ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
D. Moffat, for the Crown
- and -
ROBERT CAO
K. Schofield, for the accused
HEARD: April 16-17, 2015
LEACH J. (ORALLY)
Overview and preliminary matters
1By way of overview, the accused, Robert Cao, is charged with one count of possession of cannabis marihuana (“marihuana”) for the purpose of trafficking, contrary to s.5(2) of the Controlled Drugs and Substances Act, (“the CDSA”).
2The charge stems from events said to have taken place on July 18, 2011, here in the city of London. Evidence in that regard, and the parties’ respective positions, are outlined in greater detail below.
3In broad terms, however, the Crown says that, on July 18, 2011, during the course of police surveillance targeting Jason Carpenter, (an individual who was suspected of trafficking in large quantities of marihuana), Mr Carpenter was seen handing the accused one of three large garbage bags full of that controlled substance, after which the accused walked a short distance with that garbage bag before dropping it as police approached to arrest the two men. The Crown says the accused Mr Cao knew what he was carrying, and that Mr Cao had possession of the controlled substance for the purpose of trafficking. At the very least, the Crown says, Mr Cao knowingly was aiding Mr Carpenter in the commission of that offence, such that Mr Cao is guilty of the offence as well.
4In similarly broad terms, the defence says that the Crown has failed to prove, beyond a reasonable doubt, either directly or by circumstantial evidence, that Mr Cao knew the contents of the garbage bag he admittedly was carrying. To the contrary, the defence says the evidence shows that Mr Cao is innocent, insofar as he was handed and agreed to carry the relevant garbage bag merely as a courtesy, without knowing what was inside. In that regard, the defence relies in particular on the testimony of Mr Carpenter.
Evidence – General Comments
5At trial, the Crown presented testimony from three witnesses, all of whom were police officers working in the guns and drugs section of the London Police Service at the time of the relevant surveillance and arrest. In particular:
i. I heard first from Detective Constable (D.C.) David Payette. He was not only a member of the relevant mobile surveillance team, but the officer who directed that team to move in and arrest Mr Carpenter and Mr Cao. He was also the officer who physically arrested Mr Cao. Following that arrest, D.C. Payette also participated in further steps taken to secure and execute a search warrant in relation to Mr Carpenter’s residence.
ii. The second Crown witness was D.C. Joel Pavoni. He was another member of the relevant mobile surveillance team, and the officer to whom D.C. Payette turned over Mr Cao, shortly after Mr Cao was arrested.
iii. The third and final Crown witness was D.C. Micah Bourdeau. He was another member of the relevant mobile surveillance team, and the officer who effected the arrest of Mr Carpenter.
6In addition to subjecting the Crown’s witnesses to cross-examination, the defence called one witness, Jason Carpenter, who was then subjected to cross-examination by Crown counsel.
7As was his right, Mr Cao did not testify, and I draw no adverse inferences whatsoever from that.
8In that regard, I have in mind throughout my entire reasons and analysis the presumption of innocence and the burden of proof upon the Crown. In particular, according to the constitutional guarantee in s.11(d) of the Charter, Mr Cao is presumed to be innocent, and that presumption of innocence remains with him throughout this matter, from beginning to end, unless and until the Crown establishes his guilt with respect to the alleged offence beyond a reasonable doubt. That is a heavy burden and, in relation to the elements of the charge against Mr Cao that are not admitted, never shifts.
9The accused Mr Cao accordingly has no obligation whatsoever to establish his innocence, and I accordingly attach no significance to the fact that he gave no evidence at trial.
10As for formal exhibits:
A number were introduced through the Crown witnesses. They included the garbage bag Mr Cao was carrying and the marihuana found therein, as well as one of the garbage bags Mr Carpenter was carrying.
A copy of Mr Carpenter’s criminal record was entered as an exhibit during the course of his testimony.
A police “exhibit list”, detailing the items found and seized at Mr Carpenter’s residence during execution of the search warrant mentioned above, was entered as an agreed exhibit in this trial.
11Continuity was admitted, by the defence, in relation to all exhibits tendered by the Crown.
Evidence – General Facts
12With the above preliminary observations, I turn now to a more detailed review of the underlying evidence.
13In that regard, I think it fair to say that the evidence of the Crown witnesses generally was consistent, and generally not contradicted by the evidence of Mr Carpenter.
14To the contrary, Mr Carpenter’s testimony generally was consistent with that of the various Crown witnesses, but his testimony supplemented their narrative with additional information which the defence urged me to accept. Crown counsel, in turn, urged me to approach Mr Carpenter’s testimony with skepticism, insofar as Mr Carpenter’s testimony put an additional gloss on otherwise confirmed and undisputed events which might suggest Mr Cao’s innocence.
15In the result, I turn first to the following findings, concerning underlying events, which in my view were either undisputed or sufficiently clear to justify certain conclusions:
In or before July of 2011, the police received confidential human source and “Crime Stoppers” tip information indicating that Jason Carpenter was trafficking in large quantities of marihuana. A decision was made to conduct surveillance on Mr Carpenter to determine whether that information could be corroborated. Initial surveillance of Mr Carpenter’s residence, (located on Highbury Avenue, in the city of London), took place as early as July 12, 2011.
On the morning of July 18, 2011, the officers involved in the mobile surveillance team, (including D.C. Payette, D.C. Pavoni and D.C. Bourdeau), again set up outside Mr Carpenter’s residence.
At 11:28am, on that date, D.C. Pavoni saw Mr Carpenter exit his residence carrying two full garbage bags. Mr Carpenter carried the two garbage bags to his four-dour, sedan-type Toyota vehicle, where he unlocked and opened the vehicle’s trunk, and placed the two garbage bags inside the trunk before closing it again. Mr Carpenter then returned to his residence, and entered the screen door. “Approximately two seconds later”, he then came outside again carrying a third full garbage bag. Mr Carpenter carried that third garbage bag to his vehicle, where he once again unlocked and opened the trunk, and placed the third garbage bag inside. He then closed the trunk again, and returned to his residence.
D.C. Pavoni confirmed that, during movement of the three garbage bags from Mr Carpenter’s residence to the trunk of the Toyota vehicle, all three bags seemed to be “completely full”. However, D.C. Pavoni also confirmed that it was not possible for an observer to tell what was inside the three garbage bags, each of which was black, and each of which had been carried by Mr Carpenter “from the top”. D.C. Pavoni also did not know at the time whether the tops of the bags had been secured in some way, or whether Mr Carpenter was simply “holding them closed” with his hands.
At 11:45am, Mr Carpenter was seen leaving the residence in his vehicle. He went initially to a pharmacy but, without stopping, he then proceeded to a Tim Horton restaurant before returning to his residence.
A short time later, Mr Carpenter again entered his vehicle and drove away from his Highbury Avenue residence, with members of the police mobile surveillance team monitoring his movements. At the intersection of Adelaide and Huron Street, D.C. Payette saw Mr Carpenter speaking on his cellular phone, and confirmed that Mr Carpenter was the sole occupant of his vehicle.
Mr Carpenter then proceeded in his vehicle to a parking lot outside a series of apartment buildings located on Windermere Avenue, here in the city of London. He arrived there shortly after noon. He pulled into a parking spot to the south of a particular apartment building, with his vehicle facing south and the trunk of the vehicle to the north.
D.C. Payette, who had been following Mr Carpenter in an unmarked and “non-descript” police vehicle, while wearing plain clothes, parked his vehicle approximately 20 meters away, at the front of the relevant apartment building. From there, D.C. Payette could look south to the rear and trunk area of Mr Carpenter’s vehicle. He was attempting to watch as much as possible, while remaining inconspicuous.
While Mr Carpenter was still sitting in his vehicle, D.C. Payette then observed an individual, later identified as Mr Cao, approach the passenger side of Mr Carpenter’s vehicle from the west. D.C. Payette first noticed Mr Cao when he was approximately 5-10 meters from the car, and had no way to tell where Mr Cao had been before then.
D.C. Pavoni also was unable to say where Mr Cao had come from, as he arrived at the Windermere Avenue address and drove slowly by the scene in the parking lot just as Mr Cao was approaching Mr Carpenter’s vehicle. D.C. Pavoni also saw that a conversation between Mr Carpenter and Mr Cao was started as Mr Cao was making that approach. However, he was unable to say what may have precipitated the conversation.
Mr Carpenter remained in the driver’s seat of his vehicle, and when Mr Cao reached its passenger side window, a brief conversation between Mr Carpenter and Mr Cao then continued “through” the vehicle. In that regard:
D.C. Payette observed “some form of communication” between Mr Carpenter and Mr Cao, but not any transaction involving the passing of any item. In particular, D.C. Payette confirmed that the police did not see any transfer of money.
D.C. Pavoni saw (but could not hear) approximately 10 seconds of conversation that ensued between Mr Carpenter and Mr Cao “through” the Carpenter vehicle, as he slowly drove past the scene and then lost sight of the two men before the end of their conversation.
After that brief conversation between Mr Carpenter and Mr Cao, Mr Carpenter exited his vehicle. I find that, before doing so, he turned his vehicle off and removed its keys from the ignition. (Although the arresting officers had no definite memory in that regard, the keys were found on Mr Carpenter’s person after the arrest that followed, without Mr Carpenter having returned to the interior of the vehicle.)
Mr Carpenter and Mr Cao both then went to the rear of the vehicle, where Mr Carpenter then opened the trunk. (D.C. Bourdeau confirmed that Mr Carpenter would have needed the vehicle’s keys to do that, which offered further support for my earlier finding in relation to Mr Carpenter turning the vehicle off and removing its keys from the ignition.) During the brief interaction between the two men that followed, at the rear of the Carpenter vehicle:
D.C. Payette could not see into the vehicle’s trunk, and accordingly was unable to make or offer anything by way of observation as to the state of the three garbage bags that had been placed inside the trunk by Mr Carpenter at his residence. D.C. Payette specifically confirmed that, prior to Mr Cao coming into possession of one of the garbage bags, there was no information about that garbage bag being open, or its contents being visible. D.C. Payette also had no note or memory as to how the garbage bags were removed from the trunk. In particular, he could not recall whether Mr Carpenter or Mr Cao removed the garbage bags from the vehicle, and did not know whether Mr Cao took hold of a garbage bag with one or two hands. He could just confirm that, after the brief interaction between Mr Carpenter and Mr Cao at the trunk of the Carpenter vehicle, Mr Cao was seen walking away from that vehicle, westbound towards the nearby apartment building, carrying one of the large black garbage bags that had been taken from the trunk. D.C. Payette could not recall seeing any red draw strings on the garbage bags, after they had been removed from the trunk and were being carried. Nor did he have any note or memory as to how the bags may have been sealed at their opening, although they seemed to be closed.
By the time D.C. Bourdeau arrived at the Windermere Avenue parking lot, and parked his vehicle approximately 50 to 75 feet to the north of Mr Carpenter’s vehicle, Mr Carpenter and Mr Cao already were standing at the rear of Mr Carpenter’s vehicle, and the trunk already had been opened. D.C. Bourdeau expressly confirmed that he too was unable to see inside the trunk. D.C. Bourdeau nevertheless did see that it was Mr Carpenter who removed the three garbage bags from the trunk of the Carpenter vehicle. In particular, D.C. Bourdeau saw Mr Carpenter take a garbage bag from the trunk and hand it to Mr Cao, who then held it at the top and began walking westbound through the parking lot towards the nearby apartment building, while Mr Carpenter remained to remove two additional garbage bags from the trunk before closing it. D.C. Bourdeau estimated that he had seen Mr Cao at the rear of Mr Carpenter’s vehicle for approximately 30 seconds, and certainly well under a minute.
Once Mr Cao was seen carrying one of the bags away from the Carpenter vehicle, D.C. Payette believed that a drug transaction had just occurred, with Mr Carpenter having just dealt a large quantity of marihuana to Mr Cao. D.C. Payette made a decision that both Mr Carpenter and Mr Cao could be arrested, and advised other officers in the mobile surveillance team of his belief.
D.C. Payette then exited his vehicle and started to make his way towards the area where Mr Carpenter and Mr Cao were located. In that regard:
As D.C. Payette made his way towards effecting an arrest, he noticed that D.C. Bourdeau also had arrived, and was closer to Mr Carpenter. D.C. Payette therefore made a decision to take a westbound track towards Mr Cao, who was walking away from him. In doing so, D.C. Payette did not run, but simply walked at a pace intended to “close the distance” between himself and Mr Cao.
I find that, in contrast to D.C. Pavoni and D.C. Bourdeau, (each of whom expressly and readily confirmed that each definitely was wearing a black vest with “POLICE” marked on the front and back, as well as a visible police badge and use of force options including handcuffs, a baton and pepper spray), D.C. Payette was not wearing anything that would identify himself as a police officer when he exited his vehicle to participate in the arrest of Mr Cao and Mr Carpenter. In that regard, D.C. Payette initially indicated that he could not recall what he was wearing at the time. In particular, he said: “In our kit we have black vests that have POLICE written in front and back as well as badges”, but “I don’t recall what, if either of those, that I had on at the time”. However, D.C. Payette then recalled, during re-examination, that he did not have his gun with him during the arrest, (in contrast to D.C. Pavoni and D.C. Bourdeau who had holstered guns on their hips), and that his gun was back in his car “with the rest of [his] kit”.
As D.C. Payette walked behind and towards Mr Cao, he observed that Mr Cao was carrying, at waist or chest level, what appeared to be a full garbage bag, albeit one still capable of being held at the top. Mr Cao was carrying the bag in front of him, such that D.C. Payette could not tell whether Mr Cao was using one or two hands in that regard. (Based on what seem to have been later observations, D.C. Payette was able to confirm that the relevant garbage bag and its contents could be carried with either one or two hands.) However, D.C. Payette was still able to say that Mr Cao appeared to be carrying the bag from its top. In particular, D.C. Payette emphasized that Mr Cao did not have his arms underneath the garbage bag, and that it was not slung over Mr Cao’s shoulder. D.C. Payette also confirmed that, as Mr Cao was carrying the garbage bag, its contents were not visible.
As D.C. Payette was walking behind Mr Cao and closing the distance between them, but prior to D.C. Payette saying anything, (including identification of himself as a police officer, or any announcement indicating the presence of the police), D.C. Payette saw Mr Cao turn for “a second” and look back at D.C. Payette. Immediately after Mr Cao turned and saw D.C. Payette, Mr Cao dropped the garbage bag he had been carrying, turned back around, and continued walking. In that regard:
D.C. Payette confirmed that, in turning back towards D.C. Payette, Mr Cao also was looking back in the direction of where Mr Carpenter’s vehicle was parked. Considered in isolation, that might suggest that Mr Cao also would have seen and noticed D.C. Bourdeau and D.C. Pavoni, both of whom were wearing items identifying them as police officers.
However, D.C. Payette could not say where either D.C. Bourdeau or D.C. Pavoni was at the point when Mr Cao turned briefly to look at D.C. Payette.
Moreover, D.C. Payette emphasized that, in the “second” Mr Cao turned and looked back, Mr Cao was looking at D.C. Payette.
D.C. Bourdeau also was unable to recall whether Mr Cao had turned around and looked at him as well.
In my view, the evidence therefore falls short of establishing that, in turning back briefly for a “second” before dropping the bag, Mr Cao was looking at or saw anyone other than D.C. Payette, who was closing upon Mr Cao from behind without wearing or saying anything identifying him as a police officer.
Similarly, in my view, the evidence also falls short of establishing that anything was said by D.C. Pavoni or D.C. Bourdeau to indicate the presence of police officers before Mr Cao briefly looked back at D.C. Payette, or before Mr Cao dropped the garbage bag immediately thereafter. There was no evidence of D.C. Pavoni saying anything to that effect. Moreover, as noted below, D.C. Bourdeau confirmed that he did not make his presence known to Mr Carpenter, or begin giving Mr Carpenter verbal directions, until sometime after D.C. Bourdeau already had observed D.C. Payette giving Mr Cao verbal directions, and D.C. Payette indicated that he gave no such directions until sometime after Mr Cao had turned, looked back, dropped the bag, and continued walking away.
Returning to my outline of events as they unfolded, (as D.C. Payette approached Mr Cao to make an arrest), immediately after Mr Cao turned and saw D.C. Payette, Mr Cao dropped the garbage bag he had been carrying, turned back around, and continued walking. It was not D.C. Payette’s perception that Mr Cao was attempting to flee. However, as D.C. Payette realized that Mr Cao had seen him, and he did not want Mr Cao to flee, D.C. Payette then identified himself and gave a direction by saying: “London Police; stop.”
As D.C. Payette then continued to close the distance between himself and Mr Cao, he passed the garbage bag which Mr Cao had dropped. As he did so, he could see that the garbage bag was sitting where it had been “dropped quite suddenly”, (as opposed to being “just sat down”). However, D.C. Payette also observed that the garbage bag was “all compacted on the ground”, and had “slumped”, “rolled” and/or “folded over” owing to the weight of its contents. In particular, according to D.C. Payette, the weight of the bag had caused it to fall over, such that the contents had moved to the top of the bag, which in turn had “exposed” the contents “at the top” of the garbage bag. In the result, as D.C. Payette was passing the dropped garbage bag, he could see that the top of the garbage bag was untied and open at that point. Its red draw string was not pulled shut, and there was an opening at its top which D.C. Payette estimated to be the size of a small or large dinner plate or platter. Through that opening, D.C. Payette could see large vacuum sealed bags of marihuana, some of which had “broken the plane” of the garbage bag’s opening, although none had fallen completely out of the garbage bag.
D.C. Payette then reached Mr Cao, took him by the arm to arrest him, and turned him around.
Meanwhile, D.C. Bourdeau had proceeded to approach Mr Carpenter to arrest him, in accordance with his own belief that he had just witnessed Mr Carpenter engage in a drug transaction with Mr Cao, and in accordance with D.C. Payette’s direction. In that regard:
After exiting his vehicle, (by which time Mr Cao already had started to walk away from the Carpenter vehicle in a westbound direction), it took D.C. Bourdeau approximately five seconds to then move around his own vehicle and cover the 50-75 foot distance between himself and Mr Carpenter.
As he approached Mr Carpenter, D.C. Bourdeau could see Mr Cao and D.C. Payette walking to his right. Moreover, although D.C. Bourdeau indicated in cross-examination that he and D.C. Payette made their presence known “at roughly the same time”, and that D.C. Payette was “in the process of putting Mr Cao under arrest” when D.C. Bourdeau was dealing with Mr Carpenter, I find that D.C. Payette actually spoke first during the course of the apprehensions, and identified himself to Mr Cao before D.C. Bourdeau reached or made his presence known to Mr Carpenter. In particular, in his testimony-in-chief, D.C. Bourdeau indicated that, before arriving at Mr Carpenter’s location, and before he “then … completely focused on Mr Carpenter”, D.C. Bourdeau already had seen D.C. Payette starting to give Mr Cao verbal directions, at a point when D.C. Payette had not yet caught up to Mr Cao.
When D.C. Bourdeau arrived at Mr Carpenter’s location, near the rear of the Carpenter vehicle, Mr Carpenter had not yet started to walk away from his car, but had closed the trunk and was holding one garbage bag in each hand. D.C. Bourdeau then made his presence known by identifying himself, indicating to Mr Carpenter that he was under arrest, and advising Mr Carpenter to drop the two garbage bags he was holding and get on the ground. D.C. Bourdeau confirmed that, while the garbage bags were being held by Mr Carpenter, D.C. Bourdeau could not see their contents.
Mr Carpenter seemed startled by D.C. Bourdeau’s appearance, and he responded to D.C. Bourdeau’s initial comments by dropping one of the garbage bags and moving between the Carpenter vehicle and another vehicle, parked immediately to the west. D.C. Bourdeau yelled his comments and directions to Mr Carpenter several times before stepping forward and taking Mr Carpenter by the arm, at which point Mr Carpenter dropped the second garbage bag he had been holding.
After arresting Mr Carpenter, D.C. Bourdeau was able to look at the two garbage bags dropped by Mr Carpenter, where they had landed on the ground, and before they had been touched or moved by anyone else. He saw that both garbage bags were not tied off. At that time, he also could see, through the openings at the top of each bag, that each of the two bags contained vacuum-sealed marihuana. In cross-examination, D.C. Bourdeau agreed that, when he saw the bags after they had been dropped, the drawstrings may have been pulled but in such a manner that, after they had fallen, openings were left at the top of the dropped garbage bags that were approximately the size of a dinner plate, (depending on the size of the dinner plate).
Although I have provided a detailed description of the events that took place between Mr Carpenter speaking to Mr Cao through the Carpenter vehicle, and Mr Cao and Mr Carpenter being arrested, I also find that the events in question all occurred very quickly, within a very short span of time. In particular, D.C. Pavoni found that, in the short time it took to complete his drive past the ongoing conversation between Mr Carpenter and Mr Cao “through” the Carpenter vehicle, and park and exit his own vehicle just 20 meters away, all three garbage bags had been removed from the trunk of the Carpenter vehicle and D.C. Payette already had arrested and taken Mr Cao into custody. In particular, when D.C. Pavoni got out of his car, his attention was immediately drawn to D.C. Payette already having taken Mr Cao into custody, and D.C. Payette placing Mr Cao in handcuffs. D.C. Pavoni therefore immediately went to assist D.C. Payette. Moreover, while he was approaching D.C. Payette and Mr Cao, D.C. Pavoni could hear D.C. Bourdeau in the process of arresting Mr Carpenter near Mr Carpenter’s vehicle, with D.C. Bourdeau shouting directions at Mr Carpenter.
As he approached D.C. Payette and Mr Cao, D.C. Pavoni also saw a garbage bag on the ground near to Mr Cao, “within feet” of where Mr Cao had been arrested by D.C. Payette, and I find that was the same garbage bag carried and dropped by Mr Cao, in the manner described above. D.C. Pavoni confirmed that, when he arrived, that garbage bag had fallen over and was “laying on its side”. He saw that the “mouth of the bag was open” and “tipped over”, such that vacuum-sealed bags of marihuana, approximately 12 inches in length and “stacked upon each other”, were visible. In particular, D.C. Pavoni could see that the garbage bag was filled with such vacuum-sealed bags of marihuana, some of which were still inside the bag, but some of which were “coming out” of the mouth of the garbage bag, insofar as they had “broken the plane of the larger garbage bag” to spill partially but not completely out of the garbage bag onto the pavement.
When D.C. Payette turned Mr Cao around and walked him “a few feet” back in the direction of the Carpenter vehicle, he found that D.C. Pavoni was “right there”. D.C. Payette then turned custody of Mr Cao over to D.C. Pavoni, and did not participate in a search of Mr Cao, incident to his arrest. However, D.C. Pavoni performed that search, and found that Mr Cao had neither a cellular phone nor keys on his person. In fact, the exhibit list suggests that nothing was seized from Mr Cao at the Windermere Avenue location, apart from the marihuana found in the garbage bag he had been carrying.
I pause to note that I received somewhat different estimates as to how far Mr Cao and D.C. Payette were from the Carpenter vehicle when Mr Cao was arrested, which in turn might indicate how far Mr Cao had carried the garbage bag given to him by Mr Carpenter. D.C. Bourdeau estimated that Mr Cao and D.C. Payette were approximately 30-40 feet to the west of the Carpenter vehicle when Mr Cao was arrested, but could not say whether D.C. Payette then walked Mr Cao back towards the Carpenter vehicle. D.C. Pavoni estimated that D.C. Payette and Mr Cao were approximately 10-15 feet away from the Carpenter vehicle when Mr Cao was being handcuffed. D.C. Payette was not asked to provide a distance estimate in that regard and did not do so. However, D.C. Payette did indicate that he turned Mr Cao around to escort him back to where the vehicles were, and estimated that he had walked Mr Cao “a few feet” in that direction before custody of Mr Cao then was turned over to D.C. Pavoni, who “was arriving on scene”. Based on all the testimony I received and the manner in which it was given, I find that Mr Cao had walked approximately 30-40 feet away from the Carpenter vehicle before he was arrested by D.C. Payette, dropping the garbage bag he was carrying along the way. He was then walked back towards the Carpenter vehicle, more than “a few feet”, before he then was turned over to D.C. Pavoni, which in turn caused D.C. Pavoni to recall a shorter distance between the relevant arrest location and Mr Carpenter’s vehicle. In my view, the arrest of Mr Cao occurring 30-40 feet from the Carpenter vehicle is much more consistent with D.C. Payette’s description, (which I accept), of how he walked after Mr Cao, saw Mr Cao look back and drop the bag, and then walked further after Mr Cao, past the dropped bag and while giving verbal directions, before he was able to then physically apprehend Mr Cao. The suggestion that all that happened within a 10-15 foot walking distance from the Carpenter vehicle seems unrealistic to me. Having said that, I also agree with the view, (put to D.C. Bourdeau and accepted by him during cross-examination), that there was not a large distance between the Carpenter vehicle and the location of Mr Cao’s arrest, and that Mr Cao accordingly had not walked very far from the back of the Carpenter vehicle before he was apprehended. Moreover, the distance over which Mr Cao carried a garbage bag was even shorter, obviously, as he dropped the garbage bag he was carrying along the way, and continued walking, before he was arrested.
After Mr Carpenter was arrested, he too was searched incident to arrest. In addition to keys to his vehicle, the items found on his person included a cellular telephone, a wallet containing identification and bank cards, a folded bundle of currency, ($1,440 Canadian according to the exhibit list), and what appeared to be a “debt list”; i.e., a list of money owed by various individuals thought to be drug purchasers.
After Mr Cao and Mr Carpenter had been arrested, the three garbage bags and their contents were collected by D.C. Payette, who turned them over to D.C. Bourdeau, who acted as the exhibits officer. In relation to those garbage bags, I pause to note the following:
The parties agreed at the outset of trial that the garbage bag carried and dropped by Mr Cao contained 8.511 kilograms of marihuana, and that the amount of marihuana in that bag was consistent with possession for the purpose of trafficking rather than possession for personal use.
The parties also agreed that the two garbage bags carried and dropped by Mr Carpenter contained, respectively, 6.016 and 2.026 kilograms of marihuana. That seems consistent with D.C. Bourdeau’s observation that one of the two garbage bags being carried by Mr Carpenter at the time of his arrest was “quite” full, or “three quarters” full, while the other one was “less so”.
The parties also agreed, (and D.C. Bourdeau confirmed), that on July 18, 2011, there was no odour emanating from the three garbage bags containing marihuana. (The situation was quite different by the time of trial, almost four years later, by which time the vacuum sealed bags containing the marihuana apparently had degraded.)
Two of the emptied garbage bags, (the one held by Mr Cao, and one of the two held by Mr Carpenter), were entered as exhibits at trial. Apart from their exhibit stickers, the two garbage bags are identical. Each is a rather large garbage bag, composed primarily of black or very dark green plastic that is completely opaque. However, each also has a red plastic drawstring, generally encased within a plastic sleeve running around the top opening of the bag. However, the red plastic drawstring is exposed by two slits in that sleeve, each of which is located at the top of the garbage bag, and towards the centre of each “side” of the opening at the top of the bag, when the bag is laid flat. When one pulls on the plastic drawstring, while holding on to the surrounding garbage bag, the top of the garbage bag constricts and is pulled closed. When the bags are empty, at least, the top opening of each can be closed completely by pulling sufficiently on each bag’s drawstring.
During subsequent execution of a search warrant at Mr Carpenter’s residence, other controlled substances and items consistent with involvement in the drug trade were found. In cross-examination, D.C. Payette agreed that the other controlled substances found in Mr Carpenter’s home, (i.e., more quantities of marihuana, as well as cannabis resin, marihuana “shake”, MDMA pills, and psilocybin or “magic mushrooms”), were in “small amounts”. Other items consistent with Mr Carpenter’s involvement in the drug trade included substantial amounts of currency, an operational digital scale, more debt lists, and more Blackberry cellular phones. The police also found empty vacuum seal bags, as well as empty garbage bags with drawstrings similar to those which Mr Carpenter and Mr Cao were carrying when they were arrested. (That similarity was confirmed by Mr Carpenter during the course of his testimony.) Although Crown counsel suggested during the course of submissions that a vacuum sealer was also found in Mr Carpenter’s residence, (which in turn might have suggested Mr Carpenter himself was sealing his own drug products for resale, and placing vacuumed sealed bags in garbage bags with plastic ties, rather than purchasing his drugs sealed and packaged in garbage bags from suppliers, which in turn may have cast doubt on aspects of Mr Carpenter’s testimony in that regard), in my view that was not the evidence. In particular, item 19 on the exhibit list tendered as Exhibit 4 in this trial does not mention a vacuum sealer, but only “Garbage bags, vacuum bags, used for packaging and transporting marijuana (sic)”, found in a plastic storage bin in Mr Carpenter’s driveway. There is no mention of a vacuum sealer in Exhibit 4, and in my view, there similarly was no testimony indicating or acknowledging the presence of a vacuum sealer in Mr Carpenter’s residence. In particular, although Crown counsel initially and inaccurately referred to Item 19 as including a reference to a “vacuum sealer”, in posing a question to Mr Carpenter, Mr Carpenter reacted by specifically focusing with puzzlement on the reference to a “vacuum sealer”, at which point Crown counsel responded by correcting himself and clarifying that the item 19 reference was to “vacuum seal bags”, (as opposed to a “vacuum sealer”), and Mr Carpenter then agreed with that revised suggestion of what may have been found at his residence. Moreover, the various bags mentioned in item 19 of Exhibit 4 clearly seem to have been empty, as other entries in Exhibit 4 make it clear that, when any bag discovered by the police had contents, the bag and its contents were described together. In my view, the empty bags described in item 19 of Exhibit 4 therefore are not inconsistent with Mr Carpenter purchasing marihuana from suppliers, after those suppliers had sealed the marihuana in vacuumed sealed bags placed in larger garbage bags, with Mr Carpenter then retaining such bags temporarily after they had been emptied. Indeed, the fact that the empty bags were found outside, in a plastic bin in Mr Carpenter’s driveway, suggests to me that they may have been intended for disposal.
No search warrant was executed anywhere in relation to Mr Cao.
Additional police investigation failed to make a connection between Mr Carpenter or Mr Cao with the relevant apartment building on Windermere Avenue.
16Again, in my view the above findings are supported in large measure not only by the evidence led by Crown counsel, but also by the testimony of Mr Carpenter.
17In particular, it seemed to me that his testimony concerning the physical movements and actions of Mr Carpenter and Mr Cao on July 18, 2011, was entirely consistent with observations made by the police witnesses.
18Moreover, with the possible exception of Mr Carpenter’s testimony suggesting that the garbage bags he and Mr Cao carried were closed by knots on the day in question, (a suggestion to which I will return), it seemed to me that there were no obvious contradictions between Mr Carpenter’s evidence and the evidence tendered by the Crown.
19However, as noted above, Mr Carpenter’s testimony offered supplementary information, suggesting not only a wider context for consideration, but explanations for some of the conduct outlined above.
20I will have more to say about Mr Carpenter’s testimony and other trial evidence during the course of my analysis, but note for now that Mr Carpenter’s testimony included the following assertions and acknowledgments:
He admitted, (and his criminal record confirmed), that he already had a criminal record before the events of July 18, 2011, including a prior conviction in relation to possession for the purpose of trafficking.
He said that, in July of 2011, he had legitimate jobs promoting certain products and planning certain events.
He said that, on July 17, 2011, he purchased approximately 40-42 pounds of marihuana, for the purpose of resale. In that regard:
Mr Carpenter said he purchased the marihuana from “some guy”, but was not sure of the particular individual from whom he purchased that particular marihuana, as he purchased his supply from a number of different people, all of whom he had dealt with in the past.
Mr Carpenter said the marihuana in question was worth approximately $2,000 a pound, and that 42 pounds of the substance accordingly would have been worth approximately $84,000. Mr Carpenter says he paid for the marihuana, and that his supplier did not “front” him the drugs, (i.e., on the understanding payment would be forthcoming at a later date, once the marihuana had been sold).
Mr Carpenter said he took delivery of the marihuana in “heavy duty garbage bags”, which were sealed by his supplier. In particular, Mr Carpenter said that he did not manipulate the drawstrings on the garbage bags or look inside them, to check their contents or weight on delivery. He said he probably would have done that later. At the time of delivery, however, he said the garbage bags appeared to be fastened, such that there might have been, at most, only a very small opening left at the top, approximately an inch in diameter, (which he demonstrated by means of forming a circle with his thumb and index finger), which did not leave enough of an opening to see inside. (Although Crown counsel repeatedly suggested during the course of submissions that Mr Carpenter had acknowledged the existence of a plate-sized opening being left at the top of the garbage bags while they were filled with marihuana, my review of the evidence confirmed that such references are found only in the testimony of D.C. Payette and D.C. Bourdeau, when they were describing the size of the openings on garbage bags after those bags had been dropped to the ground. In particular, reference to a plate size opening was first made by D.C. Payette, during cross-examination, when he was trying to describe the opening he observed in the bag dropped by Mr Cao, after it was laying on the ground. Defence counsel then put the suggestion of a plate-size opening to D.C. Bourdeau, when asking D.C. Bourdeau to describe the opening observed in the garbage bag dropped by Mr Carpenter, after it was seen laying on the ground. Again, it was the evidence of Mr Carpenter that, when the garbage bags were closed and containing marihuana, before being dropped, the openings at the top were no more than one inch in diameter, and did not permit one to see what was inside.) Mr Carpenter said that he didn’t want to have to undo the apparently fastened garbage bags and then do them up again. In his words, (when asked why he didn’t check the contents), he said: “I don’t know, because it’s still all – all pretty and like all tied up and good to go so I didn’t wanna like, break anything open and then, you know, re-tie or whatever, so I just left it the way it was”. He also had dealt with the particular supplier before, and had never been “cheated” on weight by that supplier. Mr Carpenter therefore just took the apparently sealed garbage bags and put them in the trunk of his car.
Mr Carpenter said his intention was to take the garbage bags of marihuana to a place he alternatively described as his “safe spot”, “storage area” or “stash spot”; i.e., a marihuana storage location other than his residence. In that regard:
Mr Carpenter said his “safe spot” or “stash spot” was an apartment located in a white apartment building at a specified address on Windermere Avenue, (which was the same apartment building and address described by the police witnesses in their evidence).
According to Mr Carpenter, the apartment in question was located on the third or fourth floor of the building. However, he could no longer remember the specific apartment number, as he was not there long, and four years had gone by.
Mr Carpenter said that he had sublet the apartment for four months, (i.e., the months of May, June, July and August of 2011), by responding to a “Kijiji” ad, placed by a “guy” whom Mr Carpenter did not know at the time, and whose name Mr Carpenter could no longer remember. In particular, Mr Carpenter said he called the “guy” and then went to meet him, at which time Mr Carpenter gave the “guy” $4,000 in cash, (representing four months of rent at $1,000 a month), and a copy of his driver’s licence, in exchange for keys to the apartment. Mr Carpenter did not think the “guy” in question retained his own set of keys to the apartment. However, Mr Carpenter also acknowledged that he did not know whether that was the case.
Mr Carpenter said he then used the apartment to store the marihuana he would purchase in bulk for resale, (normally selling it by the pound). In particular, Mr Carpenter said that he usually purchased his marihuana in 41-42 pound amounts, and then walked and carried such deliveries up to the apartment through the side door of the building, (to avoid cameras at the building’s front entrance). He said he then would return to the apartment “quite a bit” to “grab” whatever amounts of marihuana he needed and knew he was going to sell on a particular day.
Mr Carpenter said that, although he had intended to take the marihuana purchased on July 17th to his “safe spot”, he had insufficient time to take the garbage bags there because he had to go pick up his daughter. He therefore ended up bringing the bags to his home on Highbury Avenue for the night. In particular, although he had intended to leave the bags outside in his car, it was “scorching” hot outside, and he thought the temperatures probably would have ruined the marihuana, so he brought the garbage bags inside to his basement, and then carried on with his day.
As for the events of July 18, 2011:
Mr Carpenter said he was at home with his girlfriend and daughter that morning, when he then took the garbage bags of marihuana from his basement and brought them out to the trunk of his car. In doing so, he confirmed that he “made two trips” from the basement to the car. In particular, he said that he went down to the basement, “grabbed a couple of bags”, came up, put the two bags in the trunk of the car, closed the car trunk, came back in to the house to grab another bag containing “the rest” of the marihuana he had purchased, opened the trunk again, and put that other bag into the trunk of his car as well. Mr Carpenter said that he made two trips to transport the marihuana from the basement to the trunk of his car because they were “big clunky bags”.
Mr Carpenter said that, by the time he had transferred the garbage bags of marihuana from his basement to the car, it was “around lunch time” and his daughter was “bugging [him] to go to Tim Horton’s”. He therefore left for that restaurant, with his daughter in the car. He initially went the wrong way, and was obliged to turn around. He then proceeded to the Tim Horton’s, where he bought his daughter some items. He then went back to the residence with his daughter, and dropped her off there.
Mr Carpenter said he then drove approximately 5 minutes from his home on Highbury Avenue to the apartment building on Windermere Avenue. Mr Carpenter said he arrived there shortly after noon, intending to take the marihuana in his trunk up to the “stash spot” apartment.
According to Mr Carpenter, when he drove up to the Windermere Avenue site, and parked in one of the few remaining available spots, Mr Cao was “sitting around there”. He said Mr Cao was one of “a lot of people around”, as it was “all busy outside at the time”.
Mr Carpenter said that, at the time, he did not know Mr Cao by name and Mr Cao was not a friend. Mr Carpenter did not “really know him”, “know who he was”, or know where Mr Cao lived. However, Mr Carpenter had “seen him around at the clubs” and bars in downtown London, and had “met him a couple of times”. Having said that, Mr Carpenter also said there was no way Mr Cao would have known that Mr Carpenter was using or dealing drugs from their earlier meetings.
Mr Carpenter acknowledged that he had a phone in his possession at the time, but denied having called Mr Cao or anybody else to indicate that he was delivering the marijuana to the “safe house”. He emphasized that was something one just did not do, although he acknowledged sometimes using the phone at various times to arrange drug deliveries or pick-ups. He also did not know Mr Cao’s phone number.
Mr Carpenter said he nevertheless wanted to avoid having to “do two loads”, (to transfer the three garbage bags from his trunk to the “stash spot” apartment), and that he “just wanted to get it over and done with”. After parking his car, Mr Carpenter therefore called out to Mr Cao. In particular, Mr Carpenter says he called out “Hey” to Mr Cao, who responded in kind, before Mr Carpenter then told Mr Cao that he recognized him. When Mr Cao then came over to the window of Mr Carpenter’s vehicle, Mr Carpenter then asked if Mr Cao would help quickly by grabbing a bag and taking it over to the side doors of the apartment building. Mr Carpenter says there was no discussion with Mr Cao about the contents of the garbage bags, and that he “obviously” did not advise Mr Cao what was inside the garbage bags. In response to Mr Carpenter’s request for help, Mr Cao simply said “Yeah, okay” before the two men then moved to the trunk of the car.
Mr Carpenter said that, at the time, the “plastic stuff” at the top of the garbage bags was “definitely knotted” in some fashion, (although he did not know how to explain it, as he did not know “knot names and stuff”). In any event, Mr Carpenter emphasized that he had secured and was handling the garbage bags in a way that was consistent with his not wanting the marihuana to be noticeable. He says nothing was said or done that would lead him to think that Mr Cao knew what the contents of the garbage bags were. Moreover, although Mr Carpenter had $1400 in his possession at the time of his arrest, he denied having received any money from Mr Cao that day.
Mr Carpenter said that he was the one who grabbed a bag from the trunk of the car and gave it to Mr Cao, before he then grabbed two bags for himself to carry. According to Mr Carpenter, his plan at that point was to have Mr Cao just assist in taking the garbage bags to the side door of the apartment building. Mr Carpenter then would “just run up” to the apartment with two garbage bags, while leaving the third garbage bag behind, and then quickly come back down to retrieve the third bag. Mr Carpenter did not clarify whether he intended to leave the third garbage bag temporarily with Mr Cao, at the side door of the apartment building, or whether he intended to leave the third garbage bag unattended, just inside the side door of the apartment building. However, Mr Carpenter was clear that he did not want Mr Cao to carry the third bag up to the apartment, because he did not want Mr Cao “or anybody knowing where it was”.
Mr Carpenter said he had just started walking away from his vehicle when D.C. Bourdeau arrested him.
As for the various items, smaller amounts of drugs, and money found by the police in Mr Carpenter’s residence, Mr Carpenter said they were kept there, rather than at the “safe house” apartment, because “most of that was just, like, personal stuff”. In particular, he emphasized that he had a substantial drug habit and problem at the time, (e.g., that he smoked 7-8 joints of marihuana a day, and that he “smoked oil all the time”), and that the quantities of marihuana and marihuana-related substances found at his residence were intended for his own use and the use of friends.
Mr Carpenter acknowledged that, in relation to the events of July 18, 2011, he was charged with possession of marihuana for the purpose of trafficking, and pled guilty to that charge. His criminal record confirms that he also was convicted of simple possession of a scheduled substance, and possession of proceeds obtained by crime.
Mr Carpenter acknowledged that, at the time of the arrest and for years thereafter, he said nothing to police or others to help Mr Cao, even after Mr Carpenter had received his sentence on related charges, and his related case had ended.
Mr Carpenter said that he was appearing at trial because he had been subpoenaed. He denied having seen Mr Cao again outside of court. He also denied having spoken with Mr Cao or any of Mr Cao’s friends about the case. More generally, Mr Carpenter denied speaking with anyone about his testimony, apart from a conversation he had with Mr Cao’s defence counsel in April of 2014, when Mr Carpenter appeared at the courthouse for a previously scheduled time for trial of this matter. At that time, Mr Carpenter provided defence counsel with information, indicating that Mr Cao had “nothing to do with this”. Prior to that occasion, nothing was said or done to indicate to Mr Carpenter that the defence had knowledge of what he would say at trial.
21With all of the above findings and evidence in mind, I turn now to an analysis of whether the Crown has proven the guilt of Mr Cao beyond a reasonable doubt, in relation to the single count on the indictment.
Analysis
22I begin in that regard by consideration of the essential elements of the relevant offence.
ESSENTIAL ELEMENTS – POSSESSION FOR THE PURPOSE OF TRAFFICKING
23For me to find Mr Cao guilty of possession of marihuana for the purpose of trafficking, contrary to 5(2) of the CDSA, Crown counsel must prove each of the following essential elements beyond a reasonable doubt:
i. that Mr Cao was in possession of marihuana;
ii. that the substance in question was indeed marihuana;
iii. that Mr Cao knew that the substance was marihuana; and
iv. that Mr Cao had possession of marihuana for the purpose of trafficking in it.
24However, the focus of the case was narrowed, in that regard, by the making of certain formal admissions.
25In particular, as noted above, at the outset of trial, it was admitted that the garbage bag carried by Mr Cao contained 8.511 kilograms of marihuana, and that the quantity of marihuana in that garbage bag was consistent with trafficking rather than personal use.
26In other words, the second and fourth essential elements of the offence, (i.e., the nature of the substance, and a quantity indicating that any known possession would be for the purpose of trafficking), were admitted by the defence, thereby obviating the need for the Crown to tender certificates of analysis and/or expert evidence in that regard.
27Moreover, in relation to the first essential element of the offence, defence counsel also acknowledged during the course of submissions that the actus reus of “possession” had been proven beyond a reasonable doubt, insofar as Mr Cao admittedly was carrying a garbage bag whose contents were confirmed to be marihuana.
28The focus of the case accordingly was directed towards whether the Crown had proven, beyond a reasonable doubt, that Mr Cao had the requisite mental state to establish possession and knowledge that the substance in the garbage bag was marihuana, and/or that Mr Cao knowingly aided Mr Carpenter in his acknowledged possession of marihuana for the purpose of trafficking.
GENERAL PRINCIPLES
29I turn next to a consideration of general principles of law applicable to such determinations, which in my view include the following:
To constitute possession for purposes of the criminal law, in a case of manual handling of an object, there must also be knowledge of what that thing is, and both of those elements must be co-existent with some act of control outside public duty. See R. v. Beaver, 1957 14 (SCC), [1957] S.C.R. 531; and R. v. Terrance (1983) 1983 51 (SCC), 4 C.C.C. (3d) 193 (S.C.C.).
Fleeting possession of a substance for a matter of moments, without any other involvement in the substance, is not sufficient to establish the crucial element of control. In order to establish the requisite mens rea of possession, there must be sufficient time for the accused to have directed his mind to the matter, have accepted the substance passed to him, and have intended to exercise control over it. In particular, possession does not include the act of a person who, for a very brief time, holds or moves an item, without in any respect attempting to utilize it for himself or herself, or in which he or she has not the slightest interest except as a gesture of courtesy to others. See R. v. Spooner (1954), 1954 398 (BC CA), 109 C.C.C. 57 (B.C.C.A.); R. v. Vance and Nichols, [1977] O.J. No. 1103 (C.A.); and R. v. Lewin, [1998] O.J. No. 2929 (O.C.J.).
In relation to a charge of possessing a controlled substance, where that substance is inside a package, the minimum mental state required to sustain a finding of guilt is willful blindness to the fact that the package contained a narcotic; i.e., that suspicion was aroused in the accused’s mind, but the accused purposely closed his mind in order to be able to deny knowledge. The Crown need not prove that the accused willfully shut his or her eyes to a particular type of drug, (as opposed to another type of drug). However, merely proving willful blindness to the fact that some offence was being committed, and/or that some illegality was involved, is not enough. Guilt also can be sustained if the Crown can prove that the accused actually knew that the package contained drugs, but that is a higher burden to meet. See R. v. Blondin, 1970 1006 (BC CA), [1971] 2 W.W.R. 1 (B.C.C.A.), affirmed 1971 1411 (SCC), [1971] S.C.J. No. 42; R. v. Collymore, [2003] O.J. No. 2322 (S.C.J.), at paragraphs 11-12 and 15; and R. v. Callejas, 2011 ONCA 393, [2011] O.J. No. 2232 (C.A.), at paragraph 8.
The duration and circumstances of control of an illicit substance are obviously factors that impact on the credibility of a defence of innocent possessory purpose, but they are matters of weight rather than of determinative value. See R. v. Loukas, 2006 ONCJ 219, [2006] O.J. no. 2405 (O.C.J.).
In determining whether inferences of knowledge are unreasonable or unsupported by the evidence, it must be remembered that courts are not expected to treat real life cases as a completely intellectual exercise, where no conclusion can be reached if there is the slightest competing possibility. The criminal law requires a very high degree of proof, especially for inferences consistent with guilt, but it does not demand certainty. See R. v. Pham, 2005 44671 (ON CA), [2005] O.J. No. 5127 (C.A.), at paragraph 30, quoting with approval from R. v. Lukianchuk, 2001 BCSC 119, [2001] B.C.J. No. 3000 (B.C.S.C.), in turn quoting from R. v. To, 1992 913 (BC CA), [1992] B.C.J. No. 1700 (C.A.).
However, where the Crown’s evidence against an accused is entirely circumstantial, there should be no conviction unless the evidence is consistent with the guilt of the accused and inconsistent with any other rational explanation. If there is another clear and rational explanation, pointing toward innocence, the accused is entitled to an acquittal. See R. v. Griffin and Harris (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 (S.C.C.), at paragraphs 33-34; R. v. Collins, [2003] O.J. No. 820 (S.C.J.), at paragraphs 21-23; R. v. Harris, 2012 ONSC 27, [2012] O.J. No. 162 (S.C.J.), at paragraph 61; and R. v. Tomlin, [2012] O.J. No. 4677 (S.C.J.), at paragraph 55.
A person who aids an offence is a party to that offence, and guilty of the same offence as the other assisted person who commits it. However, this too requires proof of appropriate mens rea. In particular, it is clear that an intention to aid in the commission of an offence is an essential element of aiding that offence. It therefore is not enough to prove that what the accused did had the effect of aiding the commission of the offence. What must be shown is that what the accused did or omitted to do was for the purpose of aiding another to commit the offence. In order to convict an accused as a party for assisting in the commission of an offence, it accordingly must be shown that the accused had knowledge of the circumstances necessary to constitute that offence. Although it is not necessary to prove that the accused knew of the details of the specific crime, he or she must have some knowledge of the essential nature of the offence to be committed by the principal. Again, the mere fact that an action assists in the commission of the offence is not enough. In particular, if what is done incidentally and innocently assists in the commission of the offence, that is not enough to involve the accused whose purpose was not that of furthering the perpetration of the offence. See the Criminal Code, s.21(1)(b); R. v. F.W. Woolworth Co. Ltd. (1974), 1974 707 (ON CA), 18 C.C.C. (2d) 23 (Ont.C.A.), at p.32 and p.34; R. v. Barr (1975), 1975 1253 (ON CA), 23 C.C.C. (2d) 116 (Ont.C.A.), at p.120; R. v. Hibbert (1995), 1995 110 (SCC), 99 C.C.C. (3d) 193 at 212 (S.C.C.); and R. v. Adams (1989), 1989 7161 (ON CA), 49 C.C.C. (3d) 100 at p.110.
30I also have regard to the principles underscored by the Supreme Court of Canada in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742.
31The most frequently cited passages from that case are found at paragraphs 27-28 of the decision, and emphasized how a trier (in that case a jury) should approach the concept of reasonable doubt in cases where credibility is important and the accused has testified.
32In that regard, the Supreme Court emphasized that the trier need not firmly believe or disbelieve any witness or set of witnesses, and that the accused was entitled to an acquittal in various alternate situations, including those where:
the trier believes the evidence of the accused;
the trier does not believe the evidence of the accused but is left in reasonable doubt by it; and
the trier is not left with reasonable doubt by the evidence of the accused, but still has a reasonable doubt as to his or her guilt after considering the accused’s evidence in the context of the evidence as a whole; e.g., because the evidence the trier does accept still does not convince the trier beyond a reasonable doubt of the guilt of the accused.
33In R. v. W.(D.), supra, the Supreme Court was focused on a situation where the issue of credibility was important because an accused and complainant both had testified, offering competing and conflicting versions of events.
34However, it seems to me that the approach enunciated by the Supreme Court is not simply a mantra whose application is confined to situations involving an accused who testifies. Rather, it was a salutary reminder that, in all criminal cases where credibility is important, the focus at all times nevertheless remains centred on whether the trier is left with reasonable doubt as to the guilt of an accused, which may happen in various different ways.
35For example, in a case such as this, where there is no complainant and the accused has not testified, but the defence relies principally on the evidence of a witness other than the accused, and the credibility of that defence witness is an important issue:
if the trier believes the evidence of the defence witness, that may suffice to leave the trier with reasonable doubt as to the guilt of the accused, requiring an acquittal;
if the trier does not believe the evidence of the defence witness, but the testimony of that witness leaves the trier with reasonable doubt as to the guilt of the accused, that also will necessitate an acquittal; and
even if the trier does not believe the evidence of the defence witness, and the testimony of that witness alone is not enough to leave the trier with a reasonable doubt as to the guilt of the accused, the trier must still consider whether the testimony, considered in the context of the evidence as a whole, and having regard to the evidence the trier does accept, leaves the trier with any reasonable doubt as to the guilt of the accused.
36In short, the trier must at all times bear in mind the burden of proof on the Crown, and the standard of proof that applies.
APPLICATION AND CONCLUSION
37With the above evidence and principles in mind, I turn finally to the remaining analysis required; i.e., to determine whether the Crown has proven the essential elements of the offence charged beyond a reasonable doubt.
38One of the many considerations in that regard is obviously the testimony of Mr Carpenter.
39In my view, there were a number of aspects his testimony that militated in favour of its acceptance, including the following:
For the most part, Mr Carpenter gave his evidence in what appeared to be a natural, spontaneous and unprepared manner; e.g., without hesitation or pauses suggesting evasion or reflection for the purpose of fabrication.
Notwithstanding the witness exclusion order, Mr Carpenter’s testimony was remarkably consistent with the evidence of police witnesses concerning movements and events observed on July 18, 2011. That consistency was demonstrated not only in relation to obvious significant details, (e.g., the number of bags of marihuana involved, and the general manner in which they were transported to and from the trunk of the car), but also in relation to matters that may have seemed relatively inconsequential, (such as details concerning the short drive Mr Carpenter made to the Tim Horton’s restaurant before leaving for the Windermere Avenue location, including his initially heading in the wrong direction and having to turn around, and the timing and manner of conversation between Mr Carpenter and Mr Cao at the Windermere Avenue location, in relation to each one’s physical location and movements).
From the fact that he had turned off his car, removed its keys, and taken two garbage bags into his own hands after Mr Cao was walking away from the vehicle, I think it clear that Mr Carpenter clearly was intending to leave the vehicle and go somewhere nearby – and the nearest destination apparently was the apartment building towards which Mr Cao already was walking.
The possibility of Mr Carpenter having and employing a “safe spot” or “stash house” in his drug trafficking activities found support in the testimony of D.C. Payette, who acknowledged in cross-examination that he was familiar with the concept of a “stash house”. In particular, D.C. Payette acknowledged that, in his experience with drug investigations, it was “not uncommon” for people to separate themselves from narcotics as much as possible by residing in one place and storing their narcotics in another. D.C. Payette also agreed that the likelihood of someone involved in the drug trade using such a stash house might increase with the level of his or her sophistication, and the police had information indicating that Mr Carpenter did traffic in large quantities of marihuana.
The possibility of Mr Carpenter having and employing such a “safe spot” also found support in the reality that only “small amounts” of drugs were found in his residence, (according to D.C. Payette), notwithstanding indications to the police, (borne out by the arrest and seizures described in this case, and the resulting conviction of Mr Carpenter), that Mr Carpenter was trafficking in large amounts of marihuana.
40Having said that, I also think there were logical inconsistencies in Mr Carpenter’s testimony, and other considerations suggesting that his evidence should be approached with considerable skepticism. For example:
I agree with Crown counsel’s suggestion that, if the purpose of a stash house is to distance a person involved in the drug trade from narcotics, Mr Carpenter arguably was doing a poor job of that, having regard to the various drugs still found in his residence during execution of the search warrant. On the other hand, that particular consideration is tempered, I think, by the fact that Mr Carpenter’s indications that he had a serious drug habit at the time, and that the drugs in his home were intended for his own personal use and the use of friends, were not really contradicted. In particular, I received no expert or other evidence suggesting that the amount of drugs found in Mr Carpenter’s residence was inconsistent with personal use, or more consistent with possession for the purpose of trafficking. Nor was that suggestion put to Mr Carpenter during cross-examination. Moreover, as noted above, D.C. Payette is an officer with considerable experience in such matters, and in cross-examination, he confirmed his view that the drugs found in Mr Carpenter’s residence were in “small amounts”. Furthermore, I think it unsurprising that someone with a heavy drug dependency may have failed to take scrupulous care in following through on arrangements intended to distance himself from narcotics.
Of more concern, I think, when assessing the credibility of Mr Carpenter’s testimony, is the fact that Mr Carpenter obviously was willing and able to make two trips to his car when transferring the three garbage bags of marihuana from his residence to the trunk of his car. In my view, he offered no real or persuasive explanation as to why he was not similarly willing and able to make two trips, on his own and without involving others, to transfer the three garbage bags from the trunk of his car to the “safe spot” apartment he described, (although the distance between his car and the apartment building may have been greater than the distance between his car and his residence).
Involving another person in movement of the marihuana, particularly someone who was merely a passing acquaintance, (according to Mr Carpenter), also seems at odds with Mr Carpenter’s emphasized desire to avoid letting anyone know where his “safe spot” apartment was located. If that was truly Mr Carpenter’s desire, one wonders why he would have risked alerting or demonstrating to anyone else, (let alone someone whom he did not really know), that he even had access to that particular apartment building.
Given the apparent value of the marihuana, one also wonders why Mr Carpenter would have entrusted a significant quantity of it to someone whom he “didn’t really know”, and whether Mr Carpenter seriously intended to leave a significant quantity of the marihuana either with that passing acquaintance, or completely unattended near the side entrance of the apartment building, while Mr Carpenter took two garbage bags up to a third or fourth floor apartment before returning for the third garbage bag. Again, Mr Carpenter testified that the marihuana was worth $2,000 a pound, meaning that the 40-42 pounds of marihuana in the three garbage bags collectively was worth 80-84 thousand dollars. According to Mr Carpenter, he also already had paid for that marihuana. In the circumstances, I think Mr Carpenter understandably would have wanted to safeguard and protect that valuable personal asset. That certainly is consistent with his stated purpose in moving the marihuana temporarily from his vehicle into his residence; i.e., to avoid the possibility of the marihuana being damaged by outdoor heat, at that time of the year. It also is consistent with his stated determination to avoid letting anyone know the location of his “safe spot”. However, it seems inconsistent with Mr Carpenter readily handing the garbage bag containing the most marihuana, (i.e., 8.511kg or more than 18 pounds, worth more than $36,000), over to someone whose name, residence and telephone number supposedly were unknown to Mr Carpenter. Moreover, even if one assumes that Mr Carpenter entrusted the one garbage bag of marihuana to Mr Cao because Mr Carpenter felt confident in his ability to monitor Mr Cao’s movements, and prevent Mr Cao from absconding with some or all of the garbage bag’s contents while the two men moved towards the apartment building, that still does not explain why Mr Carpenter would have felt comfortable leaving one of the garbage bags with Mr Cao, or leaving one of the garbage bags completely unattended just inside an entrance to the apartment building that might have been used by any resident, while Mr Carpenter carried the other two garbage bags up to the third or fourth floor before returning. In that regard, I note that even the garbage bag with the smallest amount of marihuana contained 2.026kg (or more than 4 pounds) of the product, worth more than $8,000. I therefore have difficulty believing that Mr Carpenter really intended to leave such an asset completely unattended, or with someone whom Mr Carpenter could not identify or locate, (i.e., in the event the remaining garbage was left with Mr Cao at the side entrance to the building, and he chose to abscond with it before Mr Carpenter returned from taking the other two garbage bags upstairs).
In addition to these various reasons for doubting certain aspects of Mr Carpenter’s testimony, I also bear in mind Mr Carpenter’s obvious reticence to provide information that would identify others with whom he was dealing during the course of his trafficking activities. In particular, it seemed to me that, in contrast with other areas of testimony, Mr Carpenter was obviously hesitant and quite deliberately vague when questions touched on the persons from whom he purchased marihuana. In the circumstances, I think there is good reason to question whether Mr Carpenter would be entirely candid, under oath, when providing information that might identify those with whom he was dealing at the other end of the drug distribution chain, or those who may have been knowingly assisting him in his trafficking activities. Questions in that regard are reinforced by Mr Carpenter’s ability to remember certain “pro-defence” details and subjective perceptions with clarity, (such as inability to see inside the closed garbage bags), while being unable to recall other details and objective facts, (such as the particular apartment he rented or the person he rented it from), that may have been more amenable to further investigation.
Moreover, although I recognize, as we repeatedly emphasize to juries, that some people do have the misfortune to be simply at the wrong place at the wrong time, there is, I think, a degree of improbability inherent in Mr Carpenter just happening to encounter and recognize a casual acquaintance, in that particular location, in a city the size of London, just as Mr Carpenter arrived and felt in need of assistance.
41Such considerations definitely make me stop short of saying that I believe Mr Carpenter’s testimony.
42For similar reasons, when viewing the evidence cumulatively, I think Mr Carpenter’s testimony falls short of providing an entirely clear and rational innocent explanation for why Mr Cao was carrying that large bag of marihuana.
43But the fundamental reality is that, while I would characterize the situation before me as one involving a very “close call”, Mr Carpenter’s testimony has left me with what I consider to be a reasonable doubt as to whether Mr Cao knew or should have known what he was carrying, in a manner sufficient to establish the first and third elements of possession of marihuana for the purpose of trafficking, or the rendering of knowing assistance to Mr Carpenter in that regard.
44Moreover, that sense of reasonable doubt is reinforced when I have regard to the entirety of the evidence which I do accept.
45In particular, even if one completely disregards the testimony of Mr Carpenter, in my view there frankly is nothing in the evidence and circumstances relied upon by the Crown that would raise the probative value of the evidence beyond the level of suspicion, in terms of whether Mr Cao knew what he was carrying inside the garbage bag handed to him by Mr Carpenter, or that Mr Cao was willfully blind to the fact that the garbage bags contained drugs.
46My considerations in that regard include the following:
On July 18, 2011, the marihuana in the garbage bags was not emitting any smell or odour that would have alerted anyone to the nature of their contents, and the garbage bags also were completely opaque. In my view, a person accordingly would not know the nature of their contents without some kind of prior notice or indication of what was inside, or an opportunity to look through the opening of a garbage bag to see what was inside.
As to Mr Cao having some kind of prior notice or indication of what was inside the garbage bags:
There is no evidence to indicate or even suggest that Mr Cao was a person known to the police, or someone who had any involvement with drugs or the drug trade, prior to the events of July 18, 2011.
There is no evidence to indicate that Mr Cao had any prior knowledge of Mr Carpenter’s connection with the drug trade.
Although Mr Carpenter was seen speaking on his phone while driving in his car, en route to the Windermere Avenue location from his Highbury Avenue residence, on July 18, 2011, there is no evidence to indicate that Mr Cao was the person on the other end of that telephone conversation, or even that Mr Cao had access to a telephone at or near the Windermere Avenue location, where Mr Carpenter arrived within minutes of speaking on his phone from his car. The suggestion that Mr Cao may have had access to such a phone in a nearby car or residence crosses, I think, into the realm of speculation.
Although Crown counsel suggested that a pre-arranged meeting between Mr Carpenter and Mr Cao could and should be inferred from Mr Cao approaching Mr Carpenter’s vehicle as it was coming into the parking lot, that was not the evidence, in my view. To the contrary, D.C. Payette testified that he noticed Mr Cao approaching after Mr Carpenter had parked his vehicle, and D.C. Pavoni testified that he came on the scene as Mr Cao was approaching and having a conversation with Mr Carpenter while he was approaching, and while Mr Carpenter was sitting in his parked vehicle. The evidence of the police therefore is consistent with Mr Carpenter’s testimony that he called out to Mr Cao, effectively drawing Mr Cao to his vehicle, after arriving at the location. More to the point, in my view the evidence it does not warrant an inference that Mr Cao was approaching Mr Carpenter’s vehicle because of a pre-arranged meeting.
There was no evidence to indicate that Mr Cao was told about the contents of the garbage bags during his brief conversation with Mr Carpenter at the Windermere Avenue location, before the garbage bags were removed and carried away from Mr Carpenter’s vehicle.
There was no evidence of any transaction or exchange of anything between Mr Carpenter and Mr Cao, apart from Mr Carpenter handing over one of the garbage bags to Mr Cao, and after the arrest, there was nothing found on Mr Cao’s person to suggest any connection with drug-related activity.
As to whether Mr Cao had an opportunity to look through the opening of one or more of the garbage bags to see what was inside, (so as to alert him to the nature of the contents even if he had no prior knowledge in that regard):
The garbage bags in question were capable of being closed sufficiently at the top, (i.e., with the plastic at the top being grouped tightly together), so as to leave no opening through which one could effectively and meaningfully view what was inside. For example, that was possible by the plastic drawstrings of a garbage bag being pulled sufficiently tight, and/or by someone holding the top plastic of a garbage bag together while it was being carried, with either one or two hands.
Although Mr Carpenter indicated that the drawstrings on the bags were tied and knotted when he received them from his supplier, and that he intentionally did not undo the manner in which the bags had been closed in order to look inside, I find that they were not secured in any manner that prevented them from opening when they were dropped on the ground at the time of Mr Carpenter and Mr Cao being arrested. To the contrary, I find that the dropping of the bags, and the shifting of the weight inside, was the likely cause of the garbage bags opening sufficiently so that one then was able to readily see what was inside. Certainly, that was the cause of the contents moving towards the opening of the garbage bag Mr Cao was carrying, to the extent that the contents were starting to emerge from and beyond that opening. There is, however, in my view, no evidence that the bags were ever in that open state, with their contents visible, at any time prior to their being dropped by Mr Cao and Mr Carpenter. To the contrary:
There was no evidence that any of the garbage bags were open, to the extent their content was visible, when Mr Carpenter was moving them from the residence to the trunk of his car.
There was no evidence as to the state of the bags inside the trunk of the car. Nor is there any evidence that Mr Cao ever looked inside the trunk of the car. (Although Crown counsel submitted that Mr Cao was inspecting the drugs he was to be given, while standing near the trunk of Mr Carpenter’s vehicle, there was in fact no evidence of that happening.) Moreover, the police testimony confirmed that it was Mr Carpenter who reached inside the trunk to retrieve the bags, before handing one of the bags to Mr Cao.
In my view, there really was no evidence that any of the garbage bags were open, to an extent that their content may have been visible, when they were being carried by their tops by Mr Cao and Mr Carpenter, prior to their being dropped on the ground. In particular, the officers could only speak to the condition of the garbage bags and their openings after the garbage bags had been dropped on the ground, when no one was holding the top of the unknotted garbage bags together, and when the weight of their contents had shifted.
In the result, the evidence apart from the testimony of Mr Carpenter is entirely consistent with the possibility of the garbage bags remaining sufficiently closed, so as to prevent any view of their contents, at all times when they were being seen by, handed to, and/or carried by Mr Cao. (Mr Carpenter’s testimony, as noted above, went further and indicated that the bags were closed in a way that it was not possible to see inside them.)
In my view, there also was no evidence of circumstances suggesting that Mr Cao was willfully blind to the fact that the garbage bags contained drugs. In that regard:
As noted above, there was nothing to indicate or even suggest that Mr Cao had any prior knowledge of Mr Carepenter being involved in the drug trade.
In my view, when one considers what took place at the Windermere Avenue location prior to the police making their arrests, without regard to the prior information the police had about Mr Carpenter’s involvement in the drug trade, and without the benefit of the extensive drug investigation experience the police officers were bringing to bear on their observations, nothing about the time, place or circumstances would have seemed inherently suspicious, or suggestive of illicit activity, to the ordinary and reasonable person. The movements observed by the police at the Windermere Avenue location certainly were not clandestine. To the contrary, the garbage bags were being removed from Mr Carpenter’s car and carried outdoors, in broad daylight, through an area that effectively was open to the public, and apparently intended for regular vehicular and pedestrian traffic. Moreover, carrying garbage bags into an apartment building, even through a side door, is not an inherently suspicious activity. People obviously can and do employ garbage bags to carry and transport things other than garbage, and an apartment building’s side entrance obviously might be closer to a particular apartment, and offer more convenience than the building’s front entrance, depending on the particular apartment’s location within the building. As noted by Justice Beaulieu in R. v. Collymore, supra, at paragraph 21, the law does promote a healthy skepticism to ensure that society as a whole, as well as each of us individually, are not duped by the ill-meaning few, but the law does not require us to think the worst of people with whom we interact.
Even if Mr Cao somehow regarded movement of the garbage bags into the apartment building through the side door as suspicious, and was willfully blind to some kind of illegality in that regard, there is simply no evidence, for the reasons I have outlined above, to indicate or suggest that he knew or could have known that the garbage bags contained drugs.
More generally, I do not think there is evidence to indicate Mr Cao formed the intent to accept possession and assert control over what he knew or ought to have known were narcotics in the garbage bag he was carrying. Again, there is no evidence to suggest advance knowledge that drugs were involved, and he physically carried the garbage bag of marihuana for no more than a few seconds, over a short distance somewhere between 15 and 40 feet. (As noted above, when D.C. Payette saw Mr Carpenter hand Mr Cao the garbage bag, and immediately directed an arrest, it then took D.C. Bourdeau only five seconds to make it from his car to Mr Carpenter. By that time, D.C. Payette already had started giving verbal directions to Mr Cao, after Mr Cao had dropped the garbage bag and continued walking away.)
Without limiting the generality of the foregoing, I also think nothing can be taken from Mr Cao’s action in turning and dropping the garbage bag he was carrying, and continuing to walk away, after he saw D.C. Payette closing on him from behind. In particular, it seems to me that such conduct was ambiguous in the circumstances, and did not point clearly to consciousness of guilt or consciousness of innocence. As noted above, the evidence falls short of establishing that Mr Cao saw or heard anything to indicate that the man closing on him from behind was a police officer. Mr Cao’s actions may have been consistent with those of someone who knew there were drugs in the garbage bag he was carrying, who reasonably and accurately assumed that the man closing on him was a police offer, and who then tried to distance himself from the drugs as quickly as possible. However, it is equally possible that Mr Cao did not know what was inside the bag, but formed an impression that the man closing on him wanted it or whatever was inside it, with Mr Cao then deciding to simply abandon the garbage bag in which he really had no personal interest, and which he was carrying simply as a courtesy for someone whom he did not really know. In my view, the situation in this case cannot be equated with the situation in R. v. Reid, [2013] O.J. No. 4543 (S.C.J.), relied upon by the Crown. In that case, the accused had been confronted in a hotel lobby by a plain clothes officer holding his police badge and identity card up to the face of the accused, while saying something to the effect of “Hi, it’s the police”, before the accused then opened his eyes in a look of shock, dropped a shopping bag containing narcotics, pushed the officer in the chest with both hands, and attempted to flee by turning and running away toward a set of nearby escalators. In the case before me, there was no comparable evidence of police identification and recognition, and the conduct of Mr Cao is much more open to different interpretation.
47In my view, the Crown accordingly has failed to prove, beyond a reasonable doubt, that Mr Cao had the mens rea necessary to establish possession of the marihuana he was carrying. There may be suspicion and speculation in that regard, but no evidence sufficient to warrant such an inference.
48For similar reasons, I also find that the Crown has failed to prove, beyond a reasonable doubt, that Mr Cao knew that the substance he was carrying was marihuana.
49Finally, I find that the Crown also has not proven, beyond a reasonable doubt, that Mr Cao is guilty of possession of marihuana for the purpose of trafficking by reason of his having aided Mr Carpenter in the admitted commission of that offence. In that regard:
I agree with Crown counsel that the evidence shows Mr Cao agreed to help Mr Carpenter in some fashion. I also agree that Mr Cao carrying the garbage bag containing marihuana, for Mr Carpenter, certainly may have had the effect of helping Mr Carpenter in his trafficking activities; e.g., as it effectively helped Mr Carpenter move the marihuana from one place of concealment to another. However, that alone is insufficient to warrant a finding of guilt on the basis that Mr Cao knowingly assisted Mr Carpenter in committing the offence of possession for the purpose of trafficking.
In my view, the Crown has not proven, beyond a reasonable doubt, that Mr Cao had knowledge of the essential nature of the offence being committed by Mr Carpenter.
In particular, the evidence falls short of proving beyond a reasonable doubt that Mr Cao knew that he was carrying any narcotic, (let alone marihuana), and thereby assisting Mr Carpenter in his drug trafficking activities. To the contrary, the evidence is consistent with Mr Cao incidentally and innocently offering assistance, for a few seconds, to move a garbage bag with unknown contents as a courtesy, without having the purpose of furthering the perpetration of an offence.
50In relation to the sole count on the indictment, I therefore find that the Crown has failed to prove all essential elements of the offence charged, beyond a reasonable doubt.
51Stand up please, Mr Cao.
52For the reasons set out above, I find you not guilty of the charge set forth on the indictment. The verdict should be noted and documented accordingly.
JUSTICE I. F. LEACH
Released: (Orally) September 28, 2015