CITATION: Her Majesty the Queen v. Stewart and Foster, 2016 ONSC 7952

COURT FILE NO.: CR-16-002-0000

DATE: 20161219

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

Brenda Lawson, for the Federal Crown

• and -

Victor Michael Stewart

Sabrina Christine Foster

Mr. John Struthers, for the Accused

Ms. Jill Gamble, for the Accused

Accused

HEARD: December 14 & 15, 2016

REASONS FOR JUDGMENT

Conlan J.

I. INTRODUCTION

1Late one afternoon, the police busted down an apartment door in Meaford and found a guy inside, Mr. Stewart, and a gal, Ms. Foster. A bunch of bad stuff was found inside too. Drugs.

But whose?

The Charges and What the Crown Must Prove

2Victor Stewart and Sabrina Foster are charged with possession of cocaine for the purpose of trafficking. The formal charge reads:

Victor Michael Stewart and Sabrina Christine Foster stand charged that, on or about the 9^th^ day of September, 2014 at the Municipality of Meaford, in the County of Grey, in the Judicial Region of Central West, unlawfully did, for the purpose of trafficking, possess a substance included in Schedule I of the Controlled Drugs and Substances Act, to wit: cocaine, contrary to Section 5(2) of the said Act.

3Crown counsel must prove each of these essential elements beyond a reasonable doubt:

i. that Mr. Stewart and/or Ms. Foster was/were in possession of a substance;

ii. that the substance was cocaine;

iii. that the accused knew that the substance was cocaine; and

iv. that the accused had possession of cocaine for the purpose of trafficking in it.

4Mr. Stewart and Ms. Foster were also charged with possession of counterfeit money, however, that count was dismissed at the conclusion of the Crown’s case at trial, at the request of the accused but also on the invitation of Crown counsel, as there was no evidence at all that the money in question was anything other than genuine currency. The Crown conceded that.

5Mr. Stewart and Ms. Foster are further charged with two counts of possession of two different controlled substances. The formal charges read:

AND FURTHER Victor Michael Stewart and Sabrina Christine Foster stand charged that, on or about the 9^th^ day of September, 2014 at the Municipality of Meaford, in the County of Grey, in the Judicial Region of Central West, unlawfully did possess a substance included in Schedule II of the Controlled Drugs and Substances Act, to 30 grams or less of cannabis (marihuana), contrary to Section 4(1) of the said Act.

AND FURTHER Victor Michael Stewart and Sabrina Christine Foster stand charged that, on or about the 9^th^ day of September, 2014 at the Municipality of Meaford, in the County of Grey, in the Judicial Region of Central West, unlawfully did, possess a substance included in Schedule 1 of the Controlled Drugs and Substances Act, to wit: 5 tablets of methylenedioxy-N-methylamphetamine, contrary to Section 4(1) of the said Act.

6Here, Crown counsel must prove each of these essential elements beyond a reasonable doubt:

i. that Mr. Stewart and/or Ms. Foster was/were in possession of a substance;

ii. that the substance was cannabis (marihuana) or methlenedioxy-N-methylamphetamine, as the case may be; and

iii. that the accused knew that the substance was that.

7Hereinafter, I refer to the one narcotic as “MDMA” or “ecstasy”.

The Presumption of Innocence

8For each charge, the Crown has the burden of proving all of the essential elements beyond a reasonable doubt. There is no burden on either accused to prove anything.

9Each accused is presumed to be innocent of all charges.

Multiple Counts; Multiple Accused

10This was a joint trial.

11Of course, the verdicts need not be the same across accused or among the various counts against one accused.

The Trial

12For a multi-count Indictment involving two accused, this was a very short trial. It was heard, judge-alone, over less than two full days in Owen Sound, including final submissions by counsel.

13For the prosecution, I heard from:

(i) Carey Stoffers, the landlord of the apartment in Meaford, Ontario that was searched by the police under warrant on the alleged offence date and found to contain cocaine, money, marihuana and MDMA, among other things;

(ii) Anthony Smith, a police officer who participated in the apartment search and seized items from the kitchen including cocaine, money, MDMA and drug paraphernalia;

(iii) Michael Chevers, a police officer who participated in the apartment search, arrested Ms. Foster, seized some items including a trace amount of marihuana in a grinder, and who also took some keys that were supposedly found on Mr. Stewart by someone else and matched two of them to the door locks for the unit itself and the outer building;

(iv) Steve Whitehouse, the lead investigator who observed the property over a few days leading up to the execution of the search warrant, made observations of whom he believed to be both accused, saw Mr. Stewart arrive at the building in a car on September 9^th^, observed him for a few minutes outside his car after parking it, was the first person to enter the unit after the door was rammed and forced open, immediately after entry arrested Mr. Stewart just inside the door, took control of some things supposedly seized from Mr. Stewart by someone else, observed some cocaine on the kitchen counter, and saw Ms. Foster lying on the living room couch; and

(v) Greg Henderson, a police officer who participated in the apartment search, handcuffed Mr. Stewart while he was lying on the floor, and seized from his person a cellular telephone and a key chain with three keys.

14There is no dispute that 65 grams or so of cocaine, a small amount of marihuana and some MDMA tablets were seized from the apartment by the police on September 9, 2014.

15For the Defence, no evidence was presented on behalf of either accused.

The Issue

16This case turns on one issue with respect to all of the counts: did either accused have possession of the cocaine, marihuana and/or ecstasy?

17More specifically, has the Crown proven “possession”, that is knowledge and some measure of control over the item in question, beyond a reasonable doubt?

Decision

18At Court on December 15^th^, I acquitted both accused on all counts. These are my reasons for so deciding.

II. ANALYSIS

19It is no longer accepted that, in circumstantial cases such as this one, conclusions pointing away from a finding of guilt must be based on inferences drawn from proven facts. They do not. Those inferences consistent with innocence do not have to arise from proven facts because, after all, there is no onus on the accused to prove any facts. In addition, reasonable doubt is assessed on the totality of all of the evidence adduced at trial, including the lack or absence of evidence. If there are reasonable inferences other than guilt, then the prosecution has not discharged its burden of proving the offence beyond a reasonable doubt. R. v. Villaroman, 2016 SCC 33, [2016] S.C.J. No. 33, at paragraph 35.

20Put another way, gaps in the evidence may result in inferences other than guilt. As long as those inferences, assessed logically and with common sense, are reasonable ones, an acquittal ought to be entered. R. v. Villaroman, supra, at paragraph 36.

21This Court should consider other plausible theories and other reasonable possibilities which are inconsistent with guilt. To prove its case to the requisite criminal standard, the Crown may need to negative those reasonable possibilities, however, it is not incumbent on the prosecution to address every possible conjecture, no matter how irrational, fanciful or speculative, that might be consistent with innocence. R. v. Villaroman, supra, at paragraph 37.

22It is not always easy to draw a bright line between a plausible theory and mere conjecture. The main question will always be whether the circumstantial evidence, viewed logically and in light of human experience and common sense, is reasonably capable of supporting an inference other than that the accused is guilty. R. v. Villaroman, supra, at paragraph 38.

23So let us examine the evidence adduced at trial, and let us assume that every ambiguity is resolved in favour of the Crown. What do we have?

24We have the following:

(i) Ms. Foster was, at least in March or April 2014, a tenant of the apartment in question, and some other unknown male lived there for a while (I have extended to the Crown some benefit here because Ms. Stoffers has no lease to show that was signed by Ms. Foster and appeared at trial to have an uncertain memory about that time period);

(ii) On September 3^rd^, six days before the apartment search, Mr. Stewart was observed at the rear door of the building doing something with a male named McQuarrie, a person previously known to the police (I am assuming, to the benefit of the Crown, that the officer’s surveillance was clear enough to reliably identify the black male, a stranger, as Mr. Stewart);

(iii) On September 4^th^, five days before the apartment search, there was more police surveillance of the building: Mr. Stewart was dropped off by an unknown female and entered the rear building door with a key (I am making two assumptions here, both to the benefit of the Crown – that the black male was indeed Mr. Stewart, and that he did use a key to open the rear door, although the officer could not clearly see that, and there is no evidence before the Court that the rear door cannot be opened without a key); McQuarrie was around again; Ms. Foster, previously known to the observing police officer, was seen carrying some grocery bags and entering the rear building door with a key (again, I will assume for the sake of this discussion that a key was used); Mr. Stewart was seen, a second time that day, entering the rear building door with a key (the same assumptions being made about identity and the use of a key); and a female named Dobie, previously known to the police, was seen speaking with Ms. Foster at the rear building door;

(iv) On September 5^th^, four days before the apartment search, Mr. Stewart was seen entering the rear door of the building with a key (the same two assumptions being made about identity and the use of a key);

(v) On September 9^th^, the day of the apartment search, Ms. Foster was seen, twice, entering the rear door of the building with a key, the second time being at 2:13 p.m. (the same assumption about the key being made);

(vi) At 4:20 p.m. on September 9^th^, Mr. Stewart arrived in his white rental vehicle, got out and opened the hood, put something inside his jacket or shirt (the officer could not see anything in his hand, however, I will extend to the Crown the benefit of assuming that the gesture observed was indeed something being put by Mr. Stewart inside his jacket or top), retrieved a grey plastic bag with something inside from the back seat of the car (the officer could not see anything inside the bag, but again I will assume that it was not empty as opined to by the officer when he testified at trial), and then entered the rear building door with a key (again, I will assume that a key was used);

(vii) “moments later”, as agreed to by the lead investigator at trial, the police had entered and forced the apartment door open (Whitehouse agreed at trial that Mr. Stewart was likely outside the apartment door on the third floor of the building at about 4:30 p.m., and the police entered the apartment at 4:31 p.m.);

(viii) When the police rammed the apartment door and knocked it down, it fell onto Mr. Stewart who was standing immediately inside the door;

(ix) When the police entered the apartment, Ms. Foster was lying on the living room couch and appeared to have just woken up;

(x) Quite a bit of cocaine was found by the police in plain view on the kitchen counter, along with other drug paraphernalia, all in a fairly small apartment;

(xi) Traces of marihuana were found by the police inside a grinder in the living room;

(xii) A few MDMA tablets were also found inside the apartment;

(xiii) When Mr. Stewart was handcuffed and searched, three keys on a ring were found on his person; and

(xiv) Of those three keys, one opened the apartment door and one opened the outer building door [I will assume for the sake of this discussion that the keys that were shown to me during the trial were in fact those seized from Mr. Stewart by officer Henderson and those tried in the doors by officer Chevers, despite the problems with that inference in that (a) the seizing officer, Henderson, has no idea what happened to the keys after he took them from Mr. Stewart, and (b) Henderson never examined or identified any keys during his trial testimony, and (c) Chevers could not describe the keys at all and was never shown any keys during his testimony, and (d) Chevers stated at trial that he found the keys on the floor which seems odd that they would have been placed there by someone after being seized by Henderson, and (e) the keys were never made an exhibit at trial].

25That is the case for the Crown at its very highest.

26One could infer from the evidence as a whole that which the Crown submitted in its closing address – that the two accused were jointly selling cocaine from that unit of that apartment building in Meaford, and both were in possession of the cocaine on the kitchen counter.

27I am not sure that those would be reasonable inferences, even taking the evidence at its best for the prosecution.

28Where are the observations of the two accused together? Where are the observations of hand-to-hand transactions between either accused and someone else? Where are the observations of Mr. Stewart on September 6, 7 or 8? Where are the observations of Ms. Foster on any of those three days? If drug deals were being done with persons like McQuarrie and Dobie, why were those persons never detained, questioned and/or arrested? Where is the evidence from the buyers (not testimony at trial as that would be highly unusual, but evidence of their electronic communications with either accused, for example)? Besides what Ms. Stoffers testified to, where is the evidence that either accused, in or around September 2014, lived at or even regularly occupied that apartment, such as surveillance on other days, or clothing found inside, or belongings found inside, or mail found inside, or identification found inside, or photographs found inside, or fingerprints or forensic evidence of any kind found inside, as examples only? Where is the evidence that either accused was ever, at any time, inside that unit of the building before the door was rammed open (the building has multiple apartments inside it)? What about this other unknown male that supposedly lived there for a while? Where is the written lease? What about the child who appears to occupy the one bedroom, as seen in the photos? Where is the grey plastic bag that Mr. Stewart retrieved from the rear seat of his car before entering the building on September 9^th^? Where is the item that he put inside his jacket or top (it cannot possibly be the cocaine on the kitchen counter as that is too large to not have been seen in Mr. Stewart’s hand by the observing police officer)? What about that third key – what does it open? What about this unknown blue car and the unknown black female observed with Mr. Stewart on September 4^th^? What evidence, if any, was seized from the cellular telephones?

29The prosecution is not required to answer every open question in a trial. That would be impossible to do, and it is unnecessary as all that needs to be done is to prove the essential elements of the offence in question beyond a reasonable doubt.

30But there is an unusually large number of unanswered questions in this case.

31In any event, even if I was persuaded of the reasonableness of those inferences suggested by the Crown, it is also reasonable to infer that Mr. Stewart was an infrequent visitor to that building, entered that unit seconds before the door was rammed by the police and never got past a foot or two inside the door, and thus, could not possibly have had possession of the cocaine in the kitchen, or the marihuana remnants in the grinder, or the MDMA pills.

32As for Ms. Foster, it is reasonable to infer that she was staying at that apartment, at least temporarily, was asleep on the couch before the door was rammed open by the police and either had no knowledge or control of the narcotics (because, although at least the cocaine in the kitchen was in plain view, it was not there before she went to sleep), or, more likely, she had knowledge of but no measure of control over those items, especially the cocaine. The cocaine belonged to someone else, whether the male tenant spoken about by Ms. Stoffers, or whomever appears to have been living there with a child, or one of these other characters seen coming and going, for instance.

33Occupancy, even if regular, does not equate with possession.

34My impression from the police evidence in its totality is that they suspected this apartment as being somewhat of a “flop-house”. Persons come and go. Drugs are dealt. Drugs are stored. Drugs are consumed.

35That may be so, but that is all the more reason to look for something else tying these two accused to these narcotics found on September 9^th.^

36In summary, the circumstantial evidence as a whole, looked at logically and with some common sense, is reasonably capable of supporting an inference other than that the accused, or either of them, are/is guilty of possession of any of the three narcotics seized by the police from the apartment on September 9^th^.

37In the circumstances, it is unnecessary to analyze whether the cocaine was being possessed for the purpose of trafficking in it.

III. CONCLUSION

38The police entered an apartment in Meaford and found these two accused persons inside. One just barely inside. The other half-asleep.

39Whose drugs were discovered?

40The Crown has not sufficiently proven knowledge and control.

41Consequently, each accused is found not guilty on every charge.

42I would be remiss if I did not take this opportunity to thank all three counsel involved in the trial: Ms. Lawson, Mr. Struthers and Ms. Gamble.

43This is the way in which a criminal trial ought to be run. The issues were streamlined at the very outset. The Defence made reasonable concessions where it was appropriate to do so. Battles were picked as opposed to the proverbial shot-gun approach. Everyone was civil and courteous throughout. Examinations of witnesses were focussed and non-repetitive. Submissions were helpful. The authorities filed by Mr. Struthers were particularly instructive. When severe winter weather hit the area mid-trial, all counsel cooperated to avoid the necessity of one witness being re-called and to allow a travelling witness to testify later in the day on December 15^th^. It was a pleasure for the Court.

44It is enriching to have it demonstrated in a Courtroom that effective advocacy, passion and zeal are not incompatible with civility and professionalism.

Conlan J.