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make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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: August 26, 2019

Between:

Her Majesty the Queen

— and —

Villan Knight

Before: Justice M. L. Cohen

Heard on: July 3 and 4, 2019

Reasons for Judgment released on: August 26, 2019

Counsel:

• Mr. J. MacDonald, counsel for the Crown
• Mr. M. Chernovsky, counsel for the accused

Reasons for Judgment

COHEN, M. L. J.:

The Charges

[1] Villan Knight is charged with the commission of 24 offences alleged to have occurred on June 23, 2018. Sixteen of these charges allege that Mr. Knight had possession for the purpose of trafficking of a variety of prohibited substances including heroin, cocaine, crack cocaine, and crystal methamphetamine. Five charges allege he committed a variety of firearms offences relating to the possession and careless storage of a handgun and ammunition. Three charges allege he had possession of proceeds of crime, including money and jewelry. All of the contraband was located in the apartment where Mr. Knight was arrested.

[2] Mr. Knight elected to have a trial by judge and jury in the Superior Court of Justice, and the matter proceeded as a preliminary hearing.

Legal Framework for Possession

[3] Possession in law requires knowledge and control (R. v. Beaver, [1957] S.C.J. No. 32, (SCC)). To establish Mr. Knight's possession for purposes of the preliminary hearing, the Crown must adduce some evidence that Mr. Knight had knowledge of the nature of the prohibited articles, and a measure of control over them. This ruling turns on a determination of the sufficiency of evidence adduced at the preliminary hearing with respect to those essential elements of the offence.

[4] "Possession" as used in the Controlled Drugs and Substances Act means possession within the meaning of subsection 4(3) of the Criminal Code.

[5] "Possession" under s. 4(3) of the Code is defined as follows:

(3) For the purposes of this Act,

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

(b) 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; and (b) 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.

[6] Thus, the Criminal Code sets out three routes to possession: personal, constructive, and joint possession. In the case at bar, there is no evidence that Mr. Knight was in personal or actual possession of the drugs, firearm, or ammunition specified in the information. The Crown therefore rests its case on joint or constructive possession. I will deal with the issues relating to the proceeds charges at the conclusion of this ruling.

Constructive and Joint Possession

[7] In R. v. Pham, 77 O.R. (3d) 401 (Ont. CA), the Court described the elements of constructive and joint possession:

In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. See R. v. Caldwell (1972), 1972 ALTASCAD 33, 7 C.C.C. (2d) 285, [1972] 5 W.W.R. 150 (Alta. S.C. (A.D.)); R. v. Grey (1996), 28 O.R. (3d) 417, [1996] O.J. No. 1106 (C.A.).

In order to constitute joint possession pursuant to s. 4(3)(b) of the Code there must be knowledge, consent, and a measure of control on the part of the person deemed to be in possession. See R. v. Terrence, [1983] 1 S.C.R. 357, 147 D.L.R. (3d) 724; R. v. Williams (1998), 40 O.R. (3d) 301, [1998] O.J. No. 2246 (C.A.); R. v. Barreau, [1991] B.C.J. No. 3878, 19 W.A.C. 290 (C.A.); and R. v. Chambers, [1985] O.J. No. 143, 20 C.C.C. (3d) 440 (C.A.).

The Committal Test

[8] In R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, Justice McLachlin, as she then was, says, at paragraphs 21 and 22, that

The question to be asked by a preliminary inquiry judge under s. 548(1) of the Criminal Code is the same as that asked by a trial judge considering a defence motion for a directed verdict, namely, "whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty": Shephard, supra, at p. 1080; see also R. v. Monteleone, [1987] 2 S.C.R. 154, at p. 160.

[9] A properly instructed jury cannot return a verdict of guilty in a possession case where there is an absence of evidence on the essential elements of the offence. Therefore, to succeed in its claim for committal, the Crown must adduce some evidence that Mr. Knight knew the prohibited items were present in the apartment where he was arrested, and some evidence that he exercised a measure of control over those items. The evidence adduced must be sufficient, that is, there must be sufficient evidence to sustain a verdict of guilt beyond a reasonable doubt: R. v. Charemski, [1998] 1 S.C.R. 679, at paragraph 35 (in dissent, subsequently explained and applied in Arcuri).

Circumstantial Evidence

[10] In this case, there is no direct evidence of Mr. Knight's knowledge of the presence of the drugs, gun and ammunition in the premises where he was arrested, nor is there direct evidence of his having a measure of control over them. The drugs, gun and ammunition seized by the police were not in plain view -- they were hidden. The evidence in support of the elements of knowledge and control is entirely circumstantial.

[11] To find that Villan Knight had possession of these items, the Crown asks me to infer knowledge and control from the circumstantial evidence. Whether the evidence is direct or circumstantial, the test for committal is the same (Arcuri, par. 22). However, where the evidence is circumstantial, the judge's task in assessing the evidence is more complicated.

[12] Circumstantial evidence is defined in Arcuri, at paragraph 23 as

...any item of evidence, testimonial or real, other than the testimony of an eyewitness to a material fact. It is any fact from the existence of which the trier of fact may infer the existence of a fact in issue"; McCormick on Evidence, supra, at pp. 641-42.

[13] Justice McLachlan sets out the process by which a judge may determine whether the circumstantial evidence adduced is capable of supporting the inferences necessary to establish the essential elements of the case at paragraph 23:

...where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence – that is, those elements as to which the Crown has not advanced direct evidence – may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established – that is, an inferential gap beyond the question of whether the evidence should be believed: see Watt's Manual of Criminal Evidence, supra, at par. 9.01 ...The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks [page 841] only whether the evidence, if believed, could reasonably support an inference of guilt.

[14] Thus, the preliminary inquiry judge does not herself draw factual inferences, assess credibility, or consider the inherent reliability of the evidence itself. Further, as said in R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, paragraph 18, where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered. In the words of Doherty, J., in R. v. Jackson, 2016 ONCA 736, [2016] O.J. No. 6777 (Ont. C.A.), at paragraph 8, "It is irrelevant that the evidence also supports inferences inconsistent with guilt."

[15] Evidence at the preliminary inquiry that is equally capable of supporting two reasonable inferences, one consistent with guilt, and the other inconsistent with guilt, will require that the accused be committed for trial (Jackson, par. 11). A preliminary inquiry judge commits jurisdictional error where she weighs competing inferences or chooses among them. Under the test in Arcuri, "in any case in which there is admissible evidence which could, if it were believed, result in a conviction" a preliminary inquiry judge must commit the accused to trial (Arcuri, par. 21). Competing inferences are for the trier of fact to resolve.

[16] However there is an additional important principle which flows from the preliminary inquiry judge's duty to assess whether the evidence is reasonably capable of supporting the inferences that the Crown will ask the trier of fact to draw (Arcuri, par. 30). As Doherty, J. says in Jackson, at paragraph 52:

The inferences must ... 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. (my emphasis)

[17] Finally, the preliminary inquiry judge must bear in mind that it is a jurisdictional error for the judge to commit an accused to trial where there is no evidence on an essential element of the charge: Sazant, at paragraph 16.

Agreed Facts

[18] Returning to the case at bar, the following are agreed facts: It is agreed that the value of the drugs is between $37,000 and $70,000, and that the quantity of drugs found in the apartment is consistent with an intention to traffic. The nature and quantity of the seized drugs, as set out in the Certificates of the Analyst, is not disputed, nor is the fact that the firearm located in the apartment is a prohibited weapon, and functioned correctly, and that the ammunition functioned correctly in the seized firearm. It is not disputed that Mr. Knight was present, and was located in the apartment at the material time, and his identity is not in issue. Finally it is agreed that none of the persons found in the apartment were licensed or registered to possess the firearm or ammunition.

[19] The question before the court is whether Mr. Knight's knowledge and control of the seized firearm, ammunition, drugs, and proceeds may be reasonably inferred from the circumstantial evidence such that a reasonable jury properly instructed could return a verdict of guilty, i.e. that on a proper construction and application of the law, Mr. Knight may be said to be in constructive or joint possession of the contraband. As will be apparent, I do not so find, and I am discharging Mr. Knight on all charges in the information.

The Evidence

[20] The evidence on the hearing is as follows:

[21] On June 23, 2018, at 9:37 a.m., a number of police officers attended at unit 1805-88 Parklawn Road in Toronto and executed a search warrant. Three individuals were in the residence at the time – two adults, Mr. Knight, and Kyron Hall Bailey, and a youth. Mr. Hall Bailey was initially charged as a co-accused with Mr. Knight, but the charges against him were withdrawn on May 3, 2019.

[22] In the residence the police located a loaded handgun, additional ammunition usable by that gun, a large quantity of drugs secreted in various locations, paraphernalia which could be associated with drug trafficking, cash and jewelry.

[23] On that same day, other police officers executed a search warrant at a residence located at 23 Eco Park Gate, in Scarborough. There they located a large plastic box in a bedroom closet. The box contained a knapsack, and in the knapsack the officers found a white plastic bag containing a quantity of loose and boxed ammunition, and two digital scales. In a mailbox in the carport attached to the residence the police located a Rogers bill or letter addressed to the accused, among a number of letters addressed to other persons. A dated boarding pass in the name of Mr. Knight was also located in a safe in a closet. There are no charges in the information arising from this search. The charges, and the issues in question on the preliminary hearing relate to the Parklawn Road residence.

The Parklawn Road Apartment

[24] The Parklawn Road residence is an open concept apartment. Within the apartment, there is a hallway at the entrance containing a small bench, a kitchen area with an island, and a seating area adjacent to the kitchen with a couch and television. There are two bedrooms, one referred to in testimony as the master bedroom, and a second bedroom, referred to as bedroom number two. The presence of clothing in the apartment closets, shoes near the door, and food, pots and pans in the kitchen, as well as the general condition of the apartment, indicated that the apartment was occupied.

[25] When the police entered the apartment, the youth was on the couch in the seating area near the island, and Kyron Hall Bailey was standing near the island in the kitchen area. Mr. Hall Bailey was wearing a large chain that had a medallion with the letter "H", on it and had currency on his person.

[26] Mr. Knight was in bedroom number two. He was getting up from the bed when an officer entered the room. He was immediately cuffed, searched and escorted to the living room where the two other males were detained. No one was in the master bedroom. All three individuals found in the apartment submitted to arrest and detention without incident.

Kitchen Area

[27] The officers conducted a search of the residence. In the kitchen area, the following items were located:

• A vacuum sealer which, according to one of the police witnesses, could be used for drug packaging. The vacuum sealer and a number of plastic bags were found in a bottom drawer in the kitchen next to the fridge;

• A glass pyrex dish was found within the island;

• A digital scale and a plastic measuring cup, were located within the island in the kitchen. These items, according to the officer, could be used to measure the weight of narcotics;

• What was described as a debt list was found in a book on a table in the seating area. The book was closed.

[28] None of these items were in plain view.

Master Bedroom

[29] The Master Bedroom was searched and the following items located:

• A receipt in the name of Tyler Burke was found in a drawer in a shelving unit;

• Some current documents in the name of Tyler Burke and Kadeisha Burke, including a Ministry of Transportation document showing an address in Kitchener were found in a safe on the floor of the closet;

• A white Burberry box was located, appearing to have drug residue on it, and containing what appeared to be small baggies- one with cocaine and one with crystal methamphetamine. The box was on the top shelf of a closet. The box was visible but the contents were not;

• A diamond encrusted chain with the letter H, and another chain with H medallions were found in the safe on the closet floor;

• A cash counting machine was found in the closet area;

• Cell phones were found;

• Also in the closet, "between the clothing," the police located some currency and what was described as a debt list.

[30] None of these items were in plain view.

Hallway Bench

[31] In the hallway at the entrance of the apartment was a small bench containing a compartment. The cover of the bench was made of wood of 2" thickness fixed to a piece of wood beneath it. There was no obvious way to open the cover to reveal the compartment within the bench. The officers were unable to determine how to open the box, and used a crowbar to break it open. Ultimately they concluded that the panel was locked magnetically by 2 mechanisms requiring a key or magnet to activate. The key or magnets required to open the bench were not located.

[32] In the bench compartment the officers found:

• A Smith and Wesson M7P Bodyguard 380 handgun;

• The handgun was loaded with 6 rounds of ammunition. There was no round in the chamber;

• An additional magazine loaded with six rounds of ammunition;

• Some drugs in plastic bags or zip lock baggies;

• In one bag there was a white substance believed to be cocaine;

• In another bag there was a brownish/purplish substance believed to be heroin;

• Smaller packages containing cocaine;

• Stacks of cash.

[33] None of these items were in plain view.

Bedroom Number Two

[34] The following items were located and seized in bedroom number two:

• A Gucci purse, found on the floor at the foot of the bed, containing $352.50, a passport, 2 Iphones and a flip phone, a scale and keys. The passport belonged to Villan Knight. The purse was in plain sight;

• A hanging bin with socks in it. In one sock an officer located a piece of what appeared to be crack cocaine wrapped in a piece of plastic. The crack cocaine was not in plain view. The officer testified "You had to open the sock to know there was crack cocaine in it";

• Near the bed, on a table, there was a wallet containing identification and tickets in the name of the young person found in the seating area.

[35] Nothing was seized from Mr. Knight. One of the officers, Detective Constable McKenzie, testified that there was no evidence Mr. Knight resided in the apartment.

Analysis of Crown's Submissions

[36] To repeat, there is no evidence that Mr. Knight was in personal or actual possession of the firearm, ammunition or drugs. To succeed, the Crown must adduce some facts from which it can be reasonably inferred that Mr. Knight had knowledge and control of the drugs, gun and ammunition.

[37] The Crown argues that Mr. Knight's possession may be inferred from what he characterized as the following "web of circumstances":

• Mr. Knight's presence in the residence when the "primary occupant" (Mr. Burke) was absent, together with the presence of drugs and paraphernalia, from which the inference could be drawn that he would have known the premises were being used for drug trafficking;

• His occupancy of the premises (as opposed to mere presence) which may be inferred from the presence of his passport in the Gucci purse found in the bedroom, which supports the further inference that he had knowledge and control of the contraband in the apartment;

• The presence of a digital scale in the Gucci purse from which it may be inferred that Mr. Knight is engaged in drug trafficking and by further inference that he had knowledge of the contraband in the residence and control over the contraband in the absence of the primary occupant;

• His connection to the ECO Park residence where ammunition and scales were found, and hence his connection to those items, as evidenced by the letter addressed to him, and an airplane boarding pass in his name located in a safe in a closet, from which a further inference may be drawn that Mr. Knight is engaged in the possession of weapons and drugs, a conjunction suggesting drug trafficking, thereby providing a nexus to the further inference he had knowledge and control of the contraband in the Parklawn residence;

• The large amount of contraband and its value, from which Mr. Knight's knowledge and control of the contraband may be inferred on the basis that, in the absence of the primary occupant, such a valuable quantity of drugs would not be entrusted to anyone who did not know the nature of the contents of the contraband found in the apartment.

The Limits of Inference

[38] In R. v. Archer, [2014] O.J. No. 4750, Justice M. Green, in the course of discharging an accused on a preliminary hearing, made the following observation at paragraph 50:

... incriminatory 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.)

[39] In my view, Green, J.'s comments are apposite to the matter before me. I find the inferences the Crown proposes "neither rationally nor logically flow from the evidence." While, for purposes of context, I detail below the absence of some evidence, from which possession is often inferred, my focus remains on the assessment of the evidence adduced in the preliminary inquiry. Do the inferences from the facts relied upon by the Crown flow logically and reasonably, or must those inferences be condemned as conjecture or speculation?

Mere Presence in the Residence

[40] For the reasons which follow, I conclude that no logical or reasonable inference of knowledge and control can be drawn from Mr. Knight's mere, and I would add quiescent, presence in the residence, notwithstanding the presence of drugs, paraphernalia, weapons and ammunition in the apartment.

[41] Firstly, the drugs, paraphernalia, weapon and ammunition were not in plain view, hence, without more, the existence of the hidden contraband within the apartment cannot support an inference that Mr. Knight had knowledge of their presence by direct observation. Even the small amount of drugs that were in the room in which he was found were not in plain view, but secreted in a sock in a closet.

[42] Secondly, Mr. Knight was not alone in the apartment.

[43] Further, there was no evidence, such as, for example, fingerprints or traces of actual contraband found on his person or on the clothing he was wearing. There was no evidence connecting him to the master bedroom or the drugs found in that bedroom, none of which were in plain view. There is no evidence about how Mr. Knight came to be in the apartment or how long he had been there. There is no evidence about Mr. Knight's relationship with the primary occupant, Mr. Burke, or why or how Mr. Knight was given access to the apartment.

[44] In my view, there is no evidence from which it could be reasonably inferred from his mere presence in the apartment, that Mr. Knight had knowledge of, or exercised any control over, any of the contraband in the premises.

Occupancy of the Premises

[45] Occupancy of premises as an owner, tenant or lessee, may support inferences of knowledge and control. However, I do not find the evidence before me supports any reasonable inference of Mr. Knight's occupancy of the premises. Indeed, there were no documents found in the apartment from which it can be inferred that Mr. Knight was a lessee or owner of the property, for example a lease or tenancy agreement bearing his name. There were no documents analogous to those found in the Master bedroom in the name of Mr. Burke. No key to the residence (or to the magnetic key to the bench which was heavily secured) was found in his possession.

[46] There was no evidence that Mr. Knight regularly attended at the apartment, or that any of his personal possessions were stored there. The clothing in both bedrooms and the shoes in the front hall were generic male clothes which could fit anyone. There was no evidence that the clothing in size, style or markings, or in any other way, was connected to Mr. Knight. One of the officers, PC Wauchop, testified, he had "no idea who it might fit."

The Passport in the Gucci Purse

[47] The Crown argues Mr. Knight's occupancy of the apartment may be inferred from the presence of his passport in the Gucci purse found on the floor at the foot of the bed in bedroom number two. Of course, there is no address in a passport. The argument is based on a notion, expressed by the Crown, that people generally keep their passports in a safe place controlled by them. In my view, the proposed inference is not rooted in logic or human experience in a general sense. It is an inference based on the individual personal experience of counsel. As such it is incapable of supporting the proposed inference of occupancy. There were no other identification documents in the purse, such as a driver's license, social security number or health card. A passport is a usable means of identification.

[48] This conclusion does not mean I am choosing an inference unfavourable to the Crown from other reasonably available inferences. In my view the inference proposed by the Crown is not available as a matter of logic and human experience to support an inference of occupancy in the context of the established facts in this case. For example, the purse was not found in a drawer or closet or other location with other personal property from which occupancy might be inferred. It was found in a purse.

[49] Indeed, as an object, a purse is mobile – it is made to travel with its owner. The purse and contents were found in a random space consistent with having been dropped there. Its location supports no inference of residence consistent with knowledge or a measure of control of the premises. If it were otherwise any guest in the apartment who went into a bedroom and dropped his or her purse could be invested with knowledge and control of the contents of the premises.

[50] Thus, in my view, it would be neither logical nor reasonable for the court to draw an inference that the presence of the passport in the purse supports an inference of knowledge and control of the contraband. As another officer, Detective Constable McKenzie, testified, there was no evidence Mr. Knight resided at the Parklawn address.

Comparison to R. v. Turner

[51] I find the circumstances here to be similar to those in R. v. Turner, 2012 ONCA 570, [2012] O.J. No. 4088 (Ont. CA). In Turner, upon entering an apartment, the police found the appellant standing just inside the doorway of one of the two bedrooms. Upon searching the bedroom, the police found the appellant's driver's license on the bedroom floor. There was no evidence that the driver's license contained any information connecting the appellant to the apartment, or of how long it had been on the floor. Just over $1,000 in cash was found on the night table. More cash was found between the mattresses on the bed. Additional cash was found in the pockets of two pairs of jeans in the bedroom closet. There was no evidence whether the jeans belonged to the appellant, or even whether they were men's or women's. Also, inside the same bedroom closet, the police found passports belonging to other persons. A loaded gun was found concealed under some folded clothing on a shelf inside the closet. The gun's magazine contained nine rounds of ammunition.

[52] On appeal from an order which quashed the appellant's original discharge on five firearms offences, and granted an order that the appellant be committed for trial, Armstrong, J. stated:

In my view, the mere presence of the appellant standing close to the doorway of the bedroom does not establish much. It certainly does not by itself raise the inference that the appellant had the requisite knowledge and control of the gun, which was carefully hidden among folded clothing on a shelf in the bedroom closet (par. 21)

… the appellant's driver's license was on the floor of the bedroom. We know nothing more other than the license was identified as the appellant's license. There is no evidence as to what address was shown on the license. This evidence does not, in my view, suggest an inference that could reasonably establish the requisite knowledge and control of the gun hidden in the closet.(par.23)

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. (par. 26)

The Digital Scale in the Gucci Purse

[53] I turn then to the evidence of the small digital scale in the Gucci purse, evidence which could lead to an inference that Mr. Knight was himself engaged in drug trafficking. Even if that is the case, and, without in any way weighing this evidence, an inference from a small scale is not sufficient to invest the defendant with knowledge of or control over the specific contraband that was seized.

Similar Act Evidence and Other Cases

[54] There are many examples in the case law where judges have refused to draw the inference proposed by the Crown in circumstances similar to those at bar. For example, in R. v. Savoury, [2008] O.J. No. 2896 (Ont. CA), Justice Karakatsanis, as she then was, found that

... it was open to the preliminary hearing judge to find the evidence of a key and of papers in one bedroom was insufficient to reasonably support the inference that Savoury had knowledge of the drugs and firearms hidden in the rest of the home in the circumstances of this case, even in light of some evidence that Savoury was himself a drug dealer. To find that he lived there or that he was in a joint illegal enterprise with the owner of the house or that he had knowledge of the hidden drugs and firearms would, in my view, require a speculative leap from the inference of Savoury's access and occupancy and his personal possession of drugs for drug dealing. (my emphasis)

The Value of the Contraband

[55] I turn to the submission that knowledge may be inferred on the basis that a valuable quantity of drugs would not be entrusted to anyone who did not know the nature of the contents of the containers in the apartment. Such a conclusion is negated by the fact that there is no evidence Mr. Knight knew of, or exercised any control over, the contraband in the apartment.

[56] Here the Crown relies on comments made in R. v. Fredericks, [1999] O.J. No. 5549 (Ont. C.A), that, in my view, are distinguishable from the case at bar. In Fredericks, the Court states at paragraph 3:

The trial judge drew the inference that Rudder would not leave such a large quantity of drugs and cash unguarded (cocaine and marihuana having an aggregate street value of over $1,000,000 and approximately $60,000). The trial judge drew the further inference that, given the circumstances of the appellant's arrival at the apartment and his presence in the apartment with this quantity of the drugs and money, the appellant was entrusted to be the keeper of the drugs.

[57] Thus, the circumstances described in Fredericks are distinguishable from those in the case at bar, since the accused in Fredericks "was brought to the apartment and allowed to remain there by Rudder, the tenant of the apartment who had knowledge and control over the large quantity of drugs and cash located in the apartment." There is no comparable evidence in Mr. Knight's case.

[58] The Crown also relies on R. v. Pannu, 2015 ONCA 677, in which Watt, J. states the following at paragraph 145:

The trial judge dismissed both motions for a directed verdict. Mindful of the circumstantial nature of the case for the Crown, the trial judge concluded that the evidence, taken as a whole, permitted a properly instructed jury acting reasonably to conclude that Bains and Pannu were engaged in a joint enterprise involving the sale of heroin. The trial judge did not consider the Crown's case to be strong but pointed out that the switch of vehicles, the value of the heroin (rendering it unlikely that anybody would leave it out of their control) and the tandem driving were sufficient to survive the challenge.

[59] It is evident from both decisions that the value of the contraband "(rendering it unlikely that anybody would leave it out of their control)" is only available as a reasonable inference in a circumstantial case of alleged possession where it is tied to or linked to other evidence supporting inferences of knowledge and control. In the case at bar, having considered the whole of the evidence, I find no other evidence supporting the inference that Mr. Knight had knowledge or control of the contraband.

The Eco Park Residence

[60] Finally, I turn to circumstances at the Eco Park residence, where ammunition and digital scales were found. Here the alleged connection between Mr. Knight and the possession of the ammunition and scales is purportedly evidenced by a Rogers bill or letter addressed to Mr. Knight located in carport in a mailbox with other mail, and an airplane boarding pass found in a safe in the residence. From this evidence the Crown argues that an inference of knowledge and control of the ammunition and drugs in the Eco Park residence may be drawn to establish a nexus between Mr. Knight and the ammunition and scales found in the Parklawn residence, thereby supporting an inference of knowledge and control of drugs, weapon and ammunition found in the Parklawn residence.

[61] The evidence is that the Eco Park residence was occupied by two females, one of whom was an adult. There were no charges laid against Mr. Knight in relation to the ammunition found at Eco Park. The ammunition was found in a bag in a backpack in a plastic box in one of the bedrooms. There is some evidence, in the address on the Rogers letter and the boarding pass with Mr. Knight's name on it, of connection to the residence at Eco Park. However, there is no evidence that connects Mr. Knight to the bedroom, to the plastic box, to the backpack, the ammunition, the scales, or the safe. There is no evidence connecting the ammunition in the Eco Park residence to the gun or ammunition found in the Parklawn residence.

[62] Inferences drawn from circumstantial evidence must be reasonable and logical. In my view the inference the Crown argues does not meet this standard. If this latter evidence is adduced as similar act evidence, an argument which was not specifically articulated by the Crown but implied, it is not probative for the reasons I have given. It is speculative. The inferences sought are simply too remote and tenuous to support inferences respecting the possession of materials found in the Parklawn residence, and in my view amount to legally insignificant conjecture.

Conclusion

[63] Having regard to all of these circumstances, and the absence of some evidence from which incriminating inferences could be drawn on the essential elements of the offence, I conclude that a reasonable and properly instructed jury could not return a verdict of guilty on the charges before the court. The Crown advises that based on my conclusions, there is no basis for committal on the proceeds charges. Accordingly, Mr. Knight is discharged on all counts.

Released: August 26, 2019

Signed: Justice M. L. Cohen