R. v. Brown, 2016 ONSC 1726

R. v. Brown, 2016 ONSC 1726

COURT FILE NO.: CR-15-90000500-0000

DATE: 20160310

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KEVINE BROWN

COUNSEL:

Chris De Sa and Elizabeth Bellerose, for the Crown

Kate Oja, for Mr. Brown

HEARD: March 7, 2016

r.f. goldstein j.

BACKGROUND

1Mr. Brown faces an indictment with two counts. The first count charges him with possession of heroin for the purposes of trafficking. The second charges him with attempting to possess heroin for the purposes of trafficking.

2At issue are two packages of heroin. One was shipped from Tanzania via DHL courier. It was intercepted in the United Kingdom and sent to the RCMP. The RCMP executed a controlled delivery in Toronto. I will refer to this package as “the Tanzania package”. The other was shipped from Uganda using UPS. It was intercepted in the United States. I will refer to this package as “the Uganda package”. This package was brought to Canada as evidence but was not used in a controlled delivery.

3Mr. Brown was initially charged with the following offences:

1. Possession of heroin for the purposes of trafficking on February 12, 2014;
2. Importing heroin on February 6, 2014;
3. Conspiracy to import heroin from Tanzania between January 1 2014 and February 12 2014;
4. Conspiracy to import heroin from Uganda between January 1 2014 and February 16 2014.

4On December 8 2014 Madam Justice Caldwell, the preliminary inquiry judge, discharged Mr. Brown on all counts except Count 1, possession of heroin for the purpose of trafficking.

5Under s. 574(1)(b) the Crown may prefer an indictment against an accused person on any charge founded on the facts disclosed by the evidence taken at the preliminary inquiry. The Crown may do this in addition to or in substitution for any charge on which the person was ordered to stand trial. In other words, if the evidence supports it, the Crown may prefer charges that the accused did not originally face. That is what the Crown did here. The Crown preferred an indictment with two counts. Those counts are:

(1) Possession of heroin for the purposes of trafficking between February 12 and February 16 2014; (2) Attempting to possess heroin for the purposes of trafficking on or before February 16 2014.

6The original possession for the purpose count only included the Tanzania package. Count 1 of the preferred indictment includes both packages. Count 2 includes only the Uganda package.

7Ms. Oja, for Mr. Brown, argues that the Crown was precluded from preferring charges that reference the Uganda package. She argues that there was no evidence that Mr. Brown possessed or controlled the Uganda package, or attempted to possess or control the Uganda Package.

8Mr. De Sa, for the Crown, argues that the modus operandi of the second package would allow a preliminary inquiry judge to draw an inference that whoever possessed and controlled the Tanzania package also possessed and controlled the Uganda package.

THE PRELIMINARY INQUIRY EVIDENCE

9The key evidence called at the preliminary inquiry consisted of s. 540 evidence (mainly notes and statements), the testimony of Tracy Brown, and the evidence of three RCMP officers.

10I will set out the background by way of a timeline:

Feb. 5, 2014

• The United Kingdom Border Agency (UKBA) intercepts the Tanzania package at Heathrow Airport. It is a DHL courier package addressed to Victor Mckenzie, 14 Rayoak Drive, Unit 706, Toronto with a contact number of 437112200.
• The package is from Suzan Hayatta of Forest Area, Monogoro, Tanzania
• The package contains 23 pairs of sandals. Hidden in the sandals is 1133 grams of heroin

Feb. 6, 2014

• RCMP officers determine that Tracy Brown rents Unit 706 of 14 Rayoak Drive, Toronto.

Feb. 8, 2014

• The Tanzania package is transported from London to Toronto. RCMP officers remove the bulk of the heroin from the sandals and leave a small control amount.

Feb. 11, 2014

• An undercover RCMP officer dressed in a DHL uniform arrives at 14 Rayoak Drive, Toronto. Other RCMP officers conduct surveillance. The purpose of the RCMP is to conduct a controlled delivery of the Tanzania package.
• At 11:18 am the undercover officer buzzes unit 706 and indicates that he has a package to deliver.
• At 11:20 am Tracy Brown comes to the front door. The undercover officer asks her for identification. Ms. Brown makes a call on her cell phone and says “Kevin, your package has arrived” and “the package for Victor has arrived”. She also indicates on the phone that she has to show ID because the package is not in her name.
• Ms. Brown then takes the undercover officer to Unit 706. She retrieves her passport and shows it to him as proof of her identity. She then signs the DHL receipt in her own name. The undercover officer leaves the Tanzania package in the apartment.
• At 12:36 pm the police enter the apartment and secure it as well as the Tanzania package. They arrest Ms. Brown for possession of heroin for the purpose of trafficking. The police then await the arrival of a search warrant.
• At approximately 4 pm the RCMP officers arrest Mr. Brown when he gets off the elevator on the 7th floor.
• RCMP officers search the apartment.

Feb. 16, 2014

• United States Customs and Border Protection (CBP) intercepts the Uganada package in Louisville, Kentucky. It is a UPS courier package addressed to Mike Jime, 14 Rayoak Drive, Unit 706, Toronto with a phone number of 14372001154.
• The package is from Gloria Anguma of Kampala, Uganda, 101.
• CPB officers open the Uganda package. They find that the package contains three statues. Hidden in the base of the statutes is a total of 392.3 grams of heroin.
• RCMP officers decide not to do a controlled delivery given that both Kevine Brown and Tracy Brown had been arrested prior to the interception of the Uganda package.

July 10, 2014

• The Uganda package is transported from Kentucky to Canada.

11Tracy Brown testified at the preliminary inquiry. She had no evidence to give regarding the Uganda package. Constable Eskritt testified only about the arrangements he made to bring the Uganda package to Canada from the United States.

ANALYSIS

12There is no doubt that the Crown has the authority to prefer an indictment under s. 574(1)(b) where the preliminary inquiry evidence justifies it: R. v. Tapaquon, 1993 CanLII 52 (SCC), [1993] 4 S.C.R. 535. There is also no doubt that attempting to possess a substance for the purpose of trafficking is an offence known to law: R. v. Chan (2003), 2003 CanLII 52165 (ON CA), 66 O.R. (3d) 577, 178 C.C.C. (3d) 269 (C.A.).

13The parties agree that the test on an application to quash is set out by Justice Then of this Court in R. v. Harris (1998), 1998 CanLII 14948 (ON SC), 126 C.C.C. (3d) 508, [1998] O.J. No. 2646 (Gen.Div.) at para. 4:

It is common ground that the issue on this Application is to determine whether in fact there was any evidence adduced at the preliminary hearing in respect of count 7 upon which a reasonable jury properly instructed could convict in accordance with the test set out by the Supreme Court of Canada in The United States v. Sheppard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067 per Ritchie J. at p. 1080.

14The Crown must show some evidence that Mr. Brown had knowledge and possession in relation to the Uganda package, or, more accurately, had knowledge of the Uganda package and attempted to possess it. Since Mr. Brown never had actual possession, the Crown must adduce some evidence that he had knowledge of the nature, contents, and destination of the Uganda package. The Crown must also show some evidence that Mr. Brown had constructive possession of the Uganda package, or attempted to have constructive possession of it.

15The Crown argues that since there is some evidence that Mr. Brown had knowledge and control of the Tanzania package, it can be inferred that he also had knowledge and attempted control of the Uganda package. In other words, the Crown argues that the similar modus operandi provides some evidence upon which a properly instructed jury could find that Mr. Brown committed offences in relation to the Uganda package. Quite simply, both packages contained significant amounts of heroin, and both were addressed to a fictitious name at an address where Mr. Brown was living.

16I respectfully disagree. There was clearly sufficient evidence to order Mr. Brown to trial on the charge relating to possession for the purpose of the Tanzania package. The defence conceded as much. But the mere fact that suspicious package is sent to the same address is simply too remote. Furthermore, there are real differences between the two packages. One came from Tanzania. One came from Uganda. One was sent by DHL and the other by UPS. The Tanzania package came through the U.K., the Uganda package came through the U.S. There was a different fake name. Sandals were used to secrete the heroin in one package; Statuettes in the other. There is no evidence that Tracy Brown knew that her brother was expecting a second package, and there is no evidence Mr. Brown knew about a second package. Those facts undermine the Crown’s modus operandi argument. I find that the modus operandi is not sufficiently similar. I think I preliminary inquiry judge, properly applying Arcuri and conducting a limited weighing, would not be able to draw the inferences sought by the Crown.

DISPOSITION

17The application is granted. The first count is amended to refer only to February 12, 2014. The second count is quashed.

R.F. Goldstein J.