OVERVIEW

[1] Mr. Grant was charged with possession of cocaine for the purpose of trafficking. He was also charged with possession of cocaine and possession of marijuana.

[2] He was arrested on May 14, 2013, at 12:40 p.m., after being pulled over by Officer Maguire for speaking on his cell phone while driving on Highway #401.

[3] A search of his vehicle revealed a red DuMaurier cigarette package containing a partially smoked roach (marijuana cigarette) and a package of cocaine, as well as a black toiletry bag containing a bag of marijuana, bags of crack cocaine, a digital scale, a playing card, and several gram baggies. All were located within reach of the driver’s seat, either in the front console or on the passenger seat.

[4] The defence conceded that the paraphernalia found were indicia of drug trafficking. The amount of cocaine was agreed to be 9.7 grams. The value of the cocaine was agreed to be between $970 and $1,940.

[5] The sole issue was whether Mr. Grant had knowledge and control of these items.

[6] Mr. Grant was driving a Nissan Pathfinder, registered to his mother. His driver’s licence was suspended. He said he had taken the car in an emergency to go to his wife who had fallen. He testified that he was not aware of the drugs in the car and that they were not his. He suggested that they might belong to his brother or brother’s friends who had used the car earlier that week.

THE EVIDENCE HEARD AT TRIAL

[7] There were contrasting stories of what occurred that day, as between the testimony of Officer Maguire, who did the search and arrest, and Mr. Grant and his wife. Officer Maguire described the defendant appearing to be “on his way for a regular workday”. Mr. Grant described himself as driving this vehicle in an emergency, headed to assist his wife.

Robert Grant

Background History

[8] Mr. Grant is 46 years of age and has been employed 20 years at PPG as a shipper/receiver warehouse operator. He resides with his mother in Mississauga on Croatia Drive with his two adult daughters, as well as his sister and two brothers. His wife, Shaundell, lives in north Brampton with her seven children. He explained that, by living at his mother’s home, it is easier to get to work in North York by getting rides from co-workers. He spends weekends with Shaundell.

[9] He testified that his licence has been suspended since 2000, such that he does not drive, except in emergency situations. Nine to ten months before May 2013, he had a call at work that his father’s bypass surgery was not going well. He drove his mother’s vehicle towards Trillium hospital but was pulled over by police for a headlight infraction. He discussed with the officer that his licence was under suspension. His father passed away in September and again Mr. Grant drove to the hospital, but did not encounter law enforcement.

[10] Mr. Grant testified that the Nissan Pathfinder belongs to his mother but she does not use it to commute to work. She takes transit to her job downtown. He said the car is used by his mother, his brother Matthew, and sometimes by his step-daughter Shivon.

[11] He testified that 22 year old Shivon lives with Shaundell and is his step-daughter. The adult daughters that live with him at his mother’s house are Rochelle and Chantelle.

[12] Mr. Grant smokes marijuana on weekends, perhaps three times a month. At the time of his arrest he thought he was working more hours and so he would smoke it once every month and a half. He testified that, on his arrest, he told Officer Maguire that he smokes marijuana on weekends. He says he has never smoked marijuana in his mother’s car. He says he never smokes it while wearing his work uniform. If work finds that he uses marijuana, he said it would be cause for termination.

[13] He smokes Players Light cigarettes, which come in a blue package, and not DuMauriers.

[14] Mr. Grant used crack cocaine 30 years ago when powder cocaine was not giving him “the high” anymore. He used it for one month but stopped when he realized what it was doing to him. He quit crack and powder cocaine “cold turkey”.

[15] Mr. Grant testified that he was convicted of mischief and fraud in his early twenties. He was also convicted for possession of a “roach” a few years ago.

Day of Arrest

[16] Mr. Grant testified that he got up that Tuesday morning and dressed for work in his uniform and then received a phone call from Shaundell. She had fallen down the stairs. She could not get up and asked to be taken to the hospital. He said he did not think to call 911. There was a concern that the fall had shifted the metal plate in her leg. He called his co-worker and said not to pick him up for work due to this emergency. His evidence was that he was on day shift, which runs 7:00 a.m. to 3:00 p.m. He would leave around 6:00 a.m.

[17] Under cross-examination, Mr. Grant stated that he received his wife’s call around 11:00 a.m. He explained that he was too tired that morning to work and had called his supervisor to say he wanted to switch to the afternoon shift of 3:00 p.m. to 11:00 p.m. He said he called his co-worker at 6:00 a.m. to tell him not to pick him up as he was working the afternoon shift. Later he received the call from his wife. He explained that he dressed in his work uniform as soon as he got up, even though he was not working until 3:00 p.m., because he wears his uniform most of the time, even falling asleep in it.

[18] Mr. Grant testified that he felt his wife’s situation was an emergency. He said he grabbed his mother’s car keys, called work to say he could not come in, jumped in the vehicle, and headed towards his wife.

[19] When he got in the Pathfinder, there was a crumbling rose in the door-pull area that had been there over a year, since his aunt’s funeral. He says he picked it up and moved it to the dashboard, as he was worried it would break.

[20] Mr. Grant said his route was to cut through the Square One mall parking lot to Rathburn, then take Central Parkway to Eglinton to the 403 highway and then on to the 401 highway eastbound. He was on the 401 ramp just west of the 427 highway when he was pulled over.

[21] He testified that he continued on the phone talking with his wife on speaker to make sure she remained conscious. As he was pulled over by police he advised her what was happening and said he would have to call her back. He then hung up the phone.

[22] Mr. Grant stated the officer came up to the driver’s window and asked for his licence, ownership, and insurance. Mr. Grant provided his passport as well as his mother’s ownership and insurance. He advised the officer that he was on the phone because his wife had fallen and it was an emergency. The officer took the ID to his cruiser and then returned to speak through the open window of the passenger side of Mr. Grant’s vehicle. Mr. Grant said he had been driving on the highway with both windows open.

[23] Mr. Grant said he handed the phone to the officer who pressed “Redial” and spoke with Shaundell for three to four minutes. The officer then tossed or threw the phone on to the passenger seat. The officer then walked back around to the driver’s window.

[24] Mr. Grant then related a conversation he had with the officer regarding marijuana shake in the car. Initially Mr. Grant stated this occurred when the officer initially leaned into the car asking for identification. Later he stated this occurred after the officer had spoken with Shaundell and had walked back to the driver’s window. The officer told him, “I see you smoke marijuana. I see marijuana crumbs in the car.” Mr. Grant said he laughed and said it was from the rose on the dashboard. He said the officer said, “Don’t tell me; I know marijuana crumbs.” The officer told him there was probable cause to search the vehicle, and transferred Mr. Grant to the cruiser.

[25] The officer then located the marijuana and crack cocaine and showed it to Mr. Grant in the cruiser. Mr. Grant said the officer asked him if he had a crack problem or smoked marijuana. Mr. Grant told the officer that that he had not touched crack in 30 years and that he smoked marijuana on weekends. The officer said that, as he had found the drugs in the car and Mr. Grant was the only person in the car that, “It sucks to be you and you are being charged.”

[26] Mr. Grant said he told the officer that his 26-year-old brother, Matthew, and his friends went to Guvernment nightclub on Sunday night to celebrate a birthday. They took the car so they may have been the ones who put the drugs there. Mr. Grant explained at trial that he is too old to party like that and he was not out with his brother’s friends that night.

[27] Mr. Grant indicated to the court on a map that his wife Shaundell lives on Muirhead drive in Brampton, northwest of his mother’s home in Mississauga. He confirmed the location where he was stopped on the 401 highway, eastbound, which was some distance east of his mother’s home.

[28] The drive from his mother’s house to Shaundell’s residence would take about 25 minutes. Mr. Grant could not explain the time delay between receiving his wife’s call around 11:00 a.m. and being stopped by Officer Maguire at 12:40 p.m.

Shaundell Ramessar

[29] Shaundell is married to Mr. Grant. She testified that on May 14, 2013, she woke up and while walking downstairs she tripped on her pyjama pants and fell. She has had several surgeries on her right leg and hips, involving steel plates and screws as well as bone grafts. She was worried that the fall had shifted something in her leg.

[30] She had her phone in her hand and tried at first to reach her daughter without success. She then called Mr. Grant. She did not call 911 because she had outstanding ambulance bills. She told him she could not move. He said he would come and he hung up the phone. She expected he would come immediately. She thought she was on the phone with him about two minutes.

[31] Later she called him back because he had not shown up. He said he was on the road coming up to the house and that he got pulled over by the police. They were on the phone for about two or three minutes, during which time he told her he was being pulled over. Mr. Grant hung up the phone. Shaundell then said she got another call and it was a police officer.

[32] She told him she was Mr. Grant’s wife and she tried to explain what had happened. She said she told him that she fell down the stairs, was in pain, and thought she may have shifted the plate in her leg. She said the officer did not want to listen and hung up on her. She thought the conversation lasted for four to five minutes. She could not recall anything further that either she or the officer said.

[33] She tried to call several times more but the phone was off. She got her son to take her to hospital by cab.

[34] Shaundell confirmed that she was not on the phone with Mr. Grant between the first call for help and the second call - during which he was pulled over by police.

Officer Maguire

[35] The officer testified that he was working general patrol on the eastbound 401 lanes, driving in the lane second from the left. He observed a Nissan vehicle just ahead in the lane to his right. He observed the driver engaged in conversation with a communication device at his right ear, held with his right hand. The officer performed a traffic stop onto the shoulder.

[36] Officer Maguire got out and approached the driver’s door. He stated that the driver rolled down the window and a strong odour of freshly burned marijuana emanated. The driver was dressed in a work uniform and safety vest.

[37] The officer also observed loose green flakes in the driver’s door jam, in the crevices of the door handle, and in the windowsill rubber strips. He did not observe any smoke. He testified that he has smelled burnt marijuana and fresh marijuana in his training and in over 100 investigations.

[38] He asked for a driver’s licence and insurance. Mr. Grant provided his Canadian passport and an insurance card. The car was registered to a female party. In his cruiser, Officer Maguire said he ran a mobile check and determined that Mr. Grant’s licence had been suspended since 2000.

[39] The officer returned to Mr. Grant’s vehicle and arrested him for driving while under suspension and for possession of marijuana. He testified that he read Mr. Grant his right to counsel. Mr. Grant responded, “Who would I call?” Officer Maguire said he explained that duty counsel was a free service and that he could put Mr. Grant in touch with a free duty counsel lawyer at the detachment. The officer said that Mr. Grant replied, “Nah, it’s okay.” The officer handcuffed him and put him in the cruiser.

[40] Officer Maguire said he then returned to the Nissan Pathfinder to search. He located the DuMaurier package with the half burnt marijuana cigarette and a bag of crack cocaine, as well as the toiletry bag containing crack cocaine and marijuana.

[41] The officer showed these items to Mr. Grant, who adamantly denied they were his. Officer Maguire testified that Mr. Grant said the things likely belonged to someone younger, as he had been at a birthday party for his son or brother at Guvernment nightclub on Sunday night. Officer Maguire asked Mr. Grant if he had a crack problem and Mr. Grant replied that he had used it in the past, but no longer. Under cross-examination, Officer Maguire admitted he did not smell marijuana on Mr. Grant’s person after he had been placed in the cruiser.

[42] Officer Maguire testified that Mr. Grant did not say he was on his way to an emergency because his wife was hurt. The officer did not speak with Mr. Grant’s wife. The officer said that if such an explanation had been offered he would have tried to verify the emergency and not issue an infraction for being on a cell phone while driving.

[43] Officer Maguire testified that Mr. Grant told him he worked at PPG as a labour operator; that he was on his way to work; and was nervous he was going to be fired or disciplined for not making it in to work that day. At the police station the officer said Mr. Grant said he would appreciate being allowed to call his employer. The officer said he allowed this. He said Mr. Grant reiterated that he did not want to speak to a lawyer. The officer testified that Mr. Grant was on the phone about 30 seconds saying he was not going to make it to work as he was sick. The officer testified that he thought the call was sincere and legitimate.

THE POSITION OF THE PARTIES

[44] The Crown submitted that Mr. Grant had knowing possession and control of the drugs in the Nissan Pathfinder that day. They argue that the defence story of his taking the car quickly in an emergency and so not noticing the drugs in the front seat cannot reasonably be believed.

[45] The Crown points to a number of inconsistencies in Mr. Grant’s testimony. Initially Mr. Grant cancelled his co-worker’s ride due to the emergency and later said he cancelled the ride due to a shift change. Mr. Grant testified that he remained on the phone with Shaundell to ensure she was safe and conscious until he could reach her. Shaundell, on the other hand, said they hung up after the initial call and she called back to see where he was, as he had not yet arrived. Mr. Grant could not explain the length of time that passed from her call at around 11:00 a.m. to the time he was stopped by police at 12:40 p.m. Mr. Grant gave no explanation why he was on a super highway headed eastbound, well east of his mother’s home, when the emergency was to the northwest of his mother’s home.

[46] The Crown argues that the testimony of Mr. Grant does not make sense on the known facts, whereas the testimony of Officer Maguire is consistent with the known facts.

[47] The Crown argues that the value of the drugs, left unconcealed in the vehicle for two days, is inconsistent with being owned and left by an unrelated third party.

[48] The Defence submits that they have provided a reasonable explanation for Mr. Grant’s use of his mother’s vehicle and of his ignorance as to its contents, sufficient to raise a reasonable doubt of Mr. Grant’s guilt.

[49] The Defence argues that Officer Maguire is unreliable in relating what discussions he had with Mr. Grant. The officer recalled that Mr. Grant said that he had gone with others for a birthday to Guvernment nightclub. Mr. Grant laughed at that, saying he was too old to nightclub before a workweek.

[50] The Defence pointed out that Officer Maguire said the odour of freshly smoked marijuana was so strong coming out of the car, yet he did not note it on Mr. Grant’s person when he was seated in the cruiser. Mr. Grant testified that smelling of drugs at work would be cause for termination.

[51] The defence submits that the evidence of Mr. Grant and Shaundell raise a reasonable doubt.

ANALYSIS

[52] I am mindful of the analysis set out by the Supreme Court of Canada in R. v. W.D. 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26 at para 11. In assessing the evidence, even if I do not believe the defence, and even if the defence evidence does not leave me with a reasonable doubt, Mr. Grant can only be convicted if the rest of the evidence proves the charges beyond a reasonable doubt.

[53] The law on unlawful possession is carefully summarized by Hill, J. in R. v. McIntosh, [2003] O.J. No. 1267, [2003] O.T.C. 246 at paragraphs 43, 45, and 46:

In crimes of unlawful possession, it is “not necessary for the prosecution to prove the required knowledge by direct evidence…it could be inferred from the surrounding circumstances”: R. v. Aiello (1978), 1978 CanLII 2374 (ON CA), 38 C.C.C.(2d) 485 (Ont. C.A.) at 488; see also R. v. Anderson, [1984] B.C.J. No. 2655 (C.A.) at para. 15-16. Frequently then, such cases are proven by circumstantial evidence: see R. v. Meggo, [1998] O.J. No. 2564 at para. 1.

The retail value of the drug associated with a person is relevant not only to whether he or she had knowledge the substance was a narcotic (R. v. Blondin (1970), 1970 CanLII 1006 (BC CA), 2 C.C.C. (2d) 118 (B.C.C.A.) at 121 (aff’d. on appeal (1971), 4 C.C.C. (2d) 566 (S.C.C.) but also to whether the person had knowledge of the substance itself (R. v. Fredericks, [1999] O.J. No. 5549 (C.A.) at para. 3-4).

The quantity of crack cocaine is clearly for the purposes of trafficking. The value of the illicit drug, thousands of dollars worth from retail sales, suggests the asset is one the owner would not risk losing. In other words, a drug dealer, as a person with business interests in mind, is unlikely to expose cargo of this value to the risk of discovery or loss by relinquishing to another possession of the receptacle concealing the asset.

[54] It is not disputed in this case that the drugs located in the Nissan Pathfinder were readily accessible to the driver.

[55] On review of all the evidence, I do not find that Mr. Grant’s explanation of his use of his mother’s Pathfinder in an emergency is credible at all.

[56] The most compelling fact belying his evidence is that Mr. Grant was eastbound on a superhighway, east of his point of departure, when the alleged emergency was some distance west of his point of departure. Being eastbound on that highway was, however, consistent with him being headed to his work place in North York.

[57] He was dressed in his work uniform and safety vest. This made sense when he first testified that he was dressed and planned to leave for work at about 6:00 a.m. but got the emergency call from his wife. It did not make sense when his testimony altered to say that he had called to switch his shift to the 3:00 p.m. shift but had dressed in his work uniform and safety vest first thing that morning.

[58] Mr. Grant testified that he received his wife’s call around 11:00 a.m. and considered it an emergency, such that that he grabbed his mother’s car keys and got in the car to go to her. Despite it being roughly a 25 minute drive, he was still nowhere near his wife’s residence an hour and 40 minutes later. He could provide no explanation for such delay. His only stop was to get gas.

[59] The testimony between the two defence witnesses was also not consistent. Mr. Grant said he remained on the phone with Shaundell to ensure she was conscious. Shaundell said they had hung up the phone and she called him back, at which time he was pulled over by police. Shaundell testified that Mr. Grant said he was near her house. Factually, that was not true as he was further away, and was, in fact, heading even further away in an eastbound direction rather than westbound.

[60] Both Shaundell and Mr. Grant testified that the conversation with Officer Maguire lasted about four minutes. Neither could explain what conversation took place over that time frame, other than her saying she had fallen and needed a ride to the hospital. Shaundell could not relate any other details of this alleged call.

[61] Officer Maguire denies that any conversation took place with Shaundell, and further denied that any explanation of an emergency was offered by Mr. Grant. The officer said he would have investigated such an explanation, as it would mitigate the charge of using a cell phone while driving. I accept this evidence from the officer.

[62] In addition, the defence did not produce any cell phone records from Shaundell’s cell phone, or cell phone records from Mr. Grant’s cell phone, or records from Mr. Grant’s employment.

[63] Mr. Grant suggests that his brother or brother’s friends may have left the drugs in his mother’s vehicle from two days prior when they borrowed the car. I do not find this reasonable in light of the drugs being left in plain view, of such value, and over that length of time.

[64] Mr. Grant’s evidence was that he only used his mother’s vehicle in emergencies. I do not accept this evidence, as he described that in one such emergency he used her vehicle when he received a call at work to go to his father in hospital. I find that he had to have driven the vehicle to work in the first place, when it was not an emergency.

[65] Mr. Grant’s evidence was that the green “crumbs” were from a crumbling rose he moved from the door-pull to the dashboard. The photo of a Pathfinder interior shows the door-pull is located half way down the door from the window. Mr. Grant’s explanation does not explain the officer’s observation of marijuana shake, which he identified as being all along the windowsill rubber strips.

[66] I accept that Mr. Grant’s person may not have smelled of marijuana, particularly as it could be cause for termination and because the officer did not smell it on him when placed in the cruiser. The officer’s testimony of smelling freshly smoked marijuana in the vehicle is consistent, however, with the fact that a half-smoked roach was found in the front passenger seat.

[67] I do not accept Mr. Grant’s explanation, nor does it raise a reasonable doubt, nor provide a reasonable explanation for his use of the vehicle containing drugs that were readily accessible to the driver’s seat. The inconsistencies and lack of logic in his story make it incredible.

[68] The value of the drugs along with the tools of the trade being left unconcealed in the front passenger seat make it unreasonable to consider that they were left by a third party two days previously.

[69] I infer from the surrounding facts that Mr. Grant did have knowledge. I find he was on his way to work for the 3:00 p.m. shift but had time to do other activities beforehand. I find that he used the vehicle to go to work while his mother used transit. He was wearing his work uniform. I accept the officer’s evidence that he allowed Mr. Grant the opportunity to call work to say he would not be able to work that day.

[70] Mr. Grant’s knowledge and control of the drugs is reasonably inferred from the surrounding circumstances, and I am satisfied beyond a reasonable doubt that he did have knowledge and control of the drugs.

CONCLUSION

[71] Accordingly I find, the accused, Mr. Grant, guilty of counts #1, #2, and #3.

M.J. Donohue, J.

Released: April 17, 2015

CITATION: R. v. Grant, 2015 ONSC 2481

COURT FILE NO.: CR-14-306-00

DATE: 2015-04-17

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ROBERT HENRY GRANT

REASONS FOR JUDGMENT

M.J. Donohue, J.

Released: April 17, 2015

R. v. Grant, 2015 ONSC 2481

Case Summary

OVERVIEW

THE EVIDENCE HEARD AT TRIAL

Robert Grant

Background History

Day of Arrest

Shaundell Ramessar

Officer Maguire

THE POSITION OF THE PARTIES

ANALYSIS

CONCLUSION

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 1