COURT FILE AND PARTIES
COURT FILE NO.: CR-13-90000711
DATE: 20141120
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Paulo Arruda
BEFORE: Justice E.M. Morgan
COUNSEL:
Jason Mitschele, for the Crown
Kim Schofield, for the Defendant
HEARD: November 12-13, and 17, 2014
REASONS FOR JUDGMENT
[1] It is axiomatic that in a criminal trial the Crown must prove its case beyond a reasonable doubt. Since “[l]egal systems have to live with the possibility of error”, United States v Burns, 2001 SCC 7, [2001] 1 SCR 283, at para 1, how large must a doubt be to be a reasonable one?
I. The charges
[2] On August 8, 2012, the police executed a search warrant at the Defendant’s family home at 43 Bank Street, Toronto. There they seized, inter alia, 148.12 grams of heroin, 17 oxycodone pills, and $6,700 in cash. The Defendant was charged with possession for the purposes of trafficking in respect of the heroin, simple possession in respect of the oxycodone, and possession of the proceeds of crime in respect of the cash.
[3] Counsel for the defense concedes that the powdered substance found in the house was indeed heroin. Counsel for the Crown submits that if sold at the ounce level the heroin seized would be worth $21,160, and if sold on the street at the .05 gram level it would potentially be worth $88,890. Again, counsel for the defense concedes that this amount of heroin is consistent with the purpose of trafficking. However, the defense submits that the Crown has not proved that the Defendant had possession or knowledge of the heroin.
[4] The Defendant’s 72 year old mother, Maria Arruda, testified at trial through a Portuguese interpreter. Ms. Arruda lives on the first floor of the Bank Street house and was at home at the time of the police raid. At trial she produced a prescription in her name for oxycodone written by an Ontario physician. She testified that she takes this medication for a bone condition that she suffers. She also produced a bank statement in her name from the Royal Bank of Canada indicating that she had withdrawn several thousand dollars from her own savings account during the months preceding the execution of the search warrant. She testified that she is old and unwell, and that she was planning to use the funds toward purchasing pre-paid funeral arrangements for herself.
[5] Having heard Ms. Arruda’s testimony and having seen her productions for the first time mid-trial, counsel for the Crown wisely announced that he was abandoning the oxycodone and the proceeds of crime charges. The trial proceeded on the heroin charges alone.
II. Surveillance of the Defendant
[6] Detective Constable Preston Clark testified that in August 2012 he was serving on the Toronto Police Drug squad, and was in charge of a team conducting surveillance of the Defendant. In a briefing prior to engaging in the surveillance, he had been provided with a picture of the Defendant and his car, a white Dodge Charger. Officer Clark testified that he set up on the street outside the Bank Street house just before midnight on August 7, 2012. He first saw the Defendant’s vehicle arrive at the house at 12:21 a.m. on August 8th.
[7] At 12:35 a.m., the surveillance was discontinued. Officer Clark therefore does not know whether the Defendant slept at the house that night or was there for only a short 15 minute visit. No one else testified at trial with any greater knowledge than Officer Clark as to where the Defendant spent the night of August 7th–8th. The other officers who testified were not there after 12:35 a.m., and the Defendant’s family members did not know where the Defendant was as it was late and they had gone to sleep.
[8] Officer Clark testified that he resumed surveillance of 43 Bank Street the next evening, at 8:50 p.m. on August 8th. The house is at the corner of Bank and Sheridan Streets, and Officer Clark indicated that he was parked at the corner on the Sheridan Street side with a good view of the Bank Street doorway.
[9] The Defendant apparently pulled up to the house in his Dodge Charger at 8:55 p.m. – i.e. just 5 minutes after Officer Clark had resumed his surveillance. He entered the house through the Bank Street entrance. According to Officer Clark, as soon as the Defendant entered the house the basement lights went on, suggesting that the Defendant went immediately into the basement. Officer Clark testified that it was dark outside but that from his vantage point in his car he could see the lights clearly through the basement windows.
[10] This would be an important fact for the Crown to establish, as the drugs were found in the basement of the house. Officer Clark is the only one who testified that he saw the Defendant go into the basement, although he admittedly only inferred this by observing the Defendant enter the main entrance of house, following which the basement windows immediately lit up.
[11] As it turns out, Officer Clark’s observations were mistaken. In cross-examination he was presented with a photo that he acknowledged was a picture of the house at 43 Bank Street. It is obvious from the picture that the Bank Street side of the house is a brick wall with no basement windows. Officer Clark could not have seen the lights go on through a non-existent set of basement windows.
[12] Upon realizing his error, Officer Clark then corrected himself and explained to defense counsel that he must have seen the lights go on through the basement door rather than through any windows. He pointed out on the picture that just to the east of the front door one can see a basement entrance surrounded by a glass canopy. He explained that it must have been through that entrance that he saw the basement light up. He said that he had assumed that the basement entrance was a set of windows when he observed it in the dark of night, but now that he saw the photo he understood that it was in fact a doorway through which he saw the basement lights go on.
[13] Officer Clark’s observations, however, turned out to be wrong again. The photo he was shown in which he saw the glass-enclosed basement entrance was a recent photo provided to the defense by the Crown during the disclosure process. A video of the house taken by Detective Constable Victoria Morse at the time of the execution of the search warrant on August 8, 2012 shows that the basement entrance was then under construction. The Defendant’s brother-in-law, Alexandre Cunha, testified that he is in the construction business and was building the new entrance to the basement in August 2012. Officer Morse’s video clearly shows that the area that is now the basement entrance was at the time of the police raid covered in plywood in a way that let no light escape.
[14] Mr. Cunha stated that on August 8, 2012 he was doing final preparations before pouring concrete in the entrance way, and that he had created very tight boarding to form the concrete in the right way. He was certain that there could have been no light seeping out of any cracks and visible from behind the plywood that covered the basement door. As he put it on the witness stand, “When light goes through, concrete goes through.” And since the concrete did not leak into the basement, the boarding must have sealed the entrance tight.
[15] In any case, Officer Morse’s video clearly shows that the basement entrance area was dark and engulfed by a plywood covering on August 8, 2012. Whatever else Officer Clark might have seen from his car that night, he did not see any basement lights go on.
[16] Officer Clark also testified that he issued an instruction to the other police on the surveillance team that if the Defendant moves from the house he should be detained and arrested. Officer Clark then watched as the Defendant came out of the house about an hour after he had gone inside. Officer Clark saw the Defendant get into his car and drive southbound on Sheridan Street.
[17] The Defendant ended up on Strickland Avenue where a thin white male met him. According to Officer Clark, the man went over to the Defendant’s car and the two of them engaged in a “hand to hand transaction” in which the man passed something to the Defendant sitting in the driver’s seat and the Defendant passed something to the man. Officer Clark’s description of the interaction between the two suggested that a drug deal had just taken place
[18] Officer Clark then ordered the police crew to move in and arrest the Defendant and the other man. A police officer identified as Officer Serrano actually made the arrest and apparently advised the Defendant that he had reasonable and probable grounds to believe he was in possession of heroin for the purposes of trafficking. He placed the Defendant in custody and gave him a pat down search. No drugs or weapons were found on the Defendant or on the other man. The Defendant had $145 in his wallet at the time of his arrest. Again, whatever else Officer Clark saw take place when the Defendant was in his car on the evening of August 8, 2012, he did not see a drug deal occur.
III. Execution of the search warrant
[19] The police search of 43 Bank Street commenced at 9:45 p.m. that same night, when the Defendant was being followed and arrested a number of blocks away. The police team was led by Constable (now Sergeant) Jeffrey Correia, who entered the main floor of the house via the Sheridan side door. Sgt. Correia speaks Portuguese, and so was able to communicate with Maria Arruda, who he found lying on the living room sofa watching T.V. He advised her that the police were executing a search warrant.
[20] The search team was accompanied by Officer Morse who took a thorough video of the interior and exterior of the house at the time the police entered it, and another thorough video of the house at the time the police departed. The house has three floors, each of which is a self-contained living area although everyone in the house appears to have access to all three floors.
[21] The video produced by Officer Morse is instructive. It confirms the testimony of the Defendant’s sister, Suzana Arruda, that she resides on the top floor with her husband Mr. Cunha, and their 7 year old daughter. There is a self-contained living area and kitchen on that floor, and one of the bedrooms is adorned with a pink sign on the door suggesting a small girl’s decorations. Elsewhere in the house, including in the basement, there are also some young children’s toys and a child’s drawings clearly visible.
[22] The main floor of the house is occupied by the Defendant’s mother Maria Arruda. The video shows the sofa where Ms. Arruda was sitting when the police first entered the premises. Ms. Arruda also had a safe in her bedroom closet, which is where the $6,700 in cash was found by the police.
[23] Of particular interest in Officer Morse’s video is the basement of the house, since that is where the heroin was ultimately found. The basement has a common area or living room, an eating area with a refrigerator, a bathroom, and a bedroom. Among other things, the video shows the boarded-up doorway that was then under construction and that now leads from the basement living room to the outside of the house. From the inside of the basement, it is clear that the entrance area was sealed up tight with plywood.
[24] The majority of the heroin was found in a lunch box in the basement refrigerator. The lunch box had a Team Canada logo on it, and contained a substantial amount of heroin as well as some plastic baggies and paper. A very small amount heroin – described as a “dime bag” – was found in a dresser drawer in the basement bedroom. Since the Defendant himself was not present in the house at the time of the police raid, the question on which this trial turns is: does the heroin belong to him, and did he knowingly possess it in the basement of the house? That question, in turn, raises the question as to who actually resides in or has control of the basement.
[25] All of the family members seem to concur that, on and off, there are two residents of the basement apartment. When she is in town the Defendant’s niece, Nakita Fonseca, stays there, often with her boyfriend. According to both Suzana and her husband, Mr. Cunha, Nakita and her boyfriend sleep in the basement bedroom so that they can have privacy. In addition, Nakita is the leader of a dance troupe, and the dancers frequently use the basement for their practice space.
[26] When the Defendant stays at 43 Bank Street, he too uses the basement. He has a girlfriend at whose place he often stays, but the other family members acknowledge that when he is at the Bank Street house he sleeps in the basement unless he happens to fall asleep watching T.V. on the main floor where his mother resides. It is unclear what happens when he and Nakita are both in the house at the same time.
[27] Officer Morse’s entry video provides a visual scan of the basement bedroom. For the most part it confirms the testimony of another one of the police officers, Constable Tony Aiello, who described the décor as being very male-oriented. There appears to be a lot of sports memorabilia, bobble-heads of sports figures and the like, all lining the shelves of the bedroom. When asked about the clothing found in the closet, Officer Aiello responded that the wardrobe was overwhelmingly male: “Just masculine clothing. Jerseys can be male or female, but they were all football jerseys.”
[28] The video does indeed show sports jerseys –football and hockey team shirts – hanging on hangers in the closet. Oddly, however, it is difficult to discern much of any other kind of clothing. None of the police officers described any everyday clothing in the basement closet, only the sports and memorabilia type of items. Since one does not tend to wear souvenir football or hockey jerseys every day, it is hard to draw conclusions about the bedroom’s current use from the clothing in the closet. It gives the impression that it was a male bedroom at one stage, but that it is not anyone’s permanent bedroom today.
[29] This impression was reinforced by Maria Arruda’s testimony. At several points she referred to the basement bedroom as “my son’s room” and made reference to “the clothes in his closet”. On the other hand, Ms. Arruda confirmed that the Defendant often stays at his girlfriend’s house, and that Nakita and her boyfriend, along with Nakita’s dance troupe, often use the basement. Ms Arruda stated that Nakita had left for a week’s vacation in Cuba a day or two prior to the police raid on August 8, 2012, but that Nakita had been at the house for the weekend just before that and had stayed in the basement.
[30] Officer Morse’s video also records the basement bathroom. There appear to be a mixture of male and female toiletries. On the sink are two toothbrushes. One can see a cologne bottle that looks very masculine; at the same time, one can see a bottle of skin moisturizer that looks very feminine. There is also a container of baby wipes sitting next to the sink that suggests that Suzana Arruda and her young daughter frequent the basement as well.
[31] In all, the video evidence of the basement generally supports the testimony of Suzana that this area of the house was used communally by the entire family. She referred to the basement sleeping area as a “common bedroom”, and stated that everyone uses the basement, including guests and more distant family who sometimes come to visit from Portugal.
[32] One piece of identifying documentation entered into evidence is a Blue Cross bill in the Defendant’s name that was found in the basement bedroom. Officer Michael Dick, another member of the police team that executed the search warrant, testified that he found this in a dresser drawer. He confirmed that he and Officer Aeillo had done a thorough search of the basement bedroom, including all of the dresser drawers, and that this Blue Cross bill was the one and only item found in the basement with the Defendant’s name on it.
[33] Officer Dick indicated that the Defendant had been identified to him by name as the target of the search, and so when he saw a document with the Defendant’s name on it he seized it as evidence. In cross-examination he conceded that there may have been other documents in the basement bedroom with other people’s names on them, but that he did not seize any other documents because they did not seem relevant to the target of the search.
[34] Officer Aiello stated that various items described as drug paraphernalia were also found in the basement bedroom. Two scales were seized – a black one on the night stand next to the bed and a silver one in a dresser drawer – along with some plastic zip lock baggies and a roll of aluminum foil. Like so much else in the basement, there is no direct evidence as to who these items belonged to.
[35] There is, however, some controversy specifically with respect to the back scale. Mr. Cunha testified, in a way that reflects well on his honesty, that he occasionally buys and smokes marijuana, and that he has a black scale that he uses to weigh his purchases. Mr. Cunha said that his scale has been missing since the night of the police raid and that he had assumed the police had seized it; although he also thought that it was in the garage of the house rather than in the basement.
[36] When Mr. Cunha was shown the black scale seized by Officer Aiello, he indicated that it looked identical to the one he used to own. However, he was unable to confirm with certainty that the scale was the same one that had gone missing in August 2012, but it was the same size, colour, and brand.
IV. The basement refrigerator
[37] As indicated, the majority of the drugs were found in the basement refrigerator. The video shows that in this refrigerator were some bottles of Ensure meal replacement drink, a smoothie in a cup, a sack of onions, some bottles of beer, and a lunch box with a Team Canada logo where the heroin was found.
[38] Suzana testified that she had put the sack of onions at the bottom of the refrigerator, and that she had placed the Ensure in the refrigerator for her mother who is a diabetic. Mr. Cunha testified that since the basement is a communal recreation area, he keeps some beer and other refreshments there for when his friends come over.
[39] None of the family witnesses saw the Team Canada lunch box in the refrigerator. Suzana stated that the last time she was in the basement before the police raid was on Friday, August 3, 2012. She indicated that on that Friday she did look in the fridge, and that she saw no lunch box. The rest of the family apparently stayed out of the basement during the weekend of August 4th and 5th, as Nakita was there for the weekend and held her dance rehearsals in the basement during those two days.
[40] On Monday, August 6, 2012, Nakita left for her vacation. There is no evidence as to who, if anyone, was in the basement on August 7th, but there is evidence from Officer Clark that the Defendant was in the house for at least 15 minutes just after midnight on Wednesday, August 8th. Officer Clark likewise testified that the Defendant was there again for about an hour in the evening of August 8th.
[41] As already noted, nobody in the family was awake to see where in the house the Defendant went just after midnight on August 8th. As for the Defendant’s hour-long stay at the house in the evening of August 8th, Maria Arruda testified that the Defendant was visiting her and so stayed the entire time on the main floor.
[42] Officer Clark’s confused testimony in respect of the basement windows, and his misperceptions in respect of the basement lights, makes it impossible to know whether the Defendant actually went into the basement or not on August 8, 2012. It certainly provides nothing reliable to counter Maria Arruda’s evidence that the Defendant stayed on the main floor with her.
[43] It is not known when was the last time that the Defendant used the basement refrigerator, and one cannot draw any conclusion about this from the food items found there. The beer appears to have belonged to Mr. Cunha and the Ensure and the onions were placed there by Suzana. There is no evidence as to who placed the smoothie in the refrigerator. I note, however, that Officer Clark observed the Defendant enter the house both times on August 8th and never mentioned that he was carrying a smoothie in a large cup.
V. Reasonable doubt
[44] Section 4(3) of the Criminal Code provides that possession is established where
(a) a person has anything in possession when he has it in his personal possession or knowingly
(i) has it in the actual possession or custody of another person, or
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person…
[45] Possession, including constructive possession as in section 4(3)(a)(ii) above, “require[s] proof of both knowledge and control”: R v Thompson, 2010 ONSC 2997, at para 10. Since the heroin was not found in the Defendant’s physical possession, the Crown must prove its case through evidence of the circumstances, and in particular the place, in which it was found.
[46] In R v Munoz (2006), 86 OR (3d) 134, at para 51, Ducharme J. observed that a conclusion may be drawn from circumstantial evidence where that conclusion flows as a logical inference from the actual evidence, but not where it requires a “conjectural leap”. Can it be logically inferred that the Defendant was in possession and control of the drugs found in the basement refrigerator and bedroom, or is it a matter of conjecture as to exactly who was in possession and control of items found in those spots at the Bank Street house?
[47] It is important to note what was found along with the drugs in the basement: sports memorabilia and jerseys, a Blue Cross bill in the Defendant’s name, food items belonging to other family members, male and female bathroom items, two scales and some plastic baggies and foil. Defense counsel submits that it is equally important to note what was not found in the basement and what was not put in evidence: fingerprints or other forensic evidence from the lunch box or the baggies, identifying documentation other than a lone Blue Cross bill, foods in the refrigerator that belonged to the Defendant, and evidence of the Defendant’s actual presence in the basement on the day days leading up to the raid.
[48] Also missing from the evidence was any testimony from the Defendant’s niece, Nakita Fonseca. The Crown summonsed every adult member of the household at 43 Bank Street except for her. Testimony from Nakita may well have gone far in clearing up the question of who had access to the basement refrigerator and bedroom in the days preceding execution of the search warrant.
[49] The Court of Appeal determined in R v Grey (1996), 1996 35 (ON CA), 28 OR (3d) 417, that regular occupancy of a room or apartment is not sufficient to establish possession. Laskin JA specifically stated, at para 22, that he “would not prescribe a firm rule for inferring knowledge from occupancy.” This is particularly the case where the drugs are found tucked away in a drawer or stashed in a lunch box in a refrigerator rather than sitting “in plain view in the common areas of the residence”: R v Pham (2005), 2005 44671 (ON CA), 203 CCC (3d) 326 (Ont CA), aff’d 2006 SCC 26, [2006] 1 SCR 940.
[50] Here, there is no direct evidence indicating whether the Defendant was aware of the heroin in the basement. Of course, “a court [may draw] appropriate inferences from evidence that a prohibited drug is found in a room under the control of an accused where there is also evidence from which an inference may properly be drawn that the accused was aware of the presence of the drug”: Re Chambers and the Queen (1985), 1985 169 (ON CA), 20 CCC (3d) 440, at 448-9 (Ont CA). However, both of those elements are in question here.
[51] Even if the Crown could establish that the Defendant was responsible for the basement of the house – which is itself in doubt since the evidence indicates that it is communal space for the household – the issue of possession turns on control of the refrigerator and bedroom dresser as the specific locations in which the drugs were found: R v Bertucci (2002), 2002 41779 (ON CA), 169 CCC (3d) 453, at 459 (Ont CA).
[52] In R v Freeman (2006), 2006 8027 (ON CA), 208 OAC 245, the Court of Appeal reversed a conviction for possession of a firearm where the firearm was found in a spot to which more than one person had access: At para 6, the court concluded:
We are, however, of the view that the verdict relating to the gun charge is unreasonable. The trial judge found that the car in question was used communally by the appellant, his wife and individuals at the barbershop where the appellant worked… In our view, while the evidence relied on by the Crown may give rise to a high degree of suspicion, it cannot reasonably support an inference that the appellant had the requisite knowledge, that is, that the gun was located under the passenger’s seat in the car he was driving.
[53] That is analogous to the situation with respect to the basement and drugs in the case at bar. One can speculate, but not conclusively infer, that the Defendant was in control and knew of the larger amount of heroin in the refrigerator and the smaller amount in the dresser drawer. There is a chance – a small chance, admittedly, but not a negligible one – that Nakita was in control of those spaces at the relevant time.
[54] O’Marra J. pointed out in R v Singh, 2011 ONSC 4162, at para 32, that “in a case of possession, the Crown cannot succeed unless the only reasonable inference drawn from the proven facts is that the accused knew that the prohibited item was present in the location over which he had control.” The Crown must prove that the Defendant was either the actual or the constructive possessor of the illegal drugs.
[55] There is no evidence that the Defendant and Nakita ever communicated over the drugs in issue, or that if the heroin belonged to Nakita the Defendant was aware of it and shared its possession. And it is certainly not enough for the Crown to show that the Defendant was one of two possible possessors.
[56] Counsel for the Crown states that it seems unlikely that Nakita would have left the country on vacation with such a large amount of heroin in an unlocked fridge. Counsel for the defense retorts that it also seems unlikely that the Defendant would have left heroin in a fridge that his entire family regularly used.
[57] I agree with both counsel.
[58] It defies logic that anyone would leave any amount of heroin, let alone 146 grams at a street value of over $88,000, in a communal refrigerator in a family home. It may be slightly more plausible that the Defendant left it there since he could come back for it any time; Nakita would have been taking a bigger risk by leaving while she left the country for a week. But I cannot discount either of these possibilities since they are both so remarkably irresponsible. Either the Defendant is exceptionally foolhardy, or his niece is.
[59] I am very suspicious of the Defendant. The heroin seems more likely than not to have been his. However, given the overall state of the evidence it would take a conjectural leap – perhaps not a large leap, but it would nevertheless be conjecture – to conclude that the heroin must have belonged to the Defendant and could not have belonged to Nakita or her