ONTARIO COURT OF JUSTICE

DATE: 2024·07·19

BETWEEN:

His Majesty the King

— and —

Nathan Richardson

Judgment at Trial

Counsel: L. Price .................................................................................................. Counsel for the Crown L. Shemesh ...................................................................................... Counsel for the Defendant

Before: Felix J.

Table of Contents: R. v. Richardson

I. Introduction 2 II. The Criminal Law Framework 2 A. The Presumption of Innocence 2 B. Reasonable Doubt and Villaroman 3 C. Knowledge, Possession, and Control 4

1. Knowledge 4
2. Personal Possession 5
3. Constructive Possession 5 D. Analysis 6 E. Conclusion 8

I. Introduction

[1] The defendant is charged with possession of cocaine for the purposes of trafficking arising out of a police investigation. The trial proceeded before me after I provided my judgment on a s.8 Charter – Garofoli application wherein I ruled certain evidence inadmissible, and other evidence admissible. The trial proceeded on the basis that nothing of the record produced on the application was admissible at trial. As such, the decision at trial is derived strictly from the four corners of the record produced at trial.

[2] The prosecution case was adduced through one surveillance police officer and an agreed statement of facts. I find that this record establishes that on September 8, 2023, police officers observed the defendant (alone) operate a Dodge Ram vehicle for approximately one hour. The defendant was surveilled to a restaurant in the Durham region.

[3] I recognize the notion that person operating a vehicle they own, with a quantity of cocaine in the centre arm rest, may lead to a common sense inference that that person must have knowledge, possession, and control of the cocaine. But this is not the law. There is no presumption informed by proof of ownership. Each case must be assessed based on the police investigation and the criminal burden of proof. On the record produced in this case, I am in a state of reasonable doubt. That reasonable doubt must benefit the defendant. The defendant is found not guilty.

II. The Criminal Law Framework

A. The Presumption of Innocence

[4] The central tenet in our criminal justice system is the constitutional entrenchment of the presumption of innocence. A criminal defendant begins a trial with the presumption of innocence. The defendant is not required to testify. The defendant is not required to present any evidence. The presumption does not shift during the trial. The presumption of innocence is only dislodged if the prosecution presents evidence establishing the defendant’s guilt beyond a reasonable doubt: R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 27; R. v. Starr, 2000 SCC 40, at para. 242.

B. Reasonable Doubt and Villaroman

[5] The reasonable doubt standard applies to the final determination of guilt or innocence. It is not applied piecemeal to individual pieces of evidence or categories of evidence: R. v. Menard, [1998] 2 S.C.R. 109; R. v. Morin, [1988] 2 S.C.R. 345.

[6] It is important to note that the Defence bears no burden to prove foundational facts in support of an inference of innocence: R. v. Villaroman, 2016 SCC 33, at para. 35 [Villaroman]; R. v. Khela, 2009 SCC 4. Nor is the defendant required to adduce evidence providing foundational support for a “finding” of reasonable doubt: Villaroman, at para. 28. A defendant is free to point to anything in support of reasonable doubt including the presence or absence of evidence.

[7] The Crown’s case relies in part on circumstantial inference to establish the guilt of the defendant. Circumstantial evidence has been described as “evidence that tends to prove a factual matter by proving other events or circumstances from which the occurrence of the matter at issue can be reasonably inferred”: R. v. Cinous (2002), 2002 SCC 29, 162 C.C.C. (3d) 129 (S.C.C.), at para. 89.

[8] Given the record produced at trial, it is appropriate to apply the following guidance set out by the Supreme Court of Canada in Villaroman:

1. The trier of fact should be alerted to unconscious efforts to “fill in the blanks” or “bridge gaps” in the evidence to support an unwarranted inference: Villaroman, at paras. 26-27;
2. Reasonable doubt need not be based on an inference or a finding of fact at trial: Villaroman, at para. 28;
3. “A reasonable doubt is a doubt based on ‘reason and common sense’; it is not ‘imaginary or frivolous’; it ‘does not involve proof to an absolute certainty’; and it is ‘logically connected to the evidence or absence of evidence’”: Villaroman, at para. 28;
4. Inferences consistent with innocence need not arise from proven facts and reasonable doubt is not speculative simply because it arises from a lack of evidence: Villaroman, at para. 35-36;
5. Requiring proven facts as a pre-condition to support explanations other than guilt improperly places an onus on the defendant to adduce evidence: Villaroman, at para. 35;
6. When assessing circumstantial evidence, the trier of fact should consider other “plausible theories” and other “reasonable possibilities” which are inconsistent with guilt: Villaroman, at para. 37;
7. The Crown is required to address reasonable possibilities, not every “possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused:” Villaroman, at para. 37; and,
8. In distinguishing between a plausible theory and speculation, the trier of fact must consider whether the circumstantial evidence, in light of logic and human experience, is reasonably capable of supporting an inference other than guilt: Villaroman, at para. 38.

[9] Ultimately, the Court in Villaroman provided the following caution at paragraph 30:

It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by too quickly overlooking reasonable alternative inferences . . . The inferences that may be drawn from this observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

[10] On the record adduced at trial, I conclude that the prosecution has not established that the guilt of the defendant is the only reasonable inference derived from the evidence.

C. Knowledge, Possession, and Control

[11] The parties did not litigate the law of possession. At core, the prosecution must prove that the defendant had knowledge, possession, and some measure of control over the impugned items. Section 4(3) of the Criminal Code defines possession, and that definition is adopted by s.2 of the Controlled Drugs and Substances Act. Possession may be characterized as: personal - s.4(3) (a); constructive - s.4(3) (a)(i) and (ii); or, joint: s.4(3) (b)

1. Knowledge

[12] Knowledge means that the prosecution has proven actual knowledge (i.e., “true belief”) or wilful blindness: R. v. Lights, 2020 ONCA 128, at paras 51-52 [Lights]. Knowledge may be proven by way of direct evidence or by the proof of facts in support of a reasonable inference: R. v. Pham, [2005] O.J. No 5127 (C.A.) at para. 44 [Pham].

2. Personal Possession

[13] Personal possession means that the accused was aware of being in possession of the thing alleged, was aware of what the thing was, and exhibited some measure of physical control over the thing: R. v. Morelli, 2010 SCC 8, at para. 137; R. v. Beaver, [1957] S.C.R. 531; Lights, at paras. 44-48; R. v. Degraw, 2018 ONCA 51, at para. 8. The prosecution has not proven beyond a reasonable doubt that the defendant had personal possession of cocaine in this case.

3. Constructive Possession

[14] In R. v. Choudhury, 2021 ONCA 560 [Choudhury], the Court of Appeal restated the approach in Lights and set out the elements of constructive possession at paragraph 19:

19 The relevant legal principles on constructive possession are not in dispute:

• Constructive possession is established when an accused does not have physical custody of an object but knowingly has it in the actual possession or custody of another person or has it in any place for their own or another's use or benefit: Criminal Code, s. 4(3) (a); R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 17; and R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 47.

• Knowledge and control are essential elements of constructive possession, which is established when the Crown proves beyond a reasonable doubt that the accused: (i) has knowledge of the character of the object said to be possessed; (ii) knowingly puts or keeps the object in a particular place, whether or not the place belongs to or is occupied by the accused; and (iii) intends to have the object in the place for the use or benefit of the accused or another person: Morelli, at paras. 15, 17; Lights, at paras. 44, 47.

• Tenancy or occupancy of a place where an object is found does not create a presumption of possession: Lights, at para. 50; R. v. Watson, 2011 ONCA 437, at para. 13; R. v. Lincoln, 2012 ONCA 542, at paras. 2–3; and R. v. Bertucci (2002), 169 C.C.C. (3d) 453 (Ont. C.A.), at para. 18.

• When the Crown relies largely or wholly on circumstantial evidence to establish constructive possession, a conviction can be sustained only if the accused's knowledge and control of the impugned objects is the only reasonable inference on the facts. The trier of fact must determine whether any other proposed way of looking at the case as a whole is reasonable enough to raise a doubt about the accused's guilt, when assessed logically and in light of human experience and common sense: see R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 55–56; Lights, at para. 39; and R. v. Stennett, 2021 ONCA 258, at paras. 60–61.

[15] In my view, based on the record produced at trial, and the submissions of counsel, constructive possession is the only available theory of liability.

D. Analysis

[16] The Ram vehicle was registered to the defendant. At the time he was observed by the police, he had control over the vehicle. But the prosecution case does not meet the high criminal burden for conviction.

[17] I am sympathetic to the common sense observation that if the defendant was driving his vehicle with cocaine in the centre armrest, it is highly suspicious. In some cases this fact could translate into a strong inference of knowledge. But the liability of any defendant must be assessed in light of the entire trial record with the criminal burden of proof in mind. On this record, I harbour a reasonable doubt as it concerns proof of knowledge and possession over the drugs seized from the centre console because of a number of factors:

1. There is no automatic presumption in law that the registered owner of a vehicle enjoys peculiar knowledge of all contents found within.
2. The cocaine was in a centre console armrest proximate to any driver or passenger in the vehicle, but not in plain view with the centre armrest closed.
3. There is no forensic link between the cocaine and the defendant.
4. There is no forensic link between a scale found in the centre console and the defendant or the cocaine.
5. The witness officer did not actually see the defendant (or anyone else) get out of the truck after arriving at the restaurant in Durham.

[18] The witness officer did not explain how he arrived at the opinion or conclusion that the defendant was operating the vehicle alone.

1. The defendant was not in the possession of any drugs upon arrest.
2. There is no evidence as to how many keys fobs were associated to the vehicle.

[19] The defendant was arrested “by his truck”, not within the vehicle, or even in “care or control” of his vehicle as it is viewed in impaired operation prosecutions.

[20] There is no evidence that the defendant was in possession of the keys to the vehicle when he was arrested. The witness officer was unaware of how the keys to the vehicle were located.

[21] From his position within the restaurant, the witness officer could not maintain observations on the defendant’s vehicle while the defendant and others enjoyed a meal.

1. There is no evidence that the vehicle was under police observation from approximately 8:48 PM to 11:08 PM while parked in the restaurant parking lot.
2. There is no evidence as to any particular use associated with the vehicle (e.g., work, or personal use vehicle).

[22] There is no evidence substantiating a finding that while others may have access to the vehicle, the defendant is the person who ordinarily or regularly drives the vehicle.

1. There is no evidence directed at the movements of this vehicle or where it is regularly parked (e.g., tracking data).

[23] The police did not investigate family members at the scene of arrest to ascertain their control over the vehicle, particularly when the police had observed at least one of those family members operating the vehicle.

1. A revenue Canada envelope purporting to belong to the defendant found within the vehicle was not seized.

[24] No police officer made a note of the addressee on the envelope.

[25] The witness officer’s testimony that the envelope was addressed to the defendant was simply an opinion that the envelope was addressed to the defendant.

1. There was no evidence directed at where the envelope was found within the vehicle.

[26] I find that the addressee indicated on the photograph of the envelope was not clear. Put another way, I was unable to unable to discern the letters associated with the addressee on the envelope without “filling in a gap” by having prior knowledge of the defendant’s name.

[27] The defendant was observed operating a Honda motor vehicle on August 30. He was observed in the company of his brother. The ownership of the Honda vehicle is not in evidence.

[28] On August 30th an unknown person got out of the Honda motor vehicle and entered the Ram motor vehicle. This person operated the Ram motor vehicle for a period of time.

1. On August 30th, “unknown male 5” removed a red gym bag from the rear driver’s seat and deposited this bag inside a house.

[29] On August 30th the defendant’s brother Jeremy was observed driving the Ram vehicle to an address on Kingston Road and removing a bag from the vehicle.

[30] On August 31st the defendant was observed operating the Honda motor vehicle.

[31] On August 31st the defendant’s brother Jeremy was observed operating the Ram motor vehicle with an unknown female to Bayly Street near to the restaurant where the defendant was arrested.

1. The surveillance record adduced in support of the defendant’s control over the vehicle was similar in duration to the evidence placing others in control of the vehicle earlier in August.

[32] There is no information about the person or persons who possessed the vehicle between August 31st, and Sept 8th.

[33] The defendant’s brother Jeremy has a relevant prior criminal record and had access to the vehicle (e.g., baseball game).

[34] The defendant’s brother was also clearly a target of the police investigation.

[35] There is no basis for me to draw a circumstantial inference that Jeremy and the defendant jointly possessed the contraband.

E. Conclusion

[36] The fact that the defendant was operating his vehicle with cocaine in the centre console presents an available common sense inference that he possessed the cocaine. Indeed, he must have rested his elbow mere inches away from the cocaine while driving. This inference is not a presumption in law. It is an inference based on the record adduced at trial.

[37] But reasonable doubt rises from the prosecution’s case given the factors outlined above. Having regard to the reasons outlined in this judgment, I am obligated to acquit the defendant.

Released: July 19, 2024 Signed: “Justice M.S.V. Felix”