COURT FILE NO.: 12/90000789/0000

DATE: 20140108

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

KINGSLEY KEITH BROWN

Lucas Price, for the Crown

Reid D. Rusonik, for Mr. Brown

HEARD: January 6 and 7, 2014

KELLY J.

Reasons for Judgment

1The defendant, Mr. Kingsley Keith Brown, has been charged with possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act. The sole issue for determination at trial was whether the defendant had knowledge of the crack cocaine seized in the motor vehicle that he was driving at the time of his arrest.

2For the reasons set out below, I find that Crown Counsel has not proven the offence beyond a reasonable doubt. What follows are my reasons.

The Facts

3The facts giving rise to the discovery of the crack cocaine may be summarized as follows:

a. On September 13, 2011, the defendant was driving a Ford Ranger pick-up truck. It was registered to the defendant and his mother, Mrs. Diana Brown. Both live at 78 Dumfries Avenue in Brampton. Also living at this address at the time were the defendant’s father (Hugh), his eldest son (Keithie) and his youngest son (O’Neil).

b. Police Constables Steele and Jugpall observed the Ranger driving on a Toronto city street and ran the license plate. P.C. Steele determined that the vehicle was registered to the defendant and that he was prohibited from driving as a result of unpaid fines.

c. The defendant was stopped driving the Ranger and was subject to investigation. P. C. Steele approached the driver's side of the Ranger and asked the defendant to provide identification following which his driver’s license was produced. P.C. Jugpall was on the passenger side of the Ranger at the time.

d. P.C. Steele asked the defendant for further documentation. The defendant looked in the glove compartment and then provided other documentation as requested. P.C. Steele described the defendant as polite and calm during this part of the investigation.

e. At the time of speaking to the defendant, both officers said that they noticed the smell of “burnt” marijuana and “freshly sprayed cologne” inside the Ranger. Both officers expressed to the defendant that they smelled burnt marijuana following which the defendant produced a partially smoked marijuana cigarette (a "joint") from his shirt pocket and said: “I have this”. P.C. Steele described that the defendant appeared “unconcerned” about the police observations of the smell of marijuana and the production of the joint. He was arrested, taken to the police car and thereafter the officers searched the Ranger.

f. P.C. Steele made certain other observations of the inside of the Ranger during the stop. There was soccer gear behind the driver’s seat and strewn throughout the Ranger there were: documents, elastic bands and cell phones. P.C. Jugpall described the Ranger’s contents as being in complete disarray.

g. In a search incident to arrest, P.C. Steele found over $700 in various denominations in the defendant’s pockets. Found inside the Ranger were the following: three cell phones, numerous elastics in an envelope, a grinder with marijuana residue and numerous other documents. A blue Lacoste satchel was located behind the passenger seat with a piece of plastic protruding from a pocket. It contained the following: 297.65 grams of marijuana in plastic bags; 32.69 grams of crack cocaine (also in plastic bags); and $5,000 in five separate stacks of $1,000 comprised of 20 dollar bills, each bound with a black elastic band.

h. When the defendant was advised that his license had been suspended, P.C. Steele described that the defendant appeared “very concerned”. Otherwise, The defendant’s demeanour, even when he produced the joint and observed the officers searching the Ranger remained “polite” and “calm”.

Analysis

4The defendant testified and provided an exculpatory account. Messrs. Hugh and O’Neil Brown also testified for the defence. In light of the defence evidence, the principles set out in R. v. W.D.¹ are applicable. Bearing these principles in mind, I find that a reasonable doubt has been raised for the following reasons:

a. Mr. Hugh Brown testified that although the Ranger was registered to the defendant and his wife, he had given Keithie authorization to use the Ranger for the purpose of attending school and other matters. The defendant and O'Neil testified that Keithie used the Ranger almost exclusively due to Mr. Hugh Brown's deteriorating health over the past several years.

b. The defendant testified that while his father was in the hospital and for approximately two weeks prior to his arrest, it was Keithie who drove the Ranger. He had not driven it himself but for the odd time that it had to be moved. This was confirmed by O’Neil.

c. The Ranger was the third motor vehicle typically parked at the home in Brampton. In addition to the Ranger, the mother of the defendant drove a Honda Civic and the defendant drove a Nissan Murano. The Ranger was normally parked in a way that blocked the other vehicles in the driveway. Accordingly, the keys were typically left for others to drive the Ranger for purposes of jockeying the vehicles or for other purposes. The defendant testified that he rarely drove the Ranger but for this purpose. This evidence was corroborated by the other two defence witnesses.

d. On the date of his arrest, the defendant had made arrangements to pick up O’Neil from the Yorkdale Mall after he had finished work. Following work, he returned home and parked his Murano in the usual spot next to the Honda Civic. The Ranger was not there. He took a shower, got dressed and rolled up a joint in the garage. Prior to exiting his home, he saw that the Ranger was parked in its usual spot blocking his Murano. He says that he called to Keithie in the basement and told him to move the Ranger “probably” on two occasions. He described Keithie as grumbling in response to his request but that Keithie did not emerge from the basement to assist. Because he was in a hurry to get to Yorkdale Mall and because he was annoyed at Keithie’s reluctance to assist, the defendant jumped into the Ranger and drove away. He did so for two reasons: to meet his son O’Neil on time and to punish Keithie. This evidence, to me, had the ring of truth.

e. The defendant testified that he smoked the joint on the way to Yorkdale Mall. He was candid about this testimony and did not attempt to justify his marijuana use. He also agreed with the testimony of the officers that there was an odour of burnt marijuana in the Ranger and that he promptly produced the half smoked joint when the smell was identified by the officers.

f. The satchel found in the back of the Ranger was lying flat when observed by both officers. Although there was some plastic protruding from the satchel neither officer concluded that it contained narcotics and proceeds of crime upon making their initial observations of it. This is the way the satchel would have appeared to the defendant or anybody else in the Ranger at the time of the stop. Accordingly, there is nothing to suggest that the contraband seized from the satchel was in plain view for the defendant to observe when driving the Ranger at the time of arrest.

g. Further, both officers only smelled the fresh marijuana after the defendant was removed from the Ranger together with the partially smoked joint. P.C. Jugpall conceded that it was a reasonable inference to draw that it was only after he searched the driver side of the Ranger (front and back) and then moved to the back passenger side that he noticed the smell of fresh marijuana. Further, P.C. Steele testified that it was only after he was advised by P.C. Jugpall about the smell, returning to the Ranger and disturbing the satchel to look inside that he noticed the smell of fresh marijuana. Accordingly, it is conceivable that the defendant might not have been alerted to the smell of fresh marijuana when in the driver’s seat of the Ranger. The inference that the defendant did not likely smell the marijuana seized from the satchel is even more conceivable because he had a freshly rolled joint in his shirt pocket when he entered the Ranger and a half smoked joint in the same pocket when arrested.

h. Messrs. Hugh and O'Neil Brown testified that they had observed Keithie in possession of the satchel seized prior to the arrest of the defendant. O’Neil believed that Keithie used it to carry books to and from school and at other times such as when picking him up from work. Further, two tickets to a reggae/hiphop type concert were found in the satchel. O’Neil testified that no one in the home but for Keithie would have been interested in attending such a show. This evidence leads to the possible (and logical) inference that it was Keithie who was using the satchel for personal use.

i. After the defendant’s arrest, both Messrs. Hugh and O’Neil Brown confronted Keithie about the satchel and more particularly its contents. Thereafter, and despite the fact that Keithie continues to live in the home in Brampton, he has been isolated from the rest of the family.

4Crown Counsel submits that there are four reasons to find that the defence evidence does not raise a reasonable doubt. I will deal with each of those arguments and provide reasons why I do not agree:

Crown Submission

Response

a.

It defies logic that Keithie would leave the amount of narcotics and money in the Ranger to which others had access.

Although it may defy logic that Keithie would leave the contraband in the Ranger, there is no burden on the defendant to convince me of the truth of his exculpatory account and how the satchel and its contents got into the Ranger. His account has credibility and some of the other evidence supports it such that I cannot completely reject it.²

Further, I agree with counsel for the defendant who submitted, it equally defies logic that the defendant would smoke an illegal substance knowingly in possession of such a significant amount of contraband while driving.

b.

It defies logic that Keithie would not have moved the Ranger when asked to do so by the defendant – knowing it contained the contraband.

Since the defendant rarely drove the Ranger for purposes other than moving it to permit his Murano to leave the driveway or on occasion with his father to retrieve building supplies, etc., it is entirely possible that Keithie did not believe that the defendant would drive it away from the family home that night. Further, there was nothing in plain view to suggest that if the defendant had moved the Ranger or driven it, he would have noticed the contraband.

c.

The placement of the satchel in the back passenger seat and the smell emanating from it should have alerted the defendant to the contraband providing him with knowledge of its contents.

The satchel was located in behind the passenger seat in the Ranger. As stated above, the officers only smelled the fresh marijuana after having gone specifically into that area. They did not notice it when in the driver's seat of the Ranger. Further, there was nothing protruding from the satchel that demonstrated, for certain, that it contained narcotics or other contraband. Lastly, the Ranger was in disarray, strewn with various items, such that it is possible that a person, such as the defendant, in the driver’s seat would not have noticed the smell, the satchel and more particularly, the contents of it.

d.

The marijuana joint smoked by the defendant is wrapped in the same type of rolling papers found in the satchel thereby connecting the defendant to the content of the satchel.

There was no evidence before me to demonstrate that the rolling papers seized and that used for the joint are the same. Further, I am unable to conclude that that is so simply by observing the two exhibits produced at trial.

5I am satisfied that the explanation of the defendant is reasonably true for the reasons set out above. His account has credibility and some of the other evidence supports it such that I cannot reject it. The defendant was candid in his account of what happened. He was a good witness and consistent in his telling of the events and did not tend to embellish evidence for his own benefit. For example, Messrs. Hugh and O'Neil Brown testified that they had seen Keithie with the satchel before the arrest. It would have been very easy for the defendant to have testified that he, too, had made the same observation. He did not and in my view, demonstrated to the court that he was telling the truth during his testimony and in particular that he had no knowledge of the contents of the satchel.

6For these reasons, I find the defendant not guilty of the offence before the Court.

Footnotes

1. 1(1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.)
2. 2See: R. v. Humphrey, 2011 ONSC 3024, [2011] O.J. No. 2412 at paras. 154-156