ONTARIO SUPERIOR COURT OF JUSTICE

OSHAWA COURT FILE NO.: 12618/11
DATE: 2012-09-10

BETWEEN :

Her Majesty the Queen

— and —

Hugh Alexander Smith

COUNSEL:

J. Frost, for the Federal Crown

J. Hershberg and A. Kwan, for the Defendant

HEARD: July 3 and 4, 2012

J.E. Ferguson, J.

REASONS FOR JUDGMENT

[ 1 ] Hugh Alexander Smith, (“Smith”), pleaded not guilty to the following offences and the trial took place on July 3 and 4, 2012:

1. THAT, HUGH ALEXANDER SMITH, on or about the 2 nd day of October, in the year 2009, at the City of Pickering in the Central East Region, did possess proceeds of property, namely a sum of money of a value exceeding five thousand dollars, knowing the said proceeds had been derived directly or indirectly from an offence punishable by indictment, contrary to Section 354 , subsection (1) of the Criminal Code of Canada .

2. AND FURTHER THAT, HUGH ALEXANDER SMITH, on or about the 2 nd day of October, in the year 2009, at the City of Pickering in the Central East Region, did possess a substance included in Schedule I, namely cocaine, for the purpose of trafficking, contrary to Section 5, subsection (3) clause (a) of the Controlled Drugs and Substances Act and the amendments thereto.

3. AND FURTHER THAT, HUGH ALEXANDER SMITH, on or about the 2 nd day of October, in the year 2009, at the City of Pickering in the Central East Region, did possess a substance included in Schedule II, namely cannabis (marihuana), in an amount that did not exceed the amount set out for that substance in Schedule VII, for the purpose of trafficking, contrary to Section 5, subsection (4) of the Controlled Drugs and Substances Act and the amendments thereto.

4. AND FURTHER THAT, HUGH ALEXANDER SMITH, on or about the 2 nd day of October, in the year 2009, at the City of Pickering in the Central East Region, did possess a substance included in Schedule I, namely crack cocaine, for the purpose of trafficking, contrary to Section 5, subsection (3) clause (a) of the Controlled Drugs and Substances Act and the amendments thereto.

5. AND FURTHER THAT, HUGH ALEXANDER SMITH, on or about the 2 nd day of October, in the year 2009, at the City of Pickering in the Central East Region, being at large on a recognizance entered into before a Justice and being bound to comply with a condition thereof, namely abstain absolutely from the possession and/or use of non-medically prescribed drugs or narcotics, fail, without lawful excuse, to comply with that condition, contrary to Section 145 , subsection (3) of the Criminal Code of Canada .

[ 2 ] The parties entered into an Agreed Statement of Facts, which was made Exhibit #1. It contains the following:

1. On October 2, 2009, Durham Regional Police (“DRP”) executed a search warrant at 1954 Faylee Crescent (“1954”) in the Town of Pickering.

2. Officers located the following items in the basement in a bar area just under the bottom of the stairs that is in an open area readily visible when in the basement:

(i) Two digital scales on top of the bar, as well as a money counter;

(ii) Plastic bag with what Detective Connolly (“Connolly”) believed contained cocaine residue on top of the bar;

(iii) Underneath the bar were surgical masks, latex gloves, 2 plastic cups containing either cocaine or cutting agent residue, a glass jar containing marihuana (2.8g), 4.5 ounce plastic bags of marihuana (4x15g = 60g), and a shoe box containing cocaine and unknown powders in plastic bags inside the shoe box (Cocaine: 1.6g. Unknown powder: 108g, 6.2g, 95g, 105g, 18g).

3. Connolly also assisted in arresting an individual named Ricardo Vernon (“Vernon”) after he left 1954 leaving bags of tools in the garage. He advised officers that he was going to assist in installing hardwood flooring. He was only charged with fake identification offences.

3a. Vernon exited the address where they were planning to execute the search warrant – 1954.

4. Detective Gillis (“Gillis”) also searched the basement and found a bedroom containing a bed and clothing. He searched the upstairs area second bedroom and found a motorcycle jacket with a tag on it. He also assisted in seizing 50-100 boxes of hardwood flooring on the first and second floors.

5. Officer Naccarato (“Naccarato”) advised Detective Caplan (“Caplan”) that he queried a vehicle associated to Smith on three other occasions outside of 1952 Faylee Crescent (“1952”). Caplan searched the Land Title Registry and discovered that Smith co-owns 1954 with Janet Maitland (his grandmother).

6. In the kitchen underneath the counter in a closed cupboard the following items were located:

1. A digital weight scale on which Officer Mackintosh believed was cocaine residue;

2. Breathing mask;

3. 2 pots;

4. A fork with what Officer Mackintosh (“Mackintosh”) believed was cooked cocaine residue.

7. Smith was seen leaving 1954 earlier that afternoon along with an unknown black male.

[ 3 ] Five police officers testified at trial for the Crown. One of these witnesses, Detective Craig Hudson, (“Hudson”), was qualified as an expert in the sale and distribution of cocaine, marihuana and crack cocaine, including indicia of possession for the purpose of trafficking in cocaine, marihuana and crack cocaine. His opinion was that “taking into account the totality of the circumstances involved in this matter, it is my opinion that the quantity of cocaine (Cocaine HCL and Crack Cocaine) and cannabis marihuana were possessed for the purpose of trafficking in order to make a profit.” During submissions, counsel for Smith conceded that should the Crown establish possession beyond a reasonable doubt, then the appropriate conviction would be possession for the purpose of trafficking. As a result, I am not going to spend any time summarizing Hudson’s evidence.

[ 4 ] The issue at the trial was whether Smith had knowledge and control of the drugs found at 1954, which property he co-owns with his grandmother.

The Law

[ 5 ] The law is not in dispute with respect to what must be proven by the Crown beyond a reasonable doubt in order to obtain a conviction. The Ontario Court of Appeal in R. v. Pham 2005 (ON CA) , 77 O.R. (3d) 401 states the following at paragraphs 13-18:

(13) Section 2 of the Controlled Drugs and Substances Act adopts the definition of “possession” in s. 4(3) of the Criminal Code, R.S.C. 1985, c. C-46 . 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 s. 4(3)(a);

(ii) constructive possession as set out in s. 4(3)(a)(i) and s. 4(3)(a)(ii); and

(iii) joint possession as defined in s. 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. See R. v. Caldwell (1972), 7 C.C.C. (2d) 285, [1972] 5 W.W.R. 150 (Alta. S.C. (A.D.)); R. v. Grey (1996), 28 O.R. (3d) 417, [1996] O.J. No. 1106 (C.A.).

(16) In order to constitute joint possession pursuant to s. 4(3) of the Code there must be knowledge, consent, and a measure of control on the part of the person deemed to be in possession. See R. v. Terrence, [1983] 1 S.C.R. 357; R. v. Williams (1998), 40 O.R. (3d) 301, [1998] O.J. No. 2246 (C.A.); R. v. Barreau, [1991] B.C.J. No. 3878, 19 W.A.C. 290 (C.A.); and R. v. Chambers, [1985] O.J. No. 143, 20 C.C.C. (3d) 440 (C.A.).

(17) The element of knowledge is dealt with by Watt J. in the case of R. v. Sparling, [1988] O.J. No. 107 (H.C.J.), at p. 6 (QL) :

There is no direct evidence of the applicant’s knowledge of the presence of narcotics in the residence. It is not essential that there be such evidence for as with any other issue of fact in a criminal proceeding, it may be established by circumstantial evidence. In combination, the finding of narcotics in plain view in the common areas of the residence, the presence of a scale in a bedroom apparently occupied by the applicant, and the applicant’s apparent occupation of the premises may serve to found an inference of the requisite knowledge.

The Court of Appeal decision in R. v. Sparling, [1988] O.J. No. 1877, 31 O.A.C. 244 (C.A.) upheld the above passage as being sufficient evidence to infer knowledge.

(18) The onus is on the Crown to prove beyond a reasonable doubt, all of the essential elements of the offence of possession. This can be accomplished by direct evidence or may be inferred from circumstantial evidence. In R. v. Chambers, supra, at p.448 C.C.C., [page 407] Martin J.A. noted that the court may draw “appropriate inferences from evidence that a prohibited drug is found in a room under the control of an accused and where there is also evidence from which an inference may properly be drawn that the accused was aware of the presence of the drug”.

[ 6 ] The Ontario Superior Courts states the following in R. v.Beason [2008] O.J. No. 2027 at paragraphs 14 and 29 :

(14) Having said that, in Pham the Supreme Court referred with approval to R. v. Sparling , [1988] O.J. No. 1877, (C.A.) , in which the Court held that “[i]n combination, the finding of narcotics in plain view in the common areas of the residence, the presence of the scale in a bedroom apparently occupied by the applicant, and the applicant’s apparent occupation of the premises may serve to found an inference of the requisite knowledge.” In Sparling , the police searched a four-bedroom apartment leased to the respondent, his common-law wife and another person and found, in plain view, a quantity of cocaine, hashish, cash, and drug paraphernalia. At the time of the search the respondent’s common-law wife and her mother were on the premises; the respondent arrived during the search. The Court of Appeal held that there was sufficient evidence to justify the conclusion that the accused was in possession of the drugs.

(29) … while the Crown must establish the guilt of the accused beyond a reasonable doubt, it need not negative every possible conjecture that might be consistent with the innocence of the accused. It is, of course, possible that someone other than the appellant put the tokens in the box and, further, that the appellant had no knowledge of the presence of the tokens in the bedroom. In my view, however, the evidence before the trial judge was sufficient to negative that possibility to the required degree.

[ 7 ] The Ontario Superior Court in R. v. Humphrey 2011 ONSC 3024 , [2011] O.J. No. 2412, in dealing with circumstantial cases states the following at paragraphs 147 and 148:

(147) In order to satisfy the Crown’s burden of proof beyond reasonable doubt in a circumstantial case, it is often said that the inference of guilt must be the only reasonable inference from the primary facts. In the present case, this means that the Crown cannot succeed unless the only reasonable inference from the facts is that the accused knew that one of more of the guns was present in his car. See: R. v. Cooper (1978), 34 C.C.C. (2d) 18 at 33 (S.C.C.); R. v. Elmosri (1985), 23 C.C.C. (3d) 503 at 506 (Ont.C.A.); R. v. Griffin and Harris (2009), 244 C.C.C. (3d) 289 at 303 (S.C.C.).

(148) The first step in a circumstantial case is to determine what primary facts have been proved. The second step is to determine what rational non-speculavtive inferences flow from the primary facts. See: R. v. Arcuri (2001) 157 C.C.C. (3d) 21 at 31-2 (S.C.C.); R. v. Morrissey (1995), 97 C.C.C. (3d) 193 at 209 (Ont. C.A.); R. v. Alexander (2006) 70 W.C.B. (2d) 321 (S.C.J.) .

[ 8 ] In R. v. Grey , the Ontario Court of Appeal stated the following in the last full paragraph:

I would not prescribe a firm rule for inferring knowledge from occupancy: cf. R. v. LePage , (1995), 36 C.R. (4 th ) 145 (S.C.C.). In the present case no other evidence connected the appellant to the drugs, there was no direct evidence of knowledge, the drugs were hidden, the apartment was rented by the co-accused, other persons frequented the apartment, and the appellant was not a permanent occupant. The circumstantial evidence does not therefore support a finding that the appellant had knowledge of the crack cocaine. Accordingly, the finding that the Crown had proved possession was unreasonable.

I would allow the appeal, set aside the conviction, and substitute a verdict of acquittal.

Crown Witnesses

[ 9 ] Bart Campbell (“Campbell”), of the DRP confirmed that search warrants had been obtained for both 1952 and 1954. He was involved in the search at 1954. He searched the top floor, specifically the master bedroom in which he focused on the closet, wherein shoe boxes containing shoes were found. He found a bundle of money in one shoe box, which was subsequently counted and found to be $10,480.00. The room contained nightstands and a T.V. He cannot say if it the clothing and shoes found in the room were that of an adult or teenager. As far as he can recall, there was no one else searching the closet with him.

[ 10 ] Greg O’Connor, (“O’Connor”) of the DRP was part of the surveillance team. They received a call to arrest Smith at about 4:17 p.m. He placed Smith under arrest giving him his rights and escorted him out of his vehicle. His search of Smith recovered the following:

(i) Front right pocket – cash of $4,215.00;

(ii) Front left pocket – Home Depot gift cards in the amounts of $532.60 and $2,000.00, as well as two cell phones and one I-Pod;

(iii) A back pocket - various credit and gift cards.

[ 11 ] He submitted all items into property at the police station as well as a laptop power cord and bullet proof vest, which had been located in the master bedroom. He helped search the closet. He had no involvement with Vernon, but he observed a male standing outside the house after pulling his car into the driveway, using his cell phone. When Smith’s cell phone rang the name he observed was Ricardo. He observed Vernon enter his motor vehicle and leave the area. He cannot say when he saw Vernon leave.

[ 12 ] At 3:05 p.m. he saw a young black female and an unknown male entering the residence. He did not see her use a key nor ring the bell. He saw the unknown male exiting the residence.

[ 13 ] Tyler French, (“French”) of the DRP was involved in the execution of the warrants. He assisted in the search of the upstairs master bedroom. He is not certain what officers were present in that room.

[ 14 ] On the top of a bar fridge, which was located between the bed and the bathroom, he found a customer receipt from the Home Depot and a pick-up receipt for flooring. He cannot recall if there was a name on those receipts. In that bedroom he also found court papers addressed to Hugh Smith with an address of 234 Pellat Avenue, Toronto regarding a Superior Court of Justice claim.

[ 15 ] Also found in the master bedroom were a suit jacket on a chair and small plastic red and black coloured sloganed “Stay High” baggies, commonly used to package drugs.

[ 16 ] A laptop computer and a cell phone were found on the mattress in the rear bedroom.

[ 17 ] He cannot provide any information about the size of the clothes found in the master bedroom or even if they were different sizes. It was clear to him that the house was being renovated. Although he has no recollection of torn up flooring, he remembers seeing scattered flooring material.

[ 18 ] At around 3:29 p.m., he saw Smith leave 1954 with another male and get into a vehicle. At 3:05 p.m., he had seen a younger black female with a blue coat wearing a backpack walk right into the house. It appeared that she either lived there, or was comfortable enough to walk in.

[ 19 ] David Wright, (“Wright”) of the DRP testified that he was involved in the search of the master bedroom at 1954. On the T.V. stand he found a Home Depot receipt and gift cards and a hard black closed sunglass case which contained crack cocaine wrapped in plastic - in two separate bags, totalling 19.3 grams of crack cocaine.

[ 20 ] He found a letter from Avis Budget Group dated May 22, 2008 addressed to Hugh Smith at 234 Pellatt Avenue, Toronto.

Defence Witness

[ 21 ] Sean Phillip (“Phillip”) testified for the defence. He is 31 years old and works as a dishwasher at a restaurant owned by his mother located at Whites Road and Highway #2. He worked there in October of 2009. He could not remember the address of the residence into which he had moved, but later testified that it was on Faylee and that it was owned by Janet and Hugh Smith. He rented a bedroom in that house - the back room on the right hand side. His room contained a mattress, laptop, cell phone, and a few clothes. Previously he had been living at home with his mother and step father and needed to find a place because he did not get along with his stepfather. He had known Allen since high school. A guy named Eric also lived there, initially in the basement. The house was being renovated. When they reached the starting of the basement renovation, Eric moved into the master bedroom which contained a T.V. He did not go into that room. He was usually at work, and he used his laptop. He smoked some marihuana with Eric, but had done no other type of drugs with Eric. Eric had people regularly coming and going from the residence.

[ 22 ] On October 2, 2009, his laptop and cell phone were taken. A neighbour later told him that the door of the house had been kicked in by the police. He had left the house at about 11:00 a.m., since he had to be at work by noon. Smith had called him earlier to tell him that he was coming by the house with his brother-in-law to work on the renovations. He told Smith that he could not help him because he was working, but confirmed to Smith that Eric could help. Smith never stayed at that residence after he moved in. He never saw Eric again after the day of the police search although a woman came by to get Eric’s stuff.

[ 23 ] When at Faylee, he never used the kitchen. He ate at work, or got take-out. He kept juice in the fridge.

[ 24 ] Smith is his friend, and they get together “here and there”. Smith called him a couple of weeks prior to this trial and asked him to contact his lawyer. He knew that Eric had “screwed” Smith and that Smith wanted him to talk to his lawyer. Smith did not ask him to help. Smith’s lawyer asked him to testify.

[ 25 ] He assumed that something was going on at the house, because Eric had people coming and going at night time. He did not see drug paraphernalia throughout the house. He mostly stuck to his room. He did not go into the master bedroom and did not see the bullet proof vest. He never saw Eric cook crack cocaine, but sometimes he was aware that the house smelled funny. He did not have any other options as to where to live, because he did not get along with his step father. His aunt lived in Oshawa but from her house it was an awkward bus ride to get back and forth to work. He said “beggars can’t be picky”. He needed a place to live and needed to pay child support and his bills.

[ 26 ] He was present at the house one time when Smith was ripping up carpet (in September or October.)

[ 27 ] In R. v. Thompson [2010] O.J. No. 2266 , M.A. Code J. entered and acquittal and summarized the factors at play in the case before him. This case has many similarities including:

(i) There is no evidence that the premises were under control of any particular occupant. Smith and his grandmother are co-owners.

(ii) Phillip testified that he lived in the premises, as did an individual named Eric. He detailed Eric’s activities. Eric was occupying the master bedroom at the time of the search.

(iii) Phillip testified that he was not aware of drug paraphernalia, he did not go into the master bedroom and he did not see the bullet proof vest.

(iv) Although money was found in a shoebox in the master bedroom, and there was some paperwork referencing Smith, his address was different from the property searched on that paperwork.

(v) The scales and drug materials were found in the basement in a bar area.

(vi) Before the search took place, officers observed a young black female and an unknown male entering the residence without using a key or ringing the bell. It looked as though she either lived there, or was comfortable enough to walk in.

(vii) The house was being renovated and Smith was in and out of the residence working on the renovations. On the day in question, Phillip testified that Smith had told him that he would be coming by with his brother-in-law to do some renovations.

(viii) Crack cocaine was found contained in a hard black sunglass case located in the master bedroom. Phillip testified that Eric resided in that bedroom. Smith did not live at the house.

[ 28 ] On all of the circumstances, I am not satisfied that the Crown has proven the element of control beyond a reasonable doubt in relation to the drug paraphernalia in the basement. I am also not satisfied that the Crown has proven the element of knowledge in relation to the crack cocaine hidden in the sunglass case in the bedroom being occupied by Eric. The bedroom had papers referencing Hugh Smith but with a Toronto address. The circumstantial evidence leaves open the rational possibility that the drugs and the drug paraphernalia belonged to this “Eric individual”. Other people may have been living in the house as well.

[ 29 ] Phillip testified that he was living at 1954 at the time of the search. Eric had moved to the master bedroom because of the renovations at the time of the search. Eric had people coming to and going from the house. He never saw Eric after the search.

[ 30 ] For all of the above reasons, the Crown has not proven guilt beyond a reasonable doubt. There will be acquittals on all the counts contained in the indictment.

The Honourable Madam Justice J.E. Ferguson

DATE RELEASED: September 10, 2012