COURT FILE NO.: 16-1675 DATE: 20170526
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Damien R. Frost
- and -
GERRI CARVALHO Brendan Gould
HEARD: March 13, 2017
REASONS FOR JUDGMENT
Justice Joseph M. Fragomeni
[1] The accused, Gerri Carvalho, is charged with four counts as follows:
- Simple possession of ecstasy.
- Simple possession of cocaine.
- Possession of cocaine for the purpose of trafficking.
- Simple possession of heroin.
The counts relate to a stop and seizure that took place on March 26, 2015.
[2] The trial of this matter took place on March 13, 2017 and it was blended with Carvalho’s Charter Application pursuant to Sections 8, 9 and 24(2) of the Canadian Charter of Rights and Freedoms.
Trial/Application Evidence: (Trial)
Cst. Gillian Martin
[3] Cst. Martin is a member of the Peel Regional Police. She was on duty on March 26, 2015. Exhibit 1 at the trial is the Google map depicting the location of where the events she describes took place.
[4] Cst. Martin was in a marked police cruiser and she was alone. She was parked facing north and she marked with a circle where in the apartment complex her cruiser was parked. She was parked at this location for about 10 minutes when just after 11:53 a.m. she observed a silver Chevy Malibu travel from Kings Cross Road at a high rate of speed.
[5] The Malibu drove right by her and turned in front of her. The Malibu made a left turn and then made a quick right turn. It pulled forward and then backed into a parking spot by 3 Knightsbridge Road. Cst. Martin depicted the route of travel of the Malibu from Kings Cross Road to the parking spot. This is depicted with a red line.
[6] Cst. Martin estimated the speed of the Malibu at 60 to 70 km/hour. Most people travelling in that area of the apartment complex would travel at 15 to 20 km/hour.
[7] As a result of these observations Cst. Martin had safety concerns as it related to pedestrians within the complex.
[8] As the Malibu passed her cruiser she had no idea how many people were in the vehicle. She decided that it was necessary to speak to the driver so she turned her cruiser around and caught the Malibu as it was reversing into its parking spot.
[9] At this point Cst. Martin radioed her traffic spot as a safety precaution. She radioed her location and the licence plate of the Malibu. She parked her cruiser directly in front of the Malibu.
[10] Cst. Martin observed three people in the vehicle. They looked nervous and were fidgeting. She radioed for another police cruiser to attend the scene.
[11] Cst. Martin exited her cruiser and approached the driver’s side. The doors were open and all three male occupants were trying to get out of the vehicle. She detected a pungent distinct odour of marijuana. As she was speaking to the driver the other two males were sitting on the sidewalk.
[12] Cst. Martin observed a scale on the back seat. She saw marijuana shake on the scale and on the centre console. She identified the driver as the accused before the court. Mr. Hill was the backseat passenger and Mr. Campbell was the front seat passenger.
[13] Cst. Martin had noticed a dent and discolouration on the front driver’s side bumper and she was talking to the driver about that. It was not a large or serious dent.
[14] As Cst. Martin walked toward the driver’s door she could smell fresh marijuana. All three became hostile towards her, talking loudly all at once and saying that she was harassing them. She had initially told them to stay in the vehicle but they ignored her.
[15] Cst. Martin was aware that this area attracted lots of calls for violence and drug dealing and this also factored in to her safety concerns. Cst. Martin was a Neighbourhood Police Officer as well.
[16] Cst. Martin’s plan was to arrest all three males but was waiting for the other officers to arrive first. She was trying to keep the situation calm. Cst. Martin’s initial plan was to simply speak to them about the dangerous driving but then she smelled the fresh marijuana and saw the scale and marijuana shake.
[17] PC Kelly and PC Rozek arrived on scene in their cruisers. She told them all three males were arrestable for drugs. She arrested the driver, Carvalho.
[18] Cst. Martin conducted a search of Carvalho incident to arrest. She located and seized the following items: − money − 2 bags in his front right pocket containing 4 MDMA pills − white powder, less than 1 gram.
[19] Carvalho was placed in the rear of the cruiser. He had no identification on him. Cst. Martin took the keys from him as well. Carvalho was provided with his rights to counsel and cautioned.
[20] Cst. Martin took the keys and opened the driver’s side door. She was going to search for the accused’s identification.
[21] She opened the driver’s side door and noticed the black scale on the back seat. She opened the centre console and saw a green electronic scale, 2 ½ inches by 2 ½ inches in diameter. She also saw a black wallet in the centre console, a Permanent Residence Card in Carvalho’s name, a photo of a 7 or 8 year old child, a paper licence in the name of Gerri Carvalho with no photo.
[22] On the passenger side in the glove box she located a grocery bag tied around a golf ball-like item that looked like a solid rock of cocaine.
[23] Filed as Exhibit 2 is the bag found in the glove box. Also found in the glove compartment were the following: Van and Truck Rental Agreement in the name of Paul Bonnick; a black, no stink bag; a clear plastic bag with tissue paper and a 1 inch dime bag containing white power (less than 1 gram), another bag tied tightly with a rock substance she believed to be crack cocaine.
[24] Cst. Martin did not seize the scales. Cst. White continued the search after she searched the glove compartment. Cst. White was the Exhibits Officer and Cst. Martin gave him all the items she had collected from Carvalho and the vehicle.
Cross-examination
[25] At no time did she seize or move the black scale that she observed on the backseat. At no time did Cst. Martin seize the marijuana shake. She did seize the green scale and gave it to Cst. White.
[26] Cst. Martin did not take photos of the shake.
[27] Cst. Martin described the smell of marijuana as a very strong, pungent smell. At the preliminary hearing she stated the smell was strong – it was “kicking me in the face.”
[28] With respect to the speed of the vehicle at the preliminary hearing she said it was 50 to 60 km/hour. The 60 to 70 km/hour speed is a guess. She did not issue a speeding ticket. At the time she made a note that the vehicle was travelling at a very high rate of speed.
[29] The centre console had two portions. The green scale was in the top portion and the wallet was in the bottom portion.
[30] Cst. Martin confirmed that the smell was fresh marijuana, not burnt marijuana.
[31] Cst. Martin confirmed that the only reason she went to speak to the driver was the high rate of speed. She could not give him a Highway Traffic Act speeding ticket as he was on private property but he was driving dangerously and she had a right to speak to the driver. He was driving at a higher rate of speed than anyone else in the complex.
Cst. Robert Rezek
[32] Cst. Rezek is also a member of the Peel Regional Police. On March 26, 2015 he responded to a radio call from Cst. Martin. He arrived at her location within 45 seconds to 1 minute. He arrived on scene at 11:55 a.m. Cst. Martin advised him the males were arrestable for drug possession. He dealt with Gavin Campbell and put Gavin in his cruiser. Cst. Rezek did not search the vehicle or look inside. Cst. Rezek could smell freshly burnt marijuana on Gavin Campbell. He searched Gavin Campbell. At 3:45 Gavin Campbell was released on a promise to appear.
Cross-examination
[33] Cst. Rezek confirmed that what he smelled coming off of Gavin Campbell’s jacket was freshly burnt marijuana.
[34] He is sure of that smell as he has experienced it before while at Ontario Police College in 2008 during control burns. He has smelled this 20 times over the 2 years when he was on bike patrol.
Cst. Kenneth White
[35] Cst. White is also a member of the Peel Regional Police. On March 26, 2015 he and Cst. Rezek responded to a radio call from Cst. Martin and responded to same within one to four minutes. At the scene Cst. Martin asked him to assist with the search of the vehicle. Cst. White did so and located the following: − front passenger side in the door handle – small white baggie with a twist − centre console – black and grey cell phone; baggie with two baggies inside with 8-ball symbols; − on the floor by the front passenger seat was a black scale with writing on it – Exhibit 3 at this trial − backseat – two sets of gloves and two balaclava.
[36] Cst. White could smell fresh marijuana.
[37] Cst. White was the Exhibits officer. He received Exhibit 4, the green scale, from Cst. Martin. Cst. White also dealt with the drugs.
[38] Exhibit 5 – the weight of the cannabis was 2.1 grams and it was analyzed as cannabis. The cocaine was analyzed and it had a weight of 29.35 gm. The grey plastic bag with a knot was cocaine and weighed .7 grams. (Exhibit 6) The grey plastic knitted bag containing .85 grams of cocaine is Exhibit 7. Exhibit 8 contains the 4 MDMA ecstasy pills. Exhibit 9 is the heroin with a weight of 1.0 gram.
Cross-examination
[39] Cst. White confirmed that he found the black scale on the front passenger side floor. He could not recall seeing grocery bags in the vehicle. With respect to the centre console he only checked the deeper portion of it. Cst. White does not recall seeing any marijuana shake and made no note of that. If he had seen it he would have noted it.
Defence Evidence
Gerri Carvalho (Carvalho)
[40] Carvalho is 22 years of age and lives in Toronto. On March 25, 2015 he had been partying with friends at 5 Kings Cross Road. He was with Gavin Campbell and Niyo Hill, Paul Bonnick and a few girls he had just met.
[41] Carvalho drives a blue Acura and he drove to the party with Campbell and Hill. Campbell had told Carvalho about the party.
[42] Carvalho is employed at a Pizza Hut as a cook, full-time, and earns on average $700 to $800 per week. The $200 cash seized from him was cash he had on him that he brought to the party.
[43] At the party Carvalho was drinking alcohol and smoking marijuana. He had 3 to 4 joints with a few of his friends. They partied until the next day. Campbell, Hill and Carvalho were all smoking marijuana together.
[44] Carvalho also did a few lines of cocaine he had purchased from Hill. He paid $30 for the cocaine (½ gram), the 4 MDMA pills were in his pocket.
[45] The next day, March 26, 2015 they were hungry so they drove to FreshCo for groceries. Carvalho took Paul Bonnick’s rental vehicle instead of his Acura. Carvalho’s car had a fake insurance slip so Bonnick offered to allow him to take the rental and Carvalho drove. Carvalho was concerned about police presence at the Kings Cross Road area and knows there is a frequent police presence in that area. He has seen police in the area more than half of the times he has been there.
[46] Carvalho, Hill and Campbell attended at FreshCo. While Carvalho was paying he gave Campbell the keys and he and Hill returned to the vehicle.
[47] After they left FreshCo Carvalho testified that he was driving cautiously. He was only a G1 licenced driver, he was aware of police presence in the area, and he had drugs in his pocket from the party.
[48] Once they returned to the complex and parked he noticed a police cruiser right behind him. They were blocked in. They all immediately got out of the vehicle and closed the doors and started walking to 5 Kings Cross Road.
[49] Cst. Martin got out of her cruiser and told them to stop. Campbell asked why and she said, “I’m investigating this dent on the rental vehicle.”
[50] They were all placed under arrest. All of the groceries were left in the vehicle, except one bag, which he had on him.
[51] Carvalho had placed his wallet in the centre console.
[52] The speed he was travelling at the complex was 30 to 40 km/hour.
[53] Carvalho recognized the following trial Exhibits: Exhibit 8 - the baggie with the MDMA pills. He does not recognize the other bag. Exhibit 6 - He recognizes it as the baggie in his pocket with the MDMA pills. He does not recognize Exhibits 5, 7, or 9.
[54] He had no idea that there were drugs in the glove box.
[55] He did not see marijuana shake in the vehicle. He did not see either scale in the vehicle.
[56] When he threw his wallet in the centre console he did not look inside and notice anything. He put it there not to have it in his back pocket.
[57] He did not look or notice any damage to the vehicle.
[58] He has met Bonnick prior to this day on 10 occasions. Bonnick is Campbell’s girlfriend’s cousin.
Cross-examination
[59] In cross-examination Carvalho acknowledged or confirmed the following: − he did not bring any drugs to the party − he has known Campbell for 7 years and Hill for 2 or 3 years − he has partied with Bonnick before. Bonnick uses cocaine, marijuana, and ecstasy. − he bought 5 MDMA pills and had taken one so he had 4 left in his pocket − he had no idea if Bonnick is a drug dealer − he did not know Bonnick’s vehicle was a rental − he cannot recall if he had his cell phone with him – neither of the two cell phones found in the vehicle are his − the no stink bag is not his − the two scales found are not his − exhibits 8 and 6 are the bags found in his pocket − at Exhibit 7, the grey bag is a different shade of grey − the travel route from Kings Cross Rd is not as described by Cst. Martin − he would not expect Bonnick to loan him his rental vehicle with 29 grams of cocaine in it − the cocaine found in the glove compartment is not his.
Charter Issues:
Position of the Defendant
[60] The Defendant submits that Cst. Martin had no reasonable grounds to stop the Defendant and as such the initial stop is arbitrary and contrary to s.9 of the Canadian Charter of Rights and Freedoms.
[61] The Defendant submits that Cst. Martin blocked the vehicle driven by the Defendant, with her own cruiser, and as such he was detained. The Defendant argues that there was no authority to stop the vehicle pursuant to the Highway Traffic Act as he was travelling in a private parking lot.
[62] The Defendant readily acknowledges, however, that if I accept Cst. Martin’s evidence that she investigated the driver as a result of his dangerous driving, (speed, location, public safety of those in the apartment complex), then Cst. Martin did have a common law duty to investigate. In those circumstances his s. 9 Application would fail.
[63] The Defendant points to his own testimony that he was driving cautiously. He asks the court to accept his evidence on that issue.
[64] With respect to s.8 of the Canadian Charter of Rights and Freedoms, the Defendant submits that Cst. Martin did not have reasonable and probable grounds to search him or the vehicle. The smell of freshly burnt marijuana is insufficient to establish those grounds. Again the Defendant acknowledges that if I accept Cst. Martin’s testimony that in addition to the strong smell of freshly burnt marijuana she saw a scale on the backseat and marijuana shake then his s. 8 Application would fail.
[65] The Defendant submits, however, that Cst. Martin’s evidence relating to the scale and the shake is not credible. Cst. White did not see any shake in the vehicle. Cst. White found a black scale on the floor of the front passenger seat and not on the back seat.
[66] With respect to the smell, Cst. White said he could smell the marijuana at the threshold of the vehicle. Cst. Rezek testified that he smelled burnt marijuana on Campbell’s clothing.
[67] Further, only 2 grams of marijuana were seized and it was packaged so Cst. Martin’s evidence on that issue cannot be relied on.
Section 24(2)
[68] The Defendant acknowledges that there is a diminished right to privacy in a vehicle. The search of the Defendant’s person however, attracts a higher expectation of privacy.
[69] In applying the Grant factors, on balance, the evidence seized out to be excluded.
Position of the Crown
[70] With respect to s.9, the Crown submits that there is no reason not to accept the testimony of Cst. Martin. Cst. Martin had a common law duty to investigate what she perceived to be dangerous driving.
[71] Cst. Martin made observations about the speed of the vehicle and considering its location in the apartment complex was concerned for the safety of the public.
[72] The Crown argues that the Defendant’s testimony with respect to his cautious driving and route taken into the complex is not credible. If he had parked where he said he did Cst. Martin would never have even seen him.
[73] There is no reason not to accept Cst. Martin’s testimony with respect to the initial stop.
[74] With respect to s.8 of the Canadian Charter of Rights and Freedoms, the Crown submits that Cst. Martin did have reasonable and probable grounds to arrest the Defendant and as such both the vehicle search and the search of the Defendant were properly undertaken as searches incidental to arrest.
[75] The Crown submits that it is not necessary to resolve the inconsistencies between Cst. Martin and Cst. White regarding the presence of shake and the location of the black scale. With respect to the smell of marijuana, the Defendant himself testified that he, Campbell and Hill had done a session prior at the party and he agreed she would have smelled of burnt marijuana.
Section 24(2)
[76] The Crown submits that if the court concludes that there were two breaches, s.9 and s.8, then the evidence seized ought to be included. However, if the court finds that only s.8 was violated then the evidence should be admitted. In applying the Grant factors to the evidence, on balance, the evidence should be admitted.
[77] Cst. Martin acted in good faith and even if she was mistaken with respect to whether the marijuana smell was fresh or burnt she believed it was freshly burnt marijuana.
[78] The vehicle was a rental and in those circumstances the expectation of privacy is significantly diminished.
[79] The evidence seized is real evidence, it is not conscripted, and it is necessary for the prosecution to proceed.
Conclusion Re: Charter Issues
s. 9
[80] I accept the testimony of Cst. Martin as it relates to her initial observations of the vehicle being driven by the Defendant. I accept her evidence that she observed the vehicle travel from Kings Cross Road at a high rate of speed. The vehicle drove right by her and turned in front of her. In her trial testimony Cst. Martin estimated that the vehicle was travelling at 60 to 70 km/hour. At the preliminary hearing she estimated that the speed was 50 to 60 km/hour. This difference is of no moment and I accept her evidence that the vehicle was travelling at a very high rate of speed and at a higher rate than anyone else in the complex. She stated that most people travelling in that area of the apartment complex would travel 15 to 20 km/hour. Cst. Martin was concerned about the safety of pedestrians within the complex.
[81] This initial stop by Cst. Martin was not arbitrary. She had a common law duty to investigate this matter further and she did so. I am satisfied that both branches of the Waterfield test were met, namely: − the conduct of Cst. Martin fell within the general scope of any duty imposed by statute or recognized at common law − the conduct involved a justifiable use of powers associated with that duty.
[82] The testimony of the Defendant relating to this initial stop and investigation cannot be accepted. The route of travel described by him and the ultimate spot where he says he parked would have made it impossible for Cst. Martin to even see the vehicle from where she was parked. I also do not accept his evidence that he was driving cautiously for the reasons he articulated. His stated concern about police presence in the area is undermined by the fact that he had on his person MDMA pills and a small amount of cocaine. If he had concerns about police presence it is reasonable to infer that he would have left those drugs in the apartment and not have them on his person.
[83] In all of these circumstances the s.9 Application is dismissed.
S.8
[84] The testimony of Cst. Martin and Cst. White differ with respect to two matters. Cst. Martin saw a black scale on the back seat of the vehicle. Cst. White saw a black scale on the floor by the front passenger seat.
[85] Cst. Martin saw marijuana shake or crumbs. Cst. White did not recall seeing any marijuana shake and made no note of seeing that. If he had seen marijuana shake he would have made note of it.
[86] I cannot resolve these two inconsistencies. One or both of the Officers are mistaken with respect to these two areas. In those circumstances, I am unable to find that Cst. Martin could base her reasonable and probable grounds for arrest on seeing a scale and marijuana shake. On that basis, therefore, Cst. Martin could only rely on the fact that she smelled freshly burnt marijuana emanating from the vehicle.
[87] The Defendant argues that the smell of marijuana on its own is insufficient to establish reasonable and probable grounds. In support of that position the Defendant relies on R. v. Polashek, 45 O.R. (3d) 434. In Polashek the Court set out the following:
In short, the appellant argues that the presence in a vehicle of the odour of marijuana alone shows only that at some time someone smoked marijuana in that vehicle. It does not provide reasonable grounds to believe that the present occupant of the vehicle was in present possession of marijuana. Thus, it is argued, there are no grounds for an arrest or a search based solely on the officer's perception of marijuana odour.
I agree, in part, with the appellant's position. Had Constable Ross based his arrest of the appellant solely on the presence of the odour I would have held that there were not reasonable and probable grounds to make the arrest. Given Constable Ross' admission that he could not from the odour alone determine whether the marijuana had been smoked recently or even if he was detecting the smell of smoked marijuana, the presence of odour alone did not provide reasonable grounds to believe that the occupant was committing an offence. The sense of smell is highly subjective and to authorize an arrest solely on that basis puts an unreviewable discretion in the hands of the officer. By their nature, smells are transitory, and thus largely incapable of objective verification. A smell will often leave no trace. As Doherty J.A. observed in R. v. Simpson, at p. 202: ". . . subjectively based assessments can too easily mask discriminatory conduct based on such irrelevant factors as the detainee's sex, colour, age, ethnic origin or sexual orientation."
On the other hand, I would not go so far as was urged by the appellant that the presence of the smell of marijuana can never provide the requisite reasonable and probable grounds for an arrest. The circumstances under which the olfactory observation was made will determine the matter. It may be that some officers through experience or training can convince the trial judge that they possess sufficient expertise that their opinion of present possession can be relied upon. Even in this case, the Crown adduced sufficient evidence from which the trial judge could reasonably conclude that Constable Ross accurately detected the odour of marijuana rather than some other substance.
[88] Cst. Martin’s testimony regarding the smell is corroborated by both Cst. White and Cst. Rezek and the Defendant himself.
[89] Cst. Martin is quite clear and certain that as she approached the vehicle she detected a pungent and distinct odour of marijuana.
[90] In cross-examination she described the smell of marijuana as very strong, pungent smell. At the preliminary hearing she stated that the smell was “kicking me in the face.”
[91] Cst. Rezek stated he could smell freshly burnt marijuana coming off Gavin Campbell’s jacket. Cst. White could also smell fresh marijuana. The Defendant himself acknowledged that at the party that continued well into the morning he had smoked marijuana along with Campbell and Hill.
[92] From my review of Cst. Martin’s evidence I am satisfied that her initial plan was only to speak to the driver about the dangerous driving he exhibited in the apartment complex. That initial plan changed, she said, because of three observations, namely: − The smell of freshly burnt marijuana − The black scale noticed on the back seat − The marijuana shake she observed in the vehicle.
[93] As I indicated earlier, I am unable to resolve her evidence with that of Cst. White and in those circumstances I cannot make a positive finding of fact relating to the black scale and the marijuana shake. With only the smell of marijuana left to anchor the Officer’s reasonable and probable grounds, I am not satisfied that sufficient grounds existed. I am satisfied, guided by Polashek and on the evidentiary record I have that the Defendant’s s.8 rights were breached.
Section 24(2)
[94] In R. v. Grant, 2009 SCC 32 the Supreme Court of Canada set out the factors that the court must consider in its s. 24(2) analysis. In Grant the Court set out the following at para. 71:
A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.
Seriousness of the Breach
[95] This factor favours admission. Cst. Martin acted in good faith and even though she believed that with the strong smell of marijuana that was sufficient to ground her belief any mistake on her part does not rise to a level of seriousness that points to exclusion.
Impact on the Charter-Protected Interests of the Accused
[96] This factor points to admission. The Defendants’ reasonable expectation of privacy in this rental vehicle was low. Further the search of the Defendant was minimally intrusive.
Society’s interest in an Adjudication on the Merits
[97] This factor favours admission. Without the drugs the Crown’s case is gutted. The charges are serious. At para. 79 in Grant, the Court states:
Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society’s “collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law”: R. v. Askov, [1990] 2 S.C.R. 1199, at pp. 1219-20. Thus the Court suggested in Collins that a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence.
[98] Finally at para. 86 in Grant the Court sets out the following:
In all cases, it is the task of the trial judge to weigh the various indications. No overarching rule governs how the balance is to be struck. Mathematical precision is obviously not possible. However, the preceding analysis creates a decision tree, albeit more flexible than the Stillman self-incrimination test. We believe this to be required by the words of s. 24(2). We also take comfort in the fact that patterns emerge with respect to particular types of evidence. These patterns serve as guides to judges faced with s. 24(2) applications in future cases. In this way, a measure of certainty is achieved. Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination.
Conclusion
[99] All of the evidence seized should be admitted into evidence.
Trial Proper
Position of the Crown:
[100] The Crown submits that the Defendant had knowledge and control of the drugs found in the vehicle. Carvalho, as the driver of the vehicle, had control of the vehicle.
[101] The Crown argues that Carvalho is in control of a mobile stash house. He has access to the glove compartment. His wallet was under the green scale in the centre console. Carvalho stated that neither Campbell or Hill put the drugs in the vehicle so the only inference is that it was Carvalho.
Position of the Defendant
[102] The Defendant submits that the Crown has not established possession of the drugs in the vehicle beyond a reasonable doubt. The Defendant points to the following factors in support of that position: − The vehicle being driven by Carvalho was a rental vehicle in the name of Paul Bonnick − There was no evidence called as to who owned the cell phones located in the vehicle − Cst. Martin located his wallet and the scale separately − The two cell phones are located in the centre console − The packaging of the drugs found on Carvalho is different than the packaging of the drugs found in the glove compartment − The black scale was found on the floor on the front passenger side and Campbell was sitting in the front passenger seat
Analysis and Conclusion
[103] In this case the Defendant testified and as such I instruct myself on the W.D. analysis as follows:
(The W. (D.) Instruction)
[1] If I believe Carvalho’s evidence that he did not commit the offence(s) charged, I must find him not guilty.
[2] If, after a careful consideration of all the evidence, I am unable to decide whom to believe, I must find Carvalho not guilty (because Crown counsel would have failed to prove Carvalho’s guilt beyond a reasonable doubt.
[3] Even if I do not believe Carvalho’s evidence, if it leaves me with a reasonable doubt about his guilt, I must find him not guilty.
[4] Even if Carvalho’s evidence does not leave me with a reasonable doubt of his guilt, I may convict him only if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt.
[104] As I indicated I accept the testimony of Cst. Martin regarding her initial stop and the route of travel of the vehicle to its eventual parking spot. I do not accept the Defendant’s testimony in that regard. The testimony of the Defendant with respect to the drugs in the vehicle, however, leaves me with a reasonable doubt. I agree with defence counsel that Carvalho did not minimize his conduct with respect to his personal circumstances or the events at the party. He acknowledged he had fake insurance. He acknowledged he consumed marijuana, MDMA and cocaine at the party. His testimony with respect to his knowledge of the drugs in the rented vehicle leaves me with a reasonable doubt.
[105] The vehicle is rented to Paul Bonnick. The black scale is found on the floor on the passenger side. I accept that Carvalho may have just thrown his wallet in the centre console without taking a look at what else was in the centre console. There is nothing to suggest Carvalho looked in the glove compartment.
[106] In R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, the Court stated that in order to find an accused guilty of an offence on the basis of circumstantial evidence, the Court must be satisfied beyond a reasonable doubt that his or her guilt is the only rational conclusion or inference that can be drawn from the whole of the evidence.
I am not satisfied that the Defendant’s guilt is the only rational conclusion that can be reached on the evidentiary record before me. There is an evidentiary gap that can only be filled with evidence not speculation or conjecture.
[107] The Defendant does not have to prove who the drugs in the vehicle belong to. He does not have to establish that Campbell, Hill, Bonnick or anyone else for that matter placed the drugs in the vehicle.
In all of the circumstances of this case I am satisfied that Carvalho is guilty with respect to the drugs found on his person. I am not satisfied beyond a reasonable doubt that the Crown has proven the counts on the Indictment relating to the drugs found in the vehicle.
Disposition
[108] Finding of guilty on Counts 1 and 2.
[109] Finding of not guilty on Counts 3 and 4.
Justice Joseph M. Fragomeni
Released: May 26, 2017