I disagree with the majority of the inferences sought by the prosecution there is at least one reasonable inference which is indisputable and tips the scales in favour of committal to stand trial, but just barely.

[20] The Crown referred to photographs of the ensuite bathroom which reveal toiletries, makeup, and an undergarment that would be used or worn by an adult woman. I have no evidence of the size of the undergarment in relation to Ms. W. Photographs of the bathroom also revealed a child's toothbrush near the sink. On the whole, in isolation, I find this evidence to be unhelpful in establishing who regularly uses this ensuite bathroom.

[21] The Crown suggested that the promise to appear and undertaking which is part of the paperwork attached to the Information provides circumstantial proof that Ms. W. resided at the apartment searched by the police. These are documents authored by the investigators being relied upon for a hearsay purpose. Unfortunately, I have no admissible evidence to support why the investigators believed that Ms. W. actually resided there. Her mere presence during the execution of the warrant is insufficient to establish this.

[22] In fact, the police executed the search warrant at some time around 11:30 am. This time is not so early that a trier of fact could reasonably infer that Ms. W. had spent the night in this apartment. The hearsay documents cannot be used to support the sought after inference without an admissibility application, which was not brought.

[23] The prosecution suggested that the photographs found on the nightstand should suffice to suggest that Ms. W. not only lived there but used the master bedroom for herself. Accepting for a moment that the photographs included images of Ms. W., which is far from certain (in one photograph for instance, two adult women are depicted), again, this does not necessarily imply occupancy or residency. And while I am aware that I cannot consider alternative or competing reasonable inferences, it is not clear to me that Ms. W. is captured in one or both of the photographs on the nightstand.

[24] The location of Ms. W.'s Canadian passport, which is valid until 2024, is a significant piece of circumstantial evidence supportive of an inference of her possible presence in the master bedroom and occupancy in that apartment. The passport was issued in 2014 and although there is no indication of how long it has been in the master bedroom nightstand, or how it got there, I find that a passport is a very significant piece of personal identification, which is not generally carried on one's person on a regular basis. Her passport is not like the driver's license in Turner, because it is a reasonable inference that Ms. W. stores her passport in her home. The location of the passport in the master bedroom, rather than one of the other bedrooms in the apartment makes it reasonable to infer Ms. W.'s use of the master bedroom. The female undergarment and makeup in the ensuite washroom take on a different significance in combination with the passport in the master bedroom. Cumulatively, I find that it is a reasonable inference that Ms. W. resides in this apartment and uses the master bedroom and ensuite bathroom.

[25] The prosecutor also urges me to find that Ms. W.'s silence and refusal to open the door for the police is evidence supportive of her consciousness of guilt. I agree that this piece of evidence could lead to an inference that Ms. W. did not want to assist or speak to the police. It is an unusual reaction that begs for an explanation. Again, were it not for the evidence of her passport in the master bedroom and personal effects that appear to belong to Ms. W. in the ensuite bathroom, this fact would have almost no inferential force. However, in light of the other evidence, it is reasonable to infer that Ms. W. did not want to speak to the police because she is aware of the drugs which were found in her home.

[26] There are inferences sought with respect to the money, the scales and some powder that the police believed is used for cutting the drugs or adding to their volume, for the purposes of trafficking. There was no expert evidence lead to interpret the significance of these other items or the quantity of the drugs seized. In respect of count 1, the Crown concedes that if I find that a jury might reasonably find that Ms. W. was in possession of the marihuana found in the nightstand, the defendant should only be committed to stand trial for simple possession.

[27] As a person who does not consume illegal drugs, I can make no findings about the quantities of the drugs. However, one reasonable inference from the presence of two digital scales found with the drugs, in a safe, is that these items are valuable. Another reasonable inference is that the scales are used to determine the exact quantities of the drugs. This would be important for both the buyer, or user, and a potential seller. On the basis of the presence of the two digital scales and the safe, I am prepared to find that a jury could well conclude that these drugs were possessed for the purpose of trafficking.

[28] As a final observation, I note that the money found near the marihuana was not in such a quantity, nor in a location proximate to the drugs possibly possessed for the purpose of trafficking to suggest its origin as proceeds of crime.

Conclusion

[29] For the reasons provided above, I am discharging R.W. on count 4 (possession of proceeds of crime). Ms. W. you are committed to stand trial on count 1 (possession of marihuana), count 2 (possession of methamphetamine for the purpose of trafficking), and count 3 (possession of heroin for the purpose of trafficking) on the replacement Information.

Released: 08 December 2017

Justice G. Paul Renwick

[1] Pursuant to s. 539 of the Criminal Code, there is a publication ban on these proceedings which survives these reasons in respect of both defendants.

[2] See Turner, supra, at paras. 16-17.