SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 13-10000598-0000
DATE: 20131112

RE: R. v. ITHEMAR BROWN, ABEDNEGO WYNN, NATHAN ELVIE

and TAMARA BROWN

BEFORE: Justice Spies

COUNSEL:
Danielle Carbonneau, for the Crown

Taro Inoue, for the Defendant, Ithemar Brown

Marco Sciarra, for the Defendant, Abednego Wynn

Hans Cedro, for the Defendant, Nathan Elvie

Kweku Ackaah-Boafo, for the Defendant, Tamara Brown

HEARD: October 23, 2013

rEASONS FOR decision ON MOTION FOR DIRECTED VERDICT

(TAMARA bROWN)

Introduction

[1] The defendant Tamara Brown was charged with the alleged robbery of Patrick Drakes and Kwame Pemberton on July 30, 2011, along with the other named defendants (Counts # 1 and 2). Ithemar Brown and Abednego Wynn are two of her brothers and Nathan Elvie is a friend of her brothers. Ms. Brown was also charged with having in her possession some of the property taken during the robbery (Count # 5 in the new Indictment). Another count; possession of a firearm while prohibited (Count # 7 in original Indictment) was severed to be heard by me following the jury verdict as the trial was to proceed before me with a jury.

[2] At the conclusion of the Crown’s case, Ms. Brown’s counsel, Mr. Ackaah-Boafo, brought a motion for a directed verdict of acquittal on all counts, which was opposed by Ms. Carbonneau, counsel for the Crown. After hearing submissions from counsel and considering the matter, I determined that the Defence motion should be granted and advised counsel that I would provide reasons for my decision. These are those reasons.

The Evidence

[3] Mr. Drakes and Mr. Pemberton allege that at about 5:15 a.m. on the morning of July 30, 2011, they were robbed at gunpoint by six to eight men in their hotel room at the Delta Chelsea in Toronto. It is alleged that the three male defendants were part of that group and that Mr. Wynn was the gunman.

[4] This was the start of Caribana weekend and the complainants and two of their friends had been out on Yonge Street when they ran into four young women; one of whom was alleged to be Tamara Brown. The group also included Farisha Besley, who was called as a Crown witness. She identified Tamara Brown as one of the three women she was with.

[5] The only direct evidence of any interaction between Ms. Brown and the complainants is the evidence of Mr. Drakes that while still on Yonge Street, he and Ms. Brown put their BlackBerrys side by side so that their BlackBerry pins and contact information could be scanned and exchanged. It was dark outside although there was artificial light.

[6] The complainants allege that after they returned to their hotel room with the four young women, that one or more of the women were seen on the balcony on their phones. The complainants allege that shortly after this there was a knock at their hotel door and that the blonde woman, who was neither Ms. Brown nor Ms. Besley, opened the door and as a result a group of people entered their room. At this point they told people to leave and some did including the four women and their two friends. It is alleged that the robbery then took place behind the closed door to the complainants’ hotel room.

[7] The complainants were inconsistent in their evidence as to how many of the four women went to the balcony and how many people first came in when the door was opened. Mr. Drakes testified only the blonde went onto the balcony and that she was on the phone. Mr. Pemberton said that all four women were on the balcony and that three to four of them were talking on their phones. He was not asked if he could tell if the women had made a call or had answered one. Mr. Pemberton’s evidence was confirmed by Ms. Besley to some extent as she did say all four women were on the balcony having a cigarette as they could not smoke in the room. She recalled that they were all on their phones but could not say if anyone made a call or was texting or just playing games. According to Ms. Besley, Mr. Drakes and Mr. Pemberton had asked them to make a call so that they could get some marihuana for them. She did not know if any of them did make such a call; she did not. The complainants denied making such a request.

[8] There was no suggestion from the evidence of Ms. Besley that she was aware of any plan to rob the complainants or that she or any of her friends, including Ms. Brown, took any steps to assist in such a robbery. The only evidence of a call made by any of the young women was Ms. Besley’s evidence that she called her baby father, Meshach Brown, when she arrived at the hotel as she wanted to let him know where she was. Although Meshach Brown is a defendant in another proceeding with respect to the same alleged robbery, the evidence suggests that he was the man in white who the complainants say was the leader of the group who robbed them. The complainants were consistent in their evidence that the four women and other persons including their two friends left as men entered their room and that the women were not present at any point during the alleged robbery. It is also not alleged that any of the four women took anything from the room.

[9] As for the possession of stolen property charge, on September 1, 2011, when Ms. Brown was arrested, property alleged to belong to the complainants was found in the home where she was staying; 196 McHardy Court, in Brampton. This home was being rented by Ms. Besley and she testified that Tamara Brown had been living there with her since June 2011.

[10] According to Ms. Besley, Ms. Brown slept downstairs in the basement although it was admitted that when police entered the home at about 6 a.m., for the purpose of executing the search warrant, that Ms. Brown was sleeping on the couch in the living room. According to Ms. Besley, Ms. Brown’s belongings along with some of Ms. Besley’s belongings and some of Ms. Brown’s brother’s belongings were in the basement. Ms. Besley said that pretty much all of the brothers of Ms. Brown had belongings in her basement. She referred specifically to three brothers who are not charged in the alleged robbery in addition to Dopey whom she said was Ithemar Brown. Ms. Besley also testified that Meshach Brown still had mail coming to her address and that he would visit from time to time to see his children.

[11] At the time of Ms. Brown’s arrest a U.S. passport belonging to Mr. Pemberton was found in a drawer of a small end table that was on the right side of the television in the living room opposite the couch. It was found along with mail addressed to Meshach Brown. The officer could not say if the mail or the passport was on top but in either event the passport was not in plain view in that it was inside a closed drawer. A number of keys on a ring with a small red tag for a New York gym club were seized from the top right of the television stand. Mr. Drakes’ BlackBerry was found on the left side of the television stand. Ms. Brown’s BlackBerry was found on the kitchen table. These items were all in plain view. A black duffle bag with a “Power” logo on it was found jammed between the wall and the couch so it would have been less visible. This bag had a piece of mail addressed to Ms. Besley in it that she could not explain. There is no evidence of any jewelry being seized or any other items from the house that were connected to the alleged robbery.

[12] There is no evidence as to when any of these items, alleged to have been taken from the complainants, were first brought to Ms. Besley’s home or who brought them there. She testified that she did not know these items were in her home. Her evidence that she had not noticed any of the items before they were seized by police was not challenged by any counsel.

[13] Ms. Carbonneau submitted that it could be inferred that Ms. Brown would have seen the YouTube video that shows the defendants and others enjoying the spoils of what appears to be at least the theft of property from the complainants, because Mr. Drakes got a link to this video through a contact that must have been on Ms. Brown’s phone. There is no evidence, however, as to the source of the link and therefore no evidence that Ms. Brown would have seen this video. She is not in it. Ms. Carbonneau also suggested that Ms. Brown must have known about the robbery because she is the sister of the other defendants. Although that may explain why she was charged and Ms. Besley was not, that submission obviously has no merit.

The Test

[14] Neither counsel provided any law on the test to be applied in this case for a directed verdict. In reaching my decision I adopted the following test which comes from R. v. Charemski[1] where Justice McLachlin, as she then was, writing for herself and Major J., and dissenting on other grounds, stated:

A properly instructed jury acting reasonably is a jury that will convict only if it finds that the evidence establishes guilt beyond a reasonable doubt. To determine whether this could occur, the judge on the motion for a directed verdict must ask whether some or all of the admissible evidence is legally sufficient to permit the jury to find guilt beyond a reasonable doubt. In doing so, the trial judge is determining the sufficiency of the evidence. The question is whether the evidence is capable of supporting a verdict of guilt beyond a reasonable doubt. …In order to determine whether a properly instructed jury could reasonably convict, the judge must determine whether, assuming the circumstantial facts are proved, it would be reasonable to make the inference necessary to establish the facts in issue. …On any motion for a directed verdict, whether the evidence is direct or circumstantial, the judge, in assessing the sufficiency of the evidence must, by definition, weigh it. …But weighing the evidence for this purpose is a very limited exercise. …the judge assesses whether, hypothetically, a guilty verdict is possible; the jury determines whether guilt has actually been proved beyond a reasonable doubt.[2] [Emphasis mine]

[15] In R. v. Arcuri,[3] McLachlin C.J. wrote for a unanimous Court. It is significant that she stated that Charemski did not evidence disagreement in the Court as to the proper approach. She went on to clarify the approach regarding the weighing of evidence, making it clear that where the Crown’s case involves circumstantial evidence, the judge must engage in a “limited weighing” of the evidence. As McLachlin C.J. held:

…Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established….The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.[4] [Emphasis mine]

Chief Justice McLachlin went on to say:

Thus, this task of “limited weighing” never requires consideration of the inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence.[5] [Emphasis mine]

[16] In Arcuri, McLachlin C.J. quoted at paragraph 24 from Metropolitan Railway Co. v. Jackson,[6] and the passage assists in understanding this “limited weighing” approach, with the traditional distinction between the respective tasks of the judge and jury:

The Judge has a certain duty to discharge, and the jurors have another and a different duty. The Judge has to say whether any facts have been established by evidence from which [the matter in issue] may be reasonably inferred; the jurors have to say whether, from those facts . . . [the matter in issue] ought to be inferred. [Emphasis omitted.]

[17] As the Supreme Court said in R. v. Cinous:[7]

This distinction is crucial. The judge does not draw determinate factual inferences, but rather comes to a conclusion about the field of factual inferences that could reasonably be drawn from the evidence.

[18] For these reasons, I concluded that I should undertake a limited weighing of the evidence to determine the reasonableness of the inferences advanced by the Crown in support of her position that Ms. Brown set up the robbery by making a telephone call and that she knew that she was in possession of stolen property. In the final analysis, I must consider if there is evidence in the record upon which a properly instructed jury, could reasonably conclude that Ms. Brown is guilty beyond a reasonable doubt of the offences charged. I should only consider whether or not the evidence called by the Crown, assuming it is true as I must at this stage, is reasonably capable of establishing the guilt of Mr. Brown beyond a reasonable doubt.

Should a directed verdict be granted in this case?

[19] Mr. Ackaah-Boafo submitted that there was no evidence that Ms. Brown made a telephone call or any other evidence linking her to the robbery and that there was no evidence that she had any knowledge or control of the stolen property found at Ms. Besley’s home. Ms. Carbonneau argued that Ms. Brown was in constructive possession of the stolen property, that the doctrine of recent possession applied and that it was enough that Ms. Brown lived at the house. She acknowledged that on that basis Ms. Besley could also have been charged but submitted that the Crown did not have an obligation to also charge Ms. Besley.

[20] The offence of possession of stolen property requires proof that Ms. Brown was in possession of stolen property and that she knew of the fact that the property was stolen or that she deliberately closed her eyes to the possibility of the fact that an object was stolen. For Ms. Brown to be a party to the robbery there must be evidence that she aided in the robbery; on the Crown’s theory by making a call to one of the alleged robbers and letting them know where she was.

[21] Dealing first of all with the offence of stolen property, the Crown relied on constructive possession. In order to constitute constructive possession, there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed.[8] There is no direct evidence of Ms. Brown having any knowledge of the items seized being in Ms. Besley’s home nor is there any evidence of any measure of control which would be required to prove constructive possession. Some of the items, however, were in plain view and so on that basis there is some evidence a jury could rely upon to establish that Ms. Brown was aware of the presence of these items.

[22] On the issue of control however, there was no evidence that Ms. Brown had any measure of control over these items. As the Court of Appeal held in R. v. Terrence[9] “mere passive acquiescence” to the known presence of stolen goods does not satisfy the element of control. Although Ms. Brown had access to the living room and was sleeping on the couch the morning police arrived, she had no control over what items were in the living room; the living room of the home rented by Ms. Besley; the house was in her control and it was up to her to determine who and what was permitted into her home. For these reasons, there is no evidence upon which a properly instructed jury could find Ms. Brown in constructive possession of the stolen property. As such the doctrine of recent possession could not apply.

[23] Furthermore, there was no evidence that Ms. Brown was aware of the fact that any of the items in plain view had been stolen, unless there is some evidence that she knew of a robbery. There is no evidence in this case that Ms. Brown would have had any reason to pay any particular attention to the items seized by police given she was living in someone else’s home. The U.S. passport was the only item that had it been open and visible would indicate that it was stolen particularly since it showed a picture of Mr. Pemberton whom Ms. Brown would presumably have recognized. The passport, however, was found closed and in a closed drawer and there is no evidence that this is a drawer that Ms. Brown had access to or any reason to use.

[24] As for the keys, Ms. Carbonneau argued that a jury could draw an inference that Ms. Brown must have known that the keys were stolen because of the New York gym tag. Ms. Besley however, had not noticed this and it would be speculation to say that Ms. Brown ought to have noticed this and that even if she had she would know what it meant, assuming there is no evidence that she participated in the robbery. As for the black duffle bag with the “Power” logo that the complainants allege belonged to Mr. Pemberton, there was no reason for Ms. Brown to take note of this duffle bag which was jammed behind the couch, if she had not participated or been aware of the robbery. In fact mail was found in that bag to the attention of Ms. Besley that she could not explain and yet her evidence that she had not noticed this bag in her living room was not challenged. There is no evidence to support the argument Ms. Carbonneau made that she would have seen it in the complainants’ hotel room and would have recognized it.

[25] The Crown also argued that an inference could be drawn that Ms. Brown would have known that the red BlackBerry Curve belonged to Mr. Drakes because she would have seen it when they exchanged their PIN numbers. Ms. Besley, however, was with Ms. Brown at the time and her evidence that she had not noticed this phone until it was seized by police was not challenged. Furthermore Mr. Drakes was not able to identify Ms. Brown’s BlackBerry when he was shown a picture of it. Mr. Drakes’ BlackBerry was red but Ms. Besley said there were a number of BlackBerrys in the home. Although the phone remained active and someone must have been using it, there is no evidence to suggest that Ms. Brown was the person using this phone or that she would have had any reason to notice the phone in Ms. Besley’s home. Even if she had noticed it there is nothing about the phone itself to suggest that it had been stolen.

[26] In summary, no one who had no knowledge of the alleged robbery would have any reason to suspect any of the items allegedly taken from the complainants that were in plain view in Ms. Besley’s house had been stolen. The doctrine of recent possession does not apply. There could be no reasonable inference drawn from the evidence that Ms. Brown is the one who brought these items to Ms. Besley’s home. On the evidence of Ms. Besley, she had given access to her home by the brothers of Ms. Brown including Ithemar Brown, and Meshach Brown who came to her house to pick up mail or see his child. They are among the men the Crown alleges robbed the complainants.

[27] Since the presence of stolen property in the home where Ms. Brown was living is not evidence that a properly instructed jury could reasonably rely upon and conclude beyond a reasonable doubt that Ms. Brown is guilty of possession of stolen property, the only other evidence to consider is with respect to the robbery charge; could a properly instructed jury draw an inference that Ms. Brown made a call to any one of the defendants or the other men who are alleged to have robbed the complainants, setting the robbery up? Obviously if there is some evidence that a jury could rely upon to conclude that Ms. Brown participated in the robbery, then that would also be some evidence that she knew that stolen property was in the house where she was living.

[28] Although Detective Whalen was able to establish through hearsay evidence, which Mr. Ackaah-Boafo accepted as true, that Ms. Brown was the subscriber of the BlackBerry phone that exchanged contact information with Mr. Drakes, he did not seek production of the records of calls made by Ms. Brown on her BlackBerry. There is therefore no direct evidence that Ms. Brown made a phone call to anyone or for that matter sent a text message in the relevant timeframe. There is a conflict in the evidence of the complainants but to the extent Mr. Pemberton testified that he heard the women on the phone, which I must for the purpose of this application assume is true, there is absolutely no evidence to suggest that Ms. Brown made a call to one of the defendants or other suspects in the robbery. The evidence at its highest is that she was on her phone speaking to someone that either she called or who called her or she could have been playing a game. Ms. Brown is not alleged to be the person who opened the door to the alleged robbers. There is no evidence of any interaction between her and the alleged robbers on the night in question. In my view the jury would have to engage in impermissible speculation in order to find that Ms. Brown made a telephone call to one of the defendants or other suspects in the alleged robbery, to set up the robbery, and thus aided in the commission of the robbery.

[29] Having found that no reasonable inference could be drawn by a properly instructed jury in support of the Crown’s theory as to how Ms. Brown participated in the robbery, or that she would have had any reason to suspect that any of the stolen property in Ms. Besley’s home had been stolen during a robbery, I concluded that a jury, properly instructed, could not reasonably convict Ms. Brown of any of these charges.

Disposition

[30] For these reasons, I granted the motion brought on behalf of Ms. Brown and directed a verdict of acquittal for the offences Ms. Brown was charged with as set out in Counts # 1, 2, and 5 in the new Indictment and the severed Count # 7 in the original Indictment.

SPIES J.

Date: November 12, 2013

[^1]: 1998 819 (SCC), [1998] 1 S.C.R. 679.

[^2]: Charemski, supra, at paras. 20, 22 and 23, see also R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702 at paras. 50 and 53.

[^3]: 2001 SCC 54, [2001] 2 S.C.R. 828.

[^4]: Arcuri, supra, at para. 23.

[^5]: Arcuri, supra, at para. 30.

[^6]: (1877), 3 App. Cas. 193 (H.L.) at p. 197.

[^7]: 2002 SCC 29, [2002] 2 S.C.R. 3 at para. 91.

[^8]: R. v. Pham, 2005 44671 (ON CA), [2005] O.J. No. 5127 at para. 15.

[^9]: (1980), 1980 74 (ON CA), 55 C.C.C. (2d) 183 (Ont.C.A.).