CITATION: R. v. Dennis, 2015 ONSC 6113

COURT FILE NO.: CR-13-0269-00

DATE: 2015 10 02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Raquel Dennis

Counsel:

Weinstock, S, for the Crown

Edgar, A, for the Defendant

HEARD: August 11-13, 2015

REASONS FOR JUDGMENT

Woollcombe J.

A. THE CHARGES

[1] Ms. Dennis was arraigned on three counts. She is charged with the following offences, alleged to have been committed on April 21, 2012:

a. resisting a peace officer engaged in the execution of his duty by actively resisting and pulling away from police during a lawful investigation, contrary to s. 129(a) of the Criminal Code;

b. possession of crack cocaine, contrary to s. 4(1) of the Controlled Drugs and Substances Act; and

c. possession for the purpose of trafficking crack cocaine contrary to s. 5(2) of the Controlled Drugs and Substances Act.

B. OVERVIEW

[2] The trial commenced with a voir dire to determine whether the accused’s arrest on April 21, 2012 was in violation of her s. 9 Charter rights. The defence argued that the police lacked reasonable grounds for the arrest and that the search of the Ms. Dennis’ car following her arrest (which located crack cocaine) violated her rights under s. 8 of the Charter.

[3] At the conclusion of the voir dire, I ruled that the police had reasonable grounds for the arrest and that there was, therefore, no violation of the accused’s Charter rights under ss. 8 or 9.

[4] It was agreed that the evidence on the voir dire would be applied to the trial.

[5] The Crown’s case includes the evidence of two police officers, Constables McEachern and Westbrook. They observed what they both believed to be a hand-to-hand drug transaction conducted by Ms. Dennis from her car. As a result of their observations, they arrested Ms. Dennis and searched her car. They located 10.4 grams of cocaine and 25.3 grams of marijuana.

[6] Ms. Dennis testified in her own defence. She claimed to have no knowledge that there were drugs in her car. She explained that the police observed her retrieving her BlackBerry cell phone, which she had lost the previous day. She suspected that the drugs belonged to her boyfriend at the time, Jermaine Phillips.

[7] Jermaine Phillips also testified was for the defence. He was working as a drug dealer at the time and said that he purchased the drugs on April 21, 2012 and forgot to remove them from Ms. Dennis’ car. He said that Ms. Dennis had no knowledge of his drug dealing at the time and no knowledge that he had left the drugs in her car.

[8] For the reasons that follow, I find the accused not guilty of the drug charges and convict her of obstructing the police.

C. THE EVIDENCE HEARD AT TRIAL

i) The Tip from the Confidential Informant

[9] The officers arrested the accused on the basis of information that they had received from a confidential informant and on the basis of the observations that they made of her on April 21, 2012.

[10] Constable McEachern received information from a confidential informant in April 2012. The informant identified to him two people who were involved in drug dealing. Both were described as black and about 25 to 30 years of age, one male and one female. The informant provided an address of 76 Foster Crescent in Brampton and also identified a blue Chrysler with license plate BJPW311 as the vehicle used in the offences of trafficking drugs. The informant indicated that the substance being trafficked was either crack cocaine or cocaine. Further information provided about the male included that he was short, stocky, had braided hair and information as to his nickname.

[11] Constable McEachern now knows that the male identified by the informant was Jermaine Phillips. He agreed that Phillips was the main target of the police investigation.

ii) Observations made at 195 Kennedy Road

[12] Constables McEachern and Westbrook were both members of the Peel Regional Police Street Crime and Gang Unit. Both were experienced in investigating street level drug trafficking, experience that they are entitled to draw upon when making observations.

[13] Constable McEachern testified that in the afternoon of April 21, 2012, he drove an unmarked police cruiser into the townhouse complex where 76 Foster Crescent was located. He saw a blue Chrysler Sebring at that townhouse and saw a 25-30 year old black female, now known to be Ms. Dennis, get into the driver’s seat. Constable McEachern followed Ms. Dennis’s car to Shopper’s World at Steeles and Highway 10. She parked on the north side of the mall, entered it for a couple of minutes, and then left. Constable Westbrook arrived and together they continued surveillance.

[14] Ms. Dennis then drove to 195 Kennedy Road, a high-rise apartment building familiar to both officers as a location where there had previously been complaints about drug offences. Ms. Dennis parked her car outside the building. Both officers had binoculars.

[15] Constable McEachern situated himself on the east side of Kennedy Road. From his location, he looked across the road in a westerly direction, across five lanes of traffic, to see Ms. Dennis. He said that he had an unobstructed view of the driver’s side of her vehicle and was 75-100 feet away.

[16] Constable Westbrook also set up surveillance. He described himself as being north of where Ms. Dennis was parked and about 100 feet away. He could see the rear of the car clearly and could see through the rear window into the cabin.

[17] Both officers testified about their observations outside this building. Both officers saw Ms. Dennis speaking on a cell phone shortly after pulling into the parking lot. Constable Westbrook described her as very mindful of her surroundings and doing what he described as “heat checks”, in which she quickly turned her head around. He had seen these checks before and said they are quite common when individuals are involved in illegal activities. Constable McEachern made no observations of Ms. Dennis looking around.

[18] Shortly after the phone call was over, Constable McEachern saw a black male come out from the building with his hands in his jacket. He walked nonchalantly towards Ms. Dennis’ car and approached the driver’s side door. The male removed his right hand from his pocket and was holding what the officer estimated was a 6 x 6 inch plastic baggie that was bunched in his hand. The man handed it to Ms. Dennis and then had a brief conversation with her. The whole interaction was 30-60 seconds.

[19] Constable McEachern was cross-examined about how he could tell the size of the bag when the man’s hand was covering the bag. He agreed that his evidence about its size was a generalization. He also agreed that he had made no notes of having seen a bag and that he should have recorded this observation in his notes.

[20] Constable McEachern believed that a drug transaction had taken place. In his experience, drug transactions usually occur over a short period of time, often at a pre-determined location, with a phone call being made before a quick interaction. He also relied on the information from the informant. He believed that the bag contained drugs.

[21] Constable Westbrook also testified about his observations following Ms. Dennis’ phone call. He also saw a man exit 195 Kennedy and approach Ms. Dennis’ car. The male was fully visible to him and was minding his surroundings with his head up. The man approached the driver’s side door and stood close to it. The officer could see his right side.

[22] According to Constable Westbrook, there was minimal conversation between the male and Ms. Dennis. The man took his arm from a natural position beside him, reached his right hand into the car, and made contact with Ms. Dennis. He quickly pulled his hand out and dropped his head. From the beginning of Constable Westbrook’s to the end took under five minutes.

[23] Constable Westbrook believed, based on the information from the informant and what he had seen, that a hand-to-hand drug transaction had taken place. His relevant observations leading to this conclusion included: that Ms. Dennis pulled up to a building in an area known for drug problems, that she appeared to have contact with someone, her “heat checks”, that she remained in the car and did not seem like she was getting out, that the male came out and went directly to her, that he appeared to have something in his hand, that he put his arm into car and appeared to take something, and the quick departure.

[24] Following the officers’ observations, they spoke over the radio about what they had seen. As both believed they had witnessed a drug transaction, they planned to make an arrest.

iii) The defence evidence

[25] Ms. Dennis also testified about what had happened at 195 Kennedy Road. At the time, she was 24 years old and lived with her mother, stepfather and boyfriend, Jermaine Phillips. Mr. Philips had been released from jail in March 2012 and was the father of her baby. She understood from him that he was working in landscaping.

[26] Ms. Dennis said that on the evening of April 20, 2102, she went to a take-out restaurant called Tinnel’s. When she arrived home, she realized that she did not have her BlackBerry cell phone. She called it and a male answered. She did not ask him how he came to have her phone because she was concerned only with getting it back. She made arrangements to call him the next day to organize getting the phone back.

[27] Ms. Dennis testified that on April 21^st, she lent her car to Jermaine Phillips. She believed he wanted it to get prepared for his son’s birthday party, which was being held in Toronto that afternoon. After Mr. Philips returned home with the car, she again called her cell phone to arrange to pick it up before she went to her niece’s birthday party that afternoon. She says that she made a plan to meet the person who had it at the entrance to Shopper’s World. She never asked his name.

[28] Ms. Dennis went to Shopper’s World with her baby with her in the car. She had with her a “pay-as-you-go” cell phone so that she could call the person with her phone. When she went inside at Shopper’s World, the person with her phone was not there. There was no pre-determined meeting time, but she was supposed to meet him there. She had no description of him, but said that she gave a description of herself to him. As he was not there, she called him. He told her that he was at 195 Kennedy Road, and she then organized with him to retrieve the phone from him there.

[29] She drove to 195 Kennedy Road and called her BlackBerry cell phone again, using the “pay-as-you-go” cell phone. He came outside and returned her BlackBerry cell phone to her. She put it into the cup-holder in her car. She said that the phone was not dead and so she did not need to charge it. As a result, she did not open the cubby in the dashboard where the charger goes.

[30] When asked what she had done with the “pay as you go” phone, Ms. Dennis said that she probably “threw” it into the back of her car once she got her BlackBerry cell phone back. She did so because she wanted to remember to get it out later.

[31] Ms. Dennis then headed to the mall to buy a gift for her niece.

[32] She says that she was unaware that there was crack cocaine or marijuana in her car.

iv) The Evidence about the Arrest

[33] The officers followed Ms. Dennis from 195 Kennedy and effected a tandem stop. Constable McEachern activated his siren and they both turned on the takedown lights of their unmarked police cars. These lights are visible from both in front and behind. Officer Westbrook pulled in front of Ms. Dennis and Constable McEachern drove behind her. They both stopped, effectively boxing her in. Both officers were in plain clothes but wore police badges that were visible at the time of the arrest.

[34] Once her vehicle was stopped, Constable Westbrook ran to Ms. Dennis’s door, identified himself as a police officer, and pulled the door open. He informed her she was under arrest for drug possession and to shut the car off. He did this assertively and quickly so as not to lose evidence and to keep everything safe. He said that Ms. Dennis had her hand on the gearshift of the car and was revving the engine. He was concerned that because as she was not complying with his directions and getting out, she was going to put the car in motion.

[35] Constable Westbrook pulled on Ms. Dennis to try to remove her from the vehicle. He described her as clenching the wheel and hooking her feet under the pedal to delay getting out of the car. Constable McEachern also described Ms. Dennis as holding the steering wheel, not letting go of it, and hooking her feet under the pedals so she could not be removed from the car.

[36] Officer McEachern went to the passenger side door of the car, opened it and yelled for Ms. Dennis to stop resisting. He pushed her thigh and lower back to try to remove her from the car. He thought it had taken about 15 seconds to remove her from the car.

[37] Constable Westbrook thought that the interaction from his approach of the vehicle until Ms. Dennis’ removal took under a minute. Once out of the car, Ms. Dennis was taken to the ground, faced down or on her side, and handcuffed with her hands behind her back.

[38] Ms. Dennis also testified about the arrest. She saw the police lights and realized that she was being pulled over. She knew that the cars were police cars. She did not know why she was being stopped and said that she started to put her window down.

[39] Ms. Dennis testified that both officers were screaming at her and that one of them opened her door and tried to pull her out. She said that he did not identify himself as an officer. She said that her car was still in “drive” and that she held the wheel, scared and confused. She said that they told her that they were police and that she was being arrested for drugs. She said that she was asking what was going on and that the officer at the passenger side door and pushed her out of the car.

v) The Search of the Vehicle

[40] Following the arrest, Constable Westbrook had a quick look into the front cabin of the car and then the rest of the car. He noticed that there was a baby girl crying in a child seat in the back seat. He has a quick look around the area where Ms. Dennis had been to see if she had hidden anything. He discovered a bag of marijuana in the armrest and a bag of what he thought was crack cocaine in the front compartment. He remembered the front compartment as open and as having personal effects or papers littered in it along with the crack. Under cross-examination, he could not recall if the cubby was open or closed and said that had he opened it, he would have left it open.

[41] Officer McEachern testified that he searched Ms. Dennis’ vehicle after moving it off to the side of the road. He agreed that Constable Westbrook could have looked in it before him. He said that below the radio there was a small opening that he described as 6 inches wide by 2 inches high by 4 inches deep. He did not think it had a cover and did not recall seeing one. His recollection was of an open area. Inside the slot was cellophane packaging bunched together that contained pieces of crack.

[42] After locating the crack, Constable McEachern opened the armrest area to the right of where the driver sits. It had a flap covering it. Inside was a clear zip lock baggie that contained various baggies of marijuana. Inside this same console he also found a digital scale that had what he believed to be cocaine residue on the weighing plate.

[43] Ms. Dennis testified that in her car, the cubby in which the crack was located, had a cover. Photographs of the interior of a 2007 Sebring portray there being a cover on this cubby. Ms. Dennis said that the cover was closed that day, and that she left it closed because when it was open, it interfered with putting the car into “park”. She would open it to charge her phone. She was cross-examined extensively on her use of this cubby and insisted that it was very small and that she never used it for anything but charging her phone, primarily because if there were things in it preventing it from closing properly, there were difficulties with putting the car in “park”.

[44] Ms. Dennis testified that she used the centre console where the marijuana was located for holding “car stuff” like CDs and that she did not open it that day.

[45] When Ms. Dennis’ person was searched, there was 0.9 grams of marijuana found in her coat pocket. She testified that she had obtained it from a friend a few days before. She said that she did not smoke at the time and that she had forgotten about it.

[46] Constable McEachern’s search of the car located a white BlackBerry cell phone in the cup-holder between the driver and passenger seats. He said that this was the only cell phone found on Ms. Dennis or in the vehicle. It is an agreed fact that none of the police officers seized from the car any cell phone other than Ms. Dennis’ BlackBerry.

[47] Ms. Dennis testified that she never got her “pay-as-you-go” phone back. When asked about the police having searched her vehicle, she suggested that all she saw was them “skimming through” the car and that one officer had her and the other had her baby. She did not think that they had gone through her stuff.

[48] Asked about other observations of the interior of the car, Officer McEachern testified that he had seen a baby in the back of the car and that while trying to get her out, he saw a diaper bag and papers. He did not recall everything he had seen but described it as a “busy person’s car”.

vi) The Evidence of Jermaine Phillips about the Drugs in the car

[49] Mr. Phillips has a criminal record that includes 24 convictions since 2000. The convictions are for various offences including: three possession of a controlled substance offences, trafficking in a Schedule I substance, three possession for the purpose of trafficking convictions, two fail to comply recognizance offences, multiple weapons offences, as well as take motor vehicle without consent.

[50] On March 20, 2012, Mr. Phillips was released from jail having been acquitted of various offences. He went to live with Ms. Dennis, who had given birth to their daughter. He was not working, but told her that he was working in landscaping. He testified that within a couple of weeks of his release he began selling crack cocaine and marijuana. He would leave home in the morning and return at 5:00 or 5:30 pm, shower, and then go out in the evening, not telling her where he was going. Ms. Dennis gave him access to her 2007 Chrysler Sebring.

[51] On April 21, 2012, Mr. Phillips asked Ms. Dennis to borrow her car because he needed to go to the Bramalea Mall to purchase a birthday present for his son. He did not tell her that he was also going to buy drugs.

[52] He went to 7 Knightsbridge where he purchased a quarter (7 grams) and an 8 ball (3.5 grams) of crack and an ounce of marijuana (28 grams). He had bought there before and was familiar with this supplier. He would identify his supplier only as “Doughboy” and claimed not know his real name. He said that he stayed at 7 Knightsbridge for a bit and smoked some marijuana. He then divided the marijuana he had purchased and packaged it in bags. He went to the car and concealed the crack above the gearshift and put the marijuana and scale in the armrest.

[53] Mr. Phillips testified that after hiding the drugs, he went to the mall to buy a birthday present and then went home and got ready for the birthday. His brother picked him up at 2:15 or 2:30 p.m. and they went to the party. While he had meant to take the drugs inside and leave them in his jeans or shirt, he left them in the car. He first realized that he had done so when Ms. Dennis called him after her arrest.

[54] Mr. Phillips was cross-examined about having left the drugs in the car. He said that when he began buying drugs after his release, he did not have much money. His brother lent him money, he bought drugs, sold them, made a profit, and was able to buy more drugs. The amount that he bought on April 21, 2012 cost him $630.00. He was inconsistent as to whether he viewed this as a lot of money or not.

[55] Mr. Phillips acknowledged knowing that other people might use Ms. Dennis’ car. He also acknowledged knowing that the police could be watching him and that this was on his mind. But, he was firm that he left the drugs in the car and did not think about them until Ms. Dennis was arrested.

[56] Mr. Phillips said that when Ms. Dennis confronted him, he told her “it would all be ok”. He did not come forward and take responsibility before her trial because he did not want to go back to jail. He said that she did not know that he was dealing drugs or that he was using the car to deal drugs.

vii) The Drugs

[57] The bag found in the car contained 10.4 grams of crack cocaine. It is an agreed fact that if sold at the gram level, this is worth $1040.00. It is also agreed that this was consistent with possession for the purpose of trafficking. In addition to the crack, 25.3 grams of marijuana were found in the car.

D. THE LEGAL PRINCIPLES

[58] The onus of proof lies on the Crown, as it does in every case, to prove each of the offences beyond a reasonable doubt.

[59] Ms. Dennis is charged under s. 129(a) of the Criminal Code. This offence requires the prosecution to prove that the accused interfered with a peace officer engaged in the execution of his or her duty by resisting or by wilful obstruction.

[60] Ms. Dennis is also charged under s. 4 of the Controlled Drugs and Substances Act with possession of crack cocaine. In order to prove this offence the Crown must prove beyond a reasonable doubt that:

a. That Ms. Dennis was in possession of a substance;

b. That the substance was crack cocaine;

c. That Ms. Dennis knew that the substance was a controlled substance.

[61] Finally, Ms. Dennis is charged with possession of crack cocaine for the purpose of trafficking. The additional element of this offence requires the prosecution to prove that she had possession of the controlled substance for the purpose of trafficking in it.

E. THE POSITION OF THE PARTIES

i) The Position of the Crown

[62] It is the Crown’s position that the officers’ evidence should be accepted. Crown counsel invites me to infer that the officers saw a bag of drugs, not a BlackBerry cell phone, being handed to Ms. Dennis. It is argued that the way in which they described the configuration of the male’s hand was more consistent with drugs than with a BlackBerry. The Crown invites me to find that the cubby in the vehicle was open and that Ms. Dennis was aware of the crack being there. He says that had there been a second phone tossed into the back seat as Ms. Dennis described, the police would have found it.

[63] The Crown says that Ms. Dennis’ evidence should be rejected. He says that her story of losing the phone is not credible in that it is does not make sense that the male took the phone from the restaurant. It is odd that Ms. Dennis did not call the restaurant before calling her phone. He says that there are inconsistencies in her evidence about April 21, 2012 including her timing of speaking to the male. The fact that she never obtained a description of him is surprising. Crown counsel submits that Ms. Dennis’ evidence and photographs of a 2007 Sebring are not dispositive as to whether the cubby was open. He also says that Ms. Dennis’ emphasis on how small the cubby was and how little she used it seemed contrived to distance herself from it. Her story about not using the armrest was also illogical.

[64] The Crown also says that Ms. Dennis’ evidence about having a “pay-as-you-go” phone, which was tossed into the backseat so that she would remember it later, even though it was a phone that she said she did not care for, did not make sense. While the Crown acknowledged that the police had a cursory search in the back, it is argued that the absence of a phone makes Ms. Dennis’ evidence difficult to believe. Further, it is submitted that in her evidence, she seemed to want to minimize the search conducted by the police.

[65] The Crown says that I should be cautious about accepting the evidence of Mr. Phillips given his criminal record. He submits that it is beyond comprehension that Mr. Phillips would have forgotten the drugs in the car. First, they were worth about $1000.00 and this was his livelihood. He had expenses and this was his stash. He would never have just forgotten about it – particularly when he was aware that other people used the car. It is also argued that if he believed that the police were watching him, he would have taken more care. Crown counsel says that the positioning of the drugs in the car suggests that his story was fabricated as if he was just taking them home to sell later, he would have put them all in one place. The fact that they were divided suggests that they were being dealt from the car.

[66] In terms of the obstruct police charge, the Crown says that on Ms. Dennis’ evidence, she knew that there were officers trying to arrest her and she deliberately tried to impede them.

ii) The Position of the Defence

[67] The defence says that the real issue to be determined is whether Ms. Dennis had knowledge of the drugs being in the car. He says that the drugs were found in a closed cubby that she would not have been aware of had she not opened it. Ms. Dennis gave her evidence in a manner that was credible and that her evidence establishes the she had no knowledge of the crack in the car.

[68] Mr. Phillips, who was an admitted drug dealer, has taken responsibility for having purchased the drugs and having concealed them in the car. Counsel says he was believable and that his criminal record shows he is a drug dealer, but not dishonest. He may have been confused during his cross-examination, but this was largely about dates, not about what happened.

[69] Counsel says not much turns on the fact that a second phone was never found in the vehicle as it could have been missed in the search and because the car was cluttered. His position is that the phone was somehow lost.

[70] Counsel acknowledges that on the basis of the police evidence and the testimony of Ms. Dennis, the elements of obstruct are likely made out. He says that in not minimizing what she did during the arrest, Ms. Dennis showed herself to be someone who was innocent of drug trafficking and honest in her testimony.

F. ANALYSIS

[71] I will address the drug charges first.

[72] I accept that the police officers saw what they believed was a hand-to- hand drug transaction. They saw a quick phone call and a man appear and give something to Ms. Dennis. One of them saw Ms. Dennis and the male looking around doing “heat checks”. As I indicated in my Charter ruling, I am not prepared to find that Constable McEachern saw a baggie passed. But, both he had Constable Westbrook saw something in the male’s hand, with the male’s hand configured as though he was holding a baseball or a softball. Both officers saw something passed to Ms. Dennis. The issue is whether what was passed was a BlackBerry cell phone or drugs.

[73] I am not prepared to conclude from the officers’ evidence either that the cubby above the radio lacked a cover or that the cover was open. Both officers were unclear in their recollections. Ms. Dennis was certain that the cubby had a cover and that it was shut. The photographs of a 2007 Sebring appear to me to support her evidence that there was a cover over the cubby.

[74] Ms. Dennis has testified that what was passed to her at 195 Kennedy was her BlackBerry cell phone. The officers’ evidence, in my view, does not foreclose the possibility that what was passed was the BlackBerry. It also leaves available an inference that what was passed was the crack cocaine, which was then concealed in the cubby. The officers’ evidence must be considered along with the defence evidence in determining whether the essential elements of the drug offences have been proven.

[75] I turn now to Ms. Dennis’ evidence. As indicated above, she denies any knowledge that there was crack cocaine in her car. She explains that what the police observed was her retrieving her BlackBerry cell phone. I will now address the evidence about Ms. Dennis losing her BlackBerry the night before and making arrangements to pick it up, culminating with her retrieving it at 195 Kennedy Road.

[76] I remind myself that if I believe Ms. Dennis’ evidence, I must acquit her. Even if I do not believe Ms. Dennis’ evidence, if it leaves me with a reasonable doubt, I must acquit her. And, even if Ms. Dennis’ evidence does not raise a reasonable doubt, I must not convict her unless, on the basis of all of the evidence that I do accept, I am satisfied of her guilt beyond a reasonable doubt.

[77] Ms. Dennis was consistent in her evidence about having lost her BlackBerry cell phone. I do not find it curious that she called her phone, rather than calling the restaurant, if the phone was lost. I am somewhat troubled by the fact that she never obtained a name or description of the person who had her phone, though she did say that she gave a description of herself to the male. I found her evidence of the plan to retrieve the phone at Shoppers’ World to be a poor plan, in that there really did not seem to be a fixed time to meet, but not one that I reject as wholly unbelievable. There is no doubt that Ms. Dennis did enter Shoppers World briefly, as the police described.

[78] Ms. Dennis’ evidence about calling the male at 195 Kennedy and then obtaining her BlackBerry from him seemed to me to fit with what the officers saw. I accept that one of the officers may have seen her looking around. She may well have been looking for the male with her cell phone.

[79] Ms. Dennis’ evidence that she tossed the “pay as you go” cell phone in the back was less credible. The most difficult part of this evidence is that the police never retrieved a second cell phone from the car.

[80] Had there been evidence of a thorough search of the back seat by the police, I would be very troubled by the fact that the second cell phone was never located. But, the evidence was certainly not that there had been a thorough search. Constable Westbrook had a quick look in the back of the car and discovered the baby. He could certainly have missed the cell phone. Constable McEachern searched the back seat but gave no evidence as to how thoroughly. While one might expect that had he located another cell phone it would have been seized, there is no evidence that he would necessarily have located a second cell phone had there been one present. I am left to conclude that there could have been a second phone there that was missed by the police.

[81] Ms. Dennis says that she had no idea that Mr. Phillips was selling drugs at the time and no idea that there were drugs in her car. Mr. Phillips’ evidence supports her. He has taken responsibility for buying the drugs and hiding them in the cubby where the police located them. While it is certainly convenient for Ms. Dennis that Mr. Phillips, the father of her child to whom she opened her home after his release from jail, comes forward now, for the first time, and takes full responsibility for the drugs, I found his evidence to be somewhat credible. It was detailed and largely unshaken under cross-examination. He explained in a coherent fashion what he had done on April 21, 2012.

[82] I agree with the Crown that it is unlikely that Mr. Phillips would have been so careless with the drugs he purchased that day. However, his evidence that he forgot them in the car on his way to his son’s birthday is, in my view, plausible.

[83] I appreciate that Mr. Phillips has been dishonest previously. Some of his prior offences have elements of dishonesty. More importantly, he lied directly and regularly to Ms. Dennis about his employment and income source in the spring of 2012. Clearly he is very capable of deception and I take this into consideration when I assess his evidence. But, his evidence that Ms. Dennis had no part in his drug dealing at that time, and no knowledge of what he was doing, seemed to me to be somewhat believable.

[84] In the end, as set out above, there are enough troubling aspects of the evidence given by both Ms. Dennis and Mr. Phillips that I cannot accept their evidence. Nor am I left with a reasonable doubt on the basis of Ms. Dennis’ evidence alone. But, when I consider the evidence of both Ms. Dennis and Mr. Phillips together, along with the rest of the evidence in the case, I am left with a reasonable doubt as to whether she was aware that there was crack cocaine in her car. She may have known, but this is not the test. I cannot be sure and so cannot convict. On this basis, she must be acquitted of the possession and possession for the purpose of trafficking counts.

[85] On the obstruct police count, I am satisfied based on the evidence of the police, and the acknowledgements of Ms. Dennis, that she was aware that the police were arresting her and wanted her to get out of her car. I am also satisfied that she chose to try to impede them in arresting her. While she may well have been confused about what was happening, she made a choice not to comply. I find her guilty of obstructing the police.

G. CONCLUSION

[86] Ms. Dennis is acquitted of possession of a schedule I substance and possession for the purpose of trafficking of a schedule I substance. She is convicted of count 1 under s. 129(a) of the Code.

Woollcombe J.

Released: October 2, 2015