ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-90000120-0000
DATE: 20140124
B E T W E E N:
HER MAJESTY THE QUEEN
Brian Puddington for the Crown
- and -
ALLISON VERNA WATSON
Lisa Pace for Allison Verna Watson
HEARD: November 25, 26, 27, 28, and 29, 2013.
REASONS FOR JUDGMENT
Corrick J. (orally)
Introduction
[1] Ms. Watson was tried by me sitting without a jury on a charge of possession of methamphetamine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act.
[2] By way of overview, during a search of Ms. Watson's apartment, a police officer saw Ms. Watson appear to throw something pink in colour out the apartment window. When the officer later searched the area below the apartment, he found a pink pencil case. It contained seven baggies, each containing methamphetamine. The total weight of the drug was approximately 135 grams.
The Evidence
[3] On December 7, 2010, at approximately 11:00 p.m., Toronto police officers executed a search warrant at Ms. Watson's apartment at 1 Church Street, Unit #309. The target of the search warrant was Ms. Watson's eldest son, who was 16 years old, who police believed had been selling crack cocaine from a rear stairwell at 1 Church Street.
[4] Officer Dobbs was one of several officers who entered unit #309 to execute the search warrant. He testified that as officers were preparing to enter the unit by force, the door opened and a man exited. He was detained. He was Ms. Watson’s brother. Officers entered the unit and climbed a set of stairs to the right of the entrance door. Officer Dobbs was not the first officer to enter. At the top of the stairs, he saw Officer Small arresting the target youth in the kitchen. Within five to ten seconds of entering the unit, he saw Ms. Watson standing at a window in the solarium. She was standing on a piece of furniture and her body was at 90 degrees to the window. Her left hand was reaching across her body touching the window or window frame. He saw her gesture with her right hand and saw a flash of pink leave her hand and go out the window. Officer Dobbs testified that it happened very quickly. Ms. Watson was at the window for only about five seconds. She then approached Officer Dobbs crying frantically about her baby. Officer Dobbs, who was a new father at the time, tried to calm her. He called out to the other officers to see if there was a baby in the unit. He learned there was not. He noticed Ms. Watson’s left thumb bleeding. It was bleeding heavily enough that the blood was dripping. He had her sit at the dining room table, and gave her some tissue to use to apply pressure to her thumb.
[5] Once he determined that there was no baby in the unit, Officer Dobbs believed that Ms. Watson had attempted to distract him from what she was doing at the window. He informed his supervisor at the scene of what he saw, and was detailed to go outside and search the ground below the unit.
[6] He went outside and searched the backyard area below unit #309. At 11:10 p.m., he located a pink pencil case very close to the fence that divided the backyard below unit #309 from the adjacent backyard. He opened the case and saw what he believed to be crystal methamphetamine. Officer Dobbs returned to the unit and turned the case over to Officer Small at 11:15 p.m. After turning the pink case over to Officer Small, Officer Dobbs left the scene to assist an officer who had sustained a broken arm during the entry into the unit.
[7] Officer Dobbs testified that upon returning to the unit, he looked at the window. He did not test the operability of it. There were two window panes. There was no screen on the window. He did not remember any bars on the window, although he could not be sure. He testified that he thought the window was very slightly ajar when he looked at it. During cross-examination, he agreed that his recollection of events would have been better at the time of the preliminary hearing, at which he testified that the window was closed when he saw it.
[8] Officer Small testified that he was the first officer to enter unit #309 to execute the search warrant. As soon as he got to the top of the stairs, he saw Ms. Watson's eldest son in the kitchen and arrested him. He remained in the kitchen with the youth. He did not see Ms. Watson near the window nor did he notice an injury to Ms. Watson's thumb. The only time he saw Ms. Watson was after some crack cocaine had been located in the unit. She came into the kitchen to speak to her son. She was angry. Officer Small testified that Officer Dobbs turned a pink pencil case over to him at 11:15 p.m.
[9] Once the officers had returned to the police station and debriefed, Officer Small was assigned to be the exhibits officer. He removed seven baggies from the pink pencil case and took a sample from each of the baggies for submission to Health Canada. The drugs were subsequently tested and found to be methamphetamine.
[10] The final witness for the Crown was Detective John Margetson, who was qualified on consent of both parties as an expert on issues relating to the distribution and pricing of methamphetamine and the modus operandi of drug traffickers, based on his experience and training. It was his opinion that the total weight of the crystal methamphetamine contained in the pink pencil case, and the way it was packaged indicated that the drug was possessed for the purpose of trafficking by a mid-level drug dealer.
[11] His opinion was based on the following facts. The drug weighed a total of 135 grams, and was packaged in 1/4 ounce, 1/2 ounce, and ounce packages. According to Detective Margetson, this is consistent with the sale of the drug to people who were going to distribute it further. The drug was worth between $13,500 and $20,250, depending on how it was sold on the street. Detective Margetson testified that a typical user of crystal methamphetamine, particularly in the center of the city of Toronto, would use one-tenth of a gram as a single dose. People who use crystal methamphetamine generally do not have the means to buy large quantities for their personal use. The use of the drug lowers the socio-economic level of users because they generally cannot maintain employment.
[12] Two witnesses testified for the defence - Curt Augustin and Ms. Watson. Mr. Augustin is Ms. Watson's uncle. On December 7, 2010, he was living with Ms. Watson. He testified that six people lived in the apartment at the time of the execution of the search warrant - Ms. Watson, her three sons, aged 3, 14 and 16 years old, her 14-year-old niece, and Mr. Augustin. Everyone was present when the warrant was executed. Ms. Watson’s brother was visiting that evening and was just leaving when police entered.
[13] Mr. Augustin testified that he was in Ms. Watson's bedroom lying down with her three-year-old son, who was ill, when the police entered the unit. Police directed him to the living room. Mr. Augustin's evidence is unclear about where Ms. Watson was when police entered. He testified that she was in her bedroom when the police entered and that she went to the living room with her niece when directed to do so by the police. He also testified that before the police came, Ms. Watson was standing in the solarium looking out the window into the courtyard. She then returned to the living room, and he did not see her in the solarium again while the police were there. In cross-examination, he admitted that he did not see Ms. Watson until three or five minutes after the police arrived.
[14] Mr. Augustin described the windows in the solarium. He testified that the upper portion of the window was fixed, and the lower portion consisted of two panes that slide. There were safety bars between the two panes. To open the window, one was required to slide open both an interior and exterior pane. There was a screen on the window that was held in place by four clips. He identified a photograph of the window and circled what he described as a clip on Exhibit #5. He further testified that the screen on the window was stuck and could not be moved.
[15] Mr. Augustin testified that after the police left the unit, he cast his eyes around and saw that the screen was still on the window. He remembered the window being slightly ajar.
[16] During the execution of the search warrant, Mr. Augustin did not notice that Ms. Watson was injured in any way. He was adamant in his evidence that a pink pencil case had never been in the unit.
[17] Ms. Watson testified. She is 45 years old and has no criminal record. She denied being in possession of crystal methamphetamine. She denied throwing a pink pencil case out of the window when police entered her apartment on December 7, 2010.
[18] Ms. Watson testified that on December 7, 2010, the solarium was being used as her eldest son's bedroom. A double futon on a wooden frame was under the window in the solarium. Ms. Watson produced a number of photographs of the windows in the solarium, which have been marked as exhibits. The photographs were taken in November 2013, almost three years after the event. She testified that the windows as depicted in the photographs are in the same condition they were in on December 7, 2010. Ms. Watson testified that on December 7, 2010, there was a screen on the lower window in the solarium. The screen was held in place with hooks that "fit into a groove and click into place". It could not be slid open. Between the two sliding window panes were safety bars, which she installed in 2005 or 2007. The bars were in place on December 7, 2010. She testified that to remove the screen, she would have had to remove both sliding window panes and the safety bars.
[19] According to Ms. Watson, when police entered the unit, she was in the kitchen. Her brother and eldest son were leaving to get food. Her niece was in the shower. Her uncle and youngest son were in her bedroom and her middle son was between the living room and his bedroom. She heard the police enter and saw an officer struggling to push her son back up the stairs. She ran down the hall, banged on the bathroom door for her niece and informed her uncle that something was going on. She was directed to follow a uniformed police officer to the living room, where she went and sat. Her 14-year-old son was on the floor of the living room, handcuffed. He was upset. She said to the officers, “he’s just a baby.” Her eldest son was in the kitchen struggling with police. She saw officers search her eldest son's bedroom - the solarium.
[20] Ms. Watson testified that while the police officers were detaining the occupants in the living room, she went into the solarium and stood on the futon to look out the window to see what was happening. She wanted to see if there was any police activity outside. Officer Dobbs asked her to come out of the solarium. Officer Dobbs then left the unit, and when he returned he showed her a pink pencil case and asked her what it was.
[21] She did not remember how much time had elapsed between the time the police entered the unit and the time Officer Dobbs asked her to leave the solarium. She estimated it to be between 1/2 and one hour.
[22] When asked if she had been injured or bleeding that night she responded, "not to my knowledge." She did not remember having any first aid administered to her that night.
Positions of the Parties
[23] Ms. Pace, on behalf of Ms. Watson, submitted that Mr. Augustin and Ms. Watson were credible witnesses. Differences in their evidence are the result of the fact that they were testifying about a traumatic and unusual event, and did not make notes during the event. She argued that their evidence about the condition of the window screen was consistent, and ought to be believed.
[24] Mr. Puddington argued that the court should accept the evidence of Officer Dobbs because it was consistent, coherent and logical. On the other hand, Ms. Watson's evidence was not coherent or sensible and was not consistent with Mr. Augustin's evidence. Mr. Puddington submitted that the court should not believe the defence evidence.
General Principles of Law
[25] My analysis of the evidence in this trial is governed by some fundamental principles that apply to all criminal trials.
[26] The first is that Ms. Watson is presumed to be innocent. The second is that the Crown bears the burden of proving Ms. Watson's guilt beyond a reasonable doubt. The third is the principle set out by the Supreme Court of Canada in the decision of R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. If I believe Ms. Watson's evidence, I must acquit her. If I do not believe Ms. Watson's evidence, but am left in reasonable doubt by it, I must acquit her. Even if I am not left in doubt by Ms. Watson's evidence, I must be convinced beyond a reasonable doubt on the basis of all of the evidence I do accept that Ms. Watson is guilty.
[27] I am required to make my decision based on the whole of the evidence. I can accept some, none or all of the evidence of any witness.
Analysis
[28] To find Ms. Watson guilty of possession of crystal methamphetamine for the purpose of trafficking, the Crown must prove the following elements beyond a reasonable doubt:
that Ms. Watson was in possession of a substance;
that the substance was methamphetamine;
that Ms. Watson knew that the substance was methamphetamine; and
that Ms. Watson had possession of the methamphetamine for the purpose of trafficking.
[29] Credibility is central to this trial. The trial is not simply a credibility contest between Ms. Watson and Mr. Augustin and Officer Dobbs. The Crown bears the burden to satisfy me beyond a reasonable doubt of Ms. Watson’s guilt. I must assess the whole of the evidence before determining whether I have a reasonable doubt about Ms. Watson's guilt. It is not sufficient to determine whom I believe – the police officers or Ms. Watson and Mr. Augustin.
[30] The conflict between the defence evidence and the evidence of Officer Dobbs is obvious. Officer Dobbs swore that he saw Ms. Watson at the window when he entered the unit. She had her hand out the window and he saw a flash of pink. Ms. Watson and Mr. Augustin swore that there was a screen on the window that could not have been removed and it was therefore impossible for Ms. Watson to have thrown anything out of the window.
[31] The only other witness to testify, who was present in the unit, was Officer Small. He was in the kitchen at the time arresting Ms. Watson’s son and did not observe what was occurring in the rest of the unit. As a result, he provided no direct evidence to assist in resolving the conflict on this issue.
[32] In assessing the evidence of the witnesses, I do not give the police officers’ testimony any more weight than the testimony of Mr. Augustin and Ms. Watson. I must consider, among other things, the plausibility of each witness’s evidence, the inconsistencies within a witness’s evidence, and the way in which the witness’s evidence fits with the other evidence given.
[33] I begin with the key points of the defence evidence. Mr. Augustin testified that he was in Ms. Watson’s bedroom when the police entered, that Ms. Watson had been looking out the window before the police arrived and that he did not see her in the solarium while the police were in the unit. He also testified that there was a screen on the window that could not be moved, and that he saw it in place after the police left. Finally, he testified that there had never been a pink pencil case in Ms. Watson’s unit.
[34] Mr Augustin’s evidence was neither internally consistent nor consistent with the other evidence, and I do not accept it. He said he was lying on the bed in Ms. Watson’s room with a sick child when the police entered. He did not see where Ms. Watson was at the time. It is unclear when he saw her looking out the window, if he saw her doing that at all. Contrary to Mr. Augustin’s evidence, Ms. Watson testified that she went into the solarium to look out the window while the police were in the unit detaining everyone in the living room.
[35] His evidence about the screen on the window was inconsistent. In chief, he said he had never attempted to move the screen because he had no reason to. In cross-examination, when questioned about his familiarity with the intricacies of the window, he testified that sometime before December 7, 2010, he was cleaning the windows and tried unsuccessfully to move the screen. His explanation for the discrepancy in his evidence did not make sense, and I do not accept it. If Ms. Watson had not been in the solarium near the window during the execution of the search warrant as Mr. Augustin testified, it is difficult to understand why he would have taken special note of the condition of the screen on the window afterwards.
[36] His evidence that there had never been a pink pencil case in Ms. Watson's unit defies common sense, and his refusal to concede that he could not possibly know this affects his credibility generally.
[37] The evidence of Ms. Watson was also troubling. She was defensive and argumentative in her testimony. She had a vivid recollection of most things but could not recall things that were consistent with Officer Dobbs' evidence.
[38] Ms. Watson testified that she walked over to the window in the solarium to look outside while the police were in her unit detaining everyone in the living room. This seems unlikely. She estimated that Officer Dobbs showed her the pink pencil case perhaps 30 to 60 minutes after the police arrived. When it was suggested to her that it was shown to her within 15 minutes of the police arriving, she testified that she did not know the difference between 15 minutes and one hour.
[39] When her counsel asked her why she waited three years to take photographs of the window in the solarium, she said she felt paranoid and did not want anyone to see the inside of her unit.
[40] Ms. Watson was able to recall in detail where her brother was going when the police arrived, where everyone in her unit was when the police arrived and why she went to the window in the solarium, but when asked whether she was injured or bleeding that night, she replied, "not to my knowledge." She did not recall having any first aid administered to her.
[41] I do not accept Ms. Watson’s evidence that she did not throw a pink pencil case out the window, nor does it raise a reasonable doubt in my mind about that fact. I turn therefore to the other evidence.
[42] I agree with Ms. Pace’s submission that that this offence could have been investigated more thoroughly. Officer Dobbs did not make detailed notes about the condition of the window. No photographs were taken of the window. No photographs were taken of Ms. Watson’s injury to her thumb. Although the lack of detailed notes may affect the reliability of Officer’s Dobbs’ evidence, in my view, it does not affect his credibility.
[43] Officer Dobbs gave his evidence without the hint of an agenda. He did not exaggerate his observations, testifying that he did not see what the flash of pink was. He admitted that, although he did not see a screen on the window, it appeared that a screen was meant to be there. He did not appear to have any motive to fabricate his account of what happened nor was one suggested by the defence. It is important to remember that he was part of a team of officers executing a search warrant, the target of which was Ms. Watson’s son, not Ms. Watson.
[44] The evidence of Officer Dobbs was logical. He testified that he left the unit to search for something because he saw a flash of pink go out the window. He returned with a bright pink case containing 135 grams of crystal methamphetamine, which he found in the backyard adjacent to Ms. Watson’s unit. He and Officer Small testified that he turned the case over to Officer Small at 11:15 p.m., approximately 15 minutes after entering the unit. If he had not seen something go out the window, why would he have left the unit to search for something? His evidence makes sense to me.
[45] The lack of investigation of the window subsequent to the discovery of the pink pencil case may be explained by the fact that upon Officer Dobbs’ return to the unit, he was detailed to attend to one of the other officers, who had broken his arm. This lack of follow up investigation does not, in my view, affect the credibility of his account of what he saw Ms. Watson do at the window.
[46] I accept the evidence of Officer Dobbs as credible and reliable. As I have already indicated, I do not accept the evidence of Mr. Augustin or Ms. Watson that she did not throw anything out the window, nor does it leave me with a reasonable doubt about that fact. There is no dispute that the drugs found in the pink pencil case were methamphetamine.
[47] I am satisfied beyond a reasonable doubt that Ms. Watson was in possession of crystal methamphetamine when she tossed the pink case out the window. I am also satisfied beyond a reasonable doubt that Ms. Watson knew the pink case contained crystal methamphetamine when she threw it out the window. The only logical inference is that she knew the case contained crystal methamphetamine, and that is the very reason she threw it out the window when the police entered.
[48] I turn now to whether the Crown has proved beyond a reasonable doubt the fourth element, that Ms. Watson possessed the methamphetamine for the purpose of trafficking.
[49] Detective Margetson testified that, in his opinion, the quantity of the drug and the way it was packaged supported the inference that the drug was intended to be distributed to street level drug dealers. It was packaged in ¼ ounce, ½ ounce and ounce packages. If sold at the ounce level, the drug would be worth between $7,500 and $8,500.
[50] An average user would generally use one-tenth of a gram of crystal methamphetamine at a time. The pink case contained 135 grams. If sold at the gram level, it would be worth between $13,500 and $20,250.
[51] Detective Margetson testified that it was very unlikely that a person would possess that quantity of crystal methamphetamine for personal use. It would subject users to much stiffer penalties if caught with the drug, and make them vulnerable to home invasions and robberies.
[52] I am required to determine whether Ms. Watson’s possession was for the purpose of trafficking. Often, the quantity of a drug and the manner in which it is packaged leads to an inference that the person in possession is in possession of the drug for the purpose of trafficking. However, all of the circumstances of the case must be reviewed before determining whether that is the only the reasonable inference to be drawn from the circumstances.
[53] In this case, I have found that Ms. Watson was in possession of crystal methamphetamine when she threw the pink case out the window as the police entered her unit. There is no evidence that the police discovered any other indicia of drug trafficking during that search – no packaging materials, no scales, no debt lists, no cell phones, no cash. There were several people in the unit when the police entered, including three youths, one of whom was the target of the search warrant, Ms. Watson’s brother and Ms. Watson’s uncle. The Crown did not argue that Ms. Watson was a party to an offence committed by one of the other people in the unit. I am not satisfied beyond a reasonable doubt, on the basis of the evidence before me, that the only reasonable inference I can draw from Ms. Watson’s momentary possession of the drug is that she possessed it for the purpose of trafficking.
Conclusion
[54] I therefore find Ms. Watson not guilty of possession of methamphetamine for the purpose of trafficking, but guilty of the lesser and included offence of possession of methamphetamine.
Corrick J.
Released: January 24, 2014
COURT FILE NO.:13-90000120-0000
DATE: 20140124
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ALLISON VERNA WATSON
REASONS FOR JUDGMENT
Corrick J.
Released: January 24, 2014