CITATION: R. v. Scott, 2017 ONSC 7141
COURT FILE NO.: CR-16-90000735
DATE: 20171130
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
HENRY ALFONSO SCOTT
Accused
Chris Walsh, for the Crown
John Struthers, for the Accused
HEARD: June 18 and 19, 2017
B.A. ALLEN J.
REASONS FOR JUDGMENT
THE CHARGES
[1] The accused, Henry Scott, is charged with five drug-related charges – possession for the purpose of trafficking cocaine, crack cocaine (62.26 gr.) and marijuana (190.80 gr.), and possession of proceeds obtained through crime ($16,840.00). The Crown called as witnesses the police who conducted the search and seized the drugs and currency. As is his right, Mr. Henry did not testify.
[2] On April 2, 2015, under a search warrant, members of the Toronto Police drug squad and 43 Division entered a home at 103 Ponymeadow Terrace in Scarborough. The accused was in the kitchen of the home at the time. He was arrested, searched and read his rights.
THE SEARCH
[3] The officers searched different rooms in the home. The home has two storeys and a basement. The upper floor has three bedrooms, a bathroom and a family room. The first floor has a living and dining area and a kitchen.
[4] Nothing of evidentiary value was found in the master bedroom. An officer found plastic bags containing drugs hanging from hooks between the drapes in the living room and dining room windows. The bags contained a powder substance and a harder substance, later determined to be powder cocaine and crack cocaine.
[5] Another officer found what he described as a half-brick of compressed marijuana in a kitchen drawer. He found on top of a microwave an envelope containing $180.00. Also on the microwave was a Service Ontario license plate renewal form in Henry Scott’s name, addressed to 103 Ponymeadow Terrace, with an expiry date in 2012.
[6] On the main floor in the front closet the same officer found a three-quarter length Danier leather jacket. In one pocket, he found a CD sleeve containing a beige powder substance, later found to be cocaine. Three bundles of cash were found in one pocket and another two bundles were found in another pocket. In another Danier leather jacket the officer found two more bundles of cash in Ziploc baggies.
[7] Another officer indicated she had done a drive-by on the home the night before the search was executed. She did not indicate she observed anything of interest to the case. She searched the upstairs family room and the two other bedrooms and found nothing of evidentiary value. One of the bedrooms was empty and the other had a bed with some men’s clothes on it. In the basement under the stairs the officer found a Ziploc baggie containing marijuana.
[8] During the latter officer’s search a woman entered the home. The woman was investigated and allowed to leave without a charge.
[9] None of the items seized were tested for finger prints or DNA. No identification documents were found on the premises other than the Service Ontario license plate renewal form.
THE LAW OF POSSESSION
[10] Whether Mr. Henry was in possession of the drugs contrary to under s. 4(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 is at issue. Possession must also be decided in relation to the currency seized. Under s. 354(1) of the Criminal Code it is a criminal offence to have possession of proceeds derived from or obtained by a criminal offence.
[11] The two essential elements of the offence of possession are: (a) control of the thing and (b) knowledge of the thing. Possession involves actual possession or constructive possession of the thing or joint possession by more than one person with the other’s consent. There is no evidence that would support a finding of joint possession with consent. Both elements of the offence must be proven.
[12] To have actual possession or custody of a thing is to have physical custody or control of the thing. Constructive possession extends to situations where a person does not have hands on custody of the thing but has knowledge of the thing and an ability to control it even if they do not have physical contact with it. Constructive possession is a matter to be decided on the facts of each case: [R. v. Grey (1996), 1996 CanLII 35 (ON CA), 28 O.R. (3d) 417 (Ont. C.A.) and R. v. Caldwell (1972), 1972 ALTASCAD 33, 7 C.C.C. (2d) 285, at pp 290-291, (Alta. C. A.)].
[13] Mr. Henry was present in the home at the time the drugs and currency were discovered and seized. He did not have direct physical custody of these items at any time during the search. No contraband was found on his person. This is a case therefore of determining whether he had constructive possession of the contraband.
[14] It is the Crown’s burden to prove beyond a reasonable doubt the two essential elements of the offence of possession. This can be done by direct evidence or may be inferred from circumstantial evidence.
[15] The court may draw appropriate inferences from the evidence that the contraband is found in a place under the control of an accused in circumstances where there is also evidence from which a proper inference may be drawn that the accused was aware of the presence of the contraband: [R. v. Pham, 2005 CanLII 44671 (ON CA), [2005] O.J. No. 5127, at para. 18, (Ont. C. A.); R. v. Sparling, [1988] O.J. No.1877 (Ont. C.A.) and R. v. Chambers, 1985, C.C.C. (3d) 440 at 448 (Ont. C.A.)].
[16] Earlier case law took the view that the Crown must satisfy the court beyond a reasonable doubt that guilt is the only reasonable inference that may be drawn from the totality of proven facts. The Supreme Court of Canada in a more recent case, R. v. Villaroman, dispensed with that requirement:
At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts.”
Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.
[R. v. Villaroman, [2016] 1 S.C.R. 33, at para. 35, (S.C.C.)]
CONCLUSION
[17] The Crown cannot satisfy either element of possession from the evidence proffered. There is no direct evidence that Mr. Henry had knowledge or control over the drugs and the money. There is firstly an absence of even minimally probative evidence that Mr. Henry resided at the premises. The only evidence is the circumstantial evidence that Mr. Henry happened to be present at the home when the police arrived and the police found a one document, a Service Ontario license plate renewal form containing Mr. Henry’s name, addressed to 103 Ponymeadow Terrace with a 2012 expiry date.
[18] This evidence is clearly insufficient proof of possession. It can be reasonably inferred from his presence that Mr. Henry was visiting the home when the police arrived and did not live there. A reasonable explanation for the license plate renewal form being at the home is that he or someone else left it there perhaps as long as five years ago.
[19] The Crown has not proven Mr. Henry’s knowledge and control of the drugs and currency beyond a reasonable doubt.
VERDICT
I find Mr. Henry not guilty on counts 1, 2, 3, 4, and, 5 on the indictment and acquittals will be entered accordingly.
B.A. ALLEN J.
Released: November 30, 2017
CITATION: R. v. Scott, 2017 ONSC 7141
COURT FILE NO.: CR-16-90000735
DATE: 20171130
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
HENRY ALFONSO SCOTT
Accused
REASONS FOR JUDGMENT
B.A. ALLEN J.
Released: November 30, 2017