R. v. Muelendyks, 2018 ONSC 2110

COURT FILE NO.: CR-17-90000279-00MO

DATE: 20180404

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MARK MEULENDYKS

Respondent

C. Otter, for the Crown Applicant

L. Shemesh, for the Respondent

HEARD: March 19,2018

Justice s. nakatsuru

Introduction

1The applicant seeks an order quashing a preliminary inquiry judge’s discharge of the respondent on a number of possession of drugs-related offences arising out of an execution of a search warrant. The applicant further seeks an order in the nature of mandamus directing the preliminary inquiry judge to commit the respondent to trial on these charges pursuant to s. 548(1)(a) of the Criminal Code.

Background

2The facts can be briefly stated. On March 7, 2016, the police executed a search warrant at a King Street West address where the respondent and a number of other individuals were found. Illegal drugs and drug paraphernalia were located in the apartment. The respondent conceded committal at his preliminary inquiry for the charges arising out of this search.

3The same day, the police searched a Stadium Road address, a small one bedroom condominium. Inside the unit was a Mr. Lariviere on a mattress with a dog. Scattered throughout the condominium in plain view were drugs and drug paraphernalia. It was the charges arising out of this search that are the subject matter of this review.

4The core issue at the preliminary inquiry was whether there was any evidence that a reasonable jury properly instructed in law could find beyond a reasonable doubt that the respondent had knowledge and control of the drugs found at Stadium Road. Given that the evidence lead at the inquiry was purely circumstantial, as it frequently is in such cases, the preliminary inquiry judge was permitted to engage in a limited weighing of that evidence: see R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828.

5The applicant submits that the preliminary inquiry judge committed jurisdictional error in discharging the respondent. As it is often contended on a review such as this, it is submitted that the preliminary inquiry judge did not consider the whole of the evidence and further erred in only preferring inferences consistent with innocence or choosing between competing inferences: see R. v. Kamermans, 2016 ONCA 117 at paras. 15-16; R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635; R. v. Dwyer, 2013 ONCA 368, [2013] O.J. No. 2554 (C.A.). On the other hand, the respondent submits that no such errors were made and that appropriate deference should be afforded to the preliminary inquiry judge.

6To begin, there is no question that the preliminary inquiry judge got the legal test correct. Indeed, she explicitly adopted all of the Crown’s written submissions in that regard. The issue is did she apply them properly?

7The question that needs answering upon a review such as this is not whether I would have committed the respondent. The Crown relied upon a body of evidence for committal including: (1) the evidence of the possession of the drugs by the respondent at the King Street address and the circumstances found in that unit including association with a co-accused whose name the Stadium Road unit was leased to; (2) similarities in drug packaging, drugs, and paraphernalia found at the King Street and Stadium Road units; (3) personal documents, a pill container, a box with chemicals, a backpack with a drug manufacturing manual, and an ODSP application form all of which had the respondent’s name associated with them; (4) a key fob found on a coffee table at King Street that opened the front door of the building at Stadium Road; (5) the overall openness and circumstances of the Stadium Road unit where Mr. Lariviere was found that the Crown submitted was being used as a “stash house”.

Standard of Review

8The test that I must apply on this application affords significant deference to the preliminary inquiry judge. Benotto J.A. said this about my role in R. v. Wilson, 2016 ONCA 235:

A preliminary inquiry judge commits a jurisdictional error by committing an accused when an essential element of the offence is unsupported by the evidence. However, that does not entail the reviewing judge asking whether she would have arrived at a different result. As the majority inR. v. Deschamplain, [2004] 3 S.C.R. 601, 2004 SCC 76 explained at para. 23: “[I]t would be improper for a reviewing court to intervene merely because the preliminary inquiry judge’s conclusion on sufficiency differs from that which the reviewing court would have reached”.

A preliminary inquiry judge’s determination is therefore entitled to the greatest deference.

See also R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804 at para.48.

9In R. v. Deschamplain, a Crown appeal of a discharge, Major J. stated at para. 23:

…Conversely, it is not a jurisdictional error for the preliminary inquiry judge, after considering the whole of the evidence and where there is an absence of direct evidence on each essential element of the offence, to erroneously conclude that the totality of the evidence (direct and circumstantial) is insufficient to meet the test for committal and to consequently discharge the accused under s. 548(1)(b): see Arcuri, supra, at paras. 21-23; Russell, supra, at para. 26. In that situation, it would be improper for a reviewing court to intervene merely because the preliminary inquiry judge's conclusion on sufficiency differs from that which the reviewing court would have reached.

Analysis

10With respect to the applicant’s submission that the preliminary inquiry judge chose between competing inferences or only chose inferences consistent with innocence, much depends upon an analysis of the preliminary inquiry judge’s reasons. The crucial issue was succinctly stated in this way in R. v. Gianchinin-Belen, [2006] O.J. No. 1592 (C.A.) at para. 3:

The issue presented is one of interpreting the preliminary inquiry judge's reasons and determining whether she weighed the evidence and made a finding based on her view of the strength of the competing inferences, or limited herself to assessing whether the circumstantial evidence was capable of giving rise to an inference of knowledge.

11Possession cases like this can be difficult cases. Knowledge and control are often based entirely on circumstantial evidence. The degree and nature of the evidence will vary substantially from case to case. Proof of possession is very fact driven and it is the cumulative effect of all the relevant evidence that must be considered. The task of the preliminary inquiry judge is to properly distinguish between reasonable inferences and conjecture. Experience shows that reasonable and capable jurists may differ on the dividing line between the two.

12In my opinion, this application by the Crown shares some similarity with that heard by Clarke J. in R. v. Andrade, 2016 ONSC 6110 at paras. 14-20. Like Clarke J., I agree that within a preliminary inquiry judge’s reasons, one can pick isolated phrases or wording that criticism can be levied against; alleging for instance that the preliminary inquiry judge chose inferences only favourable to the respondent. However, it is a full and fair reading of the decision that matters. I agree with Clarke J.’s emphasis on this point in Andrade. What must be looked at is the entirety of the preliminary inquiry judge’s decision.

13When I do, I find that she did not fall into the errors argued by the Crown. Despite the able submissions of Ms. Otter, I find that when the preliminary inquiry judge’s decision is viewed as a whole, she did not improperly weigh the inferences, choose between competing inferences, or usurp the role of the trier. The preliminary inquiry judge had the benefit of extensive written submissions from the parties. In her decision, she accepted the respondent’s list of matters to which the applicant had not presented any evidence such as the lack of any evidence placing the respondent near or at the Stadium Road premises proximate to the execution of the search warrant. This was not a matter of weighing inferences; it was simply acknowledging the lack of evidence presented by the Crown. The preliminary inquiry judge then assessed the evidence relied upon by the Crown and some of the case law presented to her. In her view, the documentary evidence, the real evidence, and the overall circumstances relied upon by the Crown was not extensive and that close examination of that evidence did not connect the respondent to the Stadium Road unit. She distinguished the Crown’s case law factually. When looked at as a whole, the preliminary inquiry judge did not draw inferences of fact from the evidence, draw only inferences of innocence, or describe her inference drawing in a qualitative sense like it being difficult or easy.

14While narrowly focusing on certain portions of the reasons could lead to the criticism that the preliminary inquiry judge was improperly weighing the evidence, looked at as a whole, the analysis done was the determination of what was an available reasonable inference and what was speculation and conjecture. The preliminary inquiry judge found that any inference that the respondent had knowledge and control of the drugs found at the Stadium Road unit was not reasonable. This was something she was entitled to do.

15In the penultimate paragraphs of her reasons (paragraphs 17 and 26), the preliminary inquiry judge concludes:

I find that the evidence adduced does not come close to providing sufficient evidence of Mr. Meulendyks being connected to the 90 Stadium Rd., Unit 1808, address so as to establish him having the necessary knowledge and control of the drugs, to find him in possession of them. At best, one might conclude that he might have been there at some unknown point or points in time but it is too huge an inferential leap to be made from that possible conclusion to him being so connected to the unit at the time the search warrant was executed that he could be found to have had the requisite knowledge and control to constitute possession of the drugs found therein. [Emphasis added.]

Given my findings regarding the lack of evidence to support any inference of connection of Mr. Meulendyks to the Stadium Rd. address at the time of the execution of the search warrant, there is no need to address Ms. Otter’s comments at para. 33 of her written submissions…

16Trotter J. (as he then was) uses very much the same language and analysis when he dismissed a Crown application for certiorari in R. v. Allison, 2016 ONSC 3073 at para. 19:

The Crown's main pitch is that, because Mr. Allison was in the apartment that day and his personal documents were found in a box near the futon, the futon was his bed and the tray table was his "night table." From this, the Crown contends that it can be inferred that everything in proximate the futon (shoes, ball caps, the contents of the bin) belonged to him. More specifically, it is argued that it can reasonably be inferred that Mr. Allison was aware of and exercised control over the contraband in the bin: R. v. Bui (2014), 2014 ONCA 614, 14 C.R. (7th) 149 (Ont. C.A.), at paras. 34 to 36. But his conclusion rests on a string of inferential leaps: see R. v. Savoury, [2008] O.J. No. 2896 (S.C.J.). The preliminary inquiry judge did not err by dismissing this chain of reasoning as being speculative (as opposed to refusing to draw permissible inferences favourable to the Crown). [Emphasis added.]

17In essence, the preliminary inquiry judge found based upon the whole of the evidence, that proof of knowledge and control of the drugs found at Stadium Road by the respondent was speculative. This was within the limited role of weighing of the evidence as articulated in Arcuri.

Failure to Consider the Whole of the Evidence

18In addition, the applicant submits that the preliminary inquiry judge made a jurisdictional error by failing to consider the whole of the evidence: see R. v. Deschamplain. It is submitted that in coming to the conclusion outlined in the passage above, the preliminary inquiry judge ignored two dated documents, the ODSP application and the box with the sodium hydroxide which both carried February dates. By referring to the fact the respondent may have been there “at some unknown point or points in time”, the applicant argues that the preliminary inquiry judge did not consider this important evidence. Further, it is argued that she ignored the evidence of the key fob for the Stadium Road building located on the coffee table at King Street.

19I disagree with these submissions. Firstly, these submissions must be viewed in context. The preliminary inquiry judge had fulsome written submissions. Secondly, she reserved and gave considered written reasons for her decision. Thirdly, in her reasons, she does refer to both the ODSP application and the box of sodium hydroxide. She specifically notes that for the latter that the ship date on the box was February of 2016. With respect to the ODSP application, she specifically referred to the fact it was dated February 3, 2016. I find that when the preliminary inquiry judge referred to the fact that the respondent was there at some unknown point or points in time, she was not ignoring this evidence. She explicitly referred to them as evidence potentially connecting him to the Stadium Road address. In my view when she made reference to the inference that the respondent may have been there at some “unknown” point(s) in time, she was simply referring to the fact that the dates on these documents do not mean that the respondent was at the unit on those dates. She came to the conclusion there was no evidence beyond speculation regarding exactly when he was there. At paragraph 23 of her reasons, she explicitly addresses the dates on the documents found in the unit when she states most of the documents that were dated could not be classified as having dates close in time to the date of the execution of the search warrant. Whether the dates on the documents were sufficiently proximate to provide a reasonable inference to help establish knowledge and control of the drugs is a matter of the sufficiency of the evidence. On this issue, the preliminary inquiry judge may have erred but she erred within her jurisdiction. She did not commit an error by failing to consider this evidence. She specifically alluded to in coming to her decision.

20Similarly with the key fob, the preliminary inquiry judge carefully considered the fob. When she did, she pointed out the lack of evidence connecting the keys on the fob to any address. She also pointed out the lack of evidence specifically connecting the fob to any of the individuals in the King Street unit at the time it was discovered by police. This is not a question of failing to consider the whole of the evidence. Rather it is the question of how she considered it. I have already rejected the applicant’s argument that the preliminary inquiry judge did so by making or choosing between available inferences.

21Most of the argument raised on the second alleged jurisdictional error re-treads the same ground as the first submission. That said, there is one final matter. The applicant points out that the preliminary inquiry judge did not consider the whole of the ODSP application which was placed into evidence. The application was 31 pages. The preliminary inquiry judge stated that two pages of the document were found in the backpack located at the Stadium Road address. This misstatement of the evidence no doubt came from the fact that color photos of only those two pages of the ODSP application found their way within the very thorough and helpful Crown written submissions. After some consideration, I find that no jurisdictional error was made by the preliminary inquiry judge in this regard. The Crown only relied on those two pages with the respondent’s name, address, particulars, and the date of the application on it. The Crown did not suggest there was anything of relevance in the other pages. The preliminary inquiry judge importantly understood the nature and relevance of the ODSP document from the pages she referred to. In all other ways, the preliminary inquiry judge did consider the whole of the evidence. In these circumstances, this misstatement of the evidence does not amount to jurisdictional error.

Conclusion

22In the final analysis, if any error was committed by the preliminary inquiry judge, it was an error regarding the sufficiency of the evidence. Plainly though that is an error within her jurisdiction.

23The application is dismissed.

Nakatsuru J.