ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Ms. Larmondin and Mr. Dykstra, for the Crown
- and -
RYAN DOUGLAS and MICHAEL BRYAN
Ms. Sayed, for Mr. Douglas
Ms. Goldlist, for Mr. Bryan
HEARD: April 7-23, 2014
REASONS FOR DECISION ON THE DEFENCE APPLICATION FOR A DIRECTED VERDICT OF ACQUITTAL
Conlan, J
INTRODUCTION
[1] Ryan Douglas and Michael Bryan were tried jointly before a Jury on a single-count Indictment alleging the offence of importing cocaine. The proceeding ultimately concluded with a mistrial.
[2] The allegation was that the two accused ingested cocaine and brought the substance in to Canada via an airplane from Jamaica on April 30, 2011.
[3] At the end of the Crown’s case, in the absence of the Jury, and in advance of the accused being put to their elections as to whether they wished to call any evidence, the Defence made an Application for directed verdicts of acquittal with respect to both Mr. Douglas and Mr. Bryan.
[4] I dismissed the Application and indicated at the time that written reasons would follow. These are those reasons.
[5] The essence of the Defence argument was that the cumulative effect of alleged police errors and general investigatory bungling with the exhibits weakened continuity to such a degree that the Application ought to have been granted.
[6] By continuity, I am speaking about the legal principle that there must be a proper chain of possession of the alleged narcotics from the time of initial seizure from the accused through to analysis by Health Canada and beyond to trial.
THE LAW
[7] There was no dispute by counsel about the governing test. The leading decision remains that of the Supreme Court of Canada in United States of America v. Shepard, [1977] 1 S.C.R. 1067, which framed the question in these terms: “whether or not there is evidence upon which a reasonable jury properly instructed could return a verdict of guilty” (page 1080).
[8] Put another way, an application for a directed verdict should not be granted where “there is admissible evidence which could, if it were believed, result in a conviction” – Shepard, supra.
[9] To withstand the Application, “the Crown must adduce some evidence of culpability for every essential definitional element of the crime for which the Crown has the evidential burden” – R. v. Charemski, [1998] 1 S.C.R. 679 (paragraph 3).
[10] It is the totality of the evidence that must be considered. Courts ought not to engage in a piece-meal examination of individual items of evidence. The case for the Crown must be taken at its highest. Competing permissible inferences must be resolved in favour of the Crown. Regina v. Masterson, 2008 ONCA 481 at paragraph 6.
[11] Where the test is met, however, the Application must be granted. Courts ought to be wary of Crown arguments that directed verdicts of acquittal will inevitably lead to an erosion of the importance of our criminal jury system. In my view, the system is robust and will not be adversely impacted by directed verdicts of acquittal where the relatively high threshold is indeed satisfied.
ANALYSIS
[12] Continuity is not an essential element of the offence of importing cocaine such that it must be proven by the Crown beyond a reasonable doubt.
[13] Crown counsel must prove each of these essential elements beyond a reasonable doubt: (i) that the accused imported a substance in to Canada; (ii) that the substance was cocaine; (iii) that the accused knew that the substance was cocaine; and (iv) that the importing was intentional.
[14] In the case of Douglas and Bryan, the defence of duress was in play, however, that is not relevant to this discussion.
[15] Continuity of the police exhibits is certainly a consideration as to whether the trier of fact is persuaded that the Crown has proven the case beyond a reasonable doubt, particularly with regard to the first two essential elements of the offence.
[16] Further, because of the evidentiary concerns highlighted by Ms. Goldlist during her submissions on the Application, there was a triable issue in this case as to whether the jurors could have been satisfied that the Certificates of Analyst from Health Canada, which showed that the samples submitted by the police tested positive as cocaine, were in fact items seized from either of the accused.
[17] But those are inferences that were in the purview of the jury to draw. To use just one example from the submissions made by Ms. Goldlist, it is correct that the jury could have accepted the evidence of Constable Estrada and found that Constable Dionne’s actions in cutting in to the pellets caused the evidence to be contaminated. It is also true, however, that the jury could have accepted the testimony of Dionne and rejected the notion that the evidence was in any way contaminated.
[18] The bottom line is that there was, on each essential element of the offence of importing cocaine, admissible evidence against each accused person which could have, if it was believed by the jury, acting reasonably and with proper instructions, resulted in a finding of guilt against both Mr. Douglas and Mr. Bryan.
[19] For Mr. Douglas, there was his statement to Constable Bayrakdarian which, combined with the Certificates of Analyst from Health Canada, could have satisfied all four of the essential elements of the offence of importing cocaine. There was no issue that Douglas flew from Jamaica to Toronto. He admitted to the officer that he had ingested cocaine. And the Certificates confirm that the substance was cocaine. Whether alleged police errors and the mishandling of exhibits could cause the jury to have a reasonable doubt was for the triers of fact to decide.
[20] For Mr. Bryan, there was his statement to border services officer Smith which, combined with the Certificates of Analyst from Health Canada, could have satisfied all four of the essential elements of the offence of importing cocaine. There was no issue that Bryan flew from Jamaica to Toronto. He admitted to the officer that he had ingested cocaine. And the Certificates confirm that the substance was cocaine. Again, as with Douglas, whether alleged police errors and the mishandling of exhibits could cause the jury to have a reasonable doubt was for the triers of fact to decide.
CONCLUSION
[21] For the foregoing reasons, the Defence Application for directed verdicts of acquittal is dismissed.
Conlan, J
Released: April 24, 2014
COURT FILE NO.: CRIMJ(F)1884/12
DATE: 2014-04-24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Ms. Larmondin and Mr. Dykstra, for the Crown
- and –
RYAN DOUGLAS and MICHAEL BRYAN
Ms. Sayed, for Mr. Douglas
Ms. Goldlist, for Mr. Bryan
REASONS FOR DECISION ON THE DEFENCE APPLICATION FOR A DIRECTED VERDICT OF ACQUITTAL
Conlan, J
Released: April 24, 2014