COURT FILE NO.: 1648/10
DATE: 2012-02-29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Rae Rogers and Mechelle Rogers
Defendants
Peter Wenglowski, for the Crown
D. Paradkar, for the Defendant Rae Rogers and F. Davoudi for the Defendant Mechelle Rogers
HEARD: February 21, 2012
THE HONOURABLE MR. JUSTICE P.B. HAMBLY
REASONS FOR JUDGMENT
[1] Rae Rogers, Mechelle Rogers and Devon Bailey were charged with possession of cocaine for the purpose of trafficking on July 22, 2008. Devon Bailey pleaded guilty prior to trial. The trial of Rae Rogers and Mechelle Rogers commenced before me with a jury on February 13, 2012. At the close of the crown's case on February 21, 2012, Mechelle Rogers brought a motion for directed verdict. For oral reasons I granted her motion with written reasons to follow. These are the written reasons.
The Facts
[2] The Niagara Regional Police Service (“NRPS”) and the Hamilton Police Service (“HPS”) were conducting a joint criminal investigation. On the afternoon of July 22, 2008, the NRPS had Woodland Public School in St. Catharines under surveillance. Detective R. Hrcak of the NRPS was directing this surveillance. Detective P. McCreadie was maintaining surveillance from an orchard beside the school. At 5:56 p.m. he observed a white Honda motor vehicle arrive at a parking lot beside the school. The occupants of the vehicle, who were later identified, were Rae Rogers, who was driving the vehicle, Devon Bailey, who was in the front passenger seat and Mechelle Rogers and two children, boys aged 11 and 7, who were in the backseat. Rae Rogers and one child and then Mechelle Rogers and the other child exited the vehicle and went up to the school. They all re-entered the Honda. At 6:13 p.m. Dwayne Ford arrived. He was driving a black Nissan Quest. He was alone in the vehicle. He stopped his vehicle beside the Honda with the passenger seat of the vehicle beside the driver seat of the Honda. There was conversation between the occupants of the two vehicles. About 10 seconds later the two vehicles left.
[3] NRPS officers followed the vehicles a short distance to Charles Daley Park. The park was located on the shores of Lake Ontario. Detective P. Koscinski of the NRPS arrived at the park at 6:20 p.m. He made observations of interaction of the occupants of the two vehicles at a distance of 60 to 70 feet, with the assistance of binoculars. Upon arriving at the park, Mechelle Rogers left the vehicle with the two children. She and the two children went for a walk along the beach at the lake. They were observed to walk a distance of 70 to 100 feet away from the vehicle. Rae Rogers and Devon Bailey were in the Nissan vehicle. Rae Rogers exited the vehicle with a package in a Tommy Hilfiger white bag. It appeared to Detctive Koscinski that there was a box in the bag. He observed him place the bag in the trunk of his Honda motor vehicle. Mechelle Rogers and the two children returned from the beach. They and Devon Bailey and Rae Rogers re-entered the Honda. At 6:32 p.m. the Nissan left the park. At 6:34 p.m. the Honda left the park.
[4] NRPS officers followed the Honda. Rae Rogers drove it, with the passengers, along Queen Elizabeth Highway. Detective Hrcak requested assistance from the HPS to follow the Honda. Six HPS officers in six unmarked police vehicles set out from Hamilton. At 6:38 p.m., Hamilton police took up surveillance of the Honda at the Burlington Skyway on the QEW. Three of the Hamilton officers lost the Honda. The other three Hamilton officers, followed by officers from the NRPS, followed the Honda onto highway 410 and into a residential area of Brampton. At about 7:38 p.m. the Honda stopped at a stop sign. Two HPS vehicles boxed in the Honda. One police vehicle moved in front of the Honda. Another police vehicle was at its side. The Honda took evasive action by driving over a sidewalk and turning right. The police vehicles followed it to the next stop sign, which was a distance of about 50 feet, where they succeeded in stopping it. Devon Bailey left the vehicle and began to walk quickly away. He was taken to the ground by the police and arrested. Rae Rogers was arrested at the driver’s seat of the Honda. In his right rear pocket was $660 consisting of two 5 dollar bills, one 10 dollar bill and thirty two 20 dollar bills. In the trunk of the vehicle the police located a Tommy Hilfiger shopping bag. In the bag was a shoe box containing three quantities of cocaine wrapped in plastic bags. One weighed 1,053.7 g, the second weighed 247.6 g and the third weighed 252.6 g for a total of 1,553.9 g or slightly in excess of 1.5 kg. It was 74% pure.
[5] The police permitted the occupants of the vehicle to depart. On October 27, 2008, Rae Rogers and Mechelle Rogers, at the request of the police attended voluntarily at the police station in St. Catharines where they were arrested. The police charged them with possession of cocaine for the purpose of trafficking. The crown and the defence agreed that the cocaine seized from the trunk of the Honda has a wholesale value of between $46,000 and $64, 000 and a street value of about $150,000. They have also agreed that possession by a person of this amount of cocaine is consistent with having it for the purpose of trafficking.
Analysis
Test for Granting a Directed Verdict
[6] The test for granting a directed verdict was set out by the Supreme Court of Canada in the judgment of Justice Ritchie in United States of America v. Sheppard, 1976 8 (SCC), [1976] S.C.J. No. 106. It is the same test which governs whether a warrant should issue for an accused under the Extradition Act and whether an accused should be committed for trial after a preliminary hearing. Justice Richie stated the following at p. 9-10:
… s. 475 of the Criminal Code … defines the duty of a "justice" in deciding whether or not an accused should be committed for trial. The section provides:
- (1) When all the evidence has been taken by the justice he shall,
(a) if in his opinion the evidence is sufficient to put the accused on trial,
(i) commit the accused for trial, or ...
(b) discharge the accused, if in his opinion upon the whole of the evidence no sufficient case is made out to put the accused on trial.
I agree that the duty imposed upon a "justice" under s. 475(1) is the same as that which governs a trial judge sitting with a jury in deciding whether the evidence is "sufficient" to justify him in withdrawing the case from the jury and this is to be determined according to whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The "justice", in accordance with this principle, is, in my opinion, required to commit an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction.
[7] The evidence against Mechelle Rogers is circumstantial. The Supreme Court of Canada in R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21, in the judgment of Chief Justice McLachlan dealt with the test to be applied by the trial judge in considering an application for directed verdict at the close of the crown's case, where the evidence is circumstantial. She referred to the test in Sheppard. She then stated the following:
22 The test is the same whether the evidence is direct or circumstantial: see Mezzo v. The Queen, 1986 16 (SCC), [1986] 1 S.C.R. 802, at pp. 842-43; Monteleone, supra, at p. 161. The nature of the judge's task, however, varies according to the type of evidence that the Crown has advanced. Where the Crown's case is based entirely on direct evidence, the judge's task is straightforward. By definition, the only conclusion that needs to be reached in such a case is whether the evidence is true: see Watt's Manual of Criminal Evidence (1998), at par. 8.0 ("[d]irect evidence is evidence which, if believed, resolves a matter in issue"); McCormick on Evidence (5th ed. 1999), at p. 641; J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at par. 2.74 (direct evidence is witness testimony as to "the precise fact which is the subject of the issue on trial"). It is for the jury to say whether and how far the evidence is to be believed: see Shephard, supra, at pp. 1086-87. Thus if the judge determines that the Crown has presented direct evidence as to every element of the offence charged, the judge's task is complete. If there is direct evidence as to every element of the offence, the accused must be committed to trial.
23 The judge's task is somewhat more complicated 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 (circumstantial evidence is "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 ("[c]ircumstantial evidence ... may be testimonial, but even if the circumstances depicted are accepted as true, additional reasoning is required to reach the desired conclusion"). 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 only whether the evidence, if believed, could reasonably support an inference of guilt.
24 The principles described above are well settled. In Metropolitan Railway Co. v. Jackson (1877), 3 App. Cas. 193 (H.L.), at p. 197, Lord Cairns wrote:
The Judge has a certain duty to discharge, and the jurors have another and a different duty. The Judge has to say whether any facts have been established by evidence from which [the matter in issue] may be reasonably inferred; the jurors have to say whether, from those facts ... [the matter in issue] ought to be inferred. [Emphasis omitted.]
[8] Justice Ducharme applied these principles in R. v. Munoz (2006), 2006 3269 (ON SC), 86 O.R. (3d) 134. After quoting a portion of the above passage from Arcuri he stated the following:
21 … This limited weighing means that inferences to be drawn from circumstantial evidence need not be "compelling" or even "easily drawn" in order to be reasonable. If there are competing inferences, these are for the trier of fact to resolve. A preliminary inquiry judge commits jurisdictional error where he weighs competing inferences or chooses among them. If the trier of fact could reasonably draw an inference based on the evidence, then the matter should be left for their determination. As Major J. put it in Regina v. Sazant, 2004 SCC 77, [2004] S.C.J. No. 74 (S.C.C.) at para 18, "where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered." Thus, if a reasonable inference in favour of the Crown is available to be drawn, then, regardless of its strength, a judge conducting a preliminary inquiry is required to draw it.
22 However, despite the very circumscribed scope of the preliminary inquiry judge's function with respect to the drawing of inferences, the weighing of the evidence involved, while limited, is of great importance. Any inferences relied upon by the judge to commit the accused must be both: (1) reasonably based on the evidence heard at the preliminary inquiry; and (2) reasonable. Such inferences cannot be based on speculation, no matter how seemingly reasonable. If the committal of an accused depends on an inference or inferences that cannot be reasonably drawn from the evidence - the accused must be discharged as there would be an absence of evidence on an essential element.
[9] Justice Ducharme emphasized that inferences can only be drawn from established facts. Also a distinction must be made between inferences and speculation or conjecture. However. the inferences that may be drawn are not only the inferences that may easily be drawn. Justice Ducharme stated the following:
31 However, it must be emphasized that this requirement of "logical probability" or "reasonable probability" does not mean that the only "reasonable" inferences that can be drawn are the most obvious or the most easily drawn. This was explicitly rejected in R. v. Katwaru, supra… per Moldaver J.A. at 444:
[I]n the course of his instructions on the law relating to circumstantial evidence, the trial judge told the jury on numerous occasions that they could infer a fact from established facts but only if the inference flowed "easily and logically from [the] other established facts".
The appellant submits, correctly in my view, that the trial judge erred by inserting the word "easily" into the equation. In order to infer a fact from established facts, all that is required is that the inference be reasonable and logical. The fact that an inference may flow less than easily does not mean that it cannot be drawn. To hold otherwise would lead to the untenable conclusion that a difficult inference could never be reasonable and logical.
The Law on Constructive Possession
[10] The defence admits that given the quantity of cocaine involved that possession of it is only consistent with possession for the purpose of trafficking. The issue on this motion for a directed verdict is whether there is any evidence that has been adduced by the crown, on which a reasonable jury properly instructed, could find that Mechelle Rogers was in possession of the cocaine in the trunk of the Honda. There is no evidence that Mechelle Rogers had actual possession of cocaine. The issue is whether she had constructive section.
[11] In R. v. Pham, 2005 44671 (ON CA), [2005] O.J. No. 5127, the trial judge found an accused in possession of cocaine in his apartment which the police located there when he was not in the apartment. He convicted him of possession of cocaine for trafficking. The Court of Appeal in a 2:1 decision upheld the conviction. In the majority opinion of Justice Kozak (sitting ad hoc) the Court of Appeal stated the following:
13 Section 2 of the Controlled Drugs and Substances Act, S.C. 1996 C.19 adopts the definition of "possession" in subsection 4(3) of the Criminal Code. That section reads:
4(3) For the purposes of this Act,
(a) a person has anything in possession when he has it in his personal possession or knowingly:
(i) 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 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.
14 Section 4(3) of the Code creates three types of possession:
(i) personal possession as outlined in section 4(3)(a);
(ii) constructive possession as set out in section 4(3)(a)(i) and section 4(3)(a)(ii); and
(iii) joint possession as defined in section 4(3)(b).
15 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. (citations omitted)
16 In order to constitute joint possession pursuant to section 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. (citations omitted)
[12] In R. v. Milhalkov, [2009] O.J. No. 624, a husband and wife were convicted of possession of counterfeit money which the police found in the apartment that they shared. The wife appealed. The Court of Appeal in a 2:1 decision upheld the conviction. There was no disagreement in the court as to the principles that apply. Justice Feldman in dissent stated the following:
The Test for 'Possession'
7 There was no dispute that the appellant's husband was in possession of all the equipment and the counterfeit money. The issue before the court was whether the appellant was also in possession. The Crown relied on s. 4(3)(b) of the Criminal Code, which provides:
4(3) For the purposes of this Act,
(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.
8 The trial judge referred to the important decision of the Supreme Court of Canada in R. v. Terrence, 1983 51 (SCC), [1983] 1 S.C.R. 357, where the court held that "a constituent and essential element of possession under s. 3(4)(b) [now s. 4(3)(b)] of the Criminal Code is a measure of control on the part of the person deemed to be in possession by that provision of the Criminal Code" (p. 364). The Supreme Court quoted with approval in the same decision, at p. 363, the following explanation of the section by O'Halloran J.A. of the British Columbia Court of Appeal in R. v. Colvin and Gladue (1942), 1942 245 (BC CA), 78 C.C.C. 282, at p. 287:
The "knowledge and consent" which is an integral element of joint possession in s. 5(2) [now 4(3)(b)] must be related to and read with the definition of "possession" in the previous section 5(1)(b) [now 4(3)(a)]. It follows that "knowledge and consent" cannot exist without the co-existence of some measure of control over the subject-matter. If there is the power to consent there is equally the power to refuse and vice versa. They each signify the existence of some power or authority which is here called control, without which the need for their exercise could not arise or be invoked.
9 Since Terrence, it has been understood that in order for a person to be in "constructive possession" under s. 4(3)(b), the person must have knowledge that the other person is in possession of the contraband, must consent to that possession, and in order to give effective consent that imports criminal liability, the person must have a measure of control over the contraband.
Whether a Reasonable Jury Properly Instructed Could Infer from the Evidence That Mechelle Rogers Was in Legal Possession of the Cocaine in the Trunk of the Honda
[13] In R. v. Huynh (2005), 2005 34563 (ON CA), 200 C.C.C. (3d) 305, Justice Doherty gave the judgment for the Court of Appeal. In Muonz, Justice Ducharme summarized the facts in Huynh as follows:
29 … This case involved an appeal of the committal for extradition of an individual on charges of conspiracy and money laundering relating to the designated offence of trafficking in a controlled substance. The material relied on in support of the extradition justified the inference that the appellant had conspired with others to covertly transfer very large amounts of cash from the United States to Canada. He did so by concealing the money in a secret compartment fashioned in the gas tank of his vehicle. While there was no direct evidence as to the source of the cash, the Crown argued that it could be reasonably inferred that the cash was the proceeds of trafficking in a controlled substance based on: (a) the amount of cash involved; (b) the frequency with which cash was being transferred from the United States to Canada; (c) the manner of concealment of the cash suggesting a level of sophistication and a commercial operation; (d) the coded conversations of participants and their obvious concerns about surveillance; and (e) the anticipated evidence of a DEA officer that the modus operandi was consistent with the activities of drug dealers.
[14] He then quoted a passage from the judgment of Justice Doherty in Huynh as follows:
- The material identified by the respondent certainly permits the inference that the cash was the proceeds of some illicit activity. Drug trafficking comes readily to mind as one possible source. 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. The requesting state has not offered any evidence as to the source of the funds even though its material indicates that one of the parties to this conspiracy is cooperating with the police. ... I do not think there is anything in the material that would reasonably permit a trier of fact to infer that the cash was the proceeds of drug trafficking and not some other illicit activity.
[15] Mechelle Rogers is charged with possession of cocaine for the purpose of trafficking. In my view there is evidence against her that she knew that illegal activity was taking place in Charles Bailey Park and that she consented to it. However, there is an absence of evidence against her that she knew that the substance in the shoe box was cocaine and that she had any control over it. She is entitled to a directed verdict.
Conclusion
[16] The procedure for granting a directed verdict was modified by the Supreme Court of Canada in R. v. Rowbotham 1994 93 (SCC), [1994] S.C.J. No. 61 in the decision of Chief Justice Lamer. Previously where a trial judge decided that it was necessary to acquit the accused at the close of the crown's case, it was necessary for the trial judge to direct the jury to acquit. In Rowbotham Justice Lamer stated the following:
34 I conclude that the common law procedure with respect to directed verdicts should be modified -- in instances where in the past the trial judge would have directed the jury to return a particular verdict, the trial judge should now say "as a matter of law, I am withdrawing the case from you and I am entering the verdict I would otherwise direct you to give as a matter of law".
[17] The jury was excused until February 22, 2012 at 10:00 a.m. At that time I informed the jury in accordance with the procedure in Rowbotham that I was entering a verdict of acquittal against Mechelle Rogers.
P.B. HAMBLY J.
Released: February 29, 2012
COURT FILE NO.: 1648/10
DATE: 2012-02-29
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Rae Rogers and Mechelle Rogers
REASONS FOR JUDGMENT
P.B. HAMBLY J.
Released: February 29, 2012
/lr