Court File and Parties

Court File No.: CR-16-40000001-00MO Date: 2016-09-12 Superior Court of Justice - Ontario

Re: Regina v. Jermaine Johnson

Before: E.M. Morgan J.

Counsel: Douglas Usher, for the Applicant (Defendant) Michael J. Macdonald, for the Respondent (Crown)

Heard: September 6, 2016

Endorsement – Application for certiorari

[1] On December 11, 2015, the Applicant was committed for trial by a judge of the Ontario Court of Justice on one count of possession of marijuana for the purpose of trafficking and one count of possessing a prohibited weapon, namely a handgun. The Crown has elected not to include the firearm charge on the indictment, but is proceeding against the Applicant on the charge of possession for the purpose.

[2] The Applicant seeks an order quashing the committal on possession for the purpose of trafficking, and submits that there was no evidence on which to commit him for trial. The Applicant was found to be in possession of 232 grams, or just over half a pound, of marijuana. For the purpose of this Application he concedes simple possession, but contends that there was no evidence that his purpose was for trafficking.

[3] The Crown responds that although there was no direct evidence of trafficking, there is sufficient circumstantial evidence to support the committal. He submits that the evidence permits a range of inferences, and evidence of guilt only has to be one of those inferences. Specifically, counsel for the Crown points to:

a. the large quantity of marijuana found in the unit; b. the presence of a gun in the same unit; c. a number of pieces of identification bearing the Applicant’s name and photo; d. the presence of a current valid driver’s license in the Applicant’s name bearing a different address from the one where the marijuana and gun were found; and e. the fact that the marijuana was located in a ziplock bag inside of a bag.

[4] Under section 548(1) of the Criminal Code, a preliminary inquiry judge is authorized to commit an accused to trial if “there is sufficient evidence upon which a reasonable and properly instructed jury could convict: United States of America v Shepherd, [1977] 2 SCR 1067, at 1080. This may include circumstantial evidence, which must be weighed to assess whether it is reasonably capable of supporting the inference that the Crown seeks to draw: R v Arcuri, 2001 SCC 54, [2001] 2 SCR 828.

[5] It is not the preliminary inquiry judge’s role to prefer one inference over another, but rather the judge must simply determine whether an inference from such evidence that does exist is reasonable and therefore available to the trier of fact: R v Kamermans, 2016 ONCA 117, [2016] OJ No 685, at para 15 (Ont CA). As long as the inferences put forward by counsel for the Crown “are within the field of available inferences and provide evidence of each essential element of the offence, committal follows: Kamermans, at para 20.

[6] The court is authorized to draw common sense inferences from the circumstances in which the accused finds himself: R v Myers, [2003] OJ No 2772, at para 10 (SCJ). As it was put in R v Charemski, [1998] 1 SCR 679, is guilt “hypothetically reasonable”?

[7] On the other hand, it is a jurisdictional error to commit an accused to trial where no evidence exists on an essential element of the offense: R v Sazant, 2004 SCC 77, [2004] 3 SCR 635, at para 14. As Crown counsel submits in his factum, in order for the Applicant to succeed here he must show that there was simply no evidence, circumstantial or otherwise, of the Applicant’s intention to traffic the marijuana that he apparently possessed.

[8] Interestingly, both counsel point to the absence of the accoutrements that often accompany seizures of larger quantities of illegal drugs. Defense counsel notes that there were no customer lists, small plastic bags for distributing the marijuana in smaller quantities, quantities of cash, or other indicia of trafficking. Crown counsel notes that there were no pipe, rolling papers, or other indicia of personal consumption.

[9] Counsel for the defense submits that the Crown’s reliance on the presence of the Applicant’s identification documents or cards in the same unit as the marijuana may be an indication of possession, but it says nothing one way or the other about trafficking. Likewise, he points out that the fact that the marijuana was found in a plastic ziplock bag inside a larger plastic bag is not an indication that it was ready for transport or sale.

[10] I agree with defense counsel that the fact that the marijuana was stored in this way amounts to little more than an indication that it was a rather large and therefore cumbersome quantity of marijuana. One would have to contain it in plastic bags this way just to take it from one room to another within one’s own house.

[11] One cogent piece of evidence of trafficking here is the fact that the marijuana was found along with a firearm in a unit identified as belonging to the Applicant. Although the firearms charge is not being pursued by the Crown, it is uncontentious that a firearm was indeed found in the same unit as the illegal drugs.

[12] As was stated in R v Patrick, [2007] OJ No 938, at para 34, “The public media and reported case law refer to the proliferation of the use of handguns in association with drug trafficking. This court is capable of making a common sense inference concerning the nexus between guns and drug trafficking without the benefit of expert evidence.” It is reasonable to infer from the presence of a firearm with a quantity of marijuana that the purpose of possessing the marijuana was trafficking.

[13] Moreover, the sheer quantity of marijuana involved here leads to the inference that trafficking is the purpose. While a smaller quantity might suggest personal use by the Applicant, a quantity of this size strains the credulity of such an inference and rather infers that the marijuana is intended to be for sale or distribution to others. This, of course, is not a novel proposition:

In the past, in both trial courts and in this court, inferences have been drawn, and properly so, from the amount of drugs found in the possession of the accused person. Generally speaking if an addict has in his possession a small quantity of drugs sufficient for his own use for a limited period of time then the courts have concluded that these drugs were for his own use and not for sale or distribution. Where, however, an addict was found in possession of a relatively large quantity of drugs then the courts have drawn the inference that he did not have them solely for his own use but for sale or distribution, and have imposed penalties accordingly.

R v Wilson (1954), 11 WWR (NS) 282, at para 2 (BCCA).

[14] The Supreme Court of Canada has recently reiterated that “circumstantial evidence does not have to totally exclude other conceivable inferences”: R v Villaroman, 2016 SCC 33, at para 42, quoting R v Dipnarine, 2014 ABCA 328, at paras 22, 24-25. Indeed, as Moldaver, JA (as he then was) observed in R v Katwaru (2001), 52 OR (3d) 321, at para 40, “In order to infer a fact from established facts, all that is required is that the inference be reasonable and logical. The fact that an inference may flow less than easily does not mean that it cannot be drawn.”

[15] In the present case, the preliminary inquiry judge reasonably inferred that the approximately ½ pound of marijuana, combined with the presence of a firearm, was consistent with a finding that the marijuana was for the purpose of trafficking. The evidence of both of those facts – i.e. the Applicant’s possession of a firearm and his possession of a large quantity of marijuana – were indicia of trafficking.

[16] This evidence provided a proper evidentiary basis for the judge’s conclusion that the Applicant be committed for trial on a charge of possession for the purpose.

[17] The Application to quash the committal for trial is dismissed.

Morgan J. Date: September 12, 2016