ONTARIO

SUPERIOR COURT OF JUSTICE

court file No.: CR/13/90000/6410000
DATE: 20141001

B E T W E E N:

HER MAJESTY THE QUEEN

C. Dasa, for the Applicant

Applicant

• and -

MEGHAN MITCHELL

D. Zekavica, for the Defendant

Defendant

HEARD: September 29 and 30, 2014

REASONS FOR JUDGMENT

Kelly J.:

[1] The defendant, Ms. Meghan Mitchell, has pleaded not guilty to one count of possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act. On September 26, 2012, 75 individual dime bags of powder cocaine stored inside a BlackBerry box were found in a refrigerator freezer. The freezer was in an apartment rented by Ms. Mitchell just weeks earlier.

[2] Ms. Mitchell testified that she did rent the apartment and that as of the day of the discovery she had moved certain personal items into it. She denies that she had any knowledge or control over the cocaine located in the freezer.

[3] The issue in this case is whether Crown Counsel has proven beyond a reasonable doubt that Ms. Mitchell had knowledge and control over the cocaine contained in the BlackBerry box and stored in the freezer. To prove that she did, Crown Counsel called the superintendent of the apartment complex as a witness (Mr. Sherman Flowers). A surveillance video of the morning in question was viewed, two officers who conducted a search of the unit and numerous admissions were filed as part of the Crown’s case.

[4] Ms. Mitchell testified in her own defence and has denied the allegations. Mr. Justin Hartman, with whom Ms. Mitchell was staying at the relevant time, also testified for the defence.

[5] As such, it is agreed that the principles in R. v. W. (D.)[^1] apply. Accordingly, the Court’s analysis of the evidence is to be guided by the principles set out by the Supreme Court of Canada as follows:

(i) if the defendant’s exculpatory account is positively believed, then the trier must acquit;

(ii) if the defendant’s exculpatory account is not positively believed but, considered with the other evidence it raises a reasonable doubt, the trier must acquit; or

(iii) even if the defendant’s exculpatory account is disbelieved and does not raise a reasonable doubt, the trier must still apply the traditional burden of proof by considering all of the evidence and determining whether the Crown has proven guilt beyond a reasonable doubt.

[6] I do not reject Ms. Mitchell’s denial. I have assessed her evidence in light of all of the evidence adduced during this trial. Having done so, I find that her evidence leaves me with a reasonable doubt having considered the evidence as a whole. Therefore she is acquitted. What follows are my reasons.

The Relevant Evidence

[7] The facts are relatively simple and may be summarized as follows:

Date

Occurrence

July, 2012

The tenant that occupied unit 719 of the apartment complex located at 2663 Lakeshore Blvd. vacated the apartment. The complex consists of 8 floors, 112 units. The former tenant did not return one of the keys to the door of unit 719. The lock was not changed when the former tenant vacated.

July and August, 2012

Repairs were made to unit 719. Various people entered the unit to affect such repairs.

September, 2012

Ms. Mitchell made inquiries about renting the unit.

September 8, 2012

Ms. Mitchell signed a tenancy agreement for unit 719. She was listed as the sole occupant of it.

From September 8-26, 2012 repairs were made to the unit. A number of workers had access to it including “Zezo” (who resided in the apartment complex and was its main subcontractor) and his crew which included individuals who worked on the floors, walls and painting. Mr. Flowers was not present during the entirety of the time that the workers were inside the unit. Essentially, it appears that he let the workmen in when he was required to do so and returned to lock it when they were finished for the day.

September 14, 2012

Although the tenancy was not to commence until October 1, 2012 according to the lease agreement, verbal arrangements were made between Ms. Mitchell and Mr. Flowers to permit Ms. Mitchell to move things into the unit. There was a text message exchange confirming this verbal arrangement.

September 15, 2012

Ms. Mitchell moved certain items into the boiler room of the apartment complex in advance of her formal tenancy because the unit was not ready. It appears that all of the repairs to the unit had not been completed. Mr. Flowers advised Ms. Mitchell by text that “Zezo” would “do rest of work tomorrow”.

September 20, 2012

Ms. Mitchell sent a text to Mr. Flowers indicating that she had her “last month’s rent”. She wanted to sign the papers and “grab the keys”. She indicated that she wished to sleep in the unit that night. Mr. Flowers responded with the following text:

“U asked for keys and papers. We still are working cleaning it up. Plus Monday I have fridge guy for the seal. I was going to say Tuesday. U can sleep tonight but I need to work this weekend and Monday on ur apartment”.

Ms. Mitchell suggested that she would get out of the apartment for the weekend but Mr. Flowers agreed to let her settle into the unit. Mr. Flowers advised and that he and the property manager would work in the unit the following Monday.

Ms. Mitchell testified that although she had the opportunity to spend the night at the unit, she did not do so mainly because of the state of the unit and the fumes from both fresh paint and floor repairs.

September 22, 2012

It appears that Ms. Mitchell was in the unit on this occasion because she advised Mr. Flowers that she will be there “all night most likely” to discuss parking. She testified that she did not stay overnight.

September 23, 2012

Mr. Flowers asked Ms. Mitchell to park her vehicle to avoid interfering with the garbage truck. No response was provided by Ms. Mitchell.

September 26, 2012

Just after 9:00 a.m. Ms. Mitchell is seen entering the elevator on the 7th floor. When she reached the main lobby, she was greeted by Mr. Flowers. He advised her that he was going to enter the apartment to prepare the fridge for the seal. Because there is only one key for the deadbolt lock of her unit, he asked her for her key so that he could enter the apartment with “Zezo”. Ms. Mitchell is seen removing the key from her key chain and providing it to Mr. Flowers. She then left the area. She testified that she went to work.

Shortly after Ms. Mitchell left, Mr. Flowers entered the apartment with Zezo. He opened the freezer portion of the fridge to prepare it for his appliance person who was going to reseal it. He noticed that it was empty but for a BlackBerry box that was located on a shelf. He removed the box and as he put it on the stove, the bottom fell out. Inside there were 75 dime bags of cocaine. Mr. Flowers photographed the contraband, put it back as he had found it, took further photographs and called police.

A search warrant was executed on the unit later in the day. The total weight of the cocaine seized was 12.56 grams. If sold at the gram level, the cocaine had a value of $1,000 to $1,250. If sold as an “8 ball” it had a value of $720-$900.

Analysis

[8] As I have stated above, the issue in this case is knowledge and control. Identity, time and place, proof of the nature of the substance and the fact that the cocaine was possessed for the purpose of trafficking are conceded. What is not conceded is that Ms. Mitchell:

a. Knew that she had physical possession of cocaine (knowledge); and

b. That she exerted control over such cocaine while she had actual physical possession of it (control).

[9] When the entirety of the evidence is examined, I am unable to conclude that Ms. Mitchell knew that there was cocaine in her freezer. There are a number of reasons for this conclusion.

[10] Firstly, Ms. Mitchell denies that she knew that there was a BlackBerry box in the freezer and there is no reason to disbelieve her. Ms. Mitchell testified in a polite and forthright way. She did not hesitate in response to questions and was logical in her explanation of the sequence of events.

[11] There were no inconsistencies in Ms. Mitchell’s evidence and no meaningful contradictions with other evidence. For instance, when Ms. Mitchell testified that prior to September 26, 2012 she had not stayed in the unit, Crown Counsel quite capably suggested that this contradicted the content of her text message of September 20, 2012. In it she said she wanted to sleep in the unit that night. Ms. Mitchell explained that that was her intention at the time of the text but that that intention changed when she smelled the fumes in the unit. This had the ring of truth and did not appear to be fabricated to deal with the content of the text.

[12] Ms. Mitchell denied that she had stayed overnight in the unit prior to September 26, 2012 although she was keen to do so. Her explanation was reasonable: the unit required further repairs and the fumes from repairs, such as the smell of the refinished floors made living there difficult. This was confirmed by Mr. Hartman.

[13] Mr. Hartman testified that although he was working two jobs at the time (for Porter Airlines and Moxie’s Restaurant) he told the court that Ms. Mitchell had spent much of the month of September, 2012 with him at his apartment awaiting occupancy of her own unit. Although he could not identify the exact dates that she stayed, I am satisfied that his evidence is reliable and that Ms. Mitchell was staying overnight with him at the relevant time.

[14] Ms. Mitchell admitted that she had spent a great deal of time at the unit trying to get it ready for her occupancy. She used glasses to drink out of and her bed to rest. This, of course, gave rise to her opportunity to deposit the cocaine in the freezer. I never got the impression that she was attempting to minimize that fact. Whether or not she stayed overnight in the unit is of no moment: she had plenty of opportunity to store the cocaine in the freezer if she was inclined to do so.

[15] Ms. Mitchell also testified that Mr. Flowers had asked her not to use the appliances in advance of October 1, 2012 because they were going to be repaired. This included the fridge that was going to be resealed as set out in his text message to her on September 20, 2012. It appears that Ms. Mitchell followed this direction as next to nothing was found in the freezer portion of the fridge. Only the BlackBerry box and an ice cube tray were found in it. There is no evidence that groceries had been purchased and placed in the freezer portion of the fridge to demonstrate that Ms. Mitchell had accessed it. I do not find it unusual that Ms. Mitchell testified that she did not open the freezer to determine if it was working, etc. She was in the process of moving in to the unit. I might have come to a different conclusion had she been fully entrenched in the unit as of September 26, 2012 and the fridge was full of groceries. It was not.

[16] Ms. Mitchell denies that she had either knowledge or control over the contents of the BlackBerry box. Her denial is consistent with her conduct. She knew, as of September 20, 2012 that Mr. Flowers and others would be entering the unit for repairs. She also knew that the “fridge guy” was coming to seal the fridge the Monday following September 20, 2012. Knowing that, one would have expected the contraband to be moved to an area that would not be touched (or observed) by any outside workers. It defies logic that she would have left such contraband, all on its own, in the fridge knowing it would be observed by the appliance repair person who was attending to seal it. Logic is particularly defied in these circumstances since most people do not store BlackBerry boxes in their freezers and might strike any observer as suspicious which might compel them to look inside or make inquiries.

[17] Further, Ms. Mitchell’s conduct as viewed on the video tape in the lobby on September 26, 2012 is consistent with her lack of knowledge that the fridge contained 75 dime baggies of cocaine. She was asked for her key by Mr. Flowers. She was advised that Mr. Flowers was going to prepare the fridge for the appliance repair man who was going to be replacing the seal that day. Ms. Mitchell did not hesitate in turning over her key to Mr. Flowers. There is no attempt to return to the unit to remove the contraband from the freezer as one might have expected if Ms. Mitchell knew it was there.

[18] Further, it appears that a number of police officers attended at the unit to conduct the search of it on September 26, 2012. Numerous photos were taken of the unit both before and after the search was conducted. Approximately 65 photos of the unit were filed as exhibits during this proceeding. Found during the search were four BlackBerry boxes and two BlackBerry phones which seems odd. But curiously, no other evidence that would lead to an inference that Ms. Mitchell was involved in drug trafficking was found. For instance:

a. The larger of the Ziploc bags containing the smaller bags is quite distinctive. It has a red apple and numbers displayed on the outside. No other Ziploc bags of a similar nature (or at all) were found despite the fact that the kitchen and other areas of the unit were searched including the contents of the cupboards, etc.

b. The smaller Ziploc bags contained within the larger bags are very distinctive as well. They are just that – small which makes them distinctive in and of itself. But additionally, they have a silhouette of a nude woman printed on them in blue. No such bags were found elsewhere in the unit during the search.

c. There were no cutting agents but more importantly, no scales with drug residue (or otherwise) were found during the search that might lead the Court to believe that the occupant of the unit was engaged in a drug trafficking business.

[19] Lastly, there were a number of people who had access to the unit from the date that Ms. Mitchell agreed to rent the unit (September 8, 2012) to the date of the discovery of the cocaine (September 26, 2012). They include: Mr. Flowers (the superintendent); Zezo (the subcontractor); various workers who repaired the unit before and during the time that Ms. Mitchell was moving into the unit; and the former tenant who did not return a key to the unit.

Conclusion

[20] While it is true that Ms. Mitchell was often in the unit where the cocaine was found, there is no evidence that she knew that she had it in her physical possession. As such, I find that two essential elements of the offence have not been made out beyond a reasonable doubt in this case: knowledge and control.

[21] It is not my role as the trial judge to determine which of the versions I accept as true. This was confirmed by the Supreme Court of Canada in R. v. C.L.Y.,[^2] para. 8:

[The purpose of the W.(D.) analysis] was to ensure that triers of fact – judges or juries – understand that the verdict should not be based on a choice between the accused’s and the Crown’s evidence, but on whether, based on the whole of the evidence, they are left with a reasonable doubt as to the accused’s evidence.

[22] I have considered the principles in R. v. W.D. In assessing the evidence of Ms. Mitchell, I have considered her evidence in the context of the whole of the evidence. I have not looked at it alone or in isolation. Having listened to the evidence of Ms. Mitchell, I have concluded there is no reason to disbelieve it. Her evidence raises a reasonable doubt in light of what she attested to at trial. She testified in a straightforward manner and described that she had no knowledge or control over the contents of the BlackBerry box. She remained unshaken during a skillful cross-examination.

[23] In light of all of the evidence, I am left with a reasonable doubt as to whether Ms. Mitchell did possess cocaine for the purpose of trafficking. Accordingly, she is acquitted.

Kelly J.

Released: October 1, 2014

court file No.: CR/13/90000/6410000
DATE: 20141001

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN
– and –
MEGHAN MITCHELL

REASONS FOR JUDGMENT
Kelly J.

Released: October 1, 2014

[^1]: (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.)

[^2]: 2008 SCC 2, [2008] 1 S.C.R. 5