Court Information

Ontario Court of Justice

Date: January 16, 2020

Between: Her Majesty the Queen — and — Brendan Murphy

Before: Justice Robert S. Gee

Heard: November 28, 2019

Reasons for Judgment Released: January 16, 2020

Counsel

T. Mimnagh — counsel for the Public Prosecution Service

D. Gulka — counsel for the accused

Reasons for Judgment

Gee J.:

Facts

[1] At approximately 1:00 am on October 5, 2018, the OPP conducted a traffic stop of a motor vehicle in a parking lot of a plaza in the town of St. George, Ontario. The driver and owner of the vehicle was Patrick Pateneaude. The front seat passenger was the accused, Brendan Murphy.

[2] Mr. Pateneaude had unauthorized plates on the vehicle and was in possession of a small amount of Marijuana, which at the time was still illegal. He was arrested and a search of his vehicle incident to his arrest turned up a fanny pack that contained 5 Temazepam pills, 1.2 grams of methamphetamine, .7 grams of Methylenedioxyamphetamine, 16.7 grams of Fentanyl and a scale designed to look like a USB memory stick.

[3] This fanny pack was tucked under the front part of the passenger seat, under the legs of Mr. Murphy. As such he was arrested too and when searched upon his arrest, two cell phones and $330.00 in cash was found on his person. Mr. Murphy was ultimately charged with four counts of Possession of a Controlled Substance for the Purpose of Trafficking, one count for each type of drug found, contrary to s. 5(2) of the Controlled Drugs and Substances Act and a further charge of Possession of Property Obtained by Crime, that being the $330.00. Mr. Pateneaude was not charged in relation to the drugs found inside the fanny pack.

[4] At trial, five witnesses testified. Mr. Pateneaude and three OPP officers, Nicholas Helmuth, the officer who initiated the stop, Matthew Sutherland, who located the fanny pack, arrested the accused and searched him locating the cash and cell phones, and Shaun Weins who assisted and stayed on the scene with the car, all testified for the prosecution. Mr. Murphy testified on his own behalf and denied having any knowledge or control of the fanny pack or its contents. The defence did concede however, whomever possessed the fanny pack and the drugs inside, was possessing them for the purpose of trafficking.

Legal Framework for Circumstantial Evidence

[5] Since the accused was not found in actual possession of the drugs, the case for the prosecution is circumstantial. The prosecution contends that when the entirety of the circumstances are considered the inevitable conclusion is that the fanny pack containing the drugs belonged to the accused. In a case where the Crown relies upon circumstantial evidence to support a finding of guilt, in order to convict, I must be satisfied beyond a reasonable doubt that the accused's guilt is the only reasonable inference that can be drawn from the evidence. See: R. v. Villaroman, (2016) S.C.C 33 at paragraphs 29 to 31.

[6] In doing so though I must be mindful not to unconsciously jump to conclusions or "fill in the gaps" in the evidence to support the inference the prosecution is asking me to draw. As such I must consider any other reasonable theory or possibility that is inconsistent with guilt. See: Villaroman, paragraphs 26 and 37.

Analysis of Reasonable Inference

[7] Keeping this in mind, the first thing I have asked myself is whether the inference that it was the accused who possessed the fanny pack is a reasonable one based on the circumstances of this case. I have concluded it is.

[8] The circumstances pointing to the accused as the person possessing the fanny pack are straightforward, starting with its proximity to where the accused was sitting in the car. Officer Sutherland described it as being directly under the accused's legs, tucked under the front part of the seat but still easily visible from where he was standing outside the car and well within the accused's reach.

[9] Next, the accused was found at the time with $330.00 in cash on him, which is not an insignificant sum for someone who claims to be unemployed and who needs to pay friends to drive him around. Furthermore, the accused was traveling to Brantford from Cambridge, late at night, to meet with someone whom he only knew by their first name and whose address he also did not know.

[10] As well, he was in possession of two cell phones at the time, one of which was password protected and so was never able to be reviewed but which the police stated was repeatedly receiving messages, again well into the early hours of the morning.

[11] Keeping all these circumstances in mind, I find it is a reasonable inference that it was the accused who possessed the fanny pack and was dealing the drugs found in it.

[12] However, that is not enough to ground a conviction. I must determine if this is the only reasonable inference based on the evidence.

Assessment of the Accused's Evidence

[13] I will first examine the direct evidence inconsistent with the accused's guilt, that being the evidence of Mr. Murphy, because if I believe him or I am left in a reasonable doubt by his evidence, he should be acquitted. After that I will examine any other theory or possibility inconsistent with the inference the prosecution is asking me to draw and assess whether any are reasonable.

[14] Getting straight to the point with Mr. Murphy's evidence I have concluded I do not believe it, nor does it leave me with a reasonable doubt. His evidence was he had no knowledge of the fanny pack or any drugs that were in the car that night. He stated he had been living with Mr. Pateneaude at the time and was at his place and he had been there that day texting with a woman named "Chrissy." Chrissy apparently had been having some difficulties in a relationship recently and Mr. Murphy volunteered to come over and stay with her for a few days. When these arrangements were made, he asked Mr. Pateneaude to drive him to Brantford and offered to pay the cost of the gas to get him there. He did not know Chrissy's last name, nor did he know her address, he stated he expected to get it while enroute.

[15] His evidence though has too many inconsistencies and implausibilities to be believed. For starters, as the prosecutor pointed out, when he left from where he said he was living to go stay with a friend for several days, he did not take any change of clothes, toiletries, or other items one would normally take when going away for several days. When this was pointed out to him, his evidence shifted to say that he was going to meet Chrissy, but he never actually discussed with her that he would be staying, he was just hopeful things would work out that way and if they did, he would buy whatever he needed.

[16] As well, the accused told Officer Weins he lived at an address in Galt whereas in court he testified he lived with Mr. Pateneaude. He also told officer Weins that he did not really know Mr. Pateneaude which I also find troubling given his testimony that he was living with him. He also stated to Officer Weins he asked Mr. Pateneaude for a ride to Brantford that night and then walked over to his house to meet him. This is inconsistent with his testimony but is consistent with the evidence of Mr. Pateneaude who testified Mr. Murphy did not live with him and called him that night and asked for the ride. Mr. Murphy also told Officer Weins they were to meet the person in Brantford on Park Road, which differed from what he stated in court, that he did not know where he was meeting Chrissy and that he was waiting for her to text him to tell him.

[17] This is significantly different version from what he told in court. I find I simply cannot believe him and find his evidence in court was contrived and changed too much as it went along. As such, I find I am not left with a doubt by it either.

[18] However, not believing or not being left in a doubt by Mr. Murphy's evidence again does not necessarily lead to a conviction. I should also note that the rejection of Mr. Murphy's evidence does not bolster or enhance the prosecution's theory or make the inference that I am asked to draw any more reasonable simply because I have rejected his evidence. I still must determine if the inference the prosecution is asking me to draw is the only reasonable inference in the circumstances. To do so I must ask if there are any other reasonable inferences available.

Alternative Theories

[19] The one other inference the defence most vigorously pursued was that the fanny pack and the drugs could have been left in the car by some drug dealer other than Mr. Murphy or Mr. Pateneaude. To support this inference the defence pointed out that Mr. Pateneaude admitted being a drug addict at the time who used the same types of drugs found in the fanny pack and that he had prior to this night provided rides in his car to others, including others from whom he bought drugs. The car itself was cluttered and messy which might have meant Mr. Pateneaude would not notice the fanny pack amongst the mess. As such, the defence contends, the drugs could have been left in the car by some other dealer and remained there, unknown to Mr. Murphy.

[20] I find this is not a reasonable inference. Drug dealers are not going to leave such a valuable quantity of drugs with someone who did not know about them or where they were located. It is especially unreasonable to think some other dealer would leave his or her drugs in the car of a person they know to be an addict as Mr Pateneaude was at the time. See: R. v. Pannu, 2015 ONCA 677 paragraphs 145 and 157 and R. v. Sandhu, 2017 ONCA 709 paragraph 4.

[21] As such I find that the defence theory that the drugs could have been left by some other dealer is not a reasonable inference to draw in the circumstances of this case.

Assessment of the Driver's Evidence

[22] The remaining inference is that the fanny pack and the drugs could belong to Mr. Pateneaude. This I also find in the circumstances is not a reasonable inference. Although in recovery now, at the time, Mr. Pateneaude was an addict. He was not employed at the time and used his car as an unofficial taxi or Uber by giving rides to others for cash. When arrested he had no money in his wallet and no cell phone on him. He stated Mr. Murphy had called him for a ride to Brantford and he agreed to give him one. This is also consistent with what Mr. Murphy stated, that Mr. Pateneaude was paid to provide him a ride to Brantford. He testified he had no idea the drugs were in the car and they were not his.

[23] Given his lifestyle at the time and that he was then in the throes of his addiction, I have approached his evidence with caution. Notwithstanding this, I still accept his evidence. He testified I found in a straightforward manner. His answers were direct and responsive to the questions. He did not hesitate in giving his testimony nor did I detect any apparent attempts to mislead. His evidence was consistent with that of the police and was consistent with the version Mr. Murphy told to Officer Weins. Furthermore, his evidence remained consistent throughout. He did not waver and withstood cross examination without any material changes to his testimony or without it revealing any flaws.

[24] As well, he testified he was a user, not a dealer. He purchased his drugs in smaller quantities, never in the amounts as found in the fanny pack. The most he ever purchased were 3.5 grams of Fentanyl or Methamphetamine. I accept this evidence.

[25] Given all that, I find it is not a reasonable inference that the drugs in the fanny pack could have been Mr. Pateneaude's.

Conclusion

[26] Viewing the evidence in its entirety, I conclude the only reasonable inference is that the fanny pack and the drugs inside belonged to and were in the possession of Mr. Murphy and he was the one who possessed them for the purpose of trafficking. Given the circumstances I conclude he was an active dealer with a variety of drugs in his possession on his way to engage in a drug transaction. All this also leads me to find the cash on him was obtained by him through his drug dealing. As such, I find the prosecution has proven the case beyond a reasonable doubt and findings of guilt will be made on all charges.

Released: January 16, 2020

Signed: Justice R. S. Gee