Court File and Parties

CITATION: R. v. Brown, 2015 ONSC 2008

COURT FILE NO.: CR14900003640000

DATE: 2015-03-27

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Recardo Brown

BEFORE: Justice Spies

COUNSEL: Sam Siew, for the Crown Tyler MacDonald, for Mr. Brown

HEARD: March 23, 2015

RULING ON APPLICATION FOR DIRECTED VERDICT

Overview

[1] These are my reasons for decision with respect to the application brought by Mr. MacDonald on behalf of Mr. Brown for a directed verdict of acquittal on Count #2; the charge of possession of proceeds of crime, which was brought after the close of the Crown’s case. The Crown does not have to specify the offence for Count #2 but trafficking in cocaine is the specific offence the Crown alleges. The application was opposed by Mr. Siew, counsel for the Crown. After hearing the submissions of counsel I decided that the application should be dismissed and advised counsel of my decision and told them that I would provide reasons for my decision. These are my reasons.

The Test

[2] Counsel were in agreement with respect to the test that should be applied. In reaching my decision I adopted the following test which comes from R. v. Charemski[^1] where Justice McLachlin, (as she then was), writing for herself and Major J., and dissenting on other grounds, stated:

[20] A properly instructed jury acting reasonably is a jury that will convict only if it finds that the evidence establishes guilt beyond a reasonable doubt. To determine whether this could occur, the judge on the motion for a directed verdict must ask whether some or all of the admissible evidence is legally sufficient to permit the jury to find guilt beyond a reasonable doubt. In doing so, the trial judge is determining the sufficiency of the evidence. The question is whether the evidence is capable of supporting a verdict of guilt beyond a reasonable doubt. …

[22] … Where the case is based on circumstantial evidence…[i]n order to determine whether a properly instructed jury could reasonably convict, the judge must determine whether, assuming the circumstantial facts are proved, it would be reasonable to make the inference necessary to establish the facts in issue.

[23] On any motion for a directed verdict, whether the evidence is direct or circumstantial, the judge, in assessing the sufficiency of the evidence must, by definition, weigh it. …But weighing the evidence for this purpose is a very limited exercise. …the judge assesses whether, hypothetically, a guilty verdict is possible; the jury determines whether guilt has actually been proved beyond a reasonable doubt. [Emphasis mine]

[3] In R. v. Arcuri[^2], McLachlin C.J. wrote for a unanimous Court. It is significant that she stated that Charemski did not evidence disagreement in the Court as to the proper approach. She went on to clarify the approach regarding the weighing of evidence, making it clear that where the Crown’s case involves circumstantial evidence, the judge must engage in a “limited weighing” of the evidence. As McLachlin C.J. held at para. 23:

…Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established….The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt. [Emphasis mine]

[4] Mr. MacDonald also drew my attention to R. v. Turner[^3], where the Court of Appeal reviewed these decisions including para. 35 of Charemski where McLachlin J. stated:

… “sufficient evidence” must mean sufficient evidence to sustain a verdict of guilt beyond a reasonable doubt; merely to refer to “sufficient evidence” is incomplete since “sufficient” always relates to the goal or threshold of proof beyond a reasonable doubt. This must constantly be borne in mind when evaluating whether the evidence is capable of supporting the inferences necessary to establish the essential elements of the case.

The Evidence

[5] For the purpose of this application, there is direct evidence in support of Count #1 which charges Mr. Brown with possession of cocaine for the purpose of trafficking. The evidence led by the Crown, and in particular two police officers, is that Mr. Brown threw a baggie of crack cocaine over a fence when officers arrived at the Island Grill Restaurant to execute a search warrant. It is agreed that the cocaine weighed 9.95 grams and was in 43 pieces individually wrapped in tin foil. It is also agreed that Mr. Brown had $1,115 in his possession; 44 $20 bills, 17 $5 bills, 10 $10 bills and one $50 bill.

[6] The Crown’s expert, Detective Davies, testified that in his opinion the amount of crack cocaine and the fact it is individually wrapped is not consistent with personal use. He also testified that the cocaine could be sold as a “20 piece” (averaging .10 grams in weight) for $20 each and that in a hand-to-hand transaction typically $10 to $20 would be paid.

[7] The expert relied on the cash in Mr. Brown’s possession as another reason for finding that the cocaine was consistent with possession for the purpose of trafficking because in his opinion a drug addict is seldom found in the possession of a large amount of drugs and a large amount of money.

[8] For the purpose of this application I assumed that the evidence the Crown has led established that Mr. Brown had the cocaine in his possession for the purpose of trafficking.

[9] There is no dispute that the Crown’s case against Mr. Brown on Count #2 is entirely circumstantial in that there is no direct evidence of Mr. Brown actually trafficking in cocaine or any evidence that some of the money found in his possession was police “buy money”. When asked, Detective Davies fairly conceded that the $20 bills could be from drug transactions at that level or they might not be. In cross-examination he admitted that he could not say where the cash came from.

Analysis

[10] The position of Mr. MacDonald that the Crown’s case is entirely circumstantial with respect to Count #2 is not in dispute. He argued that although it is possible that the cash could have been from the sale of crack cocaine, anything is possible and a properly instructed jury would not be able to find Mr. Brown guilty beyond a reasonable doubt on Count #2, based on a “possibility”. He submitted that the jury would have to make a presumption that Mr. Brown had already committed an offence of trafficking and that that would be a forbidden path for the jury. As there was no evidence either way of what Mr. Brown had done before or what the source of the cash was it was his position that it would not be a reasonable inference for the jury to make that Mr. Brown had some of the cash because he had already trafficked in cocaine and that the jury would not be able to find him guilty on that basis beyond a reasonable doubt.

[11] Mr. Siew submitted that a reasonable inference is available to the jury that some of the proceeds were from drug trafficking and that Mr. Brown did not just start trafficking the day he was arrested and that in a sense the jury could infer that there had been a continuing course of conduct. Detective Davies gave the opinion that a drug dealer will start the day with a lot of drugs and little cash and end the day with a lot of cash and no drugs. In this case given the large amount of drugs and cash Mr. Siew submitted that the jury could draw a reasonable inference that Mr. Brown was halfway through his day of trafficking.

[12] If the jury finds Mr. Brown guilty of Count #1, although they will be cautioned not to use that finding of guilt in concluding that Mr. Brown is also guilty of Count #2, they will be able to consider the underlying evidence and the facts that they found with respect to their conclusion that Mr. Brown was in possession of cocaine for the purpose of trafficking when they consider Count #2. Given that evidence and the large quantity of cash and the denominations found, in my opinion one reasonable inference that the jury could draw from that evidence is, as Mr. Siew submitted, that Mr. Brown did not just start trafficking the day he was arrested and that he had been trafficking in cocaine before his arrest.

[13] I appreciate that this would likely not be the only reasonable inference that the jury could draw from the evidence. The jury will be instructed that they can only convict Mr. Brown of Count #2 if they are satisfied that his guilt is the only reasonable conclusion to be drawn from the whole of the evidence. However, for the purpose of this application it is sufficient if one inference favours the position of the Crown and is capable of supporting a jury finding that Mr. Brown is guilty of Count #2 beyond a reasonable doubt. It will be up to the jury to decide if there are competing inferences; that task must be left to them.

Conclusion

[14] For these reasons I conclude that the evidence called by the Crown, assuming it to be true as I must at this stage, is reasonably capable of establishing the guilt of Mr. Brown beyond a reasonable doubt on Count #2. The application for a directed verdict on that Count is dismissed.

SPIES J.

Released: March 27, 2015

[^1]: 1998 CanLII 819 (SCC), [1998] 1 S.C.R. 679. [^2]: 2001 SCC 54, [2001] 2 S.C.R. 828. [^3]: 2012 ONCA 570, [2012] O.J. No. 4088 (Ont. C.A.)