COURT FILE NO.: 11-488
DATE: 20120706
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ARUN PRASATH MUTHUTHEVAR
Defendant
Counsel: A. Adjei, for the Crown J. Park, for the Defendant
HEARD: July 3-6, 2012
REASONS FOR JUDGMENT
BOSWELL J.
INTRODUCTION:
[1] The accused is charged with one count of possession of cocaine for the purpose of trafficking. About a quarter of a kilogram of cocaine was located by the police in a vehicle being driven by the accused. The vehicle was not owned by the accused. He was driving a friend’s car. The issue for trial was whether the accused possessed the cocaine at the time of his arrest. More specifically, whether he had knowledge and control of the cocaine found in the vehicle.
GENERAL OVERVIEW:
[2] The Crown adduced evidence from three police officers, as well as the former girlfriend of the accused. In addition, a video-recorded statement, about 25 minutes in length, that the accused provided to the police following his arrest was introduced as part of the Crown’s case. The accused elected not to call any evidence. The following is a general overview of the evidence adduced by the Crown.
The Roadside Stop
[3] At about 10:00 a.m. on January 16, 2011, York Region Police Constable Ryan Smith was travelling in a marked cruiser eastbound on Clegg Avenue in Markham. A Honda Civic, being driven by the accused, passed him in the westbound lanes, travelling at what PC Smith considered to be a high rate of speed. PC Smith performed a U-Turn and effected a roadside stop of the Civic. The vehicle was not registered to the accused, but rather to another male who resided in Ajax, Ontario. No issue was taken with the lawfulness of the roadside stop.
[4] PC Smith approached the driver’s side window of the Civic. He found that the vehicle was occupied by a lone male, whom he quickly identified as the accused. He noted the smell of alcohol on the breath of the accused. He obtained a driver’s license from the accused, which he took to his cruiser for the purpose of conducting a records check. He learned that the accused was on probation, a condition of which required him to abstain from consuming alcohol. He arrested the accused for breach of probation. A pat down search incident to arrest yielded a small amount of cocaine in a front pants pocket of the accused. Subsequently a search of the Civic yielded a Ziploc bag containing 252 g of cocaine, hidden under the front passenger seat. No issue was taken with respect to the lawfulness of the arrest, or the searches that followed.
[5] PC Smith’s testimony was that the bag of cocaine was located under the front driver’s seat. He conceded in cross-examination that his incident report - prepared a short time after the arrest - indicated that it was found under the front passenger seat. Another officer who attended the roadside stop, PC Andre Boteju, testified that the cocaine was found under the front passenger seat. In addition, the accused’s then-girlfriend, Prasha Sasitharakumar, testified that a short time prior to the arrest of the accused, she found the cocaine hidden under the front passenger seat.
[6] I am satisfied that the cocaine was hidden under the front passenger seat of the Civic and not the driver’s side seat as PC Smith said. In my view, PC Smith’s evidence reflects a mistaken recollection. I find his incident report to be more reliable evidence given its consistency with the testimony of the other witnesses and given the proximity in time between the arrest and the completion of the incident report.
[7] In addition to the cocaine, the police also found a digital scale within the Civic, though the evidence was not clear about where in the vehicle the scale was located. The accused had $25 in his possession at the time of his arrest. He had a $20 bill and a rolled up $5 bill.
The Arrest of the Accused
[8] The accused was initially arrested for breach of probation, and then, after more evidence was detected, for possession of cocaine and, finally, for possession of cocaine for the purpose of trafficking. He was conveyed to the 5 District police station, where his right to counsel was implemented. After speaking with counsel he participated in a brief interview with Detective Constable Lai, which was digitally video-recorded.
[9] The accused told D/C Lai that he had been at a birthday party the night before his arrest at a hotel close by the site of the roadside stop. He admitted that he had consumed one beer, in breach of his probation conditions. He admitted that the cocaine in his pocket was his and said it was for recreational use. He said the Honda Civic he was driving at the time of the roadside stop belonged to his friend. He said the friend was intoxicated and did not want to drive, so he gave the accused his car keys at about 7 a.m. The intention of the accused was to drive himself and his girlfriend home in the friend’s vehicle. He said he had never driven the vehicle before.
[10] When asked about the cocaine found in the car, the accused said it was not his and he did not know how it got there. He described events leading up to his arrest as happening very quickly. He said he and his girlfriend were in an argument. He got frustrated and drove off from the hotel without her. Within two minutes he was pulled over by PC Smith.
The Arrest of Prashma Sasitharakumar
[11] Ms. Sasitharakumar testified as part of the Crown’s case. She confirmed that she had been at an all-night birthday party with the accused at a local Markham hotel on January 15-16, 2011. She had been drinking alcohol and snorting cocaine all night.
[12] She confirmed that she and the accused had been fighting. She was upset that he had, in her view, been inattentive to her during the party. They left the party early in the morning. Early, to her, meant between 8 a.m. and 10 a.m.. They walked from the hotel to the Honda Civic, which was located in the hotel parking lot. Ms. Sasitharakumar’s understanding was that the car was owned by a friend of the accused. She had not been in the car before and did not recall ever seeing the accused drive it before.
[13] Ms. Sasitharakumar said she got into the car and sat in the passenger side front seat. The accused remained outside of the car for a few minutes, talking to friends. She dropped her cell phone on the floor. She reached down to try to find it and her hand came into contact with something under the seat. She pulled it out and found that it was a bag containing cocaine. She said she looked at it then put it back under the seat.
[14] She testified that when the accused entered the car she confronted him. She asked him if he knew there were drugs there and he said no and seemed surprised to her. She asked him, “is this yours?” referring to the cocaine under her seat. He said no. She believes she asked him if he knew whose drugs they were, but she could not recall getting a response. They continued to argue about personal matters until she got out of the car and walked away. She agreed she was being dramatic and hoped that the accused would come after her. He didn’t. Instead he drove away.
[15] When Ms. Sasitharakumar realized that the accused had left, she tried to contact him on his cell phone. After two attempts, he answered. He said he’d been pulled over by the police. She walked down the street to his location and found him there in the presence of two police officers. She did not speak to the accused. Instead she approached PC Boteju. She told PC Boteju that the drugs found in the car were hers. She did so, she said, because she hoped that such a confession would make the whole thing go away. She said she had been up all night and was still under the influence of drugs and alcohol and was not thinking clearly. In any event, she was arrested for possession of cocaine. She was later released on a promise to appear.
[16] The last witness for the Crown was Detective Bob Muir. He essentially testified about what items were seized at the time of the arrest of the accused. In addition, he filed as exhibits, on consent, two certificates from Health Canada which confirm that both the substance located under the front seat of the Civic and the substance found in the pocket of the accused were cocaine.
[17] With that general overview of the evidence, I will move on to an analysis of what the Crown must prove to establish the guilt of the accused on the charge before the Court.
ANALYSIS:
[18] To establish the guilt of the accused on a charge of possession of cocaine for the purpose of trafficking, the Crown must prove the following essential elements beyond a reasonable doubt:
(i) that the accused was in possession of cocaine;
(ii) that the accused knew that the substance he was in possession of was cocaine; and
(iii) that the accused had possession of cocaine for the purpose of trafficking in it.
[19] This is a straightforward case that, in my view, turns entirely on the issue of possession. The accused concedes that the amount of cocaine found in the car is consistent with a trafficking purpose. His position is that the Crown has failed to prove beyond a reasonable doubt that he was in possession of the cocaine.
[20] The term “possession” is defined in s. 4(3) of the Criminal Code of Canada, R.S.C. 1985 c. C-46 and incorporated by reference in s. 2 of the Controlled Drugs and Substances Act, S.C. 1996, c.19. Section 4(3) provides as follows:
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 of another person; and
(iii) 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.
[21] It is agreed between counsel that to establish possession, the Crown must prove that the accused had knowledge of the presence of the cocaine in the Honda Civic and that he had a measure of control over it: R. v. Grey, 1996 CanLII 35 (ON CA), [1996] O.J. No. 1106 (C.A.), at para. 15. Crown and defence counsel were not in agreement, however, about the standard of proof required to establish the elements of knowledge and control.
[22] Crown counsel submitted, correctly, that the reasonable doubt standard of proof applies to the determination of the verdict but it does not apply to the assessment of individual pieces of evidence: see R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345. Crown counsel argued that while the Court must be persuaded, beyond a reasonable doubt, that the accused had possession of the cocaine under the seat, the Court merely has to be satisfied, as a factual matter, that the accused had knowledge and control of it.
[23] Defence counsel accepted that the reasonable doubt standard does not generally apply to the assessment of individual pieces of evidence and that it applies to the ultimate verdict. Defence counsel submits, however, that knowledge and control are essential elements of possession, which must be proven beyond a reasonable doubt before a guilty verdict may be rendered.
[24] I agree with the submissions of Defence counsel. Whether the accused had knowledge of the presence of cocaine in the car is absolutely central to the determination of the charge now before the Court. To establish possession, it is essential that the Crown prove knowledge beyond a reasonable doubt. In cases of simple possession, knowledge, intent to possess, and control are all essential elements: see R. v. Kocsis (2001), 2001 CanLII 3593 (ON CA), 157 C.C.C. (3d) 564 (C.A.). It follows that knowledge must be an essential element of possession for the purpose of trafficking. Each piece of evidence – whether direct or circumstantial – going to the issue of knowledge and control need not be established to the reasonable doubt standard. But ultimately, the Court must be satisfied, on the evidence it chooses to accept and rely upon, that knowledge and control have been established beyond a reasonable doubt.
[25] Knowledge may be established by direct or circumstantial evidence, or a combination of both: R. v. Pham, 2005 CanLII 44671 (C.A.) at para.18. In this case, the Crown relies on both direct and circumstantial evidence.
[26] By way of direct evidence, the Crown relies on Ms. Sasitharakumar’s testimony to the effect that she confronted the accused about the cocaine in the car, almost immediately before he drove off without her, and that they engaged in some brief dialogue about it.
[27] Indirect, or circumstantial evidence relied upon by the Crown includes: (1) that the accused was in possession and control of the car that contained the cocaine; (2) that he had the keys to the car for approximately three hours before his arrest; (3) that he was the sole occupant of the car at the time of the roadside stop; and (4) that he had cocaine in his pocket, which he admits knowledge and control of. The Crown asserts that these facts support an inference that the accused had knowledge of the cocaine found under the seat.
[28] I will address the direct and circumstantial evidence in turn.
[29] Ms. Sasitharakumar was, as Crown counsel admits, not a witness of impeccable reliability. Indeed, I find that there are a number of reasons to be concerned about both her credibility and reliability. Credibility and reliability are not the same thing. A good description of the difference between the two was provided by Justice Watt in R. v. C. (H.), 2009 ONCA 56, at para. 41, where he said:
Credibility and reliability are different. Credibility has to do with a witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engages consideration of the witness's ability to accurately: i. observe; ii. recall; and iii. recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence.
[30] Ms. Sasitharakumar admitted that she lied to the police at the roadside stop and told them that the cocaine in the car was hers. She did so in order to assist the accused and in the hope that her lie would make the whole thing go away. Clearly, she was prepared to lie to the authorities to assist the accused.
[31] During the trial, her answers were frequently vague. Numerous times she said she could not remember details of events that occurred on the evening in question. Ms. Sasitharakumar is 22 years old. The subject incident occurred only a year and a half ago. In the course of the incident she was charged with possession of cocaine. This was a very significant event in her life. One might reasonably expect that she would have a much better recollection of the events as they unfolded, given their significance to her. Instead, she could not remember what time she arrived at the party and whether she had eaten dinner before attending there. She could not recall exactly how she and the accused got to the party. She could not recall the name of the person she spent the night drinking and consuming drugs with. She could not recall the specifics of the conversation with the accused about the cocaine in the car. She could not recall the specifics of her conversation with PC Boteju. She could not really remember a good deal of other information. Her inability to remember events did not strike me as altogether genuine, but rather seemed like more of an excuse to avoid answering questions.
[32] I do not reject outright everything that Ms. Sasitharakumar said. I am entitled, of course, to accept all, some or none of any given witness’s testimony. But I agree with Crown counsel’s candid observation that with this witness, one can only really be comfortable with the reliability of her evidence when it is consistent with the non-contentious facts and circumstances of the case.
[33] The substance of Ms. Sasitharakumar’s discussions with the accused about the cocaine located under the front passenger seat of the Civic are certainly not non-contentious. I accept that she and the accused engaged in an argument in the car, the specifics of which I am unsure about. In addition to the credibility concerns I have outlined with respect to this witness, I have concerns about the reliability of her evidence of the discussion between her and the accused in the car. She was, at the time of the discussion, admittedly under the influence of drugs and alcohol. Her recounting of the conversation was not well particularized.
[34] I find that Ms. Sasitharakumar became aware, after she got into the car, of the presence of the cocaine under her seat. The fact that she subsequently gave accurate direction to PC Boteju about the location of the cocaine leads to the obvious conclusion that she was aware of its location. I accept that she asked the accused about it when he entered the car. Doing so, in my view, accords with common sense and experience. I cannot be certain, however, about precisely what was discussed between Ms. Sasitharakumar and the accused, given the vagueness of her evidence. She testified that immediately after looking at the bag containing cocaine, she replaced it under her seat. She agreed, under cross-examination, that the bag was not visible when the accused entered the car. She further agreed that she never pulled the bag out to show the accused what was in it. She never told him how much cocaine she saw. Moreover, she couldn’t say for sure that she even told him it was cocaine, though she was “pretty sure” she did.
[35] The direct evidence of Ms. Sasitharakumar is not compelling. It establishes, at best, that she had a discussion about drugs under the seat, but it does not establish how much was there and what type of drug it was.
[36] The indirect evidence is not particularly compelling either. This is not a case like R. v. Sparling, [1988] O.J. No. 1877, where Watt J., as he then was, inferred an accused’s knowledge of the presence of narcotics in a residence on the basis that the accused occupied the residence, the narcotics were in plain view in the common areas of the residence, and a scale was found in a bedroom occupied by the accused. In the case at bar, the cocaine was hidden under the passenger seat and there is no evidence the accused ever saw it. Though there was a digital scale found somewhere in the car, the evidence does not establish where it was found or whether it would have been within the plain view of the accused. The vehicle was not owned by the accused, this was the first time he had driven it and he was only in it for a short period of time – quite possibly just a matter of minutes. There is no evidence before the Court as to whom, or how many others, may have had access to the Civic. This case is perhaps more analogous to the facts in R. v. Grey where the Court of Appeal upheld a trial judge’s conclusion that there was insufficient evidence to infer knowledge of the presence of drugs in an apartment. The trial judge, in Grey, found that the drugs were hidden, the accused was not a permanent occupant of the apartment, and other persons frequented the apartment which was rented by a co-accused.
[37] Even in combination, the direct and circumstantial evidence, relevant to the issue of knowledge, falls well short, in my view, of establishing the requisite knowledge to the standard of proof beyond a reasonable doubt. Frankly, even if I had not found knowledge to be an essential element of possession (and in turn of possession for the purpose of trafficking), I would still not be satisfied that knowledge, as a matter of fact, had been made out.
[38] In the result, I am left in a state of reasonable doubt about whether the accused possessed the cocaine found under the passenger seat of the Civic. On that basis, I must acquit the accused of the charge before the Court. It is not necessary, in the circumstances, to address any of the remaining essential elements of the offence.
[39] The Crown asserted that I might still find the accused guilty of the lesser and included offence of possession of cocaine, on the basis that the accused admitted that the cocaine found in his pocket was his. The accused was originally charged with a count of simple possession in addition to the count now before the Court. Counsel were unable to say what happened with that charge. Section 581(1) of the Criminal Code provides that each count on an indictment shall, in general, apply to a single transaction. I am satisfied that the count on the indictment presently before the Court relates to the 252 g of cocaine found under the passenger seat and not to the cocaine found in the pocket of the accused. I am not prepared to find that the possession of the cocaine in the accused’s pocket is a lesser and included offence to possession of the cocaine under the car seat. They are two separate transactions.
Boswell J.
Released: July 7, 2012