ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11252
DATE: 2013/04/16

B E T W E E N:

HER MAJESTY THE QUEEN

Ben Eberhard, for the Crown

• and -

SHAWN SMITH

Craig McLean, for the accused

HEARD: April 15, 2013

LEACH J. (ORALLY)

[1] The accused, Shawn Smith, is charged with two counts of possession of a substance included in Schedule I of the Controlled Drugs and Substances Act, namely cocaine, for the purpose of trafficking, contrary to s.5(2) of that legislation.

[2] The charges stem from execution of a Criminal Code warrant, on January 6, 2012, of a residence located at Unit 132, 349 Wharncliffe Road North, here in the City of London.

[3] At trial, the Crown led evidence from three police officers involved in the execution of that warrant, (Officers Lipskey, McGugan and Woelfle), as well as another officer, (Detective Constable Valiquette), with expertise in the possession of controlled substances for the purpose of trafficking.

[4] As was his right, Mr Smith did not testify, (although the Crown led evidence of a voluntary statement given to the police shortly after his arrest). Nor did the defence lead evidence. I draw no adverse inferences whatsoever from this and note it simply because, apart from certain internal inconsistencies highlighted in cross-examination, the evidence of the Crown witnesses stands largely uncontradicted.

[5] Despite that reality, I have in mind, throughout my assessment of the evidence and analysis that follows, the presumption of innocence and the burden of proof that lies on the Crown.

[6] In particular, in this case, like all criminal cases with very few exceptions, the starting point for any analysis is the presumption of innocence and the burden of proof upon the Crown. According to the constitutional guarantee in s.11(d) of the Charter of Rights and Freedoms, Mr Smith is presumed to be innocent. That presumption of innocence remains with him throughout the trial, from beginning to end, and unless and until the Crown establishes his guilty with respect to any and all of the alleged offences beyond a reasonable doubt. That is a heavy burden, and never shifts.

[7] With those introduction comments in mind, I turn to an overview of the evidence in this case.

Fact Evidence

[8] On January 6, 2012, Mr Smith was a suspect in relation to a police investigation concerning a break and enter that had occurred two days earlier, and possible possession of stolen property; namely, numerous laptop computers that had been stolen from a business. (All police witnesses agreed that it was not a drug investigation.)

[9] Pursuant to that investigation, the police obtained a Criminal Code warrant to search the aforesaid residence, which by all witness accounts is a very small, ground floor apartment located within a larger apartment complex, (composed of two buildings), operated by London Housing. Relying on his personal experience, DC Valiquette testified that the buildings in question unfortunately have been the site of drug trafficking in the past; something which led to the installation of security cameras to increase detection and occupant safety.

[10] The police sought a warrant for Unit 132, 349 Wharncliffe Road North, because their records indicated Mr Smith lived there, and this was said to have been confirmed by the building’s manager.

[11] Although defence counsel rightly pointed out that no building manager or other representative of London Housing provided direct evidence as to who lived in the unit, I note that Mr Smith himself gives repeated indications, during the course of his voluntary statement, that it was his apartment. (In that regard, Mr Smith not only fails to challenge in any way the questioning officer’s references to “your apartment”, “your bedroom”, and “your place”, but repeatedly uses phrases himself such as “my apartment”, and “my living room”.)

[12] I pause here to note the general interior of the apartment, described in later evidence. Again, all witnesses repeatedly made reference to its relatively small size and “confined” nature. From the apartment’s principal entrance doorway, there is a “very tight” front hall, approximately 2-3 feet long, which links to another short hallway extending left to the unit’s only bathroom and its only bedroom, (which has a door). To the right is a “living room” or “television” area, with furniture including a couch and end table, which opens immediately into a kitchen.

[13] While Officer Lipskey took steps to obtain the warrant on January 6, 2012, Officer Woelfe carried out surveillance at the address for approximately 4.5 hours prior to its execution. With the permission of London Housing employee, he did so using the building’s closed circuit cameras, supplemented occasionally by direct observations.

[14] During the course of that surveillance, Officer Woefle observed and made notations of people, including Mr Smith, coming and going from the apartment in question, using doors located on its east side and west side. I will not repeat all of Officer Woefle’s detailed time notations, but his observations included the following:

• Mr Smith, sometimes alone and sometimes in the company of another male, left his apartment at least 6-7 times, for periods of 1 to 10 minutes, for purposes that included multiple visits to the building’s laundry room, (carrying or checking on laundry), and to another apartment within the building;

• A visit, (lasting approximately 11 minutes), from another female whom Offier Woefle recognized, (although he does not know if she also lives in the building);

• Intermittent visits, (lasting from 3 to 11 minutes each), from another female living in another apartment across the hall from Unit 132;

• Arrival of two males who entered the apartment building after leaving a vehicle driven by a third.

• Short appearances of males other than the defendant seen briefly exiting and re-entering the apartment.

[15] However, Officer Woelfle candidly acknowledged, during his examination in chief and again in cross-examination, that his notes did not specify or confirm, in detail, the individuals responsible for the observed movements in and out of the apartment. In particular, he acknowledged that the males “quite possibly” may have been the same ones found in the apartment when the warrant was executed, and that the residence of the additional female was unknown. He could not, for example, say whether two of the individuals later found in the apartment at the time of the warrant’s execution, (Kyle Smith and Daniel Bain), were the individuals entering or exiting the apartment during the period of surveillance. He also acknowledged that no one seen entering or leaving the apartment was carrying anything, (apart from a laundry basket), and no one was seen doing anything warranting police intervention.

[16] The warrant was obtained, and executed at 9:05pm by Officers Lipskey, McGugan and Woelfle. The door to the apartment was closed on arrival. Although the officers had a key for use if necessary, the door was opened from within in response to a simple knock. There was no evidence whatsoever to suggest that the police identified themselves before the door was opened.

[17] Officer Woefle indicated that the apartment door opened “immediately” after the knock, and Officer McGugan confirmed that the person who opened the door was Kyle Smith, (son of the accused), who met the officers with a telephone of some kind in his hand.

[18] As noted by defence counsel, the order in which the three officers then entered the apartment was not entirely clear from their evidence, and I believe their order of entry and actions has relevance to the observations and findings made thereafter.

[19] In that regard, Officers Lipskey and Woelfle each thought the other two officers had entered first, whereas the evidence of Officer McGugan suggested at one point that Officer Woelfle already may have been inside the unit when he entered.

[20] In all probability, the officers entered within a relatively short time of each other, as the deliberate intention was to execute the warrant “in force” in order to minimize security risks.

[21] However, I find that Officer McGugan in fact entered first, as he was the only officer able to give direct evidence of who it was who opened the door, and that he immediately observed Kyle Smith with a telephone in hand. Moreover, all officers confirmed that securing and taking custody of occupants of the apartment was an immediate priority, and Officer McGugan was the one who assumed immediate responsibility for securing Kyle Smith by forcing him to the floor in the hallway area just inside the apartment entrance.

[22] For similar reasons, I think it likely that Officer Lipskey entered next, as he unquestionably assumed responsibility for securing Daniel Bain, who was located in the living room to the right and visible from the apartment entrance. It seems improbable to me that Officer Woelfle, who unquestionably went immediately to the closed bedroom door and focused on that, would have done so if another unsecured occupant of the apartment was in plain sight, without a door between him and that occupant.

[23] The above conclusions are consistent with the evidence of Officer Woelfle, who indicated that, when he entered, Officer McGugan still was in the front hallway, (where he was on the floor securing Kyle Smith, also on the floor, before leading him to the living room couch), while Officer Lipskey still was in the living room, (where he secured Daniel Bain before placing him on the same couch). It is also consistent with the Officer McGugan mentioning that Officer Woelfle passed within feet of him at some point.

[24] According to Officer Woelfe, the door to the bedroom was his immediate focus upon entry. In particular, Officer Woelfle confirmed that the bedroom door was visible from the door to the apartment, (approximately six feet away at most), and that the bedroom door was closed when the officers entered. (There was no suggestion from any of the officers that it was heard or seen closing in response to the officers’ entry.)

[25] Officer Woelfle went immediately to the closed bedroom door but was unable to open it. (He was unable to say whether it was locked or barricaded, but it was restrained in some way.) He called to the person inside, indicating that it was the police and that they wanted the door opened. The door then opened, revealing only the accused inside. Officer Woefle then entered the bedroom to effect an immediate arrest of the accused, forcing him to the floor of the bedroom. Officer Woefle confirmed that nothing was thrown from the bedroom doorway after the door opened, and before he arrested the accused.

[26] Items found within the apartment did not include the laptop computers that had been a contemplated object of the search, but they did reveal a number of drug related items, including the following:

• A ripped portion of a clear plastic bag, initially thought to be more like a piece of Saran Wrap than a baggie, and open on discovery, containing a substance which a NIK test and further analysis later confirmed to be 0.9 grams of crack cocaine. (Analysis confirmed that this particular substance also contained traces of a Schedule F drug, regulated under the Food and Drugs Act, called “Phenacetin”.) The substance on the plastic was loose and open when discovered. Officer McGugan located the substance and plastic in plain sight, on a shelf in the bedroom, approximately five feet off the ground, at shoulder height.

• A knotted and clear plastic “baggie”, containing a substance later confirmed to be 5.2 grams of cocaine, (with no traces of Phenacetin). The cocaine therein was described as being “in one chunk”, and not broken down into smaller pieces. Officer Lipskey indicated that he discovered this baggie lying in plain sight in the middle of the floor of the hallway, just inside the entrance to the apartment, between the apartment door and the bedroom door. Although Officer Lipskey indicated that he saw the baggie lying there in plain sight in the middle of the hallway upon entry to the apartment, (before he proceeded immediately to the living room or kitchen area to secure Daniel Bain), neither of the other officers noticed the baggie lying there on the hallway floor – although Officer Woelfle had to pass that area on his way to the bedroom door, (which he entered shortly thereafter), and Officer McGugan had been in that immediate area securing Kyle Smith moments before. (This was confirmed indirectly by Officer Lipskey during his questioning of the accused. In particular, Officer Lipskey told the accused the baggie in question had been found in “The little hall – when you come in and you turn left to go down to your bedroom, right there. Right with your kid.”)

• A clear zip lock sandwich bag, containing 5.0 grams of a substance initially thought by the police to be powdered cocaine, but which analysis later confirmed to be Acetaminophen, (the equivalent of Tylenol). Officer Lipskey located this in plain sight on an end table in the living room area. The contents of that bag were not subjected to a “NIK” drug test kit while the police were still in the apartment.

• A digital weighing scale, bearing a white residue which analysis later confirmed to be crack cocaine, (with traces of Phenacetin). Officer Lipskey located this in a closed kitchen cabinet drawer. (Nothing else of interest was located in the drawer.)

[27] When the accused was searched, he was found to have “$70.00 and some change” on his person. This was the only money found in the apartment.

[28] Although the police apparently took no photographs of the apartment, and made no inventory of its contents, the evidence of the police witnesses in chief and under cross-examination also indicated the following:

• The apartment contained clothing and other signs of visible occupation, but nothing suggesting multiple occupants.

• They did not notice or seize any other types of packaging, (and plastic or plastic bags in particular), normally used to package drugs for distribution and sale.

• They did not notice or seize any other paraphernalia normally associated with drug use, and the use of crack cocaine in particular. However, they also each confirmed that complicated objects are not required in that regard, and that various ordinary household objects, (such as pop cans, tin foil, hot knives, pens, or any other tubular objects), could be used for that purpose. (Officer Valiquette indicated that use of such objects in such a way may have made them more noticeable to police looking for drug paraphernalia, but conceded that such objects could have been missed.)

[29] The three men found by the police in the apartment when the warrant was executed all initially were placed under arrest and transported by uniformed officers back to the police detention facility. However, Kyle Smith and Daniel Bain, (who were described as being co-operative throughout the process), then were released without being charged.

[30] As noted above, the accused, Shawn Smith, provided a voluntary, videotaped statement to the police shortly after his arrival at the police detention centre.

[31] The interview producing the statement was conducted by Officer Lipskey, who confirmed that the accused was quite physical and emotional, and acting in a manner consistent with Officer Lipskey’s experience when dealing with drug users. In particular, it “came as no surprise” to Officer Lipskey when the accused told him he was a drug addict.

[32] I already have made reference to some of the comments made by Mr Smith during the course of his voluntary statement, (e.g., confirming that it was his apartment), but also note the following:

• After viewing the videotaped interview, I certainly share the view that the accused was extremely animated, physical and emotional during the course of questioning. His reactions were quite vocal, immediate and entirely spontaneous – and this extends in particular to his loud outburst immediately upon hearing the suggestion that “crack and coke” had been found in his apartment.

• Although he indicated love for his son, the accused also readily and expressly accepted the possibility that Kyle “had coke on him”, saying that would be “his problem”.

• In his questions and demeanor, the accused appeared to exhibit genuine confusion and curiosity as to what drugs had been found in the apartment, and asked to speak to his son.

• The accused was candid in revealing that he was a drug addict, currently on methadone. Although the police did not know it at the time, the accused also was later found to be telling the truth about the nature of the substance in the plastic bag on the end table, which he did know about, (indicating that it was crushed Tylenol because he could no longer swallow pills).

Expert Evidence

[33] As noted above, I also heard testimony from Officer Valiquette, whose experience and expertise relating to the possession of controlled substances for the purpose of trafficking, and of crack cocaine in particular, was considerable and acknowledged.

[34] In that regard, Officer Valiquette provided considerable testimony in chief and cross-examination about various matters that included the preparation of crack cocaine, details of its extremely addictive qualities, the hierarchy and manner of its distribution, (including common methods used in its packaging, sale and pricing or value), and the typical practices and habits of sellers and users.

[35] In support of his opinion that the confirmed drugs found in the apartment were there for the intended purpose of trafficking, Officer Valiquette relied on considerations that included the following:

• The quantity of cocaine found within the apartment, (a total of 6.1 grams), was extremely significant, and had a “large bearing” on his opinion, for at least three reasons:

o First, given the very addictive quality of crack cocaine, it was very unusual for those using (but not dealing or selling) the drug to maintain it in such large quantities. Users tended to keep using it until their supply was exhausted.

o Second, even extremely heavy crack cocaine users would consume no more than 3.5 grams per day – and such heavy users and addicts normally have exhausted all of their monetary resources feeding their habit. As a result, they rarely have sufficient funds to purchase quantities of crack cocaine in such an amount – in this case, cocaine having a street value of approximately $610.00. Although some higher level suppliers will “front” dealers with supply, without payment up front, this normally would be true only for dealers who have established their ability to sell rather than consume the drug. In this particular case, the accused was an addict but admittedly on methadone, which confirmed that he was trying to control his habit, and which would have mitigated his individual use.

o Third, the quantity of drugs and cash found in the apartment equate to 6.1 grams of cocaine, and the monetary equivalent ($70) of a further 0.7 grams of cocaine. The combined total of grams (6.8) comes very close to the 7.0 gram quantity in which higher level suppliers frequently sell their product to dealers.

• The surveillance indications of frequent entry and exit from the apartment, with visits of short duration, as well as the presence of people other than the dealer at the time of warrant execution, (as customers frequently linger for a time to reduce the possibility of observers thinking they are not “real” visitors), was consistent with situations of trafficking.

• The absence of plastic packaging in the apartment was a neutral consideration, as low level suppliers frequently use no packaging, (e.g., supplying it out directly by hand or in other objects such as currency), to assist in avoiding detection by police or others who might attempt to “rip them off”.

• Trafficking was suggested by the presence of the digital weigh scale, (which dealers often use to ensure appropriate quantification of packages for consumers), and the absence of any noticeable drug paraphernalia suggesting use within the apartment.

[36] In his evidence in chief and in cross-examination, Officer Valiquette nevertheless mentioned or acknowledged the following points, which potentially undermined his opinion:

• The presence of Phenacetin in the “bedroom” cocaine, and its absence in the “hallway” cocaine, did suggest that they had been the product of separate and different crack cocaine “cooking”. In other words, they are unlikely to have formed part of one 7.0 gram initial supply, as suggested. (Although Officer Valiquette suggested the accused might somehow have altered the 0.9 gram sample of cocaine to dilute what was being sold to customers, he acknowledged that this ran counter to the diluted sample being in the accused’s bedroom and the 5.2 gram sample being near the apartment door – unless the bedroom sample was the “latest” product being prepared for sale.)

• One “heavy” user could have used up the quantity of cocaine found in the apartment over the course of just two days. (Alternatively two heavy users could have done so over the course of a single day.)

• The packaging used on the “bedroom” cocaine and the “hallway” cocaine admittedly was somewhat different.

• Numerous indicia of trafficking normally found in residences used by dealers, (such as debt lists, lists of associates, sharp cutting instruments normally used to slice off chunks of the drug, and any quantity of “pull bags” frequently used in packaging), seemed to be entirely missing from the apartment.

• As with any product, bulk purchases usually enable purchasers to obtain overall lower pricing, which would be a benefit to heavy users, if they could fund such purchases in cash or in kind, and barter purchases, (often with stolen goods), are common.

• There was no evidence that the digital weigh scale found in the apartment was operational, and such scales also were used by drug purchasers, when they returned home with purchased drugs, to ensure they were not being “short changed” by dealers. (Officer Valiquette nevertheless emphasized that most dealers do not shortchange customers, in order to preserve clientele, and often “make good” on further purchases if/as necessary.)

• The surveillance evidence in this case admittedly did not necessarily confirm the coming and going of different people at each sighting. In particular, Kyle Smith and Daniel Bain could have been the males observed in a number of those sightings. (Of course, Kyle Smith also was a “real” visitor, in the sense he had a “real” association with the accused.)

• The accused, at least, apparently did not have a Blackberry or cellphone – which often is the preferred method of communication between dealers and customers, (who find text messaging and short calls less condusive to police detection). It was emphasized by defence counsel that Kyle Smith was the only occupant in the apartment who apparently had a phone, (and who was using it at the time of the warrant’s execution).

[37] However, Officer Valiquette considered such considerations, and the absence of noted user paraphernalia or packaging in particular, as comparatively “weak details” to the proper overall conclusion, which in his opinion was driven largely by the quantity of cocaine found in the apartment, (for the reasons outlined above).

Position of the Crown

[38] The Crown acknowledges that, in order for the accused to be convicted of the charges against him, it must prove each element of the offence beyond a reasonable doubt.

[39] As the defence concedes that the substance underlying each count was cocaine, (i.e., a substance included in Schedule 1 of the Controlled Drugs and Substances Act), the Crown acknowledges that it must prove, beyond a reasonable doubt, that Shawn Smith:

a. Was in possession of the substances, knowing what they were; and

b. Had that possession with the required mens rea; i.e., for the intended purpose of trafficking.

[40] In relation to “knowledge” and “possession”, the Crown relies on R. v. Pham (2005), 2005 44671 (ON CA), 203 C.C.C. (3d) 326 (C.A.), and its confirmation that both knowledge and possession may be established not only by direct evidence but also by way of inference from circumstantial evidence.

[41] In particular, I note in that regard the Court of Appeal’s express indication that, “in combination, the finding of narcotics in plain view in the common areas of the residence, the presence of a scale in a [room] apparently occupied by the [accused], and the [accused’s] apparent occupation of the premises may serve to found an inference of the requisite knowledge”; R. v. Pham, supra, at paragraph 17, citing with approval from R. v. Sparling, [1988] O.J. No. 107 (Ont.H.C.), at p.6, affirmed [1988] O.J. No. 1877 (C.A.).

[42] Similarly, I note the Court of Appeal’s express indication that appropriate inferences may be drawn “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”; R. v. Phram, supra, at paragraph 18, again citing the Court’s earlier decision in R. v. Sparling, supra.

[43] In this case, the Crown accordingly relies on the circumstantial evidence of such matters as the apartment belonging to the accused, its very small and confined nature, the fact that the “bedroom” and “hallway” cocaine was in “plain sight” in clear pastic packaging, and the presence of the digital weigh scale with traces of cocaine in a closed kitchen drawer, to argue that the totality of such evidence requires a finding that Shawn Smith realistically had knowledge of all the drugs in his home. That, in turn, is sufficient to establish “possession”.

[44] As for establishing the requisite “mens rea”, (i.e., that Mr Smith had such drugs in his possession for the purpose of trafficking), the Crown relies heavily on the expert opinion evidence of Officer Valiquette, which relies in turn on circumstantial evidence, in the manner set out above.

Position of the Defence

[45] As far as possession is concerned, the defence does not seriously dispute that circumstantial evidence is sufficient to establish that the accused was in “possession” of the 0.9 grams of cocaine found in the bedroom. In particular, it acknowledges that Mr Smith was clearly a user, and that the 0.9 grams of bedroom cocaine were in plain view in a bedroom where he alone was behind a secured door.

[46] However, the defence does emphasize that the totality of evidence fails to establish a satisfactory connection between the accused and the larger 5.2 gram “hallway” bag of cocaine; particularly insofar as it fails to place the accused anywhere other than the locked bedroom at the critical time when that larger bag of cocaine was discovered in plain sight, lying in a place where it would have been quite unusual and irrational for a dealer or user to keep such a quantity of the drug.

[47] In effect, relying on the location and circumstances in which the “hallway” cocaine was found, the defence suggests an alternative scenario whereby Kyle Smith, dropped or otherwise discarded the drugs on the hallway floor immediately after the officers entered, (i.e., while he was being secured in that same area by Officer McGugan), without his father having any prior knowledge that such additional drugs were in the apartment. As additional support for that alternate theory, (which might thereby give rise to reasonable doubt), the defence relies upon the reaction and statements of the accused, as documented in his videotaped interview.

[48] As far as the requisite element of intention or purpose is concerned, the defence relies on the points, outlined above, which are said to undermine Officer Valiquette’s opinion in a manner sufficient to raise reasonable doubt.

Analysis

[49] Bearing in mind the Court of Appeal’s comments in R. v. Pham, supra, I turn first to the elements of possession and knowledge, and consistent with the realities apparently underlying the two separate counts, I consider the “bedroom” cocaine package and the “hallway” cocaine package in succession.

[50] In my view, having regard to the totality of the circumstantial evidence, the only reasonable or realistic conclusion is that the accused “possessed” the 0.9 grams of cocaine found in his bedroom, and knew what that substance was. In particular:

• It admittedly was his apartment, and therefore his bedroom – an inherently personal and intimate space, and one over which he clearly would have had dominant familiarity and control. Indeed, the uncontradicted evidence is that, even before occupants of the apartment were made aware that the police had arrived, and upon entry of the police, the accused was alone in his room behind a closed door, which was found to be secured only a few seconds after the knock at the apartment door.

• The plastic wrapping of the 0.9 gram of cocaine was open and the drug was loose, suggesting it was placed there by someone who expected it to remain there for some time, and who knew it was unlikely to be disturbed.

• The 0.9 gram of cocaine in the bedroom was in plain sight, in a clear pastic bag, on a shelf at shoulder level, and therefore effectively in a location at average eye level where it readily would have been been seen – as it was seen by Officer McGugan.

• Because he was a drug addict and familiar with crack cocaine, the accused would have recognized and known what the substance in his bedroom was.

[51] At the very least, having regard to the cocaine found in his bedroom, the accused therefore knowingly possessed a substance included in Schedule I of the Controlled Drugs and Substances Act.

[52] However, I think a different conclusion must be reached in relation to the package of cocaine found lying on the hallway floor.

[53] Again, in support of its arguments regarding the accused’s possession and knowledge of that substance, the Crown necessarily relies on circumstantial evidence.

[54] While possible inferences from circumstantial evidence are outlined in R. v. Pham, supra, these self-evidently are not necessary inferences. In particular, the essential component of self-instruction on circumstantial evidence is that the trier of fact must be satisfied that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty: see R. v. Anderson-Wilson, 2010 ONSC 489, [2010] O.J. No. 377 (S.C.J.), citing R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, and R. v. Harris (2009), 244 C.C.C. (3d) 289 (S.C.C.).

[55] In my view, the totality of the circumstantial evidence in this case does not instill that level of satisfaction.

[56] In particular, an equally rational inference is the one effectively suggested by the defence; i.e., that the package of cocaine found in the hallway was in fact dropped or otherwise discarded there by Kyle Smith when he was being secured in that same area, and that the accused actually had no knowledge of that package until he learned about it during the course of the police interview carried out later, after his arrest and detention.

[57] I think there is a good deal of circumstantial evidence to support such an inference, including the following:

• It makes no logical sense to think that either a drug user, (valuing such a quantity of drugs for personal consumption), or a drug dealer, (valuing such a quantity of drugs to ensure sale and payment, and/or reimbursement of his or her supplier), would have “stored” such drugs in such a place; i.e., lying on a hallway floor, where it was not readily accessible without bending down, and where it would have been in danger of being stepped on and potentially dislodged from its plastic wrapping. To the contrary, the expert evidence received from Officer Valiquette, and common sense, suggests that such users and dealers would “stash” such a valuable quantity of such a substance in a secure way. All of this suggests that it was dropped or discarded on the floor only a short time before it was discovered by the police.

• Although Officer Lipskey clearly has a memory of seeing the package in plain sight in that location, (i.e., on the floor of the hallway, between the apartment door and the bedroom door), it seems to me that this must have happened at some point after Officer McGugan had secured Kyle Smith on the floor in that area and then relocated him to the living room. Any other conclusion effectively would require Officer Lipskey to have seen through Kyle Smith and Officer McGugan. Moreover, as noted above, Officer Lipskey’s immediate attention upon entering the apartment more likely would have been focused on securing the other unrestrained occupant visible in the living room area. Further, both Officer McGugan and Officer Woelfle would have passed that hallway area without noticing the package in plain sight, as Officer Lipskey did, which suggests that the other two officers’ view of the package was obstructed at the relevant times. In short, I think it entirely possible, if not probable, that the package of hallway cocaine was not noticed by Officers McGugan and Woefle because it was lying underneath Kyle Smith, and that it was first seen by Officer Lipskey only because Officer McGugan and Kyle Smith had left the hallway area by that point, sometime after Officer Woefle had moved into the bedroom.

• Kyle Smith’s possession of the hallway package of cocaine would be consistent not only with the location of the package and his location at the relevant times, but also with his father’s evident immediate opinion and belief, (expressed during the interview), that this was a definite possibility. Having regard to Officer Valiquette’s expert evidence about the manner in which drugs are dealt from such a location, Kyle’s behavior and location also are more consistent with his being involved in such activity at the relevant times, (in comparison with his father). Again, it was Kyle who, with telephone in hand, immediately opened the apartment door in response to a knock from persons unknown, while the accused was in his bedroom, behind a closed door.

• For the reasons outlined above, I regard the expressions of surprise and confusion by the accused, during the course of his interview by the police, when told of the “crack and coke” found in the apartment, to have been genuine and sincere.

[58] At the very least, such considerations create a reasonable doubt, in my mind, in relation to the proposition that the accused’s knowledge and possession of the package found on the hallway floor is the “only rational inference” to be drawn from the evidence.

[59] I therefore conclude that the Crown has not satisfied its onus of proof, in terms of establishing that the accused had possession and knowledge in relation to the package found on the hallway floor. Without proof of those elements of the offence, the charge or count relating to that package must be dismissed in its entirety.

[60] That leaves, for consideration the question of whether the Crown has satisfied its onus of proving, in relation to the package found in the bedroom, that the accused not only knowingly possessed the substance, (knowing it to be a substance included in Schedule I of the Controlled Drugs and Substances Act), but that he also did so for or with the purpose of trafficking.

[61] I do not think the Crown has done so.

[62] As noted above, the circumstantial evidence relied upon by the Crown, in support of possession for the purpose of trafficking, depended heavily on the expert evidence of Officer Valiquette, who in turn emphasized that a very dominant factor in his reasoning was the overall quantity of cocaine found within the apartment. That factor, in his opinion, supported an inference of possession for the purpose of trafficking, even though the remaining circumstantial evidence admittedly was somewhat equivocal, in many respects, for the reasons outlined above.

[63] When the bedroom package is considered in isolation, without regard to the remaining cocaine found elsewhere in the apartment, in respect of which the Crown has not established possession and knowledge on the part of the accused, it seems to me that an inference that the accused possessed the bedroom cocaine for the purpose of trafficking certainly has not been established beyond a reasonable doubt. In particular:

• According to the expert evidence, the quantity of cocaine found in the bedroom is entirely consistent with personal use by an admitted addict such as the accused; and

• The package found in the bedroom was open and loose, which is far more consistent with intended use by the bedroom’s occupant, rather than intended sale to some other person.

[64] I therefore find that, in relation to the substance found in the bedroom, the Crown has not satisfied its onus of proof in terms of establishing the requisite mens rea of s.5(2) of the Controlled Drugs and Substances Act. In other words, the Crown has established that the accused was in knowing possession of that package, and knew what the substance was, but not that the accused had such possession for the purpose of trafficking.

Conclusion

[65] For the reasons set out above, I find the accused not guilty of the two counts as set out on the indictment, relating to s.5(2) of the Controlled Drugs and Substances Act; i.e., possession of a substance included in Schedule I of that legislation, namely cocaine, for the purpose of trafficking.

[66] In relation to one of those counts, I nevertheless find the accused guilty of the lesser and included offence, set forth in s.4(1) of the Controlled Drugs and Substances Act, of possession of a substance included in Schedule I of that legislation, namely cocaine.

[67] The verdicts should be noted and documented accordingly.

“Justice I. F. Leach”

JUSTICE I. F. LEACH

Released: (Orally) April 16, 2013