ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-11-024
DATE: 2012-09-12

BETWEEN:

HER MAJESTY THE QUEEN – and – DAVID FRANK MUNRO & MATTHEW JAMES MUNRO

Catherine Hoffman, Counsel for the Crown

Peter Thorning, Counsel for David Munro
David North, Counsel for Matthew Munro

HEARD: April 3, 2012

REASONS FOR JUDGMENT

GRAY J.

1Matthew and David Munro are charged with unlawful possession of controlled substances, methamphetamine and cocaine, for the purpose of trafficking. On January 4, 2012, I delivered Reasons for Judgment in connection with a pre-trial application in which they contended that their rights under the Charter had been violated, and that evidence seized upon their arrest, and utterances made, should be excluded from evidence. I ruled that there were, indeed, a number of Charter violations, but that the evidence should be admitted pursuant to s. 24(2) of the Charter.

2Counsel have agreed that the evidence tendered on the pre-trial application can be considered by me on the merits of the charges themselves. Counsel also agreed to file written submissions, which have now been filed.

3For the reasons that follow, I find that both accused are guilty as charged.

Background

4Much of the background has already been outlined in my Reasons for Judgment on the pre-trial application, and it is unnecessary to repeat it. I will focus on the evidence that is particularly relevant to the issue of whether the Crown has proven the specific charges beyond a reasonable doubt.

5After the detention and arrest of the Munros, a search was conducted of the vehicle in which they were found. The vehicle itself had been purchased by Matthew Munro on March 10, 2008. Of particular relevance here was the discovery of a number of drugs contained in a black Blackberry box, which was found under the driver’s seat in the vehicle. The police found 27.8 grams of cocaine and 109 grams of methamphetamine. It is conceded that for drugs of that quantity it can readily be concluded that if they were in the possession of the accused, it was for the purpose of trafficking. It is common ground that the only issue remaining is whether the drugs were in the possession of the accused.

6Also of significance was the discovery of six cell phones that were found in the car. Pursuant to a subsequently-obtained search warrant, an analysis was conducted of the contents of the cell phones. There was filed on consent an expert report, in which the contents of the cell phones were analyzed.

7As noted in my earlier Reasons for Judgment, Matthew Munro was the driver of the car and David Munro was in the passenger seat. Upon being approached by the police, Matthew Munro was asked whether he knew the occupants of the vehicle that was parked next to the Munro vehicle. He responded that they knew them, but they were simply some friends they had run into. The occupants of the other vehicle claimed that they did not know the Munros. As reviewed in my earlier Reasons, the occupants of that vehicle engaged in very suspicious behaviour, which ultimately led to their arrest and a search of their vehicle. Among other things, the sum of slightly more than $8,000 in cash was found in the vehicle.

8Upon analysis of the cell phones found in the Munros’ vehicle, a number of text messages were discovered that are relevant. In at least two messages, the sender was identified as “Dave” or “D”. The author of the expert report expresses the opinion that the user of that cell phone is the accused, David Munro.

9A number of text messages exchanged between that cell phone and a cell phone found in the other vehicle, between April 14, 2010 at 7:08 p.m. and April 15, 2010 at 12:17 a.m., are set out in the report. The author of the report expresses the opinion that those messages reflect an intention to do a drug deal that evening. Included in the messages are a request that the purchaser of the drug bring at least $8,000, and that the parties meet at the Royal Bank instead of Wal-Mart in Milton. Also discussed was driving into Milton via James Snow Parkway.

10The police had approached the two vehicles in the parking lot adjacent to the Royal Bank of Canada shortly after 12:20 a.m. on April 15, 2010. The parking lot was for a large mall in Milton that has, among other things, a Wal-Mart store. As noted, there was found in the other vehicle the sum of slightly more than $8,000 in cash.

11Text messages from one of the other cell phones in the Munros’ car were analyzed. The author of the report expresses the opinion that they reflect communications between David Munro and one of the occupants of the other vehicle regarding a drug deal on a different occasion.

12Also found in the same cell phone was what the author of the report identified as a “debt list”, which is a log of monetary amounts that customers owe the accused David Munro.

Submissions

13Counsel for the Munros submit that there is insufficient evidence to satisfy the Court beyond a reasonable doubt that the drugs were in the possession of either accused. Counsel candidly acknowledge that the case is stronger in this respect against David Munro, since he was a participant in a number of the communications reflected in an analysis of the cell phone contents. However, it is argued that there is no evidence to support a conviction of Matthew Munro, who was not a participant in the communications, and who was simply in the vehicle. There is no evidence that he was aware that the drugs were in the vehicle.

14Counsel for the Crown submits that there is ample evidence to conclude, beyond a reasonable doubt, that both accused were aware that the drugs were in the vehicle, and indeed, that those drugs were to be the subject of a drug deal to be concluded on the evening they were apprehended. Thus, the Crown submits, the Court should be satisfied beyond a reasonable doubt that the drugs were in the possession of both accused.

Analysis

15Pursuant to s. 2(1) of the Controlled Drugs and Substances Act, the term “possession” is defined as possession within the meaning of subsection 4(3) of the Criminal Code. That subsection provides as follows:

Possession

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 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.

16In this case, the drugs were found under the driver’s seat of the car. They were not in the personal possession of either accused. Nor were they in the possession or custody of another person to the knowledge of either accused. Thus, in my view, the issue falls to be decided under s. 4(3) (a)(ii). The question is whether the drugs were under the driver’s seat of the car, to the knowledge of either or both accused, for the use or benefit of the accused or either of them.

17I have little difficulty concluding that the drugs were in the possession of David Munro. It is clear, beyond a reasonable doubt, that a drug transaction was contemplated, and that David Munro was one of the participants in the transaction. Since the drugs were found in the car at the very time, and in the location, at which the drug transaction was to be completed, it is beyond doubt that the drugs found in the car were there to the knowledge of David Munro. They were for his use or benefit since he was going to use them in the drug deal. Thus, in my view, David Munro was in possession of those drugs and is guilty as charged.

18The more difficult question is whether the same conclusion can be reached, beyond a reasonable doubt, with respect to Matthew Munro.

19Matthew Munro was not a participant in any of the communications analyzed through the contents of the cell phones. He was merely the driver of the car.

20As noted earlier, counsel for Matthew Munro argues persuasively that it is not possible to infer, beyond a reasonable doubt, that Matthew Munro was aware that the drugs were in the car, or that a drug transaction was contemplated. With respect, I disagree.

21It is true that there is no direct evidence that Matthew Munro was aware that the drugs were in the car. However, in my view, the circumstantial evidence as to the knowledge of Matthew Munro regarding the drugs is overwhelming.

22While David Munro was exchanging text messages with the other party to the drug transaction, Matthew Munro was driving the car. Messages were exchanged, in which the participants discussed the best route to drive into Milton, that James Snow Parkway should be used, that a parking lot that included Wal-Mart and the Royal Bank among its users was the destination, and that the Royal Bank instead of Wal-Mart was the preferred destination. Matthew Munro drove the car to the Royal Bank where the parties were ultimately apprehended. The drugs were found under the seat occupied by Matthew Munro. Also discovered in the car were six cell phones which, according to the author of the expert report, are consistent with means of communication used by drug dealers.

23In my view, the only rational conclusion is that Matthew Munro was aware that the drugs were in the car, and that they were to be used to conclude a drug deal.

24This is not a case where it can be said that the Crown has not proven that Matthew Munro was anything more than a passive occupant of the vehicle. The evidence is overwhelming that he was an active participant in the anticipated drug deal, and he had knowledge that the drugs were in the car and what they were going to be used for.

25I recognize that where circumstantial evidence is the only relevant evidence regarding a particular matter, the guilt of the accused must be the only rational conclusion. In this case, I am satisfied beyond a reasonable doubt that the guilt of Matthew Munro is the only rational conclusion.

26Accordingly, Matthew Munro is guilty as charged.