R. v. Vainola, 2015 ONSC 2303
COURT FILE NO.: 13-G5291
DATE: January 12, 2015
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- and –
PETER LIAM VAINOLA
P R O C E E D I N G S A T T R I A L A N D
R E A S O N S F O R D E C I S I O N
BEFORE THE HONOURABLE MR. JUSTICE R. MARANGER
On Monday, JANUARY 12TH, 2015
at OTTAWA, Ontario.
APPEARANCES:
Ms. M. Foerster for the Crown
Mr. P. Lewandowski for the accused
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
Exam. Cr.- Re-
WITNESSES: in-Ch. Exam. Exam.
E X H I B I T S
EXHIBIT NUMBER ENTERED ON
Transcript Ordered: March 27, 2015
Transcript Completed: April 7, 2015
Ordering Party Notified: April 9, 2015
MONDAY, JANUARY 12, 2015
BEFORE THE HONOURABLE MR. JUSTICE R. MARANGER
R E A S O N S F O R D E C I S I O N
MARANGER J (Orally)
Peter Vainola stands charged that on or about the 5th of February, 2013, he did possess cannabis marijuana for the purposes of trafficking and further on the same date unlawfully produced marijuana.
The grow operation and marijuana relevant to these charges was located at a residence municipally known as Apartment 3, 410 Queen Street, in the city of Ottawa.
That there was a marijuana grow operation at that residence is undeniable; that there was sufficient marijuana at the residence that arguably made it for the purposes of trafficking is also undeniable.
The issue to be determined here was whether the Crown has satisfied me beyond a reasonable doubt that this particular accused had both knowledge and control over the grow operation and marijuana located at this particular residence.
In R. v. Pham 2005 CanLII 44671 (ON CA), [2005] 77 O.R. 3d 401 ONCA, the court provided the following summary of legal considerations when a court is called upon to deal with the issue of possession of narcotics.
At paragraph 12:
[12] The issue at trial was whether the appellant had knowledge and control of the cocaine found in the bathroom and therefore had it in her possession.
[13] Section 2 of the Controlled Drugs and Substances Act adopts the definition of “possession” in s. 4(3) of the Criminal Code. That section reads:
4(3) For the purposes of this Act,
(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 another person; and
(b) Where one of two or more persons with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
[14] Section 4(3) of the Code creates three types of possession:
(i) personal possession as outlined in s. 4(3)(a);
(ii) constructive possession as set out in s. 4(3)(a)(i) and s. 4(3)(a)(ii); and
(iii) joint possession as defined in s. 4(3)(b).
[15] In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. See R. v. Caldwell (1972) and R. v. Grey (1996).
[16] In order to constitute joint possession pursuant to s. 4(3)(b) of the Code, there must be knowledge, consent and a measure of control on the part of the person deemed to be in possession. See R. v. Terrence (1983), R. v. Williams (1998), R. v. Barreau (1991) and R. v. Chambers (1985).
[17] The element of knowledge is dealt with by Watt J. in the case of R. v. Sparling:
Where there is no direct evidence of the applicant’s knowledge of the presence of narcotics in the residence, it is not essential that there be such evidence for as with any other issue of fact in a criminal proceeding, it may be established by circumstantial evidence. In combination, the finding of narcotics in plain view in the common areas of the residence, the presence of a scale in a bedroom apparently occupied by the applicant, and the applicant’s apparent occupation of the premises may serve to found an inference of the requisite knowledge.
The Court of Appeal decision in R. v. Sparling upheld the above passage as being sufficient evidence to infer knowledge.
[18] The onus is on the Crown to prove beyond a reasonable doubt, all of the essential elements of the offence of possession. This can be accomplished by direct evidence or may be inferred from circumstantial evidence. In R. v. Chambers, Martin J.A. noted that the court may draw “appropriate inferences from evidence that a prohibited drug is found in a room under the control of an accused and where there is also evidence from which an inference may properly be drawn that the accused was aware of the presence of the drug”.
In cases founded on circumstantial evidence, the Crown must establish beyond a reasonable doubt that the only reasonable inference to be drawn from the totality of the circumstantial evidence is the guilt of the accused before the court.
The Crown does not have to prove or establish every single piece of individual evidence beyond a reasonable doubt, only guilt beyond a reasonable doubt based upon the totality of the evidence.
The evidence presented at this trial by the prosecution consisted of surveillance evidence over the course of the month of January, 2013, and February 4th, 2013. The surveillance demonstrated that the accused attended at 410 Queen residence on a number of occasions and on different days was there for several hours.
It was also demonstrated that he had a key to that residence. I can also say that the surveillance evidence showed suspicious activity by him including attending with different bags that were brought in and out of the residence. Finally, the police also found material commonly used for the growing of marijuana at his separate residence at 26 Louis Street in Gatineau.
From the totality of this circumstantial evidence, the Crown asks the court to infer that Peter Vainola had both knowledge and control over the contents of Apartment 3, 410 Queen Street and was either in joint possession with the owner of the apartment and/or was a party to the offence with the owner of that apartment in the production of marijuana, and in the possession of the marijuana for the purpose of trafficking.
The defence called evidence; in this case, Mr. Kevin Berger. He testified that he was the tenant at Apartment 3, 410 Queen Street and had been the tenant there for ten years, that Mr. Vainola was a close friend of his.
He testified in no uncertain terms that the grow operation at 410 Queen Street was exclusively his. He gave a detailed explanation of how he set up the grow operation, he gave clear and what seemed like at times quasi-expert evidence on the growing of marijuana. He testified in no uncertain terms that the accused had nothing to do with either the marijuana or the grow operation found in that particular apartment. He also explained why the accused would have attended his residence from time to time.
To find this accused guilty would require that I reject Mr. Berger’s evidence and largely base a finding that the accused had knowledge and control over the product and grow operation by reason of being at that apartment for extended periods of time.
The Crown in this case has done its level best to try to prove beyond a reasonable doubt that the accused had both knowledge and control over the operation and marijuana located at Apartment 3, 410 Queen Street, and while I am suspicious about what level of knowledge and control the accused had over the grow operation and the marijuana located therein, in the face of Mr. Berger’s testimony, I have a reasonable doubt about whether he had the requisite knowledge and control to be able to find him guilty of either count on the indictment. Therefore, I find the accused not guilty on both counts. Thank you.
C O U R T A D J O U R N E D. . . .
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
Evidence Act
I, Elaine Armstrong, certify that this document is a true and accurate transcript of the recording of R. v. Peter Liam Vainola, held at Ontario Court of Justice, Ottawa, Ontario, taken from 0411-CR14-20150112_0954486-MARANGRO.dcr, and that B. Archer was in charge of the sound recording device during those proceedings, which has been certified in Form 1.
Elaine Armstrong
Certified Court Reporter