ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. Patrick, 2015 ONSC 1498
COURT FILE NO.: CR 14-30
DATE: 20150312
BETWEEN:
HER MAJESTY THE QUEEN
Ms E. Barefoot, for the Federal Crown
- and -
MICHAEL SHAWN PATRICK
Ms M. Hewitt, for the Defence
Defendant
HEARD: December 9, 2014 and February 27, 2015
REASONS FOR JUDGMENT
Conlan J.
I. INTRODUCTION
[1] Illegal drug activity? Charter-infringing police conduct? This case gives rise to these questions. The former is the subject matter of this decision. The latter was resolved in favour of the Crown when I dismissed the Charter Application brought by the Defence – that decision is reported at 2014 ONSC 7169.
[2] On a four-count Indictment, Michael Shawn Patrick (“Patrick”) was tried before me, without a jury, in Owen Sound.
[3] It was a very short trial. The voir dire lasted less than one full day in December 2014. The evidence was applied to the trial proper. When we resumed on February 27, 2015, the Crown called no further evidence. The Defence called no evidence. Submissions were heard. I reserved my decision. Thus, the entire trial, including submissions, lasted less than one full day.
[4] For a summary of the facts, I reproduce here paragraphs 5 through 9 of my decision on the Charter Application.
[5] The Search Warrant for the motel room was issued under section 11 of the Controlled Drugs and Substances Act. It was authorized by a Justice of the Peace and executed on August 24, 2012.
[6] It is alleged that, upon execution of the Search Warrant in the motel room, the police found in Patrick’s luggage cocaine (four ounces), marihuana (eight grams), cannabis resin (four grams), a digital scale, packaging material and money ($3000.00).
[7] The accused and a young female had been arrested at the motel prior to the Search Warrant being granted.
[8] The uncontroverted chronology of events is as follows: the police investigated Patrick for many months based on tipster information, surveillance and tracking warrant data; police surveillance of Patrick’s motel room continued on the morning of the arrest (August 24, 2012); police commenced the drafting of the ITO that morning to obtain judicial authorization to search the motel room; Patrick and the young female were then arrested by the police after exiting the motel room and before the ITO was completed; police then finished the ITO and obtained the Search Warrant in the early afternoon on August 24, 2012; and execution of the Warrant then immediately occurred inside the motel room.
[9] On the Charter voir dire, the Crown kindly agreed to call the witnesses. The Defence did not call any evidence, although all of the police officers were cross-examined by counsel for Mr. Patrick. The following persons testified: Detective Constable Craig Matheson (“Matheson”) of the Owen Sound Police Service (one of the lead investigators), Detective Constable Mike Holovaci (“Holovaci”) of the same Police Service (one of the lead investigators and the affiant of the ITO) and Detective Constable Bill Ringel of the same Police Service (the Exhibits Officer for the search of the motel room).
II. THE CHARGES AND THEIR ESSENTIAL ELEMENTS
[5] Patrick is charged with possession of a controlled substance for the purpose of trafficking (count 1 on the Indictment). The formal charge reads:
Michael Shawn Patrick stands charged that, on or about the 24th day of August, 2012 at the City of Owen Sound in the County of Grey in the Judicial Region of Central West, he did possess a substance included in Schedule I to wit: Cocaine for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act.
[6] For me to find Patrick guilty of possession of cocaine for the purpose of trafficking, Crown counsel must prove each of these essential elements beyond a reasonable doubt:
i. that Patrick was in possession of a substance;
ii. that the substance was cocaine;
iii. that Patrick knew that the substance was cocaine; and
iv. that Patrick had possession of cocaine for the purpose of trafficking in it.
[7] If Crown counsel has not satisfied me beyond a reasonable doubt of each of these essential elements, I must find the accused not guilty of possession of cocaine for the purpose of trafficking.
[8] If Crown counsel has satisfied me beyond a reasonable doubt of each of these essential elements, I must find the accused guilty of possession of cocaine for the purpose of trafficking.
[9] Further, Patrick is charged with two counts of possession of a controlled substance (counts 2 and 3 on the Indictment). The formal charges read:
Michael Shawn Patrick stands charged that, on or about the 24th day of August, 2012 at the City of Owen Sound in the County of Grey in the Judicial Region of Central West, he did unlawfully possess a substance included in Schedule II, to wit cannabis, contrary to section 4(1) of the Controlled Drugs and Substances Act.
Michael Shawn Patrick stands charged that, on or about the 24th day of August, 2012 at the City of Owen Sound in the County of Grey in the Judicial Region of Central West, he did unlawfully possess a substance included in Schedule II, to wit cannabis resin, contrary to section 4(1) of the Controlled Drugs and Substances Act.
[10] For me to find Patrick guilty of possession of cannabis/cannabis resin, Crown counsel must prove each of these essential elements beyond a reasonable doubt:
i. that Patrick was in possession of a substance;
ii. that the substance was cannabis/cannabis resin; and
iii. that Patrick knew that the substance was cannabis/cannabis resin.
[11] If Crown counsel has not satisfied me beyond a reasonable doubt of each of these essential elements, I must find Patrick not guilty of possession of a controlled substance.
[12] If Crown counsel has satisfied me beyond a reasonable doubt of each of these essential elements, I must find Patrick guilty of possession of a controlled substance.
[13] Further, Patrick is charged with possession of proceeds of crime (count 4 on the Indictment). The formal charge reads:
Michael Shawn Patrick stands charged that, on or about the 24th day of August, 2012 at the City of Owen Sound in the County of Grey in the Judicial Region of Central West, he did have in his possession proceeds of property, $3,135 in currency, of a value not exceeding five thousand dollars knowing that all of the proceeds of the property was obtained by the commission in Canada of an offence punishable by indictment contrary to section 354(1)(a) of the Criminal Code.
[14] For me to find Patrick guilty of possession of proceeds of crime, Crown counsel must prove each of these essential elements beyond a reasonable doubt:
i. that Patrick was in possession of proceeds (in this case, money);
ii. that the proceeds were obtained by crime; and
iii. that Patrick knew that the proceeds had been obtained by crime.
[15] If Crown counsel has not satisfied me beyond a reasonable doubt of each of these essential elements, I must find Patrick not guilty of possession of proceeds of crime.
[16] If Crown counsel has satisfied me beyond a reasonable doubt of each of these essential elements, I must find Patrick guilty of possession of proceeds of crime.
[17] Patrick is, of course, presumed to be innocent of each and every charge that he is facing. He has no burden of proof – that rests entirely with the prosecution.
[18] I must remember that the verdicts need not be the same across the counts. Each charge must be assessed independently.
III. THE POSITIONS OF THE PARTIES
[19] Both sides agree that this is a case of constructive possession. I agree. No narcotics were found on the person of Patrick.
[20] Both sides agree that this is a circumstantial case for the Crown. I agree.
[21] The Defence argues that possession of the narcotics has not been proven beyond a reasonable doubt, and thus, acquittals are in order on counts 1 through 3. In the alternative, if possession has been proven, then the Crown has not established that the cocaine was for anything other than personal use, and thus, findings of guilt ought to be entered for simple possession on counts 1 through 3. On count 4, the Defence argues that, if possession of the money has been proven (which is not conceded), then it has not been proven that the money was proceeds of crime, therefore, an acquittal ought to be entered on that charge.
[22] The Crown seeks findings of guilt on all four counts.
IV. ANALYSIS
Possession
[23] I am satisfied, beyond a reasonable doubt, that Patrick was in legal possession of the narcotics and the money found by the police. That is the only reasonable inference to be drawn from the proven facts.
[24] First, the accused was arrested in the hot tub of the motel. He was obviously staying at the motel.
[25] Second, his photo identification was found in the motel room in question. He was obviously staying in that room. In fact, officer Ringel had seen him exit that motel room and go to the hot tub with a female.
[26] Third, that is the same motel room where the police found the gym bag which contained the narcotics, paraphernalia and the money. The money was found inside jeans.
[27] Fourth, the clothing in the gym bag appeared to belong to a male. The person that Patrick was with in the hot tub was a female.
[28] Fifth, that is the same motel room that the police had under surveillance as part of its investigation of the accused.
[29] Sixth, the gym bag also contained some plastic baggies. After he was arrested, the accused was found to be in possession of a receipt for baggies purchased the day before the arrest.
[30] Seventh, other than Patrick and the female, nobody else was seen by the police entering or exiting room 127.
[31] Eighth, the gym bag was on the bed. The photo identification of the accused was on the table between the two beds. The bag and the identification were in relative close proximity to each other. Also on the table with the identification was money, and money was found inside the bag.
[32] Clearly, in totality, the only reasonable inference is that the gym bag belonged to Patrick. It is not reasonable to infer that it belonged to anyone else, including the female. Thus, Patrick was in legal possession of the bag’s contents, including the money and the narcotics.
[33] The other essential elements of counts 1 through 3 are not in issue, except for the purpose of the possession of the cocaine. Certificates of Analysis filed at trial prove the nature of the substances.
[34] Thus, findings of guilt will register on counts 2 and 3 – simple possession of cannabis and simple possession of cannabis resin.
Possession for the Purpose of Trafficking
[35] On count 1, I agree with the Defence that the proper verdict is guilty of the lesser and included offence of simple possession of cocaine. That verdict will be made.
[36] I suspect that Patrick was indeed trafficking narcotics. But suspicion is not enough. The informant evidence and the surveillance, to the degree that the former is even admissible at this stage, are relatively limited. The most probative item is the encounter between the female and the unknown male party near the motel shortly prior to the arrest, however, the Crown is not advancing any theory that Patrick was a party to trafficking.
[37] The way in which the narcotics were separated, as testified to by officer Ringel, the sheer quantity of the cocaine (four ounces total), the presence of the baggies, the presence of the scales, the way in which the money was separated and bundled with elastics and other circumstances all combine to make me suspicious but not sure. That is reasonable doubt.
[38] I do not want to leave this issue before commenting on the need for expert evidence in cases where the charge is possession of a controlled substance for the purpose of trafficking. It is a myth and pure fiction that, in every case, the prosecution must adduce expert evidence to found a conviction. There is no authority to support that proposition. In fact, in the decision of the Supreme Court of Canada in R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, the Court had the opportunity, if it saw fit, to declare such a requirement. It did not. It simply set out the parameters for admissible expert evidence on the issue of possession for the purpose of trafficking and the duties of a trial judge in relation thereto. And the Court reminded trial judges that the trier of fact ought to draw inferences from proven facts, not some police officer who believes that the accused possessed the narcotics for the purpose of trafficking and wants to usurp the role of the trier of fact on what is clearly the ultimate issue to be decided.
[39] There are many ways in which the Crown may prove to the requisite standard an intention to traffic. For example, the accused may admit that in a statement to the police. The accused may be seen trafficking just before or just after being found in possession of the drugs. Or the circumstantial evidence may be such that there is no other reasonable inference that could possibly be drawn. Nobody walks around with, for instance, a hockey bag full of individually wrapped packages of cocaine, cutting agents, a debt list and scales, unless it is to traffic. I do not need an expert witness to make that conclusion. These are extreme examples, and this list is not exhaustive. I simply want to dispel any notion that expert evidence is required in every case.
Proceeds
[40] Turning to count 4, I agree with the Defence. A finding of not guilty is appropriate, largely for the same reasons set out above under the heading “possession for the purpose of trafficking”. The money was probably from dealing drugs. But I am not sure of that.
V. CONCLUSION
[41] For the foregoing reasons, the verdicts are as follows. On count 1, not guilty of possession of cocaine for the purpose of trafficking but guilty of the lesser and included offence of simple possession of cocaine. On count 2, guilty of simple possession of cannabis. On count 3, guilty of simple possession of cannabis resin. On count 4, not guilty of possession of proceeds of crime.
Conlan J.
Released: March 12, 2015
CITATION: R. v. Patrick, 2015 ONSC 1498
COURT FILE NO.: CR-14-30
DATE: 20150312
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
MICHAEL SHAWN PATRICK
Defendant
REASONS FOR JUDGMENT
Conlan J.
Released: March 12, 2015