CITATION: R. v. Persaud, 2017 ONSC 7007
COURT FILE NO.: CR-16-90000668-0000
DATE: 20171110
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ROOPNARINE LENNIE PERSAUD
Accused
Althea Francis, for the Crown
Marianne Salih, for the Accused
HEARD: Nov 10, 2017
B.A. ALLEN J.
REASONS FOR DECISION
(Motion for a Directed Verdict)
THE PROCEEDING
[1] At the conclusion of the Crown’s case, the defence moved for a directed verdict of acquittal.
[2] The accused, Roopnarine Persaud, was arrested on July 14, 2015 and charged with possession of cocaine for the purpose of trafficking. Cocaine was found in apartment 810 at 215 Sherway Gardens.
BACKGROND EVIDENCE
[3] On July 13th and 14th officers were conducting surveillance on Mr. Persaud. They saw him leave 31 Lafferty at about 9:00 a.m. on those two mornings driving a Range Rover and observed him attend at a school on Progress Rd. On July 13th they saw him return to 31 Lafferty. The officer’s information was that Mr. Persaud resided at 31 Lafferty.
[4] The Range Rover was not owned by Mr. Persaud. Nor was he a registered driver. The police only saw him drive that vehicle during the dates, July 13th and 14th.
[5] Later on July 13th, officers observed Mr. Persaud drive the Range Rover into a parking lot at Centennial Park. He was observed by one officer to pull up next to a grey Honda and park side-by-side with it. The officer saw a male driver in the Honda and Mr. Persaud speak very briefly and the male in the Honda pass to Mr. Persaud an item about the size of a tennis ball, tightly wrapped in yellow plastic.
[6] There is no evidence of what was contained in the yellow plastic wrapping. The grey Honda drove away. The police did not pursue it or get the license plate number or the identity of the driver. The Range Rover left the park and returned to 31 Lafferty.
[7] In the early evening of July 13th an officer had the task of watching Mr. Persaud to see whether he would drive the Range Rover to 215 Sherway Gardens. The officer followed the Range Rover from 31 Lafferty to 215 Sherway Gardens and saw Mr. Persaud drive into the underground parking lot of the building. The officer entered the building and went up the stairs to the 8th floor. He hid around a corner. He observed Mr. Persaud enter apartment 810. The officer subsequently returned to his vehicle and drove into the underground parking lot where he saw the Range Rover parked in a visitor’s parking spot. There is no further evidence about that sighting.
[8] On July 14th, the police learned that a search warrant was authorized to search 215 Sherway Gardens, apartment 810, 31 Lafferty and the Range Rover. In the early afternoon the police observed Mr. Persaud arrive at the Scarborough Town Centre. A “takedown” was ordered and Mr. Persaud was arrested. The vehicle was searched and no drugs or drug paraphernalia or anything of evidentiary value was found in the vehicle.
[9] An officer seized the keys from the ignition of the Range Rover. The key chain contained about ten keys. One was a key fob for the Range Rover. One key was for 215 Sherway Gardens, apartment 810 and another for 31 Lafferty. As it turns out, another of the keys unlocked a safe where the cocaine was found in apartment 810.
[10] Later in the afternoon on July 14th the police entered 215 Sherway Gardens to search apartment 810 for drugs. The officer who seized the keys from the Range Rover used one of the keys to open the door to apartment 810. When the police entered the apartment they found Josh Puran, now deceased, once Mr. Persaud’s co-accused. Mr. Persaud was not there.
[11] A driver’s license bearing Mr. Puran’s name was found in a pair of jeans in a bedroom. On the dresser in that bedroom was a picture of Mr. Puran with whom appeared to be family members. The apartment clearly appeared to be Mr. Puran’s residence. There was no mail, identification or other document bearing Mr. Persaud’s name located in that apartment.
[12] The officer who searched the kitchen found in a cupboard under the sink a backpack containing a safe. The officer who seized the key chain from the Range Rover was able to unlock the safe with a key from that key chain.
[13] Inside the safe in various plastic baggies was powder cocaine, a rock-like white substance, a compressed substance, a drug cutting agent, several empty dime baggies and a weigh scale. Inside another cupboard the officer found more white powdered substance and in another cupboard two more weigh scales were found.
[14] The officer who searched Mr. Puran’s bedroom found behind the cardboard backing of the photograph on a dresser a set of two keys. One of those keys unlocked a safe in that bedroom. Inside that safe was a substance tested to be heroin.
[15] Mr. Puran was charged with possession of cocaine and heroin for the purpose of trafficking. Mr. Persaud was only charged in relation to the cocaine.
[16] Later in the afternoon of July 14th, the police searched 31 Lafferty. The police entered the premises with a key from the key chain from the Range Rover. They searched the entire house including the bedroom the police believed was Mr. Persaud’s room. No drugs or drug paraphernalia were found at 31 Lafferty.
[17] The evidence strongly points to Mr. Persaud residing at 31 Lafferty at the time of the search. In evidence is identification, Ministry of Transportation documents and a picture of mail found at 31 Lafferty that contain Mr. Persaud’s name and the Lafferty address.
THE LAW ON DIRECTED VERDICTS
[18] A directed verdict is a motion brought by the defence at the conclusion of the Crown’s case but before the defence calls any evidence. It is a motion requesting the dismissal of the case on the basis that the essential elements of the offence are not made out.
[19] The test to be applied for a directed verdict is whether or not there is any evidence, direct or indirect, upon which a jury, properly instructed, could reasonably convict: [The United States of America v. Shephard, 1976 CanLII 8, [1977] 2 SCR (S.C.C.)].
[20] A directed verdict will not be granted if there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty: [R. v. Sheppard]. The motion for a directed verdict should not be granted if there has been adduced admissible evidence which could, if believed, result in conviction.
[21] In order for the Crown to satisfy the test set out in Sheppard, it must adduce some evidence of culpability for every essential element of the crime for which the Crown has the evidential burden: [R v. Charemski 1998 CanLII 819 (SCC), at para. 3, (S.C.C.)]. The judge must be satisfied there is some evidence that establishes each constituent element of the offence: [R v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 21, S.C.C)].
[22] The judge is not to “weigh the evidence or test its quality or reliability once a determination of its admissibility has been made”. Nor should the judge draw inferences of fact from the evidence before them. These functions are for the trier of fact, the jury.” [R v. Monteleone, 1987 CanLII 16 (SCC), at p.161, (S.C.C.)]. Hence, the judge does not weigh evidence, test the quality or reliability of admissible evidence or draw inferences of fact.
[23] The case before me is a purely circumstantial case. Particularly in a circumstantial case, the court is permitted to do a “limited weighing” of the evidence to assess “whether it is capable of supporting the inferences the Crown asks the jury to draw.” The judge does not inquire as to whether she herself would draw a conclusion of guilty: [R v. Arcuri, at paras. 1, and 23].
APPLICATION TO THIS CASE
[24] The Crown must adduce some evidence of culpability for each essential element of the offence of possession of cocaine for the purpose of trafficking. There is no dispute that the substance seized was cocaine. There is no question that the amount seized would be for the purpose of trafficking if Mr. Persaud were found guilty of possession. The two essential elements the Crown must prove beyond a reasonable doubt are therefore: (a) control and (b) knowledge of the cocaine.
[25] The defence takes the position that there is some evidence from which control might be inferred. But in the defence’s view, there is no evidence from which knowledge can be inferred. Satisfactory evidence is required to support each essential element to arrive at a finding of guilt.
[26] The Crown argues there is sufficient evidence to support each of the essential elements.
[27] I agree with the defence’s position.
[28] There is evidence from which a reasonable inference might be drawn that Mr. Persaud had access to apartment 810 at 215 Sherway Gardens. Mr. Persaud did not own and was not registered to drive the Range Rover where the keys were found. There is no evidence Mr. Persaud resided at 215 Sherway Gardens. He was seen on one occasion entering that apartment. There is no direct evidence of the means by which the apartment door was opened for him to enter.
[29] However, on the key chain from the Range Rover Mr. Persaud drove was a key to apartment 810. Also on that key chain was a key to the safe that contained the cocaine.
[30] I accept that this might give rise to an inference of control.
[31] However, there is no evidence from which an inference can be drawn that Mr. Persaud had knowledge of the cocaine. There is no evidence Mr. Persaud resided at 215 Sherway Gardens. There was no identification or other documents in the apartment containing his name. The police only saw Mr. Persaud enter the apartment on one occasion. There is no evidence of how long he remained there, what he did there or what he saw there.
[32] There is the further evidence that the cocaine was not visible in the apartment. It was not in plain sight. It was contained in a safe which was in a backpack that was stored in a cupboard under the kitchen sink. There is no evidence Mr. Persaud was in the apartment when the cocaine was in view. Regarding the key on the key chain that unlocked the safe, there is no evidence Mr. Persaud was aware of that key or if he saw the key he knew that the key would unlock the safe. There is also no evidence Mr Persaud was aware of the safe.
CONCLUSION
[33] I find there is insufficient evidence upon which a jury, properly instructed, could reasonably convict Mr. Persaud for possession of cocaine for the purpose of trafficking.
DISPOSITION
[34] I order a directed verdict of acquittal.
B.A. ALLEN J.
Released: November 10, 2017
CITATION: R. v. Persaud, 2017 ONSC 7007
COURT FILE NO.: CR-16-90000668-0000
DATE: 20171110
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ROOPNARINE LENNIE PERSAUD
Accused
REASONS FOR DECISION
(Motion for a Directed Verdict)
B.A. ALLEN J.
Released: November 10, 2017