CITATION: R. v. McConnell and Carmichael, 2016 ONSC 945
COURT FILE NO.: 11568
DATE: 20160211
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
L. Tripp, for the Crown
- and -
SCOTT AARON McCONNELL and ALEXANDER CARMICHAEL
C. Dobson, for the Defendant, Scott Aaron McConnell
A. Prevost and B. Murphy, for the Defendant, Alexander Carmichael
HEARD: January 4, 5 and 6, 2016
Grace J. (Orally)
A. Introduction
[1] The London Police Service (“LPS”) executed a search warrant at 194 Maitland Street, London, Ontario (“194”) at approximately 6:35 p.m. on November 28, 2012.
[2] Various items, including cocaine, were found inside.
[3] As police officers breached the front door of the premises, Scott McConnell and Jesse Hallett ran out the back. Other police officers were waiting outside. Messrs. McConnell and Hallett did not get far and were arrested without incident. While he will feature prominently in these reasons, Mr. Hallett is not before me.
[4] Mr. McConnell is charged with one count of possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act (“CDSA”).[^1]
[5] Mr. McConnell’s co-accused, Alexander Carmichael, was not seen that evening. However, documents bearing Mr. Carmichael’s name were found in a bedroom located within 194. Cocaine was found in that room too. A warrant was issued for his arrest.
[6] On December 2, 2012, police officers returned to 194 looking for Mr. Carmichael. While not in 194, he was observed by a police officer looking out a front window of the adjoining property at 192 Maitland Street (“192”). Soon afterward Mr. Carmichael was arrested. He is charged with two counts of possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the CDSA.[^2]
B. The Elements of the Offences
[7] In order for there to be a finding of guilt, the Crown must prove each of the essential elements beyond a reasonable doubt. They are:
a) That the accused under consideration was in possession of a substance;
b) That the substance was cocaine. That element is not in issue;
c) That the accused under consideration knew that the substance was cocaine; and
d) That the accused under consideration had possession of cocaine for the purpose of trafficking in it.
[8] Before addressing the elements in further detail I turn to the evidence.
C. The Evidence
i. The Cocaine
[9] The floor plan of 194 is not in dispute. 194 is a one floor residence on the east side of Maitland Street. The front entrance faces west and the back east.
[10] A hallway runs from front (the western limit of the residence) to back (the eastern limit). Three rooms open into the hallway. Each one was being used as a bedroom. The westernmost bedroom will be referred to as bedroom one, the middle as bedroom two and the easternmost as bedroom three. 194 contained other rooms including a kitchen.
[11] Sergeant Valiquette conducted the initial walk-through of 194 with police dog Jake. Jake is trained to detect a number of things including narcotics. Nothing was found in bedroom one.
[12] Eight hundred and fifteen dollars in cash and a small quantity (.5 grams) of cocaine were found in bedroom two.
[13] Cocaine was also located in and seized from bedroom three and the kitchen.
[14] The count jointly charging Messrs. McConnell and Carmichael relates to the latter. The count relating to Mr. Carmichael alone involves the cocaine found in bedroom three.
[15] Police officers Valiquette, Steele and Potruff provided testimony concerning the items found in the kitchen.
[16] Sergeant Valiquette said that the actions of Jake suggested narcotics were located in a kitchen drawer. As well, a scale with residue sat on the countertop. Testing has confirmed the deposit was cocaine.
[17] As mentioned, Mr. McConnell was not the only person to quickly exit 194 when the police arrived. Mr. Hallett did too. He spoke with Officer Steele after being apprehended. Officer Steele testified that Mr. Hallett told him drugs would be found in the top drawer in the kitchen under a knife block.
[18] In fact, Officer Potruff found a clear plastic bag containing a combination of white chunks and powder in that location. The contents were weighed and tested and determined to be approximately 7.5 grams of cocaine.
[19] Police officers Valiquette and Steele provided testimony concerning the items found in bedroom three. Sergeant Valiquette said that while in that location, Jake indicated there was something of interest in a white jacket or sweater hanging in the closet.
[20] Officer Steele completed the search of bedroom three. He found three clear bags of cocaine in the right pocket of a red and white sweatshirt hanging in the closet. The contents of the bags were weighed and tested and were determined to total 46.3 grams of cocaine. An electronic scale was also located there.
[21] In summary, 7.5 grams of cocaine was found in a kitchen drawer, some cocaine residue was found on a scale on the kitchen countertop and 46.3 grams of cocaine were found in bedroom three.
ii. The Bedrooms and the Documents
[22] The Crown maintains that Mr. Carmichael occupied bedroom three.
[23] Bedroom one was the one Mr. McConnell appeared to use. His health card was located there. As mentioned, cocaine was not found in that location.
[24] Officer Comeau testified that Mr. McConnell told him he was the owner of the cell phone found in the front hallway and asked Officer Comeau to leave it in bedroom one.
[25] Very large clothing and a health card connected bedroom two to Mr. Hallett.
[26] The Crown’s position with respect to bedroom three is based on the other items Officer Steele found there.
[27] Officer Steele said he started searching bedroom three at approximately 7:30 p.m. He said the room was disorganized and messy. There was bedding on the double or queen sized bed it contained. Men’s clothing was hanging in the closet. There were toiletries. Various documents were found. Some were in the closet, others were found under the mattress and still others were loose in piles at the foot of the bed. Officer Steele said he seized some but not all of the documents he saw.
[28] Officer Steele testified finding under the mattress:
a) Utility bills in the name of Mr. Carmichael and bearing 194’s address. Officer Steele identified two such documents that were made exhibits at trial. They consisted of: (i) a November 9, 2012 Union Gas bill. It indicated that it was a “summary of your first bill at this address” and that it covered the period from October 16 to November 5, 2012; and (ii) a Just Energy Customer Agreement dated November 18, 2012.;
b) Court documents relating to Mr. Carmichael’s release. A Recognizance of Bail dated October 10, 2012 was made an exhibit at trial. Mr. Carmichael was the named accused. His mother Catherine Martin was listed as surety. The recognizance required that Mr. Carmichael reside at 192 Maitland Street which was also shown as the address for his mother, Catherine Martin.
[29] Officer Steele described the documents found in the bedroom closet as:
a) an Ontario Benefit cheque dated November 9, 2012 in the name of Mr. Carmichael. That document was not produced at trial; and
b) a “bunch” of binders. He said he noticed they contained Mr. Carmichael’s name when he flipped through them. Once again, Officer Steele was not shown any such binder. The binders were not produced at trial.
[30] Elsewhere in bedroom three, Officer Steele said he found:
a) Pay stubs in Mr. Carmichael’s name dated October and November, 2012. No pay stub was produced at trial;
b) LPS documents bearing Mr. Carmichael’s picture, name, date of birth and address. Two LPS documents were made exhibits. They consisted of: (i) a property items report printed April 27, 2012. The form described items that had been taken from Mr. Carmichael following an earlier arrest. An address in Komoka, Ontario was attributed to him; and (ii) a booking summary report printed on the same day containing a photograph of Mr. Carmichael and personal details including the same Komoka address; and
c) A bill for a cellular phone in the name of Tim Tomas. A Bell Service Agreement and an invoice/warranty issued by the Cellular Centre each dated May 4, 2012 and both bearing the name of Tim Tomas were identified by Officer Steele. Mr. Tomas’ address was shown as 512 Dundas Street, London, Ontario on the Bell Service Agreement. Officer Steele said the address was fictitious. No address appeared on the invoice/warranty.
[31] As can be seen, Officer Steele did not seize all of the documents he said he found. For example, Officer Steele did not seize a pay stub, an Ontario Benefits cheque or the contents of any binder.
iii. Other Items of Note
[32] As mentioned, Mr. Carmichael was not at 194 when the search warrant was executed. Nothing was recovered from or in relation to him that I have not mentioned.
[33] Mr. McConnell had one hundred and fifteen dollars in cash on his person at the time of his arrest. A Samsung cell phone was found on the floor in the front hallway and claimed by Mr. McConnell. I understand that an analysis was undertaken but nothing of consequence was found.
[34] Eight hundred and fifteen dollars in cash was found in bedroom two. In addition, one hundred and twenty dollars was found near Mr. Hallett when he was arrested.
iv. The Earlier Surveillance
[35] 194 had been under surveillance before the search warrant was obtained.
[36] After receiving information from a confidential informant, members of the LPS conducted surveillance of the address from about 3:39 p.m. to 6:47 p.m. on October 26 and from approximately 11:39 a.m. to 2:53 p.m. on November 16, 2012. I will deal with those dates in order to the extent the observations include one of the defendants.
[37] I start with October 26, 2012. At 4:16 p.m. Mr. Carmichael was seen parking a grey Ford Taurus in the short driveway outside 194. He exited the Taurus and entered 194.
[38] At 4:36 p.m. a male, later identified as Mr. McConnell, rode up to 194 on a bicycle. After dismounting, he went inside 194.
[39] At 4:51 p.m. Mr. McConnell, Mr. Hallett and an unidentified woman exited 194. They were seen smoking cigarettes on the porch. Thereafter Mr. McConnell left and walked to 184 Maitland Street.
[40] At 5:01 p.m. Mr. Carmichael joined the group outside. One minute later Mr. McConnell was observed returning to 194.
[41] At 5:05 p.m., Mr. Carmichael entered the Taurus and drove away. He was seen entering an establishment identified by Officer Steele as the Black Shire pub on Talbot Street, London seven minutes later. At 5:15 p.m. Mr. Carmichael returned to the Taurus and drove away. He made a brief stop at a variety store before returning to and re-entering 194 at 5:27 p.m.
[42] At 5:50 p.m, Mr. McConnell left 194 and ran to and then entered 199 Maitland Street.
[43] At 6:14 p.m., Mr. Carmichael and two other males exited 194 and drove away in the Taurus. That car was seen parked behind a strip bar a few minutes later.
[44] I turn to the surveillance conducted on November 16, 2012.
[45] At 12:35 p.m., Messrs. McConnell and Hallett left 194. Mr. Hallett walked to and then entered 184 Maitland Street. Mr. McConnell walked toward the rear of the property where an unidentified male had gone on a bicycle a few minutes earlier. The cyclist rode out of the driveway about a minute later. Mr. McConnell then joined Mr. Hallett at 184 Maitland Street.
[46] At 12:44 p.m. Messrs. Hallett left 184 Maitland Street carrying a vacuum and re-entered 194. On this occasion, Mr. McConnell used a key to enter the premises.
[47] Officer Steele said that computerized searches were undertaken. Mr. McConnell’s address was shown as being 194 and Mr. Carmichael’s as 192 Maitland Street.
[48] To summarize, both Mr. Carmichael and Mr. McConnell were seen entering and exiting 194 on October 26, 2012. Mr. McConnell was also observed entering 184 and 199 Maitland Street on that day.
[49] No observations were made of Mr. Carmichael on November 16, 2012. Mr. McConnell was seen exiting and entering 194. On the last occasion he was carrying a vacuum and gained entry using a key.
D. Analysis and Decision
[50] Having described the evidence I return to the elements of the offences facing Mr. Carmichael and Mr. McConnell. They are:
a) That the accused under consideration was in possession of a substance;
b) That the substance was cocaine. As mentioned, that element is not in issue;
c) That the accused under consideration knew that the substance was cocaine; and
d) That the accused under consideration had possession of cocaine for the purpose of trafficking in it. Mr. Carmichael’s counsel acknowledges that element is satisfied in relation to count two given the quantity of cocaine found in bedroom three.
[51] Section 2(1) of the CDSA adopts the Criminal Code’s definition of “possession”. Section 4(3) of the latter statute provides:
For the purposes of this Act,
(a) a person has anything in possession when he has it in his personal possession or knowingly
(i) has it in the actual possession or custody of another person, or
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or another person; and
(b) where one of two or more persons with the knowledge and consent of the rest, has anything in his or her custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
[52] That subsection describes three possibilities: actual or personal possession (s. 4(3)(a); constructive possession (s. 4(3)(a)(i) and (ii)) and joint possession (s. 4(3)(b)).
[53] As Kovacs J. (ad hoc) said in R. v. Pham (2005), 2005 44671 (ON CA), 77 O.R. (3d) 401 (C.A.) (“Pham”) at para. 27:
Whether someone is in possession of something pursuant to s. 4(3) of the Code is a question of fact to be determined on the evidence based on the inferences to be drawn in each case.[^3]
[54] I will deal with each accused in turn starting with Mr. Carmichael since he is the first defendant named in the indictment.
i. Was Mr. Carmichael in possession of the cocaine found in bedroom three and the kitchen on November 28, 2012?
[55] As mentioned, cocaine was found in the pocket of a sweater or sweatshirt hanging in the closet of bedroom three and in a kitchen drawer. It was not found on Mr. Carmichael’s person.
[56] The Crown submits Mr. Carmichael had either constructive or joint possession of the cocaine.
[57] Underlying the Crown’s position is its assertion that Mr. Carmichael resided at 194 with Messrs. McConnell and Hallett and was the occupant and therefore in control of, bedroom three at the relevant time.
[58] In this case, the following pieces of evidence support the Crown’s theory that Mr. Carmichael lived at 194 and occupied bedroom three:
a) Mr. Carmichael had been seen parking at and entering 194 – seemingly without knocking and without a key – on two occasions on October 26, 2012;
b) Various documents were found in various parts of bedroom three which bore Mr. Carmichael’s name including pay stubs, a provincial government cheque, a utility bill, a utility contract, documents generated by the police and by the court;
c) Some of the documents were found underneath the mattress;
d) Some of the documents were dated in October and November, 2012;
e) Several binders were found in the bedroom closet which contained Mr. Carmichael’s name;
f) The bedroom appeared to be occupied by a male person. There was bedding on the mattress, clothes hanging in the closet and men’s toiletries were present.;
g) Documents dated November 9 and 18, 2012 showed Mr. Carmichael’s address as 194.
[59] The Crown’s case is circumstantial. I must be satisfied beyond a reasonable doubt that occupation of 194 and specifically bedroom three is the only reasonable inference to be drawn from the proven facts: R. v. Humphrey, 2011 ONSC 3024, [2011] O.J. No. 2412 (S.C.J.). After reviewing the evidence with care I have concluded that the Crown has been unable to discharge the burden of proof it bears.
[60] I say that notwithstanding the fact the Union Gas bill and Just Energy Customer Agreement were recent, addressed to Mr. Carmichael at 194 and may well have evidenced up-to-date arrangements.
[61] Nonetheless, there are too many unanswered questions and too many other possibilities. For example:
a) I do not know who was recorded as the registered owner of 194 at the relevant time;
b) I do not know if 194 was the subject of a lease, let alone who any landlord or tenant might have been;
c) Beyond the presence of the documents I have described, there is no evidence of Mr. Carmichael having been inside 194 after October 26, 2012;
d) Some of the documents bearing Mr. Carmichael’s name contained a different address;
e) When police officers knocked at the door of 194 on December 2, 2012, Mr. Carmichael did not respond. However, he did appear at the window of 192. That was the address shown on the recognizance dated October 10, 2012. That was where Mr. Carmichael was obliged to live pursuant to the conditions of his release;
f) One of the documents found in bedroom three contained a different name. While the address attributed to that person was said to have been fictitious, I do not know whether the name (Tim Tomas) describes a real person or not;
g) At 6:14 p.m. on October 26, 2012, Mr. Carmichael was seen leaving 194 with two males. I was not told who they were. I do note however, that it appears Mr. McConnell was at 199 Maitland at that time.
[62] While it is entirely possible, perhaps even probable, that Mr. Carmichael resided at 194, I am not satisfied beyond a reasonable doubt that is so. I cannot say with any precision if, let alone when, Mr. Carmichael was – or others were - present in 194 generally or in bedroom three specifically.
[63] The Crown has not satisfied the first element of either count Mr. Carmichael faces. Given my conclusion on that issue, it should be obvious that I cannot go further and conclude that Mr. Carmichael had constructive or joint possession of the cocaine found in bedroom three or the kitchen of 194.
ii. Was Mr. McConnell in possession of the cocaine found in the kitchen?
[64] The analysis with respect to Mr. McConnell starts at a different place because I am satisfied beyond a reasonable doubt that he occupied 194, although I do not know the basis on which he did so.
[65] I have reached that conclusion in part because he featured prominently in the surveillance conducted on October 26 and November 16, 2012.
[66] While seen entering other nearby residences (for example, 184 and 199 Maitland Street), 194 was his base as evidenced by his use of a key on November 16, 2012.
[67] Furthermore, on November 28, 2012, Mr. McConnell was seen exiting the rear of 194 as police officers were breaching the front entrance in order to execute the search warrant that had been obtained.
[68] Mr. McConnnell’s health card was found in bedroom one. Notably, he asked Officer Comeau to place a cell phone he had retrieved in that room.
[69] The real issue is whether Mr. McConnell was in constructive or joint possession of the cocaine found in the kitchen drawer.
[70] In Pham, supra, the Court of Appeal explained what the Crown must prove to establish constructive or joint possession. At paras. 15 and 16 Kovacs J. (ad hoc) wrote:
In order to constitute constructive possession…there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed…
In order to constitute joint possession…there must be knowledge, consent, and a measure of control on the part of the person deemed to be in possession.
[71] There is no direct evidence concerning any of those topics. A statement of Mr. McConnell was not introduced. Mr. McConnell is not, of course, required to prove a thing and did not testify at trial.
[72] A presumption of possession of the contents of an apartment does not arise by virtue of a tenancy or occupancy: R. v. Watson, 2011 ONCA 437 at para. 13. In other words, the fact Mr. McConnell was a joint occupant of 194 does not, on its own, mean he had knowledge of, consented to or a measure of control over an item belonging to or in the possession of another tenant or occupant: R. v. Masters, 2014 ONCA 556 at para. 23.
[73] However, direct evidence of an accused’s knowledge of the presence of narcotics in a residence is not required. In R. v. Sparling, [1988] O.J. No. 107 (H.C.J.) aff’d [1988] O.J. No. 1877 (C.A.), Watt J. (as he then was) noted at p. 6:
It is not essential that there be such evidence for…it may be established by circumstantial evidence. In combination, the finding of narcotics in plain view in the common areas of the residence, the presence of a scale in a bedroom apparently occupied by the applicant, and the applicant’s apparent occupation of the premises may serve to found an inference of the requisite knowledge.
[74] In this case the evidence establishes that:
a) 194 was a small residence;
b) Mr. McConnell, Mr. Hallett and perhaps another male resided at 194;
c) Mr. McConnell, Mr. Hallett and a minor were in the premises at the time the police entered;
d) Mr. McConnell and Mr. Hallett attempted to flee;
e) Over eight hundred dollars in cash and a small amount of cocaine were found in bedroom two;
f) Mr. Hallett appeared to occupy bedroom two;
g) Mr. McConnell and Mr. Hallett did not get far and were arrested in short order;
h) On hundred and twenty dollars in cash was found near Mr. Hallett;
i) After his arrest, Mr. Hallett told Officer Steele that cocaine would be found in a kitchen drawer underneath a knife block;
j) The kitchen was a common area accessible to anyone who was in 194;
k) Cocaine was found in a kitchen drawer underneath some knives;
l) Packages of plastic bags were found in two kitchen drawers;
m) A scale containing cocaine residue was sitting on the countertop in the kitchen;
n) Nothing of consequence was found in bedroom one;
o) Mr. McConnell appeared to occupy bedroom one;
p) Mr. McConnell had one hundred and fifteen dollars on his person at the time of his arrest. A Samsung cellphone was also retrieved and analyzed. Nothing of consequence was found on it;
q) As a result of the events of November 28, 2012, Mr. Hallett was charged with and entered a plea of guilty to possession of cocaine for the purpose of trafficking.
[75] During argument the Crown suggested that drug activity had been identified while 194 was under surveillance. I do not remember any such evidence. Officer Steele testified that on November 16, 2012, Mr. McConnell walked in the direction of a cyclist who had ridden toward the rear of 194. He said that after a short period the cyclist rode away and that Mr. McConnell emerged soon afterward. His evidence went no further.
[76] Based on the evidence I am prepared to find beyond a reasonable doubt that Mr. McConnell knew there was a scale containing cocaine residue on the kitchen countertop. It was in plain view, in a shared space.
[77] However, the factual matrix is insufficient for me to conclude that Mr. McConnell had constructive or joint possession of any of the cocaine found in the kitchen.
[78] Mr. Hallett was clearly connected to what was found in the drawer and therefore, inferentially, the scale. He told the police where drugs would be found.
[79] The package containing 7.5 grams of cocaine was discovered by Officer Pottruff some distance back from the front of the drawer underneath some knives. Mr. McConnell may or may not have known it was there.
[80] Awareness does not constitute knowledge. Hence the use of the word “quiescent” in Pham. Mere indifference or passive acquiescence is not enough: R. v. Thompson, 2010 ONSC 2997 (S.C.J.) at para. 47.
[81] In any event, knowledge is only one element. Some measure of control is another.
[82] That requirement can be met even absent actual physical control. However, the accused must be able to grant or withhold consent to the storage of the item in a particular location.
[83] In Pham, supra, it was established that the accused was a tenant of the apartment in which drugs were found. At para. 25(f), the majority of the Court of Appeal noted that:
…the role of the accused in the trafficking scheme strongly suggested power and authority over the disposal of the cocaine found, and an inability to withhold consent to the keeping of any drugs in her home…
[84] In this case, I am sure that Mr. Hallett and Mr. McConnell occupied 194 but I do not know the legal basis on which they did so.
[85] Bedroom one was described as a “makeshift” one during the trial. In other words, it was a room that had been intended for another purpose but was being used for another on a temporary basis at least. That was the bedroom Mr. McConnell appeared to occupy.
[86] I do not know if Mr. McConnell was an owner, a tenant, boarder or a long-term guest. Consequently, it is entirely unclear what level of control Mr. McConnell had over the common areas of the residence, if any.
[87] The Crown relies on Mr. McConnell’s flight from the premises. After-the-fact conduct may constitute circumstantial evidence of guilt: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 22.
[88] In this case and while suspicious, Mr. McConnell’s hasty exit from 194 does not cure the deficiencies in the evidence to which I have already referred.
[89] Mr. Hallett was trafficking cocaine. Mr. McConnell’s decision to run may have been a result of the fact that he was involved in a joint enterprise. However, it is equally possible that he was not and that he left when and as he did simply because he knew his housemate had placed a scale containing cocaine residue in plain sight in the kitchen. I am simply unsure which, if either, of those possibilities is correct.
[90] Further, I am unable to conclude that the doctrine of wilful blindness applies: R. v. Callejas, 2011 ONCA 393. The conclusion that Mr. McConnell purposely closed his mind to what was going on in order to be able to deny knowledge is not one which arises logically and inescapably from the evidence.
[91] In summary, the Crown has not proven beyond a reasonable doubt that Mr. McConnell had constructive or joint possession of the cocaine found in the kitchen of 194.
E. Conclusion
[92] For the reasons given, I find Mr. Carmichael and Mr. McConnell not guilty. The charges are dismissed.
“Justice A. D. Grace”
Grace J.
Released: February 11, 2016
CITATION: R. v. McConnell and Carmichael, 2016 ONSC 945
COURT FILE NO.: 11568
DATE: 20160211
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Crown
- and –
SCOTT AARON McCONNELL and ALEXANDER CARMICHAEL
Defendants
REASONS FOR JUDGMENT
Grace J.
Released: February 11, 2016 (Delivered Orally)
[^1]: The indictment refers to s. 5(3)(a) of the CDSA.
[^2]: Once again, the indictment refers to s. 5(3)(a) of the CDSA.
[^3]: The decision was affirmed at [2006] 1 S.C.J. No. 26.