ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty The Queen
Applicant
– and –
P. K. Masilamany
C. M. Boudreau
Respondents
J. Meloche and J. Hanna, for the Crown
J. P. Giancaterino, for Mr. Masilamany
Biagio Del Greco, for Ms. Boudreau
HEARD: January 20, 2017
Motion For Directed Verdict of aquittal
KANE j.
Charges
Charges
1At the close of the Crown’s evidence, Ms. Bourdeau moved for a directed verdict of acquittal on the grounds that the Crown has failed to introduce an evidentiary basis to establish the essential element of possession as to each of the charges against her.
2Ms. Boudreau is charged jointly with Mr. Masilamany that on January 16, 2014 she:
(1) did possess 3 kg or less of cannabis marijuana for the purpose of trafficking, contrary to subsection 5(2) of the Controlled Drugs and Substances Act (the “Act”);
(2) did possess heroin for the purpose of trafficking, contrary to subsection 5(2) of the Act; and
(3) did possess proceeds of property, namely Canadian currency of a value exceeding $8,725, knowing that all or part there have been obtained or derived directly or indirectly from an offense punishable by indictment, namely trafficking in controlled substances, contrary to subsection 354(1)(a) of the Criminal Code.
3Ms. Boudreau submits that the Crown has failed to present evidence to establish the essential element of her “possession” as to each of the above three charges.
4If the court disagrees and determines that there is sufficient direct or circumstantial evidence to establish the essential element of possession as to any of the above charges, Ms. Boudreau accepts that the Crown, as to this motion, has presented some and therefore sufficient evidence to establish the three other essential elements in each of these three charges, including:
(a) Some evidence which could support that the drugs found in the residence by Police were possessed for the purpose of trafficking; and
(b) Some evidence which could support that the money seized in the residence by Police was connected to a criminal offence.
5The sole issue therefore is whether the Crown has introduced any or sufficient evidence of possession regarding the three charges against her.
Possession
6Section 4(3) of the Criminal Code of Canada (the “Code”) creates three types of possession:
i. Personal possession, as outlined in section 4(3)(a);
ii. Constructive possession, as set out in section 4(3)(a)(i) and section 4(3)(a)(ii); and
iii. Joint possession, as defined in section 4(3)(b) of the Code.
7Ms. Boudreau on the issue as to “possession” submits that:
(a) There is no direct evidence of her possession of the drugs or currency in issue;
(b) Constructive possession requires the Crown to demonstrate her “knowledge” of and “control” of the item(s);
(c) Her knowledge can be established by direct or circumstantial evidence;
(d) Evidence of the accused’s circumstantial knowledge must be the “only reasonable inference to be drawn from the evidence”;
(e) Evidence alone that the accused occupied a residence and that the drugs were found in a bedroom along with her personal belongings is insufficient to constitute “knowledge”: R. v. Grey, 1996 ONCA 35 ONCA, pg. 4-6;
(f) Control can be established by evidence that the accused had the ability to consent, or to allow the presence of the item in a jointly occupied space;
(g) Mere occupancy of the residence however does not necessarily give someone control over items belonging to or in the possession of another joint occupant of the residence: R. v. Masters, 2014 556 ONCA, at para. 24; and
(h) As to the limited role of a judge in the weighing of circumstantial evidence and what inferences may be drawn based thereon, whether as to commit to trial or upon a motion of acquittal; the judge may only draw inferences on the evidence which are both: 1) reasonably based on the evidence heard and 2) reasonable. Such inferences cannot be based on speculation.
8With respect, Ms. Boudreau’s position expressed in paragraph (d) above is not an accurate statement of the law.
9As to possession, the Crown agrees with Ms. Boudreau that there is no direct evidence that she was in possession or had physical control of the two drugs or currency seized during the execution of the warrant on January 16, 2014. She was not present during the warrant search of the 40 Starwood residence.
10The Crown’s case on the three charges against Ms. Boudreau is based on circumstantial evidence as to her “knowledge” and “control” of the two drugs and currency. The Crown submits the circumstantial evidence introduced supports a reasonable inference that she had knowledge of and accepted the presence of the two types of drugs and currency found in her residence and that she thereby had some element of control over each. The Crown submits the circumstantial evidence thereby constitutes evidence of her possession, being the requisite element in issue as to each of the three charges.
11Accordingly, the case against Ms. Boudreau is not based on physical possession. The Crown instead relies upon the alternate grounds under s. 4(3) of the Code, namely constructive or joint possession.
12The Crown submits that on the evidence, Ms. Boudreau’s knowledge as to the presence and possession of the marijuana and heroin is a reasonable inference based on the evidence that she resided at 40 Starwood during the police surveillance conducted between January 8 and 16, 2014 and that residence contained large quantities of valuable illegal drugs, proceeds of crime and drug assembly, packaging and marketing paraphernalia.
13As to constructive or joint possession, the Supreme Court in R. v. Pham, 2005 CarswellOnt 6940 stated:
15 In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. See R. v. Caldwell (1972), 1972 ALTASCAD 33, 7 C.C.C. (2d) 285 (Alberta Supreme Court, Appellate Division); R. v. Grey (1996), 1996 ONCA 35, 28 O.R. (3d) 417 (C.A.).
16 In order to constitute joint possession pursuant to section 4(3)(b) of the Code there must be knowledge, consent, and a measure of control on the part of the person deemed to be in possession. See R. v. Terrence, 1983 SCC 51, [1983] 1 S.C.R. 357 (S.C.C.); R. v. Williams (1998), 1998 ONCA 2557, 40 O.R. (3d) 301 (C.A.); R. v. Barreau, 1991 BCCA 241, 9 B.C.A.C. 290, 19 W.A.C. 290 (B.C.C.A.) and Re: Chambers and the Queen (1985), 1985 ONCA 169, 20 C.C.C. (3d) 440 (Ont. C.A.).
14The Crown relies upon the following circumstantial evidence in support of the reasonable inference that Ms. Boudreau resided at 40 Starwood during Police surveillance of Mr. Masilamany, the residence at 40 Starwood and the vehicles used by the accused male in January 2014:
(1) Although the lease of the residence is to Mr. Masilamany as tenant, the landlord who resides across the street testified that Mr. Masilamany introduced Ms. Boudreau as his girlfriend in 2013 after commencement of the lease term in March 2013;
(2) That landlord estimated that he had spoken to Ms. Boudreau at 40 Starwood approximately 10 times between 2013 and 2016 and spoke to her briefly in the court house corridor just prior to commencing his testimony in this trial;
(3) The landlord testified that Ms. Boudreau continued to reside at 40 Starwood after she and her co-accused were charged herein on January 16 and 17, 2014, and after Mr. Masilamany was arrested and thereafter detained in July of 2016;
(4) During the January 16, 2014 warrant search of 40 Starwood, Police found Ms. Boudreau’s current passport, her birth certificate, her SIN card, her library card and her Optimum MasterCard in one of two bins in the master bedroom, which was the only room containing a bed. Women’s clothing was discarded over the floor in that bedroom. The bed size was double or larger;
(5) The only other bedroom on the second floor of the residence had a closet which contained women’s clothing. That bedroom contained a jewelry box and a partially opened box containing an infant’s crib. Detective Hill testified one of the surveillance officers reported that the woman accompanying Mr. Masilamany and entering 40 Starwood Road appeared to be pregnant;
(6) Police found a cheque book bearing the name of Ms. Boudreau, with an address on the cheques other than 40 Starwood, located inside the above jewellery box;
(7) Police found a January 13, 2014 deposit receipt on the living room coffee table from the City of Ottawa addressed to Ms. Boudreau which listed her address as 40 Starwood. The deposit receipt recorded a payment and deposit to Ms. Boudreau for the month of January, 2014;
(8) Police during surveillance on January 10, 2014 observed the male accused driving the black Porsche with a female in the front passenger seat. Police followed that vehicle to the Marina Bay apartment building. Police observed an unknown male entering into the rear passenger seat of the Porsche and then exiting therefrom approximately one or 2 minutes later. The Porsche thereupon departed that location. Police 10 minutes later observed a female with long brown hair and olive complexion, exit the front passenger seat of the Porsche and enter a drugstore. The female upon exiting the drugstore got into the front passenger seat of the Porsche which then drove to 40 Starwood Road whereupon the female exited the Porsche and entered 40 Starwood; and
(9) On January 10, 2014, Police further observed Mr. Masilamany driving the Porsche while accompanied by a female passenger. Mr. Masilamany and the female passenger then entered into a Wal-Mart where they were observed together shopping in the shelving section of that store.
15For the purposes of this motion, Ms. Boudreau does not dispute the above evidence.
16The Crown submits the above evidence constitutes proof, or at least circumstantial evidence supporting a reasonable inference that 40 Starwood Road was Ms. Boudreau’s residence before and during January, 2014 surveillance, including on January 16, 2014.
17The Crown relies upon the above evidence of residency of Ms. Bourdeau’s at 40 Starwood and the following circumstantial evidence in support of the reasonable inference that Ms. Boudreau between January 8 and 16, 2014, had knowledge of and some measure of control of the marijuana and heroin seized, as to possession and the large amount of Canadian currency seized during the January 16, 2014 warrant search as being proceeds, or partially proceeds, of the trafficking of such prohibited drugs:
(1) One of the officers executing the warrant search testified that he smelled a heavy odor of marijuana immediately upon entering the residence at 40 Starwood Road;
(2) Police found two half pound bags of marijuana underneath the only bed in the residence located in the master bedroom;
(3) Police found seven bags containing approximately a ½ pound of marijuana in a paper bag located inside the clothes closet in the TV room, next to the kitchen on the main floor;
(4) A 27 g compressed solid cube of mixed heroin and caffeine was found underneath a cushion on the sofa in the TV room;
(5) A 6.4 gram bag of marijuana was found on top of the coffee table in the TV room;
(6) $725 of Canadian currency bundled around cards of Mr. Masilamany was located in front of the sofa in the TV room;
(7) Police found a hydraulic press in the basement of the residence attached to a work table;
(8) $8,000 of Canadian currency was hidden underneath the kitchen oven. Such currency was organized by denominations of $100, $50 and $20 bills;
(9) Police found an envelope with writing of the first names of numerous individuals, with numbers each ending in a zero beside each name; which Police allege is a drug customer debt list;
(10) Police found six cellular telephones in the residence as well as one or more separate SIM cards; and
(11) Police found two small electronic scales. According to the evidence, some drug dealers use such small electronic scales to measure quantities for packaging and sale of street drugs.
18For the purposes of this motion, Ms. Boudreau does not dispute the above statement of the evidence.
Law
Motion For Directed Verdict Of Acquittal
Law
19The test or question to be determined on a motion for an acquittal is whether there is any evidence upon which a jury properly instructed could reasonably return a verdict of guilty or would justify a conviction.
20A motion to acquit will not be successful if there is admissible evidence which could, if believed, result in a conviction: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, paras 21 and 24. R. v. Abdo, 2016 ONSC 7957, para 4
21The court in R. v. Abdo, 2016 ONSC 7957, paras. 9 and 11, held:
9 At the directed verdict stage, if the evidence is equally capable of supporting two reasonable inferences, one consistent with guilt and the other inconsistent with guilt, the case must be left with the trier of fact to determine what inference should be drawn in all of the circumstances of the case. See R. v. Russell, 2001 SCC 53, at paras. 48; R. v. Villaroman, 2016 SCC 33, at paras. 17-22, 32-34; R. v. Jackson, at paras 9-15; R. v. Collins and Pelfrey (1993), 1993 ONCA 8632, 12 O.R. (3d) 161 (C.A.), at paras. 22-30.
11 In short, as Binnie J. stated, in delivering the judgment of the majority of the Supreme Court of Canada in R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368, at para. 48, a directed verdict of acquittal is not available if there is "any admissible evidence, whether direct or circumstantial which, if believed by a properly charged jury acting reasonably, would justify a conviction." See also R. v. E.B., [2004] O.J. No. 3528 (C.A.), at paras. 10-17.
Where there is before the court any admissible evidence, whether direct or circumstantial which, if believed by a properly charged jury acting reasonably, would justify a conviction, the trial judge is not justified in directing a verdict of acquittal: R. v. E.B. [2004] O.J. No. 3528 (C.A.) para 11. (emphasis added)
Direct Versus Circumstantial Evidence
Direct Versus Circumstantial Evidence
22The question to be determined remains the same whether the evidence is direct or circumstantial.
23The test is straightforward where there is only direct evidence. A motion to acquit will be unsuccessful if there is direct evidence as to each element of the offense: Acuri, para 22.
Circumstantial Evidence
Circumstantial Evidence
24Circumstantial evidence:
(a) Is relied upon due to the absence of direct evidence of an essential material fact of the offence;
(b) Is an item of evidence other than testimony as to a material fact in issue;
(c) Is evidence of a fact not an issue, which by its existence, permits the trier of fact to infer the existence of a fact in issue; and
(d) By its nature, requires additional reasoning to reach or establish a factual conclusion for which it is presented given the absence of direct evidence: Acuri, para 23.
Limited Assessment Of Circumstantial Evidence
Limited Assessment of Circumstantial Evidence
25Circumstantial evidence introduced to establish an essential element of an offense requires that such evidence undergo a limited weighing or assessment. That limited weighing of circumstantial evidence is simply an assessment:
(a) Whether the gap between the circumstantial evidence and the essential element to be proven may be reasonably inferred from that circumstantial evidence;
(b) Whether the essential element of the offense may reasonably be inferred from the circumstantial evidence; and
(c) Whether the circumstantial evidence is reasonably capable of supporting the inference the Crown requests the trier of fact to draw: Acuri, paras 23 and 24.
26In conducting this limited weighing or assessment of circumstantial evidence, the judge takes the case for the Crown at its highest. That means that the judge must proceed on the basis that all available reasonable inferences might be drawn in favour of the Crown by the trier of fact, accepts the credibility of the evidence relied upon by the Crown and assumes the reasonable inferences from the primary facts that are most favourable to the Crown: R. v. Jackson, 2016 ONCA 736, para. 7.
27A judge on this limited weighing or assessment of whether the essential element to be established may be inferred from circumstantial evidence:
(a) Must consider the whole of the evidence;
(b) Does not address whether the accused is guilty or whether guilt can be reasonably inferred ;
(c) Does not assess credibility of witnesses;
(d) Does not assess whether the evidence is to be believed;
(e) Does not weigh admissible evidence;
(f) Does not assess the quality or reliability of such evidence;
(g) Does not draw factual inferences;
(h) Does not make findings of fact;
(i) Does not inquire or assess the inherent reliability of the circumstantial evidence;
(j) Instead, merely assesses the reasonableness of the inferences to be drawn from the circumstantial evidence; and
(k) Determines only the field of potential factual inferences that could reasonably be drawn in the circumstances: Acuri, para 23- 26, 30 and 32; R. v. Monteleone 1987 SCC 16, [1987] 2 S.C.R. 154, para 8; Abdo paras 4 -6.
Inferences and Drawing of Inferences
Inferences and Drawing of Inferences
28Justice Watt defines an inference as follows:
An inference is a deduction of fact which may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. It is a conclusion that may, not must, be drawn in the circumstances. D. Watt, Watt’s Manual of Criminal Evidence, Toronto, Carswell 2005, p. 145.
29The judge is to take the Crown’s case at its highest in assuming the reasonable inferences from the primary facts that are most favourable to the Crown. The judge must proceed on the basis that all available reasonable inferences might be drawn in favour of the Crown by the trier of fact.
30The inferences to be drawn from circumstantial evidence need not be "compelling" or "easily drawn" in order to be reasonable.
31If an inference is reasonable and logical, the question whether it should ultimately be drawn must be left for determination by the trier of fact.
32If the preliminary inquiry judge decides that on a view of the evidence most favourable to the Crown, the circumstantial evidence could reasonably support the inferences necessary to establish guilt, she must commit the accused for trial. It is irrelevant that the evidence also supports inferences inconsistent with guilt: Abdo para 7 and 8; R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18; R. v. Foster (2008), 76 W.C.B. (2d) 769 (Ont.S.C.), at para. 31; and R. v. Howells, 2009 BCCA 460, 85 W.C.B. (2d) 370, at paras. 13-14.
33Despite the absence of evidence as to the accused’s mental state or what the accused said; evidence of intention may be inferred from evidence of the accused’s conduct: R. v. E.B., [2004] O.J. No. 3528 (C.A.), paras 12 and 13.
34Any inferences relied upon by the judge to commit the accused to trial must be both:
(a) Reasonably based on the evidence introduced; and
(b) Reasonable.
35Such inferences cannot be based on speculation, even if seemingly reasonable. If the inference or inferences cannot be reasonably drawn from the evidence, the accused must be discharged as there would be an absence of evidence on an essential element: R. v. Munoz, 2006 ONSC 3269, 86 O.R. (3d) 134 (OSC) para 22.
36The court in Munzo stated that the drawing of a reasonable inference is not deductive reasoning where if the premise is accepted, results in a valid conclusion, as the conclusion is inherent in the premise. Inference drawing involves inductive reasoning. Inference drawing derives a conclusion based on human experience. The inferred conclusion is not inherent in the premise in evidence. The inferred conclusion flows from an interpretation of that premise evidence derived from experience. Therefore if the primary facts or premise are accepted, the inductive conclusion follows with some degree of probability but not of necessity. Unlike deductive reasoning, inductive reasoning provides more information than is contained in the premise: Munzo, para 23.
37The process of inference drawing was described by Doherty J.A. in R. v. Morrissey, (1995), 1995 ONCA 3498, 22 O.R. (3d) 514, [1995] O.J. No. 639, 97 C.C.C. (3d) 193 (C.A.), at p. 530 O.R., p. 209 C.C.C. as follows:
A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation: Munzo, para 25.
38Permissible inferences are rational conclusions drawn from the whole of the evidence and are not impermissible conjecture and speculation: R. v. White, (1994), 1994 NSCA 4004, 89 C.C.C. (3d) 336 at p. 351 (N.S.C.A.) and Munzo, para 29.
39Impermissible inference drawing results from:
(a) Inferences drawn or based upon primary facts not established in evidence. Inferences based upon facts not in evidence constitutes impermissible conjecture, speculation or sometimes referred to as an educated guess; or
(b) When an inference cannot be reasonably and logically drawn from the established primary facts.
40The line between a reasonable permissible inference based on facts in evidence and impermissible speculation results from the presence or absence of experienced logical probability, namely that an ultimate fact will follow a stated narrative or fact in evidence.
41In some cases, facts can be inferred with as much practical certainty as if they had been actually observed. In other cases, the inference does not go beyond reasonable probability: Munzo, paras 26 – 30.
42A permissible inference, reasonably and logically supported based on all the evidence is an available inference, but does not thereby become a necessary inference: R. v. Dadshani, 2006 ONSC 15750, aff’d 2007 ONCA 493
43The majority decision in Pham which upheld the trial conviction is informative as to the issue of possession in this case despite that accused being absent from the residence for a period of time.
44Pham involved an appeal of a conviction of drug possession for the purpose of trafficking found in the apartment occupied by Ms. Pham and a roommate by the name of Mr. Nguyen.
45A neighbour testified she witnessed numerous visitors to Ms. Pham and Mr. Nguyen's apartment who would slip money under the door and that clear plastic bags containing white stuff would then be passed out from the apartment. The neighbour heard Pham's voice on several occasions and twice saw Pham open the apartment door during these exchanges. Pham left the apartment and did not return thereto for 32 hours prior to the Police entry and search of the apartment. Drugs were found in the apartment in plain view and in close proximity to Ms. Pham's possessions. Ms. Pham at trial claimed the drugs belonged to Nguyen. The judge at trial found the drugs were in the apartment before Ms. Pham departed 32 hours earlier. Ms. Pham at trial was found to be in constructive possession of the drugs and was convicted.
46The majority in Pham held:
17 The element of knowledge is dealt with by Watt J. in the case of R. v. Sparling, [1988] O.J. No. 107 (Ont. H.C.) at p. 6:
The court of appeal decision in R. v. Sparling, [1988] O.J. No. 1877 upheld the above passage as being sufficient evidence to infer knowledge.
18 The onus is on the Crown to prove beyond a reasonable doubt, all of the essential elements of the offence of possession. This can be accomplished by direct evidence or may be inferred from circumstantial evidence. In Re: Chambers and the Queen, supra at 448, Martin J.A. noted that the court may draw "appropriate inferences from evidence that a prohibited drug is found in a room under the control of an accused and where there is also evidence from which an inference may properly be drawn that the accused was aware of the presence of the drug.": R. v. Pham [2005] O.J. No. 512 (O.C.A.), affir’d 2006 SCC 26.
19 The central issue at trial was whether the appellant had knowledge and control of the cocaine found in the black cloth purse in the bathroom, sufficient to constitute constructive or joint possession as defined in paragraphs 4(3)(a) and (b) of the Code. In my view the trial judge was entitled to find on the evidence as he did, that she had constructive possession of the cocaine either alone or jointly with Mr. Nguyen.
20 In dealing with the issue of possession the trial judge made it clear that the evidence of Ms. Poulton and the surveillance officers was used only to support a trafficking scheme and not for the purpose of showing propensity. He considered this evidence in the context of the evidence as a whole, as playing a significant role in his assessment of the elements of constructive possession.
21 The trial judge found that the 9.8 grams of cocaine were in the apartment before the appellant left the unit on March 3, 2003. He relied on the evidence of the surveillance officers that Nguyen was in the unit on March 3rd and 4th as the various persons were seen coming and going, and that he was still there at the time of the police entry. In his words:
I would have to speculate given the evidence before me to find that he left the unit at a point after the accused did, and later returned. I find he did not personally bring the cocaine in after the accused left.
22 That Mr. Nguyen left the unit and returned with the drugs in question (or that someone else brought them in), and therefore that the cocaine was not in Ms. Pham's possession on March 5th, is an argument raised by defence counsel, not on the basis of any evidence but merely as a speculative consideration. In R. v. Jenner (2005), 2005 MBCA 44, 195 C.C.C. (3d) 364 (Man. C.A.) at paragraph 16, this type of approach was dealt with as follows:
The accused's argument is found not on attempting to rebut the evidence tendered by the crown, but on raising questions and issues that although valid in a rhetorical sort of way add nothing to the issues that the trial judge had to address, and the manner in which he did so. Such a manner of attack was dealt with by this court in R. v. Drury (L.W.) et al. (2000), 150 Man. R. (2d) 64, 2000 MBCA 100. Huband J.A. addressed the issue as follows (at paragraph 92):
This is a question that only the accused Drury could answer, but he elected not to testify. Raising the question and inviting the court to speculate as to the answer does nothing to overcome the body of evidence which overwhelmingly points to guilt.
23 I am inclined to the view that the Manitoba Court of Appeal's reasoning applies in the circumstances of this case. However in the end it does not matter for the purpose of the disposition of this appeal.
24 In his companion reasons which I have had the opportunity of considering, Chief Justice R.R. McMurtry concludes that there was no evidentiary basis upon which the trial judge could conclude beyond a reasonable doubt that the particular drugs in question were in the apartment prior to Ms. Pham's departure. He would therefore allow the appeal. Respectfully I would dismiss the appeal even assuming that Mr. Nguyen or someone else brought the drugs into the apartment during Ms. Pham's absence. The evidence and the trial judge's findings support the conclusion that she was in constructive and/or joint possession of the cocaine even if that were so.
25 The following findings and evidence regarding both knowledge and control of the 9.8 grams of crack cocaine by the accused support that conclusion:
(a) the accused elected to use her home as a drug trafficking center, and was a key figure in the trafficking scheme carried on out of that center; she continued to be the occupant of unit #4 and retained control of the apartment while she was away;
(b) both the black cloth purse containing the drugs and the pink make-up bag containing the money were found in full view in the bathroom, a common area of the apartment;
(c) the cloth purse and the make-up bag are consistent with the personal toiletries of the appellant and were found amidst her personal toiletries and make-up;
(d) there was no evidence of any men's toiletries in the bathroom;
(e) the main bedroom was littered with woman's clothing, contained documents (including a passport) in Ms. Pham's name, and was the source of drug-related "dime bags" and cut up newspapers and grocery bags of the type used to wrap a 40 piece of crack cocaine;
(f) the circumstantial evidence supported as the only logical inference a consistent awareness of, and participation in, all that occurred in her home on the part of Ms. Pham, and demonstrated much more than a quiescent or passive knowledge of the drugs, as well as an element of control over them;
(g) the role of the accused in the trafficking scheme strongly suggested power and authority over the disposal of the cocaine found, and an ability to withhold consent to the keeping of any drugs in her home; and
(h) Mr. Nguyen either filled Ms. Pham's shoes as the primary distributor during her absence or she and Mr. Nguyen jointly operated the trafficking scheme.
26 In my view the foregoing provided ample basis to found an inference of the requisite knowledge and supported the trial judge's finding that the appellant had sufficient knowledge and control to constitute constructive possession of the cocaine either personally or jointly with Nguyen.
28 In Grey, the accused was convicted of possession of crack cocaine for the purpose of trafficking. The police found the cocaine hidden in the bedroom of his girlfriend's apartment. The case against the accused rested principally on his regular occupancy of his girlfriend's apartment (i.e. 3 or 4 nights a week) and on the presence of his clothing and other belongings in the bedroom where the crack cocaine was found. The above evidence was found to be insufficient to infer knowledge in that:
(1) there was no direct evidence of the appellant's knowledge. The Crown did not have a witness who could state affirmatively that the appellant knew about the cocaine;
(2) the drugs seized by the police were not in plain view, they were hidden;
(3) the apartment was rented by the co-accused;
(4) other persons frequented the apartment; and
(5) the appellant was not a permanent occupant.
29 In Sparling the accused entered into a joint lease and was a full time tenant. The drugs were in full view on the coffee table. This Court agreed with Watt J. that direct evidence of knowledge was not essential and that knowledge could be established by circumstantial evidence. Sparling is closer to the facts of this case than Grey. (emphasis added)
47The evidence deemed sufficient on appeal in Pham to support a reasonable inference that Ms. Pham had the requisite knowledge and control, and therefore had constructive and/or joint possession of the cocaine was determined despite her 32 hour absence from the apartment and even assuming that during that absence, Mr. Nguyen or someone else brought drugs into the apartment. Notwithstanding those facts, the court determined there was sufficient circumstantial evidence to support the reasonable inference of knowledge and control was articulated as follows.
Analysis of Evidence
Analysis of Evidence
48There is evidence of the next door neighbor landlord speaking to Ms. Bourdeau regularly outside the 40 Starwood Road residence.
49The evidence presented by the Crown includes testimony that police on January 10, 2014 believed the male who entered and exiting the Porsche back seat after 1 or 2 minutes, which Porsche was then driven by the accused male and containing a young woman with long brown hair and olive complexion, was a drug transaction. There is evidence of several other short encounters with males beside or inside Mr. Masilamany’s Porsche on other dates.
50Officer Arsenault testified that she on January 16, 2014 during surveillance of Mr. Masilamany observed him and a female with light skin and long brown curly hair who was possibly Caucasian or Spanish, enter together into a Walmart store and go to the shelving section therein.
51Police in executing the warrant inside 40 Starwood on January 16, 2014, testified as to the following observations and finding the following items. These constitute further evidence to consider as to possible inferences which may reasonably be drawn:
(a) One officer testified there was a strong odour of marijuana upon entering 40 Starwood;
(b) Ms. Boudreau’s current passport and picture with shoulder length hair, her birth certificate, social insurance card, credit card, library card and a cheque book in her name were located in a plastic bin in the upstairs master bed room;
(c) A second bin in the master bedroom contained men’s clothing, the SIN card and three TD Canada Trust access cards in the name of the male accused;
(d) A box on the floor inside the master bedroom contained three non-functioning cellular telephones, a cellular phone sized digital scale and three SIM cards;
(e) A “Red Bull“ can which had been altered to contain an interior plastic bottle and screw top attached to the underside of the can top contained a SIM card and was located in the master bedroom;
(f) The floor of the master bedroom was covered with discarded clothing, mostly female with a few pieces of male clothing;
(g) Two handwritten letters, one signed by “Chantale” addressed to “Paul” and one signed by “Paul” addressed to “Hi Baby”, located inside a jewelry box in the second upstairs bedroom which contained the closet with women’s clothing;
(h) Two larger bags containing a total of almost one half pound of marijuana under the only bed in the residence in the master bed room. One of the bags was vacuum sealed;
(i) Seven bags of marijuana were found inside a paper shopping bag and were readily visible inside the closet of the TV room on the main floor;
(j) A bag of marijuana bud was on the coffee table in the TV room;
(k) The total quantity of above marijuana seized on January 16, 2014 was 1,913 grams or some 4.3 pounds;
(l) Two operating Blackberry cellular phones were located in the TV room, one on the coffee table and the second on the sofa;
(m) A 27.1 gram “ice cube” size block of mixed heroin and caffeine in a bag under a pillow on the TV room sofa;
(n) A bag of an unidentified white powder substance was located at the foot of the sofa in the TV room;
(o) An electronic scale the size of a thick pocket book with small metal weights and adjacent tweezers were located under the coffee table in the TV room;
(p) $8,000 of Canadian currency sorted by denomination was hidden under the kitchen stove;
(q) $725 dollars of Canadian currency wrapped around cards in the name of Mr. Masilamany was found under the floor carpet in front of the sofa in the TV room;
(r) Several empty clear plastic bags were found on the floor in front of the sofa in the TV room;
(s) An assortment of clear plastic bags including one with an emblem of an apple. The bag with that emblem was identified by the expert witness as the packaging symbol of a manufacturer of small clear plastic bags referred to by police as “dime bags”;
(t) A written lease of 40 Starwood to Mr. Masilamany as well as numerous pieces of correspondence and bills addressed to him at that address from service providers; and
(u) A hand operated hydraulic press attached to a workbench in the basement of 40 Starwood.
Conclusion
Conclusion
52The quantities of drugs inside several rooms of this two bedroom home occupied by Ms. Boudreau, the open visibility thereof, the smell of marijuana upon entering this home, the two digital scales, the multiple cellular telephones and the numerous pieces of personal documents belonging to the female accused create a basis to draw reasonable, logical inferences regarding Ms. Bourdeau potential “possession” of the drugs.
53Relying upon the decision and reasoning in Pham, the above circumstantial evidence supports a logical and reasonable inference that Ms. Boudreau had sufficient knowledge and control of the marijuana and heroin seized in 40 Starwood on January 16, 2014 to potentially support a finding of constructive or joint possession pursuant to ss. 4(3)(ii) and (iii) of the Code.
54The heroin was less visible but was not hidden. The electronic scale in a cardboard box on the floor in the TV room with 5 and 10 gram weights, combined with a bag of white granular substance on the floor in a house containing numerous bags of visible marijuana, support drug related reasonable inferences of possession.
55The motion for an acquittal of counts 1 and 2 against Ms. Boudreau is dismissed.
56The $8,725 of Canadian currency seized was not visible upon police entry. $8,000 under the stove was clearly hidden. The remaining $725 was below the carpet in the TV room wrapped in cards bearing the name of Mr. Masilamany and was not visible.
57The circumstantial evidence as to inferring that Ms. Bourdeau had knowledge and some element of control as to this currency does not exceed prohibited conjecture and speculation.
58Ms. Bourdeau on this motion is acquitted of count number 4.
Mr. Justice Paul Kane
Released: February 08, 2017
CITATION: R. v. Masilamany, 2017 ONSC 947
COURT FILE NO.: 14-G1024
DATE: 2017/02/08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen
Applicant
– and –
P. K. Masilamany
C. M. Boudreau
Respondents
motion for directed verdict of aquittal
Kane J.
Released: February 08, 2017