R. v. Ian Wilson, 2015 ONSC 3836

CITATION: R. v. Ian Wilson, 2015 ONSC 3836

COURT FILE NO.: 14-90000536-0000

DATE: 20150828

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

IAN WILSON

Accused

Kester Yeh, for the Crown

Ben Fedunchak, for the Accused

HEARD: June 8, 2015

REASONS FOR DECISION

b.a. allen j.

THE CHARGES

1Ian Wilson was arrested and charged on October 29, 2012 with possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act and possession of proceeds in the amount of $2,035 obtained from the commission of a crime. The defence conceded that the amount of crack cocaine seized, if possession is found, would be for the purpose of trafficking. There is no dispute that the substance seized is crack cocaine.

THE EVIDENCE

Officer Hepburn’s Evidence

2At about 4:00 a.m. on Monday morning, police from 41 Division stopped a vehicle that was driving along Brimley Rd in Toronto at a speed of 85 km in a 60 km zone. The driver was Michael Dean Clark. Mr. Wilson was a passenger in that vehicle in the front passenger seat. Officer Ruttner approached the driver’s side and Officer Hepburn approached the passenger side.

3Officer Hepburn indicated Mr. Wilson did not have his seatbelt on. According to the officer, Mr. Wilson was looking straight ahead and would not look at him when he approached the vehicle. Officer Hepburn indicated he observed Mr. Wilson’s sweater was moving in and out as if he was breathing heavily. Mr. Wilson had difficulty opening the window of the passenger’s side door, so he opened the door and the window was able to open.

4Mr. Wilson did not hesitate to show Officer Hepburn his OHIP card when asked for identification. The officers went to their patrol car where they remained for about ten minutes, leaving the driver and Mr. Wilson alone in the vehicle. Mr. Clarke did not give his identification to Officer Ruttner and he arrested him under the Highway Traffic Act for failure to identify himself. As it turns out, Mr. Clarke was not the registered owner of the vehicle and he had a record for many driving suspensions and a record for drug-related offences.

5Officer Hepburn returned to the vehicle. Mr. Wilson again could not open the window. He opened the door again and got out. When he was getting out, Officer Hepburn, using a flashlight, saw, just behind Mr. Wilson’s right heel, a small object that turned out to be 1.88 grams of crack wrapped in plastic. When Mr. Wilson got out of the vehicle, Officer Hepburn arrested him. During a search incident to the arrest, the officer found two cellphones on Mr. Wilson’s person. He also found two wallets with a large quantity of cash. Another patrol car arrived on the scene. Mr. Wilson was read his rights. An officer from the other patrol car observed another quantity of crack wrapped in plastic, found to be 12.28 grams, slightly under the front passenger’s side seat. Officer Hepburn seized that as well. Finger prints were not taken from the plastic on either packet of crack.

6On the back seat was Mr. Wilson’s DJ sound equipment. Officer Wilson also found an envelope containing an additional $100. Officer Hepburn asked Mr. Wilson whether there was anything else in the back of the vehicle. Mr. Wilson told him he had another $100 in a CD pouch. The officer could not find the pouch. Mr. Wilson got out of the vehicle to retrieve the pouch for the officer.

Mr. Wilson’s Evidence

7On weekends Mr. Wilson worked as a DJ playing music for parties. His DJ business is registered and has a trade name “Magnum Force”. His arrest took place at about 4:00 a.m. on Monday morning after he left a venue where he had been a DJ. He had taken a taxi on that Sunday night with his equipment and arrived at the venue at around 9 p.m.

8Mr. Wilson explained the $100 in the CD pouch. He drank about five or six Dragon stouts and a shot of rum that night. He was paid $200 for the night and spent about $100 on drinks. The remaining $100 left he placed in his CD pouch, he said, as a reminder to use the money to buy more CDs.

9The party ended at about 3:30 a.m. He stayed behind for a while eating and talking. The plan was that a friend was going to drive him home after the party. As it turns out, his friend felt he was too intoxicated to drive him home so Mr. Wilson was going to take a taxi home. However, Mr. Clarke offered to give him a ride home because they lived near each other. Mr. Wilson testified he had been acquainted with Mr. Clarke for about one year but did not know him well. He did not know he had a criminal record. Mr. Wilson did not see Mr. Clarke during the party but only after the party ended.

10Mr. Wilson testified, when he got into the vehicle, he was very tired from drinking and working so many parties that weekend. He was only in the vehicle for about five minutes when the police stopped it. He had never been in that vehicle before. He denied being nervous or breathing heavily when Officer Hepburn approached him. He was just very tired. Mr. Wilson explained he could not find the handle of the passenger side door. He was not familiar with the vehicle. He testified he had nothing to hide so he opened the door so he could communicate with Officer Hepburn. He stated he freely gave the officer his OHIP card when asked his identity.

11Mr. Wilson indicated he never saw any drugs in the vehicle until the officer pointed to the small packet behind his right heel. He picked it up and gave it to the officer. He got out of the vehicle when asked and he was arrested.

12For the police, cellphones and large quantities of cash in the context of finding a person in possession of drugs can be an indicator of a drug trafficker.

13However, Mr. Wilson provided reasonable explanations. One of his cellphones was to make and receive personal calls and the other was for his DJ business. The police did not investigate the phones. In addition to explaining the $100 in the CD pouch, he explained that the other large amount of cash was money he owed the four other DJs who worked for him in a big party he DJ’d on the previous Friday night, October 26. Bundles of $125, $150, $100, and another $100 were to go the various DJ’s. The $1,100 was Mr. Wilson’s personal earnings, $700 from Friday night and $400 from Saturday night, which he put into a wallet.

14Mr. Wilson explained he was carrying the bundles of money because the DJs were supposed to meet him at the Sunday night party so he could pay them. They did not come to the party so the money remained with Mr. Wilson. He has not been able to pay the DJs because the police seized the money when he was arrested.

ANALYSIS

Law of Possession

15Possession is defined under s. 4(3) of the Criminal Code. It is defined similarly in relation to drugs under the Controlled Drugs and Substances Act:

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 of 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.

16The two essential elements of the offence of possession are: (a) control of the thing and (b) knowledge of the thing. Possession involves actual possession or constructive possession of the thing or joint possession by more than one person with the other’s consent. There is no evidence to support a finding of joint possession with consent.

17To have actual possession or custody of a thing is to have physical custody or control of the thing. Constructive possession extends to situations where a person does not have hands on custody of the thing but has knowledge of the thing and an ability to control it even if they do not have physical contact with it. Constructive possession is a matter to be decided on the facts of each case: [R. v. Grey (1996), 28 O.R. (3d) 417 (Ont. C.A.)] and R. v. Caldwell (1972), 1972 ALTASCAD 33, 7 C.C.C. (2d) 285, at pp 290 - 291, (Alta. C. A.)].

18Constructive possession is sometimes found in circumstances where drugs are found in a person’s home, vehicle, or business. The law presumes the person has dominion and control over these places and is the presumed possessor of things found there.

19The Crown must prove the essential elements of knowledge and possession beyond a reasonable doubt.

20The element of knowledge can be inferred if there is evidence of actual possession. But drawing inferences to establish knowledge becomes more difficult if the contraband is hidden or not otherwise in plain sight. So, the Crown must adduce either direct evidence of knowledge or indirect evidence from which knowledge can be inferred. Inferences must be based on evidence, not on mere conjecture or surmise. The Supreme Court of Canada emphasized the point that before the trier of fact can base a verdict of guilty on circumstantial evidence, it must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts: [R. v. Cooper (1977), 34 C.C.C. (2d) 18 (S.C.C.)].

21To establish the element of control, it is necessary to have evidence establishing that the accused was able to exercise a directing, guiding or restraining power over the drugs. Control will not be inferred from mere knowledge or opportunity: [R. v. Cameron 2002 NSCA 123, at para. 20 (N.S.C.A.)]. As with the element of knowledge, evidence of control is often indirect, that is, inferred in the circumstances of the case.

Conclusion

22In this case there is no evidence of Mr. Wilson having direct knowledge or control over the crack cocaine. However, on his own evidence, Mr. Wilson had direct knowledge and control over the money seized but asserts that the money is not proceeds obtained from crime.

23Regarding the drugs, I find the Crown failed to prove both the essential elements of control and knowledge beyond a reasonable doubt. The circumstantial evidence on each element can support other reasonable inferences.

24I find the fact that the crack cocaine was found very close to Mr. Wilson’s feet in a vehicle in which he was a passenger is not proof beyond a reasonable doubt that he had possession. In unlawful possession cases, where the prohibited item is concealed or not readily visible in a vehicle, courts have required more than simple evidence of proximity of the accused and the item: [R. v. Anderson-Wilson, 2010 ONSC 489, [2010] O.J. No. 377, at para. 75, (Ont. S.C.J.)]. Mr. Wilson was only in the vehicle for five minutes when the police stopped it. I believe Mr. Wilson that he had never been in the vehicle previously.

25Mr. Wilson did not know how to open the passenger’s side window. He could not find the handle. Without being asked, he voluntarily opened the door to speak to Officer Hepburn. He said he had nothing to hide and I accept that. A person conscious of drugs being near his feet would not likely have opened the door so freely for the police. From these facts, it can be reasonably inferred that Mr. Wilson did not have knowledge of the crack cocaine.

26This finding is sufficient to find Mr. Wilson not guilty beyond a reasonable doubt of possession of the crack cocaine. However, for completeness, I will consider the control issue.

27Mr. Clarke had control of the vehicle so he is deemed to have control over its contents including the crack cocaine, unless proven otherwise. Mr. Wilson was a passenger and a short-lived one at that. I believe he had no more than five minutes connection with that vehicle and the drugs before the police stopped it. While finger prints on contraband is not by itself proof of control, control can be inferred from such evidence in the appropriate circumstances. In the case at-hand there was no finger print testing so there is nothing of this sort to connect Mr. Wilson to the crack: [R. v. J.Y., [1995] B.C.J. No. 2904, at para. 10, (B.C.C.A.)]. A reasonable inference that can be drawn from the facts is that Mr. Clarke had control over the crack cocaine.

28I therefore find the Crown failed to prove beyond a reasonable doubt Mr. Wilson’s possession of the crack cocaine.

29Regarding the $2,035 the police seized, I accept Mr. Wilson’s evidence that the cash was money earned from his DJ activities that weekend. He testified credibly and straightforwardly about that. He freely pointed the police to more cash in the back of the vehicle and helped Officer Hepburn find it when he had difficulty locating it. This does not suggest a guilty mind. I find the Crown has not proven beyond a reasonable doubt the essential element of the offence that the money was obtained from crime.

30The Crown has not satisfied its onus to prove beyond a reasonable doubt that Mr. Wilson was in possession of proceeds obtained from crime.

VERDICT

31For the foregoing reasons, I am satisfied the Crown has not proven Ian Wilson’s guilt beyond a reasonable doubt on both counts on the indictment.

32I therefore find Ian Wilson not guilty on counts 1 and 2 on the indictment and acquittals will be entered accordingly.

B.A. Allen J.