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make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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

Ontario Court of Justice

Date: 2018-07-27

Toronto Region – Old City Hall

Court File No.: 17-15006721

Parties

Between:

Her Majesty the Queen

— AND —

Herald Ricky Taylor

Judicial Officer and Counsel

Before: Justice H. Pringle

Heard on: July 4, 2018

Reasons for Judgment released on: July 27, 2018

Counsel:

• Xenia Proestos — counsel for the Crown
• Ariel Herscovitch — counsel for the accused Herald Taylor

PRINGLE J.:

Evidentiary Overview

[1] For three days the residence at [vetted target address], in Pickering was surveilled by the Guns and Gangs Task Force. On the third day, a search warrant was executed at that address. In a basement bedroom, in the closed drawer of a nightstand, police found a significant amount of cocaine, some powdered cutting agent, a fake Glock, and a clear freezer bag of crystal meth. In a Mercedes, parked across the street in a visitor's parking lot, police found cocaine in a torn yellow plastic shopping bag.

[2] Mr. Taylor now faces charges of possession of the controlled substances for the purpose of trafficking. He has elected a judge and jury trial in the Superior Court, prefaced by a preliminary inquiry in the Ontario Court of Justice.

[3] The quantum of drugs and manner of packaging led to the inference that they were possessed for the purpose of trafficking. The nature of the substances seized was not contested. Identity was not an issue. There was no dispute that Mr. Taylor was connected to the residence. He was seen there and used a key on one occasion. There was no dispute that Mr. Taylor was the registered owner of the Mercedes which contained cocaine. Mr. Herscovitch has focused the live issue, at this contested preliminary inquiry, to be possession.

[4] The three police witnesses called by the Crown were DC Duran, DC Lucyk, and DC Canning. Their evidence globally established three days of surveillance on the target address of [vetted], culminating with the execution of a search warrant on that third day.

[5] Surveillance began on August 19, 2017 at the target address. A black tow truck was parked in the driveway and a white Mercedes, with a plate number of [vetted] was parked in a visitors' lot directly across from [target unit number]. The Mercedes was registered to the defendant at this same address. The defendant was not observed at all, by the surveillance team, that day.

[6] Two days later, on August 21, 2017, the investigative team surveilled the address again. This time, they observed Mr. Taylor go inside [target unit number] using a key. In the driveway of [target unit number], police observed a white Kia, a black tow truck, and a black motorcycle. The white Mercedes was again parked across the street.

[7] Shortly after Mr. Taylor's arrival, an unknown male left the residence in the white Kia. A few minutes later, at 11:20 p.m., the defendant exited the house, moved the motorcycle into the garage, and backed the white Mercedes into the driveway. The defendant was clearly driving the Mercedes, which was also registered in his name, and no one else was in the car.

[8] Two days after that, on August 23rd, 2017, at 5:48 p.m., the defendant exited [target unit number]. He took the black Harley Davidson to get gas at a nearby Shell station. At 5:52 p.m., he was arrested at the gas station. Police brought him back to [target unit number], where a search warrant was waiting to be executed.

[9] Entry was effected by a door knock. Mr. Taylor, in police custody, called out and his younger, teenaged, brother came down from the second floor. The brother assisted in putting two large dogs in a washroom and then called their mother, who came down from the second floor as well. No one else was found inside the residence at the time the warrant was executed.

[10] There were three floors to the target unit. The ground floor had a common area, a kitchen, and a living room. The second floor contained three bedrooms and a washroom. The laundry room, a crawl space, and a fourth bedroom were in the basement.

[11] Officers Duran and Lucyk searched this basement area. They believed that, based on double hearsay information, the basement bedroom belonged to the defendant. Officer Duran also took photographs of the basement bedroom, both before and after their search. These photographs were later irretrievably lost while being uploaded. Their search was not videotaped.

[12] Inside the basement bedroom, police saw a bed, a larger dresser, a coffee table, and a nightstand. Inside the closet hung some clothing, both male and female. Officer Duran described the male clothing as being larger than what he, at 5'7", would wear. No identification was found in the basement bedroom.

[13] The nightstand beside the bed contained a significant amount of illegal drugs. Cocaine weighing 92.46 grams was in a Tupperware container. Several baggies contained cocaine in amounts of 216.87 grams, 228.51 grams, 41.42 grams, 55.20 grams, and 1.28 grams respectively. The same nightstand also contained 332.60 grams of cutting agent, 486.35 grams of crystal meth, and a replica Glock handgun.

[14] The nightstand drawer had been closed when police first entered, making its contents not initially visible. There were other items in this drawer, in addition to the illegal drugs and fake Glock. DC Lucyk recalled seeing socks and undergarments being inside. However, he could not precisely recall any details of this, without the benefit of photographs to refresh his memory.

[15] The white Mercedes, still parked in the visitor's lot across the street, also contained cocaine. More particularly, powdered cocaine was tied in a torn yellow plastic bag and hidden under the rear passenger side floor mat.

Position of the Parties on Committal

[16] The defence has challenged committal, arguing no evidence of constructive possession of either the drugs in the Mercedes or the basement bedroom, in this circumstantial case. He argued that inferences have to be reasonable, and that an educated guess cannot equate to a reasonable inference.

[17] The Crown, in seeking committal, ably argued that constructive possession of the drugs in the bedroom was an available inference. She based this argument on (i) the defendant's clear connection to the address (ii) the larger male clothing seen in the basement bedroom; (iii) the defendant's larger physical size; (iv) the fact that the mother and brother came from the second floor when police entered at 6:20 p.m., meaning they must have come from their respective bedrooms, and; (v) the process of elimination making the basement bedroom the defendant's.

Legal Principles Engaged

[18] The jurisdiction of a preliminary inquiry justice is well-trod legal ground. There is a limited weighing process I must engage in, due to the circumstantial nature of this case. I must consider whether a reasonable jury, properly instructed, could return a guilty verdict on the evidence called in this case.

[19] Our Court of Appeal, in R. v. Turner, 2012 ONCA 570 at para. 16, underscored that in this task, assessing the sufficiency of evidence must include "reference to the ultimate burden on the Crown to prove the case beyond a reasonable doubt": see also R. v. Charemski, [1998] 1 S.C.R. 679 at p. 701.

[20] In considering the evidence as a whole, cumulatively, I cannot choose between available inferences. If competing inferences arise from an evidentiary record, I must prefer the inference most favourable to the Crown. It matters not whether I would draw that same inference. I must only ask "whether the evidence, if believed, could reasonably support an inference of guilt: R. v. Arcuri, 2001 SCC 54 at para. 23. [Emphasis in original.]

[21] In assessing what inferences can be permissibly drawn in a circumstantial case, I am both guided and bound by Doherty J.A.'s dicta in R. v. Morrissey (1995), 22 O.R. (3d) 514 at para. 52:

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.

[22] Similarly, Doherty J.A. held in R. v. Huynh (2005), 202 O.A.C. 198 at para. 7 that:

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 are a substitute for evidence.

[23] The applicable definition of "possession" is found in section 4(3)(a)(ii) of the Criminal Code:

(3) For the purposes of this Act,

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

(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…

[24] From an evidentiary perspective, possession is established when there is evidence that the defendant knew the character of the object and had a measure of control over it: see R. v. Terrence, [1983] 1 S.C.R. 357. Occupancy of a bedroom does not automatically establish knowledge of its contents: see R. v. Grey, [1996] O.J. No. 1106 at para. 22. There must be additional evidence from which to draw this inference.

[25] In Grey, the appellant was convicted of possession because crack cocaine was found in a bedroom which contained his clothing and other belongings. The evidence established the appellant regularly occupied that bedroom. The Court of Appeal overturned the guilty verdict and entered an acquittal because the trial judge was not "entitled to infer guilt from this evidence": see para. 16.

Application of Principles to the Evidence

[26] It cannot be reasonably inferred that, from this evidentiary record considered as a whole, the defendant was in constructive possession of the drugs in the nightstand. The evidence did establish a clear connection between him and the residence, and it can be quite safely inferred that he lived there. He was seen there twice. He used a key to enter the front door on one of those occasions. He registered his car to that address.

[27] Residency at [target address], alone, does not answer who had knowledge and control over the contents of that basement bedroom. Police had hearsay information that the basement bedroom was the defendant's. Absent an application to adduce hearsay, I cannot consider this and the Crown did not invite me to.

[28] There was male clothing found in the bedroom, which could have fit a man larger than D/C Duran. Clothes that may or may not fit the defendant and match his gender is no evidence that he used that bedroom. Other than clothes, there were no personal or identifying belongings found in the basement bedroom, such as identification or pictures.

[29] Turning to the Crown's submission that the mother and brother came from the second floor when police entered, and thus by process of elimination the basement bedroom and its contents must belong to the defendant, I respectfully cannot agree that this inference is one that could be reasonably drawn.

[30] To reach the inference that the defendant's bedroom was the basement one, based on direct evidence that the mother and brother came from the second floor, the jury would have to:

(i) Infer that the mother and brother lived in [target unit number];

(ii) Infer that the mother and brother were, at 6:20 p.m. when police came in, coming out of their respective bedrooms on the second floor;

(iii) Infer that the only people who lived in [target unit number] were the people present when the search warrant was executed as well as the defendant;

(iv) Infer that, since the mother and brother's bedrooms were upstairs, "by process of elimination", this left only the basement bedroom available to be the defendant's room, and;

(v) Infer that because it was his bedroom, the defendant possessed the contents of the nightstand.

[31] Even putting aside the evidence that there were three bedrooms upstairs, not two, this would be an unreasonable inference unsupported by any evidentiary floor. The jury could only reach the invited inference by stacking inference upon inference. Preferring the inference most favourable to the Crown does not permit speculation.

[32] Looking again at the evidence as a whole, I find no evidence of knowledge and no evidence of control of the drugs in the nightstand. The evidence at this preliminary inquiry has not established sufficient admissible evidence which, if believed, could reasonably support an inference of guilt with respect to the cocaine and crystal meth found there.

[33] I reach the same conclusion when I consider the question of possession of cocaine in the car. Evidence specific to the Mercedes was:

(i) It was registered to the defendant at [target address];

(ii) It was parked in the visitor's lot across from [target unit];

(iii) The defendant was seen briefly driving that Mercedes, from the parking lot to the driveway, two days before the cocaine was found, and;

(iv) The cocaine was found in the rear of the car, on the passenger side, underneath a floor mat.

[34] There are evidentiary gaps here, which I reference only in considering the exercise of reasonable inference-drawing. The defendant was not seen in the car on the day the drugs were found. He was last seen in the car two days prior, briefly, in the driver's seat. The evidence did not establish that he drove or entered the car regularly. He is the registered owner, but akin to R. v. Grey, possession cannot in my view be inferred from this ownership. The drugs were not in plain view and they were secreted in the back seat of the car.

[35] Again, stepping back and considering the evidence as a whole, I find no evidence of knowledge or control over the cocaine in the Mercedes. The evidence at this preliminary inquiry has not established sufficient admissible evidence which, if believed could reasonably support an inference of guilt with respect to the cocaine found there.

[36] Accordingly, the defendant must be discharged on all counts.

Released: July 27, 2018

Signed: Justice Heather Pringle