R. v. Hogarth, 2012 ONSC 7140

ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR12-191
DATE: 20121214

BETWEE N:

HER MAJESTY THE QUEEN

Doug Grace, for the Crown

• and -

JULIE HOGARTH

J. Gamble, for the Defendant

Defendant

HEARD: December 12, 2012

REASONS FOR JUDGMENT

Conlan J.

THE CHARGE AND GENERAL PRINCIPLES

1Ms. Hogarth is charged with trafficking in Diazepam (valium). The formal charge reads:

1. Julie Hogarth, stands charged that, on or about the 21 st day of August, 2011 at the Municipality of Grey Highlands, in the County of Grey, in the Judicial Region of Central West, did unlawfully traffic in a substance included in Schedule IV to wit: Diazepam contrary to section 5(1) of the Controlled Drugs and Substances Act.

2For the Court to find Ms. Hogarth guilty of trafficking in Diazepam, Crown counsel must prove each of these essential elements beyond a reasonable doubt:

i. that Ms. Hogarth trafficked in a substance;
ii. that the substance was Diazepam;
iii. that Ms. Hogarth knew that the substance was Diazepam; and
iv. that Ms. Hogarth intentionally trafficked in Diazepam.

3If Crown counsel has not satisfied the Court beyond a reasonable doubt of each of these essential elements, I must find Ms. Hogarth not guilty of trafficking in Diazepam. Ms. Hogarth is presumed to be innocent of the charge. She has no burden of proof. If Crown counsel has satisfied the Court beyond a reasonable doubt of each of these essential elements, I must find Ms. Hogarth guilty of trafficking in Diazepam.

4With regard to the first element, to “traffic” means to

•sell •administer •give •transfer •transport •send, or •deliver

5something to someone, or to offer to do so. It does not matter whether money or anything else of value actually changes hands, as long as Ms. Hogarth possessed the Diazepam and provided it, or offered to provide it to someone else.

6With regard to the second element, a controlled substance is any substance that a person cannot legally buy, sell, or possess without government authorization. Diazepam is a controlled substance.

7If the Court is not satisfied beyond a reasonable doubt that the substance in which Ms . Hogarth allegedly trafficked was Diazepam (valium), I must find Ms. Hogarth not guilty.

THE EVIDENCE

8This trial lasted less than half a day. There was one witness for the prosecution. There were no exhibits. There was no defence evidence.

9The evidence is very fresh in my mind as this Judgment is being delivered less than 48 hours after the end of the submissions by counsel.

10For those reasons, no detailed recitation of the evidence is necessary except to say this. The Crown witness, Marguerite Mcillwraith, testified that, in the early morning hours of August 22, 2011 while she and others were at the residence of the accused, Ms. Hogarth took some pills out of her pill bottle and gave them to Ms. Mcillwraith and told her to “crush them up and do them” or words to that effect. Ms. Hogarth did not say at the time what the pills were, but Ms. Mcillwraith testified that she knew they were valium (agreed by counsel to be one and the same as Diazepam) from prior similar experience doing valium with Ms. Hogarth.

ANALYSIS AND CONCLUSION

11Notwithstanding Mr. Grace’s able arguments, I am not satisfied that the Crown has proven beyond a reasonable doubt that Ms. Hogarth trafficked a controlled substance by giving anything, whether Diazepam or not, to Ms. Mcillwraith on August 22, 2011.

12The evidence of Ms. Mcillwraith alone is insufficient to meet the burden of proof in this case.

13First, her memory of that time is admittedly bad. She agreed with defence counsel that it is “fuzzy” and “very foggy”. That is not surprising given the amount of time that has passed and the fact that Ms. Mcillwraith admitted to being under the influence of narcotics by as early as 1:00 a.m. on 22 August 2012. Second, her description of why and how she went for a drive in Ms. Hogarth’s motor vehicle at 11:00 p.m. at night and stumbled inadvertently upon her three friends walking on a back dirt road strikes me as fanciful or at least incomplete. It does not make common sense. Third, her evidence that she has no recollection at all of how many pills she consumed that morning but that the group of them consumed at least 50 pills in total seems to have been more of a spontaneous guess as opposed to a reasonable estimate. Fourth, I was left with the nagging feeling that something else was going on at Ms. Hogarth’s residence the evening of August 21 and the morning of 22 August, 2012. I do not know what exactly, but it was clear to me that Ms. Mcillwraith was not being entirely forthcoming about what was happening inside that home.

14The weaknesses in the evidence of Ms. Mcillwraith identified above adversely affect her credibility and reliability. I have a reasonable doubt.

15It must be remembered that cases can be proven by the Crown to the requisite standard without corroborating evidence. Ms. Mcillwraith’s testimony stands alone. The Court did not hear from any of the four other persons who were inside the residence at the time of the alleged trafficking, excluding the accused (albeit one of them may have been asleep). There is no Certificate of Analysis. Again, these things are not required, but where the testimony of the only Crown witness has the frailties that I have described, the absence of anything corroborative makes it very difficult for the Crown to overcome the presumption of innocence and prove the charge beyond a reasonable doubt.

16I find Ms. Hogarth not guilty of the charge.

17I thank you, Mr. Grace and Ms. Gamble, for your assistance.

Conlan J.