ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 760-15
DATE: 20151204
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
SEAMUS KIRWAN
Applicant
Serge Treherne, for the Crown.
Stephanie Baker, for the Applicant.
HEARD: December 2, 2015
R. D. GORDON, R. S. J.
Overview
[1] The Applicant seeks an order quashing the decision of the preliminary hearing judge to commit him on charges of being in possession of fentanyl for the purpose of trafficking and being in possession of proceeds of crime.
Background Facts
[2] On January 1, 2015, Constable Larochelle received information from a confidential informant that the Applicant was at the Tim Horton’s in Garson and was in possession of fentanyl for the purpose of trafficking.
[3] Constable Larochelle located the Applicant’s vehicle at the Tim Horton’s and began surveillance. He noted that the Applicant and a passenger in the vehicle appeared to be doing something out of view, possibly preparing to use drugs. The vehicle was then observed to move from the Tim Horton’s parking lot to another parking lot in the same mall about a 20 second drive away.
[4] Shortly thereafter, a brown pick-up truck pulled up beside the vehicle under surveillance and a passenger got out and attended at the driver’s side of the vehicle under surveillance. He remained there for between 30 seconds and a minute before returning to the brown pick-up. Constable Larochelle was not able to observe whether any transaction took place but based upon his experience and training he believed this to be a drug transaction.
[5] Based on these facts, the Applicant was arrested. A search of the Applicant and the vehicle made incident to arrest revealed the following:
$95 cash located in the Applicant’s left upper jacket pocket, $155 cash in his wallet, and $170 cash in the left dashboard change drawer in the vehicle.
On the driver’s seat, a tin containing one full 100 microgram fentanyl patch, a half fentanyl patch, seven fentanyl strips and one oxycodone pill. A further fentanyl strip and a piece of a strip were located behind the passenger seat.
[6] Also located in the vehicle but not seized were foil and a pair of scissors.
[7] The Applicant was provided his right to counsel and cautioned. He made an utterance to police that “the drugs that were on his person were his and not anybody else’s in the vehicle”.
[8] The preliminary hearing judge made the following findings:
Having regard to the amount of currency found in the vehicle and found on the person of Mr. Kirwan and having regard to the amount of Fentanyl that was in fact found within the vehicle and given the activity observed of this vehicle driving up and going over to Mr. Kirwan’s vehicle in a very short period of time and then that person leaving, in my view, on that evidence a reasonable jury properly instructed could find the accused guilty of count number two. There’s no issue with count number three and count number five I just reiterate my argument with respect to the application for discharge by the defence.
Applicable Law
[9] The scope of review on an application such as this is limited to jurisdictional error. It was argued that the preliminary hearing judge committed jurisdictional error by committing the Applicant for trial in the absence of evidence on an essential element of the offence, namely, the purpose for which he was in possession of the drug.
[10] The test to be applied by the preliminary hearing judge is whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. Where the Crown has not presented direct evidence on an essential element of the offence, the question becomes whether that element may be reasonably inferred from the circumstantial evidence. In making this determination it is not for the judge to draw factual inferences or assess credibility. Rather, it is for the judge to ask only whether the evidence, if believed, could reasonably support an inference of guilt. [See R. v. Arcuri [2001] S.C.J. No. 23 (S.C.C.)].
[11] It is not my role to substitute my own views of the sufficiency of the evidence to justify committal. I need only consider whether there was any evidence before the preliminary hearing judge upon which he, acting judicially, could form an opinion that the evidence was sufficient to order the accused to stand trial. [See R. v. Scott and Delpeache [2003] O.J. No. 90 (SCJ) affirmed [2003] O.J. No. 4072 (C.A.)].
Analysis
[12] The Applicant contends that there is no evidence from which it can be reasonably inferred that his possession of the fentanyl was for the purpose of trafficking.
[13] When one looks at each aspect of the evidence individually, that position has some validity. The amount of fentanyl in his possession does not seem particularly large. There seems to have been little if any consideration given to the evidence that the Applicant and his passenger were about to consume the drug themselves. The money seized was not a particularly large amount and might be explained in a number of other different ways. That another vehicle stopped and a person made a short visit to the Applicant’s vehicle is not, of itself, of any consequence.
[14] However, those same pieces of evidence may be interpreted in a completely different manner:
Although there was no evidence lead to establish that the amount of fentanyl was particularly large, neither did the evidence establish that it was particularly small and would reflect an amount appropriate to personal use.
That at least one fentanyl patch had been cut into smaller individual strips and was about to be used by both the Applicant and another person may indicate that trafficking was taking place.
That the Applicant himself may have been using fentanyl or was preparing to do so does not necessarily mean all of the drug in his possession was for his personal use.
Although the money seized was not particularly large, it is relevant that it was not all found in one place and in a location where it might normally be expected. Although some of it was in his wallet, some was located in a jacket pocket and some of it was in the change drawer of the vehicle. Common sense tells us that this is unusual.
We know that drug deals are typically cash transactions.
We know that drug deals are typically done in a short period of time and often from vehicles.
One might reasonably be of the view that it was unusual for the Applicant’s vehicle to travel a few hundred metres only to stop and be met by a person in another vehicle who visits for less than one minute.
[15] Each piece of evidence on its own raises some suspicion about the purpose for which the fentanyl was in the Applicant’s possession. Considered together there can be little doubt that the evidence may reasonably lead to the inference that the possession of the drug was for the purpose of trafficking. So too may the evidence reasonably lead to the inference that the money seized was proceeds of the crime of trafficking.
[16] This decision should not be taken as an indication of the strength of the Crown’s case. My finding is simply that there was evidence upon which the preliminary hearing judge could have based the committals for trial.
Conclusion
[17] The application for Certiorari is dismissed.
R. D. GORDON, R. S. J.
Released: December 4, 2015
COURT FILE NO.: 760-15
DATE: 20151204
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
SEAMUS KIRWAN
Applicant
REASONS FOR JUDGMENT
R. D. GORDON, R. S. J.
Released: ** December 4, 2015**