ONTARIO

SUPERIOR COURT OF JUSTICE

DATE: 20140724

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ANDREW RICKETTS and WARREN ROBB

Defendants

Aaron Shachter, for the Crown

Maija Martin, for the Defendant Andrew Ricketts

Jason Bogle, for the Defendant Warren Robb

HEARD: May 27, 28, 29, 30 and June 2, 2014

SPIES J. (Orally)

Overview

[1] The defendants, Andrew Ricketts and Warren Robb, are charged with possession of cocaine, marijuana and hashish, all for the purpose of trafficking. They elected trial by judge alone and pleaded not guilty to all charges.

[2] On the evening of May 11, 2010, the police executed a search warrant at Unit # 2115, 5 Greystone Walk Drive, alleged to be the dwelling unit of Warren Robb. Unit # 2115 (the “apartment”) is a one bedroom apartment. The search was for illegal drugs, drug paraphernalia and other drug related evidence in support of the offence of unlawful possession of cocaine for the purpose of trafficking.

[3] There is no dispute that during the search the following drugs, in the following quantities, were seized from various locations in the apartment:

(a) Marijuana 1,263.88 grams

(b) Crack Cocaine 8.59 grams

(c) Hashish 74.54 grams

[4] None of the drugs were in plain view. In addition, other items that are alleged to have been used to package the drugs for sale were seized, including an industrial sized vacuum sealer. Out of the 1,263.88 grams of marijuana, all but 11 grams were vacuum sealed. The other drugs were not vacuum sealed.

[5] Although neither defendant was in the apartment when the search began, they each arrived separately and were arrested. Both defendants testified. Mr. Ricketts admitted to living at the apartment but denied knowing about the existence of any of the drugs or the alleged drug paraphernalia. Mr. Robb’s position is that although he and his wife leased the apartment, they lived in Markham, that at the time he had sublet the apartment to Mr. Robb, who is his cousin, and Lenford Warren, and that on the night he was arrested he went to the apartment only for a visit. He too denied knowledge of any of the drugs or drug paraphernalia. They both testified that Mr. Warren was living in the apartment at the time. Essentially it is their position that the drugs and the alleged drug paraphernalia must have belonged to Mr. Warren. Mr. Warren was not called as a witness but Mr. Robb called Juliet Johnson Francis who rented and lived in the apartment from 2006 to 2009 and she confirmed some of the defendants’ evidence.

[6] It was conceded by the Defence that if the Crown proved possession, given the quantities of drugs found, that the Crown had also proven that the drugs were for the purpose of trafficking.

The Issues

[7] Possession is defined in subsection 4(3) of the Criminal Code and for the purpose of this case requires proof of knowledge, consent and some measure of control over the drugs The central issue in this case is whether or not the Crown has proven that either Mr. Ricketts and/or Mr. Robb knew about the existence of some or all of the drugs in the apartment. As the drugs were found in an apartment that Mr. Ricketts lived in and Mr. Robb at least visited, and given Mr. Robb leased the apartment and had a key to it, control over the drugs and consent are not in issue.

The Evidence and Preliminary Findings of Fact

The Apartment

[8] The apartment consists of a kitchen, living room, dining room, bathroom and bedroom. The couch in the living room was a sofa bed and there was a pillow on it at the time of the search. There were no locks on any of the interior doors save for the bedroom but there was no key for that lock. The furniture in the apartment belonged to Mr. Robb.

[9] Mr. Robb admitted that he had leased the apartment since 1995 but testified that after he married, he and his wife moved to 46 Hepburn Street in Markham; a home he owns with his wife. He said that Ms. Johnson Francis was a family friend from Jamaica. When she moved to Canada she had no credit and needed a place to stay so she moved into the apartment and paid the amount of the lease payments owing to Mr. Robb. He was not making any profit on subletting the apartment. He simply charged the tenants whatever the rent totalled. He rented it out to family and friends.

[10] Ms. Johnson Francis testified that no one was living in the apartment when she moved in in 2006. She testified that she had known Mr. Robb and his wife for many years. She agreed to pay him the rent in cash. Her evidence that she lived in the apartment was not challenged but in any event, she identified a cheque that she wrote for a replacement key in the amount of $15 payable to the landlord. I am satisfied that she lived in the apartment with her daughter in the timeframe she testified to.

[11] Mr. Ricketts lived with Mr. Robb and his wife at 46 Hepburn. He moved in with them after he separated from his wife in 2001 but he did not get along well with Mr. Robb’s wife who asked him to leave. He then moved into the apartment. Mr. Ricketts testified that he moved into the apartment in 2005 and that Ms. Johnson Francis was living there. He slept on the couch and paid $200 in rent to Mr. Robb. I accept that evidence save that he may be wrong on his date of moving in as Ms. Johnson Francis confirmed that she was living in the apartment before he moved in but said that she moved into the apartment with her daughter in September 2006. I do not find this difference in the date to be significant.

[12] Ms. Johnson Francis did not know Mr. Ricketts before she was introduced to him by Mr. Robb. She knew that he lived at 46 Hepburn with Mr. Robb but did not know why he moved out. Mr. Robb told her that he had to live with her. She was not happy but it did reduce her rent by $200. She confirmed that Mr. Ricketts slept on the couch in the living room as she and her daughter were in the bedroom. She also testified that Mr. Ricketts kept clothes in the drawer of a dresser in the bedroom and shirts in boxes and had his stuff on the left-hand side of the closet. Ms. Johnson Francis had her things in both places too.

[13] According to Mr. Ricketts and Ms. Johnson Francis, Mr. Robb did not live in the apartment. Ms. Johnson Francis testified that when the rent was due, Mr. Robb would come and in addition he probably came once another time in a month to see how they were doing. Mr. Robb would usually buzz them from downstairs when he came to visit. According to Mr. Ricketts, Mr. Robb would come to the apartment from time to time to look in on him or to collect rent. Mr. Robb testified that he never went to the apartment unannounced but he did have a key on his keychain. He denied going to the apartment when no one else was there.

Lenford Warren

[14] Mr. Shachter accepts that there is a man named Lenford Warren but not that he lived in the apartment. He conceded the accuracy of the criminal record from the United States belonging to a Lenford L. Warren who was convicted of carrying a concealed firearm in 1994. His date of birth is shown as 1959 which would make him 55 years old. The Defence suggests that this is the criminal record for “the” Lenford Warren and that he was living in the apartment at the time of the search and this record could explain the presence of ammunition in the apartment.

[15] The Crown produced a Durham Regional Police General Occurrence Report during the trial presumably in response to a request from the Defence. This document confirms that in June 2009 Lenford Warren, with the same birth date as the Lenford Warren with the U.S. criminal record, was involved in a domestic dispute that resulted in no charges. According to the occurrence report, Mr. Warren told the officer who responded to the call that he was having problems with his common law partner. The Defence suggests that this is what prompted Mr. Warren to need another place to live. Mr. Robb testified about a conversation with Mr. Warren about this but that evidence is inadmissible hearsay.

[16] Mr. Robb testified that Lenford Warren was known as “Stinky” and that his cousin from the United States called him and said that a friend was coming to Canada and he needed a place to live. He did not know Mr. Warren very well but he was close to his cousin who recommended him. Mr. Robb agreed to let Mr. Warren move into the apartment and he moved in when Ms. Johnson Francis moved out. Mr. Warren agreed to pay $850 a month which was the rent that Ms. Johnson Francis was paying. Mr. Robb did not find out or know if he had a job. He testified that Mr. Warren never missed a payment.

[17] Mr. Ricketts did not know Mr. Warren. Mr. Robb told him that Mr. Warren was having problems with his wife and had no place to go. Mr. Ricketts testified that he had no ability to protest Mr. Warren coming to live in the apartment as he had nowhere to go himself.

[18] Ms. Johnson Francis testified that she met Lenford Warren and knew him as “Stinky”. She said that she moved out of the apartment at the end of July of 2009 as her two other children were coming from Jamaica. When she left the apartment Mr. Ricketts was not there but Stinky was and she gave him her keys and asked him to give the keys to Mr. Robb. Mr. Ricketts also testified that Lenford Warren was known as “Stinky” and that he moved into the apartment and that he slept on the couch in the living room.

(continued verbatim with the same structure, wording, and paragraph numbering through paragraph [110], including the Analysis, Disposition, and footnotes exactly as in the source HTML)

SPIES J.

Released: July 24, 2014

Edited Decision Released: August 13, 2014